Turner, Christina E.

Hogar Hispano, Catholic Charities

6201 Leesburg Pike, Suite 307
Falls Church, VA 2204
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigation Appeals
Ofce of the Clerk
510 7 leesb11rg Pike. S11ite 2000
Fals Cl11rcl. Vrinia 22041
OHS/ICE Ofice of Chief Counsel WAS
901 Norh Stuar St., Suite 1307
Arlington, VA 22203
Name: MURILLO-MARTINEZ, ANGELA MARIE A089-839-693
Date of this notice: 1/11/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
Donna Car
Chief Clerk
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Cite as: Angela Marie Murillo-Martinez, A089 839 693 (BIA Jan. 11, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished
lS. Deparment of Justice
Executive Ofce fr Imigation Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 22041
File: A089 839 693 - Arlington, VA
Jn re: ANGELA MARIE MURILLO-MARTINEZ
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Christina E. Tuer, Esquire
ON BEHALF OF OHS: Marc Harrold
Assistant Chief Counsel
CHARGE:
JAN 112012
Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)
]
-
Present without being admitted or paroled
APPLICATION: Terination
The respondent appeals fom the Immigation Judge's August 19, 2010, decision denying her
motion to suppress evidence and terminate the removal proceedings against her, fnding her
removable, and granting voluntary departure under section 240B of the Immigration and Nationality
Act, 8 U.S.C. 1229c. The Department of Homeland Security (the "OHS") opposes the appeal. The
appeal will be dismissed.
The basic fcts in this case are not disputed (Tr. at 20-21). The respondent was the subject of
an anonymous complaint to the Virginia Department of Motor Vehicles (the "DMV") that she was
an alien without lawfl status in the United States (l.J. at 2). According to her motion to suppress,
a OMV ofcer came to her house on November 3, 2008. He showed her his badge and questioned
her about her driver's license. At the OMV ofcer's request, the respondent appeared at the OMV
the fllowing day to meet with him, bringing along her young daughter and a fiend to serve a an
interpreter. Two security ofcers escorted them to a room. The DMV ofcer questioned the
respondent about her driver's license and her immigration status, then lef the room and reted
with two Immigration and Customs Enforcement ("ICE") ofcers. According to the respondent, the
ICE ofcers showed her their badges and, when she said she needed to take her daughter to a
medical appointment, said she could not leave. The respondent states that the ICE ofcers separated
her fom her daughter and fiend and questioned her fr over 3 hours. The respondent signed a
Record of Swor Statement in Afdavit Form (For I-215C) that day, which states that she is a
national and citizen of Honduras.
The respondent wa issued a Notice to Appear on November 4, 2008, which charged her with
violating section 212(a)(6)(A)(i) of the Act, 8 U.S.C. 1182(a)(6)(A)(i), as an alien present in the
United States without being admitted or paoled. On November 10, 2009, the respondent fled a
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Cite as: Angela Marie Murillo-Martinez, A089 839 693 (BIA Jan. 11, 2012)
A089 89 693
motion to suppress evidence obtained as a result of te DMV and ICE detentions and to terinate
proceedings. The DHS opposed the motion. At a master calenda heaing on April 21, 2010, the
respondent denied all allegations ad the charge of removabilit (Tr. at 6-7). On August 19, 2010,
te Immigration Judge denied the motion to suppress and terminate, fund the respondent
removable, and ganted voluntary deparure.
On appeal, the respondent essentially reiterates the aguments in her motion befre the Immigation
Judge that the suppression of evidence is appropriate in imigation proceedings if egegious
violations of the Fourt Amendment or other liberties have occured. See INS v. Lopez-Mendoza, 468
U.S. 1032 (1984). She argues that her rights were egregiously violated when she was unlawflly
seized by a DMV ofcer who had no reasonable suspicion to detain and question her, and
subsequently when ICE relied on te infrmation obtained by the DMV ofcer to coercively detain
and interrogate her, so that the evidence obtained fom her detention and questioning is inadmissible.
The "exclusiona rule" arose in the context of criminal proceedings ad requires the suppression
in such proceedings of evidence that is the fruit of an unlawfl arrest or of other ofcial conduct
which violates the Fourth Amendment. In Lopez-Mendoza, however, the Supreme Court lef open
the possibility that the exclusionary rule might also apply in immigation proceedings involving
