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Matter of E-R-M-F- & A-S-M-, Respondents
Decided August 11, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Until an alien who is arrested without a warrant is placed in formal proceedings by the
filing of a Notice to Appear (Form I-862), the regulation at 8 C.F.R. § 287.3(c) (2011) does
not require immigration officers to advise the alien that he or she has a right to counsel and
that any statements made during interrogation can subsequently be used against the alien.
FOR RESPONDENT: Douglas D. Nelson, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ana L. Partida, Assistant Chief
Counsel
BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.
PAULEY, Board Member:
In a decision dated April 14, 2010, an Immigration Judge terminated the
removal proceedings against both respondents. The Department of Homeland
Security (“DHS”) has appealed from that decision. The appeal will
be sustained as to the male respondent. The record of the female respondent
will be returned to the Immigration Judge without further action.
I. FACTUAL AND PROCEDURAL HISTORY
The respondents are a married couple who are natives and citizens
of Guatemala and lawful permanent residents of the United States. The
procedural history of their case is complicated.
In a Notice to Appear (Form I-862) dated December 5, 2004, the DHS
charged that the respondents were subject to removal under section
212(a)(6)(E)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(E)(i) (2000), for knowingly assisting another alien to enter the
United States in violation of law. In a decision dated March 2, 2007,
an Immigration Judge declined to terminate the proceedings, finding the
respondents removable based on statements they made during interrogation
at the border regarding their attempt to smuggle their nephew into the country.
The Immigration Judge ordered the respondents removed and denied their
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application for asylum and their request for withholding of removal under
sections 208 and 241(b)(3) of the Act, 8 U.S.C. §§ 1158 and 1231(b)(3)
(2006), respectively.1 The respondents appealed from that decision.
On November 30, 2007, we summarily affirmed the Immigration Judge’s
decision after rejecting the respondents’ brief as untimely.
The respondents filed a petition for review and a motion for stay
of removal with the United States Court of Appeals for the Ninth Circuit.
On September 29, 2008, the Ninth Circuit remanded the case to the Board for
consideration of the respondents’ untimely brief. We reinstated their appeal
on November 12, 2008.
On December 31, 2008, we vacated our November 30, 2007, decision
summarily affirming the Immigration Judge’s order of removal. We also
granted the respondents’ motion to remand the record to the Immigration
Judge in light of the Ninth Circuit’s decisions in Rodriguez-Echeverria
v. Mukasey, 534 F.3d 1047 (9th Cir. 2008), and Aguilar Gonzalez v. Mukasey,
534 F.3d 1204 (9th Cir. 2008).2 In Rodriguez-Echeverria, the Ninth Circuit
found that the alien’s overnight detention at the border qualified as an arrest
and that the arresting officers therefore had to comply with the advisal
requirements set forth in 8 C.F.R. § 287.3(c) (2004). The Ninth Circuit
remanded the record for the Board to determine in the first instance whether
8 C.F.R. § 287.3(c) required the arresting immigration officers to warn the
alien before interrogation that she had a right to counsel and that her
statements could be used against her and, if so, whether her statements should
be suppressed. Rodriguez-Echeverria v. Mukasey, 534 F.3d at 1051. The
court strongly suggested that we issue a precedent decision on this issue.
Upon the agreement of both parties, another Immigration Judge
administratively closed removal proceedings on March 10, 2009, pending the
Board’s review of Rodriguez-Echeverria. On April 10, 2009, the DHS filed
a motion to recalendar the respondents’ case in light of Samayoa-Martinez
v. Holder, 558 F.3d 897 (9th Cir. 2009), which the Ninth Circuit issued after
it remanded Rodriguez-Echeverria to the Board. In that case, the Ninth Circuit
held that the obligation to notify an alien of his rights under 8 C.F.R.
§ 287.3(c) does not attach until the alien has been arrested and formally placed
1
On March 2, 2007, the respondents withdrew their application pursuant to 8 C.F.R.
§ 1208.16(c) (2007) for protection under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10,
1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988). There
is consequently no issue before us today regarding that relief.
2
The DHS agreed with the respondents that a remand was warranted. We note that the
decision in Aguilar Gonzalez v. Mukasey is no longer relevant in this case.
