FILED NOT FOR PUBLICATION JAN 25 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SANTANA PORTILLO-FLORES; No. 17-71406 DAYRON CAMILO FLORES- PORTILLO, Agency Nos. A208-687-624 A208-687-625 Petitioners, v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 17, 2020 San Francisco, California Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit Judges. Concurrence by Judge BERZON Santana Portillo-Flores (Portillo) and her young son Dayron Flores-Portillo petition for review of Board of Immigration Appeal’s (BIA) dismissal of their * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. appeal contending that the Immigration Judge (IJ) should have granted their motion to suppress evidence, allegedly obtained after the government egregiously violated the Fourth Amendment, and terminated proceedings. Petitioners were arrested after being found walking near the border in the Rio Grande Valley. The next day, after being transported to the border patrol station, Portillo acknowledged Petitioners’ Salvadoran nationality and their illegal entry. At the removal hearing, Respondent introduced Portillo’s Salvadoran identification card, her son’s Salvadoran birth certificate, and the Forms I-213 describing the circumstances of the arrest. Petitioners’ motion to suppress was granted with respect to the child’s birth certificate but otherwise denied. The BIA affirmed the order denying the motion to suppress and to terminate proceedings. In immigration proceedings, the exclusionary rule applies to evidence obtained in violation of the Fourth Amendment only when the violation is egregious. See, e.g., Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2018). Petitioners bear the burden of making a prima facie showing of an egregious Fourth Amendment violation. Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA 1988). In support of their motion to suppress, Petitioners provided a declaration by Portillo that, when confronted by the Customs and Border Patrol Agent, she did not 2 admit alienage and was not asked about alienage or illegal entry. On this basis Petitioners contend their arrest must have resulted in an egregious violation of their Fourth Amendment rights. There is no requirement that those particular questions be asked before an arrest for unlawful entry, however, and as the BIA observed, the declaration provides no other information about interactions between Petitioners and the agents prior to the arrest. The declaration attests to an arrest next to the border where the Petitioners were not told the grounds for the arrest. Cases where we have ordered exclusion based on egregious Fourth Amendment violations involved more than that. See, e.g., Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir.2008) (entry into home). The declaration, therefore, does not establish a prima facie case of an egregious Fourth Amendment violation. Petitioners also contend that the IJ and BIA should not have relied on the Forms I-213 because they were not entitled to the usual presumption of regularity afforded government records. Petitioners point to a ...
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