"egregious violations of Fourth Amendment or other liberties that might transgress notions of
fndamental firess ad undermine the probative value of the evidence obtained." Lopez-Mendoza,
supra, at 1050-51; see also Matter of Cervantes, 21 I&N Dec. 351 (BI 1996). In order to succeed
on a due process claim in the United States Court of Appeals fr the Fourth Circuit, the alien must
establish that "a defct in the proceeding rendered it fndamentally unfair" and tat the defct
prejudiced te outcome of the case. Anim v. Muksey, 535 F.3d 243, 256 (4th Cir. 2008); see also
Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980) (to be admissible in deportation proceedings,
evidence must be probative and its use fndamentally fir so as not to deprive respondents of due
process of law). The "fndamental firess" element is "closely related" to te reliability and
trustworthiness of the evidence. Amin, supra.
Even assuming, without deciding, that there was an unlawfl seizure in this case fr purposes
of analyzing the respondent's Fourth Amendment argument, we agree with the Immigration Judge
that the respondent has not shown that the method by which the evidence against her was obtained
was "egegious" (l.J. at 4). The respondent contends that the DMV offcer's conduct was egregious
because it was the kind of conduct that a reasonable offcer should have known violated the
Constitution. Specifcally, she agues that the DMV offcer kew afer his initial check of the DMV
computer databases that she had lawflly obtained her Virginia driver's license because the check
revealed that she had obtained the license in 2000, befre applicants were required to show proof of
lawfl presence. However, the egregiousness standad cited by the respondent - conduct a
reasonable offcer should know is in violation of the Constitution - was articulated by the United
States Court of Appeals fr the Ninth Circuit. See, e.g., Orhorhaghe v. INS, 38 F.3d 488, 493 (9th
Cir. 1994). The respondent did not cite - and we did not fnd - any Fourth Circuit cases applying this
standard in evaluating a motion to suppress evidence in immigration proceedings.
Moreover, the respondent's argument that a reasonable offcer should have known his conduct
was unconstitutional is premised on the notion that the DMV ofcer was investigating a violation
of Virginia Code section 46.2-328.1, which requires proof of legal presence in order to obtain (but
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Cite as: Angela Marie Murillo-Martinez, A089 839 693 (BIA Jan. 11, 2012)
A089 839 693
not to renew) a Virginia driver's license and became efective in 2004 (see Mot., tabs D, E). The
record, however, identifes te ofense under investigation as a violation of Virginia Code section
46.2-105.1, pertaining to the unlawfl procurement of a DMV document (see Mot., tab A). The
respondent did not meaningflly argue on appeal that she was detained by the OMV ofcer solely on
the basis of her race. See, e.g., Almeida-Amaral v. Gonzales, 461 F.3d 231, 235-37 (2d Cir. 2006)
(observing that a seizure that is not especially severe may qualif as an egregious violation if the stop
was based on race, but fnding petitioner's mere asertion, without more, that he was stopped on the
basis of race insufcient); Gonzalez-Rivera v. IS, 22 F.3d 1441 (9th Cir. 1994) (fnding a stop to
be an egregious constitutional violation where border patol stopped a deporee solely on the basis
of his Hispanic appearance). Under these circumstances, we do not fnd that the alleged violation
transgressed notions of fndamental fairess or undermined the probative value of the evidence
obtained. See Lopez-Mendoza, supra, at I 050-51.
We are not persuaded by the respondent's aguments that her arrest by ICE agents was an
egregious violation of her constitutional rights. As explained above, the respondent's contention that
her detention by the DMV offcer was unjustifed because he did not know of any fcts that would
lead a reasonable person to conclude that she had committed or was commiting a crime is fawed.
Additionally, we do not fnd that a three and a half hour detention violates 8 C.F.R. 287.8(b)(2),
which allows fr brief detentions by immigration ofcers fr questioning, or that the ICE agents used
coercive techniques to induce the respondent to waive her rights or make a statement, in violation
of 8 C.F.R. 287.8(c)(2)(vii).1 The respondent argues that separating her fom her young daughter
afer she had infored the ICE agents that she needed to take her to a medical appointment was
coercive. According to the respondent's statement, the ICE agents asked the fiend who
