                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No. 05-10108
               Plaintiff-Appellant,
               v.                                D.C. No.
                                               CR 01-051 DWH
LIN CHEN,
                                                  OPINION
              Defendant-Appellee.
                                         
           Appeal from the District Court of Guam
          David W. Hagen, District Judge, Presiding

                    Argued and Submitted
         January 12, 2006—San Francisco, California

                      Filed March 2, 2006

    Before: A. Wallace Tashima and William A. Fletcher,
    Circuit Judges, and Edward F. Shea,* District Judge.

                   Opinion by Judge Tashima




  *The Honorable Edward F. Shea, United States District Judge for the
Eastern District of Washington, sitting by designation.

                               2151
                    UNITED STATES v. CHEN                2153


                         COUNSEL

Kirby A. Heller, Criminal Division, U.S. Department of Jus-
tice, Washington, D.C., for the plaintiff-appellant.

John T. Gorman, Federal Public Defender, Mongmong,
Guam, for the defendant-appellee.


                         OPINION

TASHIMA, Circuit Judge:

   In this interlocutory appeal, the government challenges the
district court’s decision to suppress statements made by
2154                    UNITED STATES v. CHEN
defendant Lin Chen (“Chen”). Chen made the statements dur-
ing an interview with an Immigration and Naturalization Ser-
vices (“INS”)1 agent who was investigating a third party
suspected of running an alien smuggling ring. At the time of
the interview, Chen was in custody in Guam on an adminis-
trative deportation warrant. The district court concluded that
the INS agent was required to give a Miranda2 warning before
the interview. The court therefore granted Chen’s motion to
suppress, and the government now appeals. We have jurisdic-
tion under 18 U.S.C. § 3731 and affirm the district court’s
decision to suppress Chen’s statements.

                             Background

   On January 10, 2001, INS Special Agent Timothy Conway
(“Conway”) and other INS agents executed a search warrant
at Apartment 101 at the Harmon Gardens apartment complex.
The search warrant was in connection with the criminal inves-
tigation of Ho Chun Li (“Li”), who was suspected of smug-
gling aliens. A confidential informant had revealed to the INS
that numerous illegal aliens were living in the apartment. The
agents encountered approximately 14 illegal aliens in the
apartment, including Chen. When questioned about his citi-
zenship, Chen stated that he was a Chinese citizen. He was
then taken into administrative custody, pending a final deter-
mination by an Immigration Judge (“IJ”).

   On January 12, 2001, Chen was served with a notice
informing him that he had been arrested “because immigra-
tion officers believe that you are illegally in the United
States,” and further informing him that he had a right to a
hearing before an IJ. The same day, while Chen was in INS
  1
    The INS has been abolished and its functions transferred to the Depart-
ment of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2142 (2002), 6 U.S.C. §§ 101-557. This opinion
will refer to the government agency as the INS.
  2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                    UNITED STATES v. CHEN                  2155
custody, Conway questioned Chen about how he arrived in
Guam. According to Conway, this questioning was in connec-
tion with Conway’s investigation of Li, the suspected smug-
gler. Chen stated that he came to Guam on a Taiwanese
fishing boat on June 3, 2000, and that he left the ship once it
reached port. Chen further stated that he was directed to 101
Harmon Gardens, and consequently to Li, by an unnamed
stranger. At the time of the interview, Conway knew Chen
had an attorney, but did not call Chen’s attorney prior to ques-
tioning Chen. Conway also interviewed the other aliens from
101 Harmon Gardens. They, like Chen, indicated that they
had arrived in Guam as crewmen on fishing boats.

   On February 22, the IJ held a bond hearing for the aliens
who had been arrested at 101 Harmon Gardens, including
Chen. At the hearing, all of these individuals were represented
by the same attorney. Local residents signed the bonds and
paid for the releases of the aliens. Conway later testified that
at this time he became suspicious that Chen and the other
aliens were lying about their means of arrival in Guam. Con-
way obtained lists of the fishing vessels that had arrived in
Guam and determined that the aliens’ stories did not comport
with the fishing vessel documentation. Conway forwarded the
materials dealing with his investigation of these aliens to the
United States Attorney’s Office.

