                                                                           FILED
                            NOT FOR PUBLICATION                            JUN 02 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


OSCAR ENRIQUE AGUILAR-                           No. 10-72454
LINARES,
                                                 Agency No. A099-628-708
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                        Argued and Submitted May 13, 2014
                               Pasadena, California

Before: WARDLAW and FISHER, Circuit Judges, and DAWSON, District
Judge.**

       Oscar Aguilar-Linares, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) decision. The BIA dismissed

Aguilar’s appeal of an Immigration Judge’s (“IJ”) order of removal and denial of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kent J. Dawson, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
his motion to suppress a Form I-44. Because “the BIA conduct[ed] a de novo

review and issue[d] its own decision,” we review only the BIA’s decision.

Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We have jurisdiction

under 8 U.S.C. § 1252(a).

      The BIA erred by failing to analyze whether the Form I-44 “was obtained by

deliberate violations of the Fourth Amendment or by conduct a reasonable officer

should know is in violation of the Constitution.” Lopez-Rodriguez v. Mukasey, 536

F.3d 1012, 1016 (9th Cir. 2008) (quoting Orhorhaghe v. INS, 38 F.3d 488, 493

(9th Cir. 1994)) (internal quotation marks omitted). Instead, the BIA applied the

test for the admissibility of evidence in removal proceedings, asking whether the

evidence was probative, and its use fundamentally fair. See Matter of Barcenas, 19

I. & N. Dec. 609, 611 (BIA 1988). The BIA failed to analyze whether Border

Patrol Agent Pritchard or the Riverside County Sheriff’s deputies committed an

egregious Fourth Amendment violation to obtain the information contained in the

Form I-44. Furthermore, the BIA’s conclusion that the I-44 is “clearly probative”

is irrelevant to the analysis because “under both Lopez-Mendoza and controlling

Ninth Circuit law, a fundamentally unfair Fourth Amendment violation is

considered egregious regardless of the probative value of the evidence obtained.”

Gonzalez-Rivera v. INS, 22 F.3d 1441, 1451 (9th Cir. 1994) (emphasis added).


                                         2
      Because the BIA applied the incorrect legal standard, we remand this

petition so the BIA can “first determine whether the agents violated the Fourth

Amendment,” and if they did, next “determine whether the agents committed the

violations deliberately or by conduct a reasonable officer should have known

would violate the Constitution.” Lopez-Rodriguez, 536 F.3d at 1016 (quoting

Orhorhaghe, 38 F.3d at 493) (internal quotation marks omitted).

      We lack jurisdiction to review the denial of Aguilar’s request for voluntary

departure. See Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir. 2010).

      PETITION DISMISSED IN PART; GRANTED IN PART;

REMANDED.




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