Javier Antonio Hernandez- Segovia v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER ANTONIO HERNANDEZ-
SEGOVIA,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-72659
Agency No. A206-756-946
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 7, 2019
San Francisco, California
Before: PAEZ and BERZON, Circuit Judges, and FEINERMAN,** District Judge.
Javier Antonio Hernandez-Segovia petitions for review of the decision of the
Board of Immigration Appeals (“BIA”) dismissing his appeal. The BIA affirmed
the decision of the immigration judge (“IJ”) denying his motion to suppress the
Form I-870 credible fear interview notes and to terminate proceedings. We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
MAR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 8 U.S.C. § 1252, and we review only the BIA decision because it
conducted de novo review of the IJ’s decision. See Maldonado v. Lynch, 786 F.3d
1155, 1160 (9th Cir. 2015) (en banc). We deny the petition.
1. Hernandez-Segovia was arrested in June 2014 at Hidalgo, Texas by a
border patrol agent. Because he expressed fear of returning to El Salvador,
Hernandez-Segovia underwent a credible fear interview in August 2014 after
which an asylum officer determined that he had a credible fear of torture. The
Department of Homeland Security (“DHS”) initiated removal proceedings, relying
on the Form I-870 as proof of Hernandez-Segovia’s alienage. After the IJ denied
his motion to suppress the Form I-870, Hernandez-Segovia accepted a removal
order in lieu of applying for relief from removal.
2. In the context of civil immigration proceedings, the exclusionary rule
applies where the petitioner can show “egregious violations of [the] Fourth
Amendment or other liberties.” Gonzales-Rivera v. INS, 22 F.3d 1441, 1448 (9th
Cir. 1994). Hernandez-Segovia alleges that he was detained without first having
been asked by the border patrol agent for his country of birth or citizenship. But
we conclude on de novo review that this brief factual statement, without any
additional information surrounding the circumstances of his arrest, is insufficient to
meet his burden of establishing a prima facie case of a Fourth Amendment
violation, let alone an egregious Fourth Amendment violation. See id. at 1449

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(noting that “conduct that ‘shocks the conscience’ constitutes an egregious
constitutional violation”); see also Sanchez v. Sessions, 904 F.3d 643, 649, 653
(9th Cir. 2018).
3. Hernandez-Segovia’s due process challenge to the voluntariness of his
admissions during the interview is also unavailing. Although Hernandez-Segovia
was told that he had to answer the asylum officer’s questions to stop his
deportation, this advice does not, in of itself, suggest that he was “cajoled into
giving the officer[] a statement against his will.” Gonzaga-Ortega v. Holder, 736
F.3d 795, 800, 804 (9th Cir. 2013). Notably, Hernandez-Segovia was given the
opportunity to reschedule his interview in order to obtain an attorney or consultant,
but he insisted on proceeding with the interview without an attorney or consultant
present. There is no indication in the record that his statements were the product of
duress or coercion by the asylum officer. See Cervantes-Cuevas v. INS, 797 F.2d
707, 711 (9th Cir. 1985). We therefore affirm the BIA’s conclusion that his
admissions during the credible fear interview were voluntarily made.
Hernandez-Segovia’s other due process challenge—that the Form I-870’s
record is unreliable because it contradicts averments in his declaration—fails
because he has not shown “evidence of coercion or that the statements” recorded
on the Form I-870 are not his. Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir.
2012) (per curiam) (citation omitted). Accordingly, we conclude that admission of

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the Form I-870 was “fundamentally fair” and within the IJ’s discretion. Id.
4. Hernandez-Segovia also challenges the admissibility of his statements
based on two alleged regulatory violations: (1) DHS’s failure to inform him of the
availability of free legal services prior to his credible fear interview, and (2) DHS’s
failure to provide him the legal basis for his two-month detention. A regulatory
violation could render a removal order invalid if the regulation serves a purpose of
benefit to the noncitizen and prejudice from the violation can be shown. See
United States v. Calderon-Medina, 591 F.2d 529, 531–32 (9th Cir. 1979). As to
the first alleged violation, while the regulations provide individuals like
Hernandez-Segovia the opportunity to consult with any person, at no expense to
the government, prior to the credible fear interview, see 8 C.F.R. §§ 208.30(d)(4),
235.3(b)(4)(ii), DHS has no duty to inform noncitizens about the availability of pro
bono counsel until DHS has initiated formal proceedings and filed a notice to
appear with the immigration court. See 8 C.F.R. § 287.3(c); Samayoa-Martinez v.
Holder, 558 F.3d 897, 901–02 (9th Cir. 2009). As to the second alleged violation,
even assuming that DHS violated 8 C.F.R. § 287.3(d) in detaining Hernandez-
Segovia without issuing a detention order within 48 hours of arrest, he has not
demonstrated any prejudice from the failure to issue the order. See Calderon-
Medina, 591 F.2d at 532.
5. Finally, we find no merit to Hernandez-Segovia’s remaining claims.

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Neither the IJ nor BIA abused their discretion in ruling against him despite the
government’s failure to oppose his motion to suppress or his appeal. See Zetino v.
Holder, 622 F.3d 1007, 1012 (9th Cir. 2010). The BIA also did not err by
concluding that the IJ’s erroneous reference to a non-existent Form I-213 in her
removal decision was harmless; the IJ’s oral decision explicitly relied on the
“credible fear review documents,” and there was sufficient evidence in the record
to sustain the charge of removability.
Petition DENIED.

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