   Criminal charges were filed against Chen and four other
residents of the Harmon Gardens apartment for perjury, in
violation of 18 U.S.C. § 1621, and the making of a false state-
ment in a matter within the jurisdiction of the INS, in viola-
tion of 18 U.S.C. § 1001. The perjury charge arose from
statements contained in Chen’s October 2000 asylum applica-
tion, in which he stated that he had arrived on June 3, 2000,
on a fishing boat, and the false statement charge arose from
Chen’s allegedly false statements to Conway on January 12,
2001, recounting basically the same story.

  Before the grand jury, Conway served as the primary wit-
ness, testifying that all of the aliens’ stories were untrue
2156                UNITED STATES v. CHEN
because the boat names and dates the aliens provided in their
interviews did not comport with Guam’s port records. He also
indicated that at the time Chen was arrested, Conway already
had formed a suspicion that Chen had been smuggled: “Well,
if we think they are being smuggled into the United States and
we arrest them, we interview them as to how they came here
and that sort of thing.” The grand jury hearing concluded with
the prosecutor’s statement that “[i]t’s obvious — what I’m
doing, of course [in prosecuting the aliens for perjury] — I’m
after Ho Chun Li and nobody will cooperate with me, so I’m
going to put on a little pressure. And even then, they probably
won’t cooperate with me. They’ll probably just stonewall.”

   Chen subsequently moved to suppress his statements made
to Conway at the January 12 interview. He argued that the
questioning constituted a “custodial interrogation,” and that
Conway’s failure to administer a Miranda warning therefore
rendered the statements inadmissible. The district court held
an evidentiary hearing at which Conway testified that at the
time he interviewed Chen, he did not suspect Chen of any
criminal wrongdoing. He acknowledged that illegal entry was
a crime, but testified that such violations are “not usually”
prosecuted in Guam. He further testified that his criminal
investigation of Chen began only after his suspicions were
raised when the local Guam residents signed the aliens’
bonds.

   The court granted the motion to suppress, holding that Con-
way’s knowledge of Chen’s illegal presence in the country
made the questioning reasonably likely to elicit incriminating
statements. In its written opinion, the court found that Con-
way interrogated Chen with a “dual purpose”: both to deter-
mine whether Chen’s presence in the country was illegal, and
also to ascertain information for Conway’s criminal investiga-
tion of Li. In its oral decision, the court emphasized that a
Miranda warning was required because illegal presence in the
United States is a crime, Chen was believed to have commit-
ted that crime, he was in custody because of INS agents’ sus-
                        UNITED STATES v. CHEN                       2157
picion that he had committed that crime, and the agent’s
questions related to that crime. After the ruling, the govern-
ment filed a motion for reconsideration, which the court
denied. The government then filed this interlocutory appeal.

                              Discussion

   The district court’s determination that the government’s
questioning was an “interrogation” for Miranda purposes is a
mixed question of law and fact, which we review de novo.
United States v. Padilla, 387 F.3d 1087, 1093 n.4 (9th Cir.
2004). We review the district court’s underlying findings of
fact for clear error. United States v. Camacho, 368 F.3d 1182,
1183 (9th Cir. 2004).

   [1] Miranda prohibits “custodial interrogation” unless the
government first provides the suspect with certain warnings.
384 U.S. at 444. Not every question asked in a custodial setting,3
however, constitutes “interrogation.” United States v. Booth,
669 F.2d 1231, 1237 (9th Cir. 1982). The test is whether,
under all the circumstances involved in a given case, the ques-
tions are “reasonably likely to elicit an incriminating response
from the suspect.” Id. (quoting Rhode Island v. Innis, 446
U.S. 291, 301 (1980)). The investigating officer’s subjective
intent is relevant but not determinative, because the focus is
on the perception of the defendant. United States v. Moreno-
Flores, 33 F.3d 1164, 1169 (9th Cir. 1994).