accompanied her to the OMV if he could stay with the child befre taking the respondent to another
location (see Mot., at tab B). The Form I-2 l 5C signed by the respondent states that she gave her
answers voluntarily (see OHS Br. Opp. R's Mot. to Suppress, tab A). There is no allegation of
physical abuse, denial of fod or drink, threats or promises, or interference with any attempt by the
respondent to exercise her rights. Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
We do not fnd these circumstances, without more, to be coercive or that the use of evidence
obtained under these circumstances would be fndamentally unfir. See, e.g., Matter of Garcia,
17 l&N Dec. 319, 328-29 (BIA 1980) (excluding statements obtained afer agents repeatedly ignored
detainee's request fr cousel); Matter of Toro, supra, at 344 (fnding no fndamental unfiress
where there was no evidence that the respondent's admissions were involuntary or otherwise afected
by the circumstances of her arest); see also Singh v. Muksey, 553 F.3d 207, 216 (2d Cir. 2009)
(observing that the Second Circuit has afrmed the denial of suppression motions based on
reliability where the evidence related to "simple, specifc, and objective fcts, e.g., whether a person
is a freig citizen" because such a fct is "not altered by coercive interrogation - a person either is
or is no. t a citizen of a particular country").
In addition, te statement was not taken in circumstances that undermine its reliabilit. For
example, the Fourth Circuit fund a Department of State document comprised entirely of multiple
hearsay statements and lacking sufcient verifing infrmation to contain insufcient indicia of
reliability and, as a result, that its use was fndamentally unfair. Amin, supra, at 257-58; see also
Singh, supra, at 214-16 (suppressing unreliable statement taken where petitioner was held fr 4 to
1 The respondent's citation to 8 C.F.R. 287.5(c)(vii) appears to be a typogaphical eror.
3
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Cite as: Angela Marie Murillo-Martinez, A089 839 693 (BIA Jan. 11, 2012)
Aos9 839 693
5 hours in the early moring so that he had not slept in 24 hours when released, was told that he
would be sent to jail, and may not have been infrmed of his rights). Here, the respondent does not
contend tat any of the infrmation in the Form I-215C is incorrect. Under these circumstances, we
conclude that the respondent's assertions do not establish regulatory or constitutional violations and
do not provide a basis to exclude evidence in these proceedings. Accordingly, we fnd no eror in
the Immigration Judge's decision to deny her motion to suppress evidence.
Lastly, we also fnd no eror in the Immigration Judge's deterination not to hold a fll
evidentiar hearing to deterine whether suppression was warranted in this case. Althoug there is
no right to a separate hearing on a motion to suppress evidence, Matter of Benitez, 19 I&N Dec. 173,
175 (I 1984), the August 19, 2010, hearing was devoted mainly to suppression arguments.
Furtermore, additional fct-fnding is not necessary because the fcts in this matter are not
disputed.
The Immigration Judge granted the respondent a 60-day voluntary departure period, conditioned
upon the posting of a voluntary departure bond in the amount of $500.00 to the DHS within fve
business days fom te date of the order (I.J. at 5; Tr. at 29). Efective January 20, 2009, pursuat
to 8 C.F.R. 1240.26(c)(3)(ii), an alien granted voluntar departure shall, within 30 days of fling
an appeal with th Board, submit sufcient proof that the required voluntary departure bond was
posted with the DHS, and if the alien does not provide timely proof to the Board, the Board will not
reinstate the period of voluntary departure in its fnal order. The record does not refect that the
respondent submitted timely proof of having paid the voluntary departure bond. The Immigation
Judge properly advised the respondent of the need to infrm the Board, within 30 days of fling an
appeal, that te bond has been paid (Tr. at 30). Therefre, the voluntary departure period granted
by the Immigration Judge will not be reinstated, and the respondent shall be removed fom the
United States pursuant to the Immigration Judge's alterate order. See 8 C.F.R. 1240.26(c)(3);
Mater of Gamero, 25 I&N Dec. 164 (BIA 2010).
ORDER: The respondent's appeal is dismissed.
FURTHER ORDER: The respondent is ordered removed to Honduras.
FOR THE BOARD '
4
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Cite as: Angela Marie Murillo-Martinez, A089 839 693 (BIA Jan. 11, 2012)

