Iracyneyde Barbosa Pires v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRACYNEYDE BARBOSA PIRES,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 14-71041
Agency No. A099-245-355
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 26, 2017**
San Francisco, California
Before: SILVERMAN, TALLMAN and N.R. SMITH, Circuit Judges.
Iracyneyde Barbosa Pires, a native and citizen of Brazil, petitions for review
of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s decision denying her motion to suppress evidence and
terminate removal proceedings, and ordering removal. We have jurisdiction
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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pursuant to 8 U.S.C. § 1252. We review de novo the denial of a motion to
suppress and claims of constitutional violations. Martinez-Medina v. Holder, 673
F.3d 1029, 1033 (9th Cir. 2011). We review for substantial evidence the agency’s
factual findings. Aguilar Gonzales v. Mukasey, 534 F.3d 1204, 1208 (9th Cir.
2008). We deny the petition for review.
The agency did not err in denying Barbosa Pires’s motion to suppress
evidence and terminate removal proceedings, where she did not demonstrate that
her statements to immigration officials at the border were obtained through an
egregious violation of the Fourth Amendment, see Lopez-Rodriguez v. Mukasey,
536 F.3d 1012, 1018 (9th Cir. 2008) (a violation is egregious if evidence is
obtained by a deliberate violation of the Fourth Amendment, or by conduct a
reasonable officer should have known is in violation of the Constitution), see also
Gonzaga-Ortega v. Holder, 736 F.3d 795, 801-04 (9th Cir. 2013) (legal permanent
resident treated as an applicant for admission under 8 U.S.C. § 1101(a)(13)(C)(iii)
for alien smuggling had no right to counsel at port of entry, and detention of 28
hours without any indication of physical abuse or threat was not coercive);
8 C.F.R. § 292.5(b) (providing the right to counsel during an examination except
for applicants for admission).
This court’s holding in Samayoa-Martinez v. Holder, 558 F.3d 897, 901-02
(9th Cir. 2009) forecloses Barbosa Pires’s contention that her statements were

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obtained in violation of 8 C.F.R. § 287.3(c) (“Formal removal proceedings do not
commence until the INS has filed an NTA in the immigration court.”).
Barbosa Pires does not raise, and therefore waives, any challenge to the
agency’s adverse credibility finding. See Lopez-Vasquez v. Holder, 706 F.3d 1072,
1079-80 (9th Cir. 2013). Substantial evidence supports the agency’s determination
that Barbosa Pires engaged in alien smuggling where she attempted to conceal the
smugglee inside the vehicle she was driving. See Sanchez v. Holder, 704 F.3d
1107, 1110 (9th Cir. 2012) (knowingly participating in and aiding the attempted
illegal entry is an affirmative act constituting alien smuggling); cf. Aguilar
Gonzalez 534 F.3d at 1209 (no affirmative act of alien smuggling where petitioner
did not provide her daughter’s birth certificate for use by another to enter the
United States, but merely acquiesced to its use).
PETITION FOR REVIEW DENIED.

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