     Case: 12-60279       Document: 00512101371         Page: 1     Date Filed: 01/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 4, 2013
                                     No. 12-60279
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

SAUL GONZALEZ SANTOS; JOHNNY GONZALEZ SANTOS;
WILFREDO JIMENEZ-LOPEZ,

                                                  Petitioners

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A094 775 115
                                BIA No. A094 775 117
                                BIA No. A094 775 118


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Guatemalan nationals Saul Gonzalez Santos (Saul), Johnny Gonzalez
Santos, and Wilfredo Jimenez-Lopez petition for review of the Board of
Immigration Appeals’ (BIA) decision dismissing their appeal and affirming the
Immigration Judge’s (IJ) order denying their motion to suppress and finding
them removable. They contend that the BIA and IJ erred in denying their

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 12-60279

motion to suppress, asserting that the immigration agents’ conduct in their case
constituted an egregious violation of the Fourth Amendment. The Petitioners
also renew their argument that the agents failed to follow their own regulations,
specifically, 8 C.F.R. § 287.8(f)(2), which, they contend, constitutes a Fifth
Amendment due process violation. They urge that the proof of their alienage
should therefore have been suppressed and that the removal proceedings should
have been terminated.
      The Petitioners additionally argue, for the first time, that Immigration
and Customs Enforcement Fugitive Operations’ overreaching goals and
inadequate officer training have led to widespread, systemic Fourth Amendment
violations. However, they have waived the argument by failing to exhaust it.
See 8 U.S.C. § 1252(d)(1); see also Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004).
      We review the Petitioners’ constitutional claims de novo. See Soadjede v.
Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003). The factual findings of the BIA and
IJ are reviewed for substantial evidence. Zhu v. Gonzales, 493 F.3d 588, 594
(5th Cir. 2007).
      The Fourth Amendment’s exclusionary rule does not generally apply to
civil removal proceedings, though the Supreme Court has left open the
possibility that it might apply to egregious violations. INS v. Lopez-Mendoza,
468 U.S. 1032, 1050-51 (1984). The Petitioners assert that the agents violated
the Fourth Amendment in this case because Saul’s consent to the search of his
apartment was involuntary and/or limited in scope. However, substantial
evidence supports the IJ’s and BIA’s finding that Saul voluntarily consented to
a search of the apartment, as well as the finding that his consent was unlimited
in scope. See Carbajal-Gonzalez, 78 F.3d at 197.
      Alternatively, even assuming both that a Fourth Amendment violation
occurred and that an egregious violation would warrant exclusion in civil
removal proceedings, the Petitioners have not shown that the BIA and IJ erred

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                                      No. 12-60279

in finding that the conduct of the immigration agents was not egregious in this
case.1 See Lopez-Mendoza, 468 U.S. at 1050-51; see also Rochin v. California,
342 U.S. 165, 166-67 (1952). Although the Petitioners assert that racial profiling
is per se egregious conduct that warrants suppression, we do not address the
issue as the BIA found that the immigration agents did not engage in racial or
ethnic profiling in the instant case, and substantial evidence supports that
finding. See Carbajal-Gonzalez, 78 F.3d at 197.
       The Petitioners’ Fifth Amendment claim is similarly unavailing. They
argue that the immigration agents in this case violated due process by failing to
comply with their own regulations, specifically, 8 C.F.R. § 287.8(f)(2). Their
conclusional assertion notwithstanding, the record establishes that the agents
in fact complied with § 287.8(f)(2) by obtaining consent for their search from Saul
prior to entry.     The BIA additionally concluded that the agents acted in
compliance with § 287.8(b)(2), which authorized them to briefly detain a person
for questioning if a reasonable suspicion of an immigration violation arises, and
the Petitioners have waived any challenge to that finding by failing to brief it.
See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004). Because the Petitioners
have not shown a regulatory violation, the due process claim fails.
       The petition for review is DENIED.




       1
         To the contrary, the Petitioners concede that there was no evidence of malice or bad
faith on the agents’ part.

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