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in proceedings. Samayoa-Martinez v. Holder, 558 F.3d at 901-02. The court
stated that formal proceedings commence with the filing of the Notice
to Appear. Id. The Immigration Judge granted the motion to recalendar.
On April 14, 2010, the Immigration Judge terminated the proceedings
against both respondents without prejudice, finding that the decision
in Samayoa-Martinez did not overrule or resolve the issue raised
in Rodriguez-Echeverria and was therefore not controlling. The
Immigration Judge acknowledged that the Board’s decision on remand
in Rodriguez-Echeverria was still pending and, because that decision likely
would have a direct impact on the respondents’ case, concluded that it would
be fundamentally unfair and a waste of resources to proceed without the
benefit of the Board’s guidance.
On May 13, 2010, the DHS appealed the termination of proceedings for
both respondents. On August 19, 2010, however, the DHS withdrew its appeal
regarding the female respondent. Pursuant to 8 C.F.R. § 1003.4 (2011), there
is nothing now pending before the Board regarding that respondent. Her
record will therefore be returned to the Immigration Judge without further
action. Accordingly, we will address the DHS’s appeal from the termination
of proceedings in the male respondent’s case and the Immigration Judge’s
denial of his asylum application.
II. ANALYSIS
A. Termination of Proceedings
The regulation at issue in this case provides in pertinent part as follows:
Except in the case of an alien subject to the expedited removal provisions
of section 235(b)(1)(A) of the Act, an alien arrested without warrant and placed
in formal proceedings under section 238 or 240 of the Act will be advised of the
reasons for his or her arrest and the right to be represented at no expense to the
Government. . . . The officer will also advise the alien that any statement made may
be used against him or her in a subsequent proceeding.
8 C.F.R. § 287.3(c) (emphasis added).
The DHS argues that under the holding in Samayoa-Martinez v. Holder,
558 F.3d at 901-02, the respondent’s statement during interrogation that
he knowingly used his son’s United States birth certificate to try to smuggle
his nephew into the country is admissible because 8 C.F.R. § 287.3(c) requires
notice of the alien’s procedural rights only after a Notice to Appear has been
filed.
The respondent, relying on a brief previously submitted to the Immigration
Judge, argues that his case is factually similar to Rodriguez-Echeverria.
In particular, the respondent asserts that, like the alien in that case, his liberty
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was restricted when he was detained at the border and that he should have been
advised of his rights prior to any questioning.
The Form I-213 (Record of Deportable/Inadmissible Alien), the contents
of which the respondent does not contest, indicates that he was referred
to secondary inspection on December 5, 2004, where he admitted that
he knowingly used his son’s birth certificate to try to smuggle his nephew into
the United States. The documents of record show that the respondent was
arrested approximately 8½ hours after applying for admission, but they do not
indicate that the officers informed the respondent that he had the right to have
an attorney or that his statements could be used against him. Thus, according
to the respondent, the Form I-213 should be suppressed.
We agree with the DHS. The phrases “arrested without a warrant” and
“placed in formal proceedings” in 8 C.F.R. § 287.3(c) describe the subset
of aliens who “will” be given advisals. Thus, under the plain language of the
regulation, an alien who is arrested without a warrant is not entitled to advisals
until he or she is “placed in formal proceedings.” We therefore read the
current regulation to require the initiation of formal proceedings as a necessary
precondition to the mandatory issuance of the advisals.3 See Matter of E-L-H-,
23 I&N Dec. 814, 823 (BIA 2005) (citing Matter of Artigas, 23 I&N Dec.
99 (BIA 2001), and stating that under the elemental rules of construction,
we apply the plain meaning of regulatory provisions).
As the Ninth Circuit found in Samayoa-Martinez v. Holder, 558 F.3d at 902,
the history of the regulation supports this conclusion. See Matter of F-P-R-,
24 I&N Dec. 681 (BIA 2008) (relying on regulatory history to interpret the
meaning of a regulation). In Matter of Garcia-Flores, 17 I&N Dec. 325, 326
(BIA 1980), we quoted the 1977 version of 8 C.F.R. § 287.3, which provided
in relevant part:
An alien arrested without warrant of arrest shall be advised of the reason for his arrest
and his right to be represented by council [sic] of his own choice, at no expense to the
Government. He shall also be adivsed [sic] that any statement he makes may be used
against him in a subsequent proceeding and that a decision will be made within
24 hours or less as to whether he will be continued in custody or released on bond
or recognizance.
