NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE MANUEL MENJIVAR-RODAS, No. 16-73705 Petitioner, Agency No. A206-630-904 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 4, 2019** San Francisco, California Before: SILER,*** BYBEE, and R. NELSON, Circuit Judges. Jose Menjivar-Rodas petitions for review of a Board of Immigration Appeals (“BIA”) decision upholding the Immigration Judge’s denial of his motion to suppress evidence in his removal proceedings. We deny the petition. * 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 U.S. Court of Appeals for the Sixth Circuit, sitting by designation. We have jurisdiction under 8 U.S.C. § 1252. “Where, as here, the BIA adopts the [Immigration Judge’s] decision while adding some of its own reasoning, we review both decisions.” Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). “We review constitutional claims and questions of law de novo and review factual findings under the deferential substantial evidence standard . . . .” Id. Menjivar-Rodas argues that evidence used to establish his alienage during removal proceedings should have been suppressed because it was obtained in violation of the Fourth Amendment and Fifth Amendment of the United States Constitution and in violation of Department of Homeland Security (“DHS”) regulations. Each of these arguments fails. First, Menjivar-Rodas failed to demonstrate that a Fourth Amendment violation occurred. Generally, the Fourth Amendment exclusionary rule does not apply in immigration proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050–51 (1984); Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2018). There are, however, two exceptions to this rule: (1) “when the agency egregiously violates a petitioner’s Fourth Amendment rights” and (2) “when the agency violates a regulation promulgated for the benefit of petitioners and that violation prejudices the petitioner’s protected interests.” Sanchez, 904 F.3d at 649. Here, Menjivar-Rodas failed to establish an egregious Fourth Amendment 2 16-73705 violation. He does not allege that the Customs and Border Patrol agents had an improper or arbitrary motive for stopping or detaining him. He only claims that he does not know why he was stopped and that agents did not ask him about his citizenship prior to his arrest. Without further information regarding the stop or the circumstances surrounding his arrest, Menjivar-Rodas is unable to establish an egregious Fourth Amendment violation. Additionally, we will not consider whether a violation of 8 C.F.R. § 287.8(b)(2) occurred because Menjivar-Rodas did not clearly and distinctly raise this argument. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). He mentions in one sentence of his opening brief that his arrest was unlawful because he was arrested ...
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