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Domingo Eugenio Lopez-Gabriel v. Eric H. Holder

September 2, 2011

DOMINGO EUGENIO LOPEZ-GABRIEL,
PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY
GENERAL OF THE UNITED STATES,
RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals.

The opinion of the court was delivered by: Colloton, Circuit Judge.

Submitted: June 14, 2011

Before COLLOTON, CLEVENGER,*fn1 and BENTON, Circuit Judges.

Domingo Eugenio Lopez-Gabriel, a native and citizen of Guatemala, petitions for review of a decision of the Board of Immigration Appeals ("BIA") dismissing his appeal from an Immigration Judge's ("IJ") order removing him from the United States. Lopez-Gabriel asserts that evidence of his alienage was obtained in violation of his rights under the Fourth and Fifth Amendments. He contends that the evidence should have been suppressed or, at a minimum, he should have been afforded an evidentiary hearing on his motion to suppress evidence. We deny the petition.

I. On January 15, 2008, police officer Brett Wiltrout of Worthington, Minnesota, arrested Lopez-Gabriel for "No Minnesota's Driver's License (No Proper Identification)" after a traffic stop. At the police station, agents from the United States Immigration and Customs Enforcement ("ICE") questioned Lopez-Gabriel. On January 17, 2008, ICE agents transferred Lopez-Gabriel to the ICE office in Sioux Falls, South Dakota, and questioned him further. Based on evidence obtained from the interrogations, the Department of Homeland Security ("DHS") commenced removal proceedings against Lopez-Gabriel pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). The DHS asserted that Lopez-Gabriel is a native and citizen of Guatemala, and that he was subject to removal because he was an alien present in the United States without being admitted or paroled.

Lopez-Gabriel moved to suppress all evidence that was obtained "as a result of [the] illegal stop, seizure, and interrogation" of him by Officer Wiltrout, and all evidence obtained from the "coercive, in-custody interrogations" of him between January 15 and 17, 2008. He also moved for an evidentiary hearing, for discovery, and to terminate his removal proceedings.

In support of his motions, Lopez-Gabriel submitted an affidavit that set forth his version of events. He asserted that on January 15, 2008, a police officer saw him at an intersection and pulled him over, even though he "had done nothing wrong." The officer, who was wearing a police uniform and had a handgun strapped to his belt, did not tell Lopez-Gabriel that he had the right to remain silent. Lopez-Gabriel averred that he did not feel free to leave, because the officer had signaled him with flashing lights to stop.

At the police station, officers told Lopez-Gabriel that he was getting a citation or ticket. The officers took money from Lopez-Gabriel "to pay for costs," but would not allow him to pay the ticket. ICE agents questioned Lopez-Gabriel at the jail, but did not inform him that he had the right to remain silent. According to Lopez-Gabriel, he felt that he had to answer the agents' questions because he was in jail.

After transferring Lopez-Gabriel to the ICE office in Sioux Falls, ICE agents questioned him without advising that he could remain silent. Because Lopez-Gabriel was under arrest and at the ICE office with several armed ICE agents, he felt that he must answer their questions. In conclusion, Lopez-Gabriel stated:

I feel that the police stopped me because I look Latino. I believe that if I were not Latino, the police would have let me pay the ticket and go home, or they would have just given me the ticket to pay later and let me go home. I do not believe that the police treated me the same way they treat white people who are in the same situation.

The DHS opposed Lopez-Gabriel's motion and submitted the police report of Officer Wiltrout. In the report, Wiltrout said that he stopped Lopez-Gabriel because Lopez-Gabriel's vehicle had a "heavily cracked" windshield. Wiltrout asked Lopez- Gabriel for a driver's license. Lopez-Gabriel stated that he did not have a license and gave the officer a Guatemalan identification card, which was "peeling" and "difficult to read." Wiltrout learned through police radio communications that Lopez-Gabriel previously had received a citation for "No Minnesota Driver's License" from the Worthington Police Department. Because Lopez-Gabriel could not prove the authenticity of his identification card, Officer Wiltrout arrested Lopez-Gabriel for "No Minnesota Driver's License (No Proper Identification)" and took him to the Nobles County jail. According to Wiltrout, authorities gave Lopez-Gabriel a ticket and the option to post bond, provide proper identification, or appear before a judge.

The IJ denied Lopez-Gabriel's motions on February 10, 2009, ruling that he had not presented a prima facie case of a Fourth or Fifth Amendment violation. On March 19, 2009, the IJ ordered Lopez-Gabriel removed from the United States. Lopez- Gabriel appealed this final decision to the BIA. The BIA affirmed and dismissed Lopez-Gabriel's appeal. The BIA determined there was nothing in the record to support Lopez-Gabriel's assumption that Officer Wiltrout stopped Lopez-Gabriel based on his race, and that he thus failed to show an egregious constitutional violation. The BIA also concluded that the actions of the ICE agents, as described by Lopez- Gabriel in his affidavit, did not support a claim of improper conduct, so there was no reason to call the agents to testify. Because the DHS met its burden of proving alienage, and Lopez-Gabriel failed to provide evidence of his legal presence in the United States, the BIA affirmed the IJ's removal decision.

II. We review the BIA's legal conclusions de novo. Ntangsi v. Gonzales, 475 F.3d 1007, 1011 (8th Cir. 2007). The underlying factual findings "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); Chen v. Mukasey, 510 F.3d 797, 800 (8th Cir. 2007).

Lopez-Gabriel first argues that he established a prima facie case that Officer Wiltrout stopped and arrested him based on race in violation of his constitutional rights. On that basis, he contends that the BIA should have suppressed the resulting evidence or at least afforded him an evidentiary hearing. He also contends that the interrogations by local police and ICE officers caused him to make ...


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