We noted there that this earlier version of 8 C.F.R. § 287.3 was unclear
regarding whether the advisal of the right to counsel was required at the onset
3
We ultimately reached the same conclusion in our unpublished decision in Matter
of Rodriguez-Echeverria. The alien in that case had given the statements she sought
to suppress before the Notice to Appear was filed and therefore before the initiation
of formal removal proceedings. Moreover, she was given the required advisals upon being
served with the Notice to Appear. Consequently, we concluded that her statements were not
obtained in violation of 8 C.F.R. § 287.3.
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of the interview or only after it was determined that a prima facie case
of deportability existed. Id. at 327 n.3.
The regulation was amended in 1979 to specify that “[a]fter the examining
officer has determined that formal proceedings under section 236, 237, or 242
of the Act, will be instituted, an alien arrested without warrant shall
be advised” of his rights. 8 C.F.R. § 287.3 (1980). In 1997, the regulation was
amended to its current form to change the timing of the required advisals from
the point at which the officer determined that proceedings “will be instituted”
to the time when the alien is actually “placed in formal proceedings.” See
Inspection and Expedited Removal of Aliens; Detention and Removal
of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg.
10,312, 10,390 (Mar. 6, 1997) (codified at 8 C.F.R. § 287.3(c) (1998)).4
In this case, the respondent gave his statement to the interviewing
immigration officers on December 5, 2004. The Notice to Appear was issued
on December 5, 2004, but was not filed until January 13, 2005. Thus, the
statement was made before the initiation of formal removal proceedings.
Moreover, because the required advisals are contained in the Form I-862, the
respondent was advised of his rights when he was served with the Notice
to Appear. We therefore conclude that the respondent’s statements were not
obtained in violation of 8 C.F.R. § 287.3(c) and that the documents containing
his statements are admissible in removal proceedings. Samayoa-Martinez
v. Holder, 558 F.3d at 901-02. We note in this regard that the respondent did
not object to the admission of the Form I-213 during his removal proceedings.
We are also unpersuaded by the respondent’s argument that his case
is factually similar to Rodriguez-Echeverria. As we stated previously, the
record indicates that the respondent was referred to secondary inspection,
where he admitted that he knowingly used his son’s birth certificate to try
to smuggle his nephew into the United States. Although he was arrested
approximately 8½ hours after applying for admission, this is far different from
the situation of the alien in Rodriguez-Echeverria. In that case, the alien had
been arrested 16 hours before she gave her statement, during which time she
“was placed in a locked room overnight and made to remove her shoes and
belt, actions which undoubtedly ‘restrain the freedom of an individual . . .
to walk away.’” Rodriguez-Echeverria v. Mukasey, 534 F.3d at 1051 (quoting
8 C.F.R. § 287.8(b)).
Furthermore, regardless of whether there are factual similarities,
Rodriguez-Echeverria does not require immigration officers to give the
4
In Samayoa-Martinez v. Holder, 558 F.3d at 902, the Ninth Circuit also concluded that the
1997 revisions to 8 C.F.R. § 287.3 superseded our holding in Matter of Garcia-Flores,
17 I&N Dec. 325, that an immigration officer violates 8 C.F.R. § 287.3 when he fails to give
an alien the advisals after the alien is arrested.
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pertinent advisals before the initiation of formal immigration proceedings.
Rather, the Ninth Circuit held only that the general provisions for disposition
of cases of aliens arrested without warrant under 8 C.F.R. § 287.3 applied
because the alien’s overnight detention at the border was a warrantless arrest.5
Importantly, however, the Ninth Circuit remanded the case to the Board
to decide in the first instance whether 8 C.F.R. § 287.3 requires that advisals
be given before an immigration officer interrogates an alien. We conclude that
the regulation only requires immigration officers to advise the alien of his
or her rights after the alien is placed in formal proceedings by the filing
of a Notice to Appear.