/-
U. S. DEFARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Arlington, Virginia
File A 89 839 693 Date: August 19, 2010
In the Matter of
ANGELA MARIE MURILLO-MARTINEZ IN REMOVAL PROCEEDINGS
Respondent
CHARGE: Section 212{a) { 6) {A) {i) of the INA - present
without inspection
APPLICATION: Motion to Terminate
APPEARANCES:
ON BEHALF OF RESPONDENT:
Christina E. Turner, Esquire
ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
Mark Harold, Esquire
ORL DECISION OF THE IMMIGRATION JUDGE
The Respondent was alleged to be a citizen of Honduras
and not a citizen or national of the United States, that she
arrived in the United States October of 1999 and was not admitted
or paroled after inspection by an Immigration officer. Respondent
denied the allegations and denied the charg based primarily on a
Motion to Suppress the evidence in the case, which is basically a
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statement taken from Respondent.

The basis for the Motion to Suppress is that Respondent
was apparently subjected to an anonymous complaint by someone to
the Department of Motor Vehicles of the Comonwealth of Virginia
that she was an illegal Alien who had a driver's license,
presumably illegally.
The Department of Motor Vehicles called her in and
investigated the matter. They determined that her Virginia
driver's license was legitimately issued, and that probably
should've been the end of it.
Whether because of some policy that the Department of
Motor Vehicles has or possibly just because the officer involved
felt the patriotic duty to report this, he determined that
Respondent didn't have any Immigration status and contacted the
Department of Homeland Security's Immigration and Customs
Enforcement (ICE) office.
An ICE officer went over to Respondent while she was
still in custody with DMV. He took her statement and determined
that she was from Honduras and had no legal status in the United
States.
Respondent, through counsel, argues that this was in
egregious violation of her rights, that once the OMV officer
determined that there was nothing wrong with her driver's license,
she should've been released and that should've been the end of it.
I'm not convinced that that's the case, although it may
A 89 839 693
2 August 19, 2010
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be the situation.
Sometimes local officers are authorized by the federal
government to enforce Immigration law.
I'm assuming, in this particular case, there being no
evidence before me that that's not true
J
that there's no particular
authorization by the federal government to the Department of Motor
Vehicles to enforce Imigration law. However, there is a memo
that was written by the Office of Legal Counsel of the Department
of Justice in the prior administration, which has never been
rescinded, that indicates that all state law enforcement officers
have an inherent right to enforce Immigration law. Obviously,
that's being contested right now in United States v. Arizona. And
we don't know how that's going to come out.
But in any event, the Department of Motor Vehicles
officer, either acting as a state law enforcement officer or even
acting as a private citizen, probably had a right to inform ICE of
his findings. Whether he had a right to hold Respondent in the
interim or not, I don't know. I will assume that he probably did
not. However, that is between Respondent and the Department of
Motor Vehicles.
I see no offense comitted by the Department of Homeland
Security in this matter. They were informed of a state of facts.
The sent an officer out and investigated it, determined that it
was true and placed Respondent in proceedings. That is what
they're supposed to do.
A 89 839 693 3 August 19, 2010
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The law, as I understand it, is pretty much as set out
in the DHS Brief in this case. I think that Mr. Harold may be
going too far when he argues that even egregious circumstances
would not result in the exclusion of evidence. Even if that is
dictum in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), it certainly
is stated in the BIA cases which are also cited in that Brief and
in the other Brief of Respondent. So I do believe that the
exclusionary rule would be implicated if there was truly egregious
or exceptional abuse in.this case. However, there is not. Even
if the Virginia officer was exceeding his authority, and I'm
assuming that he was, by holding Respondent, that would not be
@ - fb d t 1.
egregious abuse

such as to violate notions of fundamental fairness

and, therefore, there would be no opportunity to suppress the
evidence in this case, which otherwise was fairly improperly
obtained by the ICE officer.
Based on that, and on the presumption in Section 291 of
the Act that Respondent, having been proved to be an Alien, must
prove the time, place and manner of her entry into the United
States, I find that the allegations are correct and the charge
against Respondent under Section 212(a) ( 6) {A) (i) of the Act will
be sustained.
Respondent declined to designate a country of removal,
and the Court designates Honduras.
Respondent applied for the relief of Voluntary Departure
only. That will be granted to her under the most lenient
A 89 839 693 4 August 19, 2010
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/
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circumstances that the Court is able in a situation such as like
this where the right to appeal is not being waived.
ORDERS
The Court's orders are as follows.
I find that the Motion to Terminate and the Motion to
Suppress evidence will be denied.
I find that Respondent s removable under Section
212{a) {6) {A) {i) of the Act.
Voluntary departure will be granted to the Respondent
through October 18, 2010, with the requirement of submitting a
bond in the amount of $500 no later than August 26, 2010, with an
alternate removal to Honduras if she fails to comply.

I m i gr at ion Judge
A 89 839 693 5 August 19, 2010
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before
LAWRENCE BURMAN, in the matter of:
ANGELA MARIE MURILLO-MARTINEZ
A 89 839 693
Arlington, Virginia
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Imigration Review.
drr/bjn
Donald R. Rush, Transcriber
YORK STENOGRAPHIC SERVICES, INC.
34 North George Street
York, Pennsylvania 17401-1266
(717} 854-0077
October 15, 2010
Completion Date
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