Eder Bautista Hernandez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDER BAUTISTA HERNANDEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-340
Agency No.
A214-093-842
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 16, 2023**
San Francisco, California
Before: SILER, NGUYEN, and R. NELSON, Circuit Judges.***
Eder Bautista Hernandez, a native and citizen of Mexico, petitions for
review of a decision by the Board of Immigration Appeals (“BIA”) affirming the
* 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).
*** The Honorable Eugene E. Siler, United States Circuit Judge for the
Court of Appeals, 6th Circuit, sitting by designation.
FILED
OCT 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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immigration judge’s (“IJ”) denial of his motion to suppress and motion for a
continuance, and affirming his corresponding order of removal. We have
jurisdiction under 8 U.S.C. § 1252. Reviewing the agency’s factual findings for
substantial evidence and its legal conclusions de novo, see Flores Molina v.
Garland, 37 F.4th 626, 632 (9th Cir. 2022), we deny the petition for review.
1. The agency did not err in denying Bautista Hernandez’s motion to
suppress Forms I-213 and I-877 and to terminate proceedings. The exclusionary
rule generally does not apply to removal proceedings, except (1) when the agency
violates a regulation promulgated for the benefit of petitioners and the violation
prejudices the petitioner’s protected interests or (2) when the agency egregiously
violates a petitioner’s Fourth Amendment rights. Sanchez v. Sessions, 904 F.3d
643, 649 (9th Cir. 2018).
Bautista Hernandez has not shown a regulatory violation. Bautista
Hernandez contends that CBP violated § 287.8(b)(2) by detaining him well beyond
the “brief” detention permitted under the regulation. But § 287.8(b)(2) pertains to
interrogations and detention not amounting to arrest. CBP officers clearly arrested
Bautista Hernandez as soon as he attempted to smuggle his friend’s daughter
across the border.
Bautista Hernandez did not offer evidence demonstrating that the
information in Form I-213 was obtained through an egregious violation of the

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Fourth Amendment. See In re Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988)
(holding that the petitioner bears the initial burden to “come forward with proof
establishing a prima facie case” of a constitutional violation that would require
suppression of evidence). The mere fact that CBP officers interviewed Bautista
Hernandez more than 24 hours after first detaining him cannot, without some
further evidence of coercion, establish that his will was overborne. See
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973). Nor does the single
typographical error in the I-213 render the form inherently unreliable. See
Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995).
2. The agency did not violate Bautista Hernandez’s due process rights
during the administrative proceedings. The agency properly treated Bautista
Hernandez as an applicant for admission rather than a returning Legal Permanent
Resident because he engaged in an unlawful alien smuggling scheme after
departing the United States. 8 U.S.C. § 1101(a)(13)(C)(iii); see also Gonzaga-
Ortega v. Holder, 736 F.3d 795, 801 (9th Cir. 2013). The IJ did not violate
Bautista Hernandez’s due process rights by admitting the I-213 and I-877 into
evidence where the forms were probative, their admission was fundamentally fair,
and Bautista Hernandez did not show that the form contained information that was
inaccurate or obtained by coercion. Sanchez v. Holder, 704 F.3d 1107, 1109 (9th
Cir. 2012). Moreover, Bautista Hernandez had the opportunity to rebut the

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contents of the I-213 and I-877 by filing his own declaration or any other evidence
that could undermine the forms. He submitted no evidence. And because Bautista
Hernandez produced no evidence contradicting anything material in the forms, he
had no right to confront the officers who prepared the forms at a hearing. See
Espinoza, 45 F.3d at 311.
Finally, the agency did not violate Bautista Hernandez’s due process rights
when it denied his motion for a continuance because Bautista Hernandez failed to
show prejudice. Bautista Hernandez’s counsel never articulated how the
information in his A-File would differ from the information recorded by officers in
the I-213 and I-877, nor why she could not simply rely on a declaration from
Bautista Hernandez himself to establish his recollection of the relevant events.
Rendon v. Holder, 588 F.3d 669, 675 (2009) (“[Prejudice] means that the outcome
of the proceedings may have been affected by the alleged violation.”).
PETITION DENIED.

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