The Immigration Judge determined in his March 2, 2007, decision that the
Form I-213 clearly established the respondent’s inadmissibility on the alien
smuggling charge. We agree. For the reasons stated above, we conclude
that the proceedings against the respondent were incorrectly terminated
on April 14, 2010. The DHS’s appeal will therefore be sustained.
B. Asylum
Because we previously vacated our November 30, 2007, decision summarily
affirming the Immigration Judge’s denial of relief and reinstated the
respondent’s appeal, we now address his challenge to the Immigration Judge’s
March 2, 2007, determination that he did not sufficiently demonstrate past
persecution or a nexus between the harm experienced and a protected ground.6
In this regard, we note that the Immigration Judge made the following findings
of fact concerning the relevant aspects of the respondent’s asylum claim.
Except with respect to the issue of the alleged persecutors’ motivation,
addressed below, the respondent does not assert that the Immigration Judge’s
factual findings are clearly erroneous. Nor do we discern any such error. See
8 C.F.R. § 1003.1(d)(3)(i) (2011).
During the 1960s, the respondent’s father was a member of the judicial
police in Guatemala. The respondent’s father was aware of, and was set
to disclose, the problem of public corruption. In 1966, the respondent’s father
5
We also note that mere referral to secondary inspection does not constitute an arrest. For
example, the Ninth Circuit has stated that “[d]etention and questioning during routine
searches at the border are considered reasonable within the meaning of the Fourth
Amendment.” United States v. Zaragoza, 295 F.3d 1025, 1027 (9th Cir. 2002) (citing
United States v. Espericueta-Reyes, 631 F.2d 616, 622 (9th Cir.1980), and United States
v. Montoya de Hernandez, 473 U.S. 531, 539-40 (1985)).
6
The respondent’s application was initially filed before May 11, 2005, and is therefore not
governed by the provisions of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13,
119 Stat. 302. See Matter of S-B-, 24 I&N Dec. 42, 45 (BIA 2006).
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and an aunt were shot to death as they were walking in the street. The
respondent believed that the Guatemalan Government was responsible for the
shooting because in the days prior to the incident, the family saw a military
vehicle roaming the area around the family’s residence.
The respondent entered a Government military academy as a cadet in the
1980s. Shortly after enrolling, he started to receive notes in his personal
belongings signed by the Guerilla Army of the Poor (“EGP”) asking for
information about the location of keys to an arms storage warehouse. The
notes threatened harm to the respondent and his family if he did not collaborate
with the EGP. The respondent agreed to cooperate, but stopped after 1½ years
because he realized that the EGP was opposed to the Government. After
he stopped cooperating, the EGP delivered more aggressive notes to his home
threatening harm to him and his family.
In 1985, the respondent withdrew from the military academy and moved
in with his mother. The threatening notes continued. To protect his mother
from harm, the respondent decided to move in with his then fiancée’s family
in 1988. That year he learned that his mother had been killed by a blow to her
head and that her home had been burned down. The respondent believed that
the EGP was responsible for his mother’s death. Notes discovered at the scene
of the fire warned that the same would happen to other family members.
The respondent then left Guatemala.
The respondent argues that the death of his father in 1966 by Government
agents, the threats to the respondent by the EGP guerilla group, and the killing
of his mother in 1988, considered cumulatively, amount to past persecution.
He also asserts that the EGP guerilla group interpreted his decision to stop
cooperating with them as a political act, which created a nexus for purposes
of the Act.
We find no reason to disturb the Immigration Judge’s ruling. First, even
if the Government killed the respondent’s father in 1966 to keep him from
speaking out against its corruption, the record does not indicate that the
Government carried a vendetta against the respondent or his family members.
In fact, there is no indication that the Guatemalan Government threatened
or harmed the respondent or his family. We are not persuaded that the father’s
death in 1966 warrants a determination of past persecution or a well-founded
fear of persecution under the Act with respect to the respondent.
Second, the record does not indicate that the EGP imputed a political
opinion to the respondent or threatened him because he was following in his
father’s footsteps by enrolling in a Government military school. The record
shows that the EGP initially left threatening notes for the respondent in his
belongings at military school to get information regarding the location
of Government arms. The respondent initially agreed to cooperate with the
EGP guerilla group and did so for 1½ years. When he decided to stop
cooperating, the EGP resumed their threats by leaving threatening notes at his
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house. The notes, which were sometimes anonymous and sometimes “signed
by the EGP,” indicated that the respondent should be “fighting for the poor”
instead of “helping and cooperating with the government.” However, the
content of the notes is not sufficient to substantiate the respondent’s assertion
that the EGP’s threats were motivated, even in part, by an actual or imputed
political opinion.
We emphasize that a “persecutor’s actual motive is a matter of fact
to be determined by the Immigration Judge and reviewed by us for clear
error.” Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011). As the
Immigration Judge found, the resumption of the threats seems to indicate that
the EGP was angered by the respondent’s decision to stop helping them, but
it does not sufficiently support the respondent’s claim that the EGP interpreted
his decision not to help them as a pro-Government political stance. In this
regard, we note that the respondent did not claim to have spoken out against
the EGP.
We acknowledge that the respondent’s mother was apparently killed
by a blow to the head and that her home was burned down. We also
acknowledge that a note discovered after her death referenced her killing and
intimated that the respondent would suffer the same fate. The respondent’s
mother’s death was tragic and horrifying. Nonetheless, based on the record
before us, the threatening notes appear to relate to the respondent’s decision
not to cooperate with the EGP rather than being on account of an actual
or imputed political opinion. Thus, we find no clear error in the Immigration
Judge’s finding that the respondent did not demonstrate that the threats
of harm were motivated by a protected ground. See INS v. Elias-Zacarias, 502
U.S. 478 (1992).7
For these reasons, we conclude that the respondent did not meet his burden
of proof to establish his eligibility for asylum.8 It follows that the respondent
also failed to meet the higher burden for withholding of removal under section
241(b)(3) of the Act.
7
In light of our conclusion, we need not address the respondent’s argument that the
Immigration Judge erred in denying his request for a grant of humanitarian asylum. We also
need not decide whether the Immigration Judge properly denied asylum in the exercise
of discretion.
8
We note that the Immigration Judge improperly stated that the facts did not “compel”
a finding of past or future persecution. Whether the facts of record compel a particular
outcome is an issue for the courts of appeals to decide in their review of Board decisions.
See, e.g., Prasad v. INS, 47 F.3d 336, 338-39 (9th Cir. 1995) (explaining the standard
of appellate review of Board decisions as set forth by the Supreme Court in INS
v. Elias-Zacarias, 502 U.S. at 479, 481, 483-84).
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III. CONCLUSION
Under 8 C.F.R. § 287.3(c), an alien who is arrested without a warrant must
be “placed in formal proceedings” by the filing of a Notice to Appear before
he is entitled to be advised that he has a right to counsel and that any
statements made during interrogation can subsequently be used against him.
Consequently, any statements made prior to the initiation of formal
proceedings are not obtained in violation of 8 C.F.R. § 287.3(c), and the fact
that no advisals were given at that time does not render the documents
containing those statements inadmissible in removal proceedings.
The respondent’s statements were made before the initiation of formal
removal proceedings and were therefore not obtained in violation of 8 C.F.R.
§ 287.3(c). Consequently, in the decision on March 2, 2007, the Immigration
Judge properly determined that the Form I-213 containing the respondent’s
statements was admissible and established his removability. Because the
proceedings against the respondent were incorrectly terminated in the April 14,
2010, decision, the DHS’s appeal will be sustained, the decision of the
Immigration Judge will be vacated, and the proceedings will be reinstated.
Furthermore, the respondent’s appeal from the denial of his applications for
relief will be dismissed, and he will be ordered removed from the United
States.
ORDER: The appeal of the Department of Homeland Security from the
termination of proceedings in the male respondent’s case is sustained, the
April 14, 2010, decision of the Immigration Judge is vacated, and the removal
proceedings against the male respondent are reinstated.
FURTHER ORDER: The male respondent’s appeal from the
Immigration Judge’s March 2, 2007, denial of relief is dismissed, and he
is ordered removed from the United States to Guatemala pursuant to the order
of removal issued on that date.
FURTHER ORDER: The record of the female respondent is returned
to the Immigration Judge without further action.
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