   Several Ninth Circuit cases have analyzed whether INS
agents’ investigations of illegal immigrants constitute “inter-
rogations.” In United States v. Mata-Abundiz, 717 F.2d 1277
(9th Cir. 1983), we concluded that the questioning conducted
by an INS investigator constituted an “interrogation” when
there was a “close sequence” between the “civil” investigation
  3
    The government does not contest the district court’s finding that this
interview was “custodial” for Miranda purposes. Therefore, we do not
review that finding.
2158                    UNITED STATES v. CHEN
and the criminal prosecution. Id. at 1279-80. The defendant in
Mata-Abundiz had been jailed on charges of carrying a con-
cealed weapon and possession of a firearm by an alien. Id. at
1278. The INS agent’s questioning about alienage was likely
to elicit incriminating responses because the INS investigator
knew that evidence of alienage, coupled with evidence of fire-
arms possession, could lead to federal prosecution under 18
U.S.C. § 1202. Id. at 1279. Moreover, the INS investigator
began a “full-fledged criminal investigation[ ]” only three
hours after he ended the “civil” or administrative INS inter-
view. Id. In concluding that the INS questioning constituted
an “interrogation,” we relied on Mathis v. United States, 391
U.S. 1 (1968), in which the Supreme Court held that Miranda
warnings are required before conducting “routine” tax investi-
gations of persons in custody, because tax investigations “fre-
quently” lead to criminal prosecutions. Mata-Abundiz, 717
F.2d at 1279 (citing Mathis, 391 U.S. at 4). Mata-Abundiz
concluded that the facts in that case demonstrated the need for
a Miranda warning in civil custodial investigations “even
more vividly” than did the facts in Mathis. Id.

   By contrast, in United States v. Salgado, 292 F.3d 1169
(9th Cir. 2002), we concluded that an INS agent’s purely
administrative interview of the defendant was not an interro-
gation for Miranda purposes. Id. at 1174. The defendant in
Salgado was arrested on state law charges in 1998 and, while
in state custody, the INS interviewed the defendant for the
“sole purpose” of determining whether the defendant was sub-
ject to an administrative action for deportation. Id. at 1172.
After being deported, the defendant illegally re-entered the
country in 1999 and was prosecuted for illegal re-entry under
8 U.S.C. § 1326.4 Id. at 1171-72.
  4
    8 U.S.C. § 1326 makes it a crime for an alien who has been excluded,
deported, or removed to reenter the United States without the consent of
the Attorney General. 8 U.S.C. § 1325 makes it a crime for an alien to
enter the United States improperly, e.g., by eluding a border inspection or
by a false representation. Any differences between a prosecution for ille-
gal reentry under § 1326 and for illegal entry under § 1325 are immaterial
to the disposition of this case.
                        UNITED STATES v. CHEN                         2159
   We held that the 1998 statements to the INS agent were
admissible in the 1999 prosecution even though no Miranda
warnings had been administered. Id. at 1174. In doing so, we
distinguished this case from those in which the INS question-
ing was “in connection with a prosecution for violating the
immigration laws,” or where the defendant “had been in cus-
tody on charges relating to his immigration status.” Id. at
1172 (internal quotation marks omitted). We emphasized that
the INS’ questioning of the defendant was “solely for the
administrative purpose” of determining whether the defendant
was deportable after release from jail. Id.

   In Salgado, we reasoned that the questioning had not been
likely to elicit incriminating statements because the INS agent
could not have reasonably foreseen that the defendant would
re-enter the country a year later and commit another crime.5
Id. at 1173. Moreover, the INS’ questioning did not relate
directly to “an element of the crime which the investigator
had reason to suspect that [the defendant] had committed.” Id.

   Between Mata-Abundiz and Salgado, we decided United
States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir. 1990),
where we suppressed un-Mirandized statements elicited by
border patrol officers when the statements were actually “used
to help prove the charges of illegal entry and being a deported
alien found in the United States.” Id. at 1047. Likewise, in
United States v. Equihua-Juarez, 851 F.2d 1222 (9th Cir.
1988), we held that an INS agent’s questions about defen-
  5
    Salgado relied heavily on United States v. Solano-Godines, 120 F.3d
957 (9th Cir. 1997), which held that an IJ’s questioning during civil depor-
tation proceedings did not require Miranda warnings, even though the
statements elicited at the hearing were used in the defendant’s subsequent
prosecution for illegal reentry. Id. at 962. Salgado concluded that Solano-
Godines was controlling, because neither the IJ in Solano-Godines nor the
INS agent in Salgado could have reasonably anticipated that the defendant
would be prosecuted for a subsequent illegal re-entry in which the earlier
statements about immigration would be used by the prosecution. See Sal-
gado, 292 F.3d at 1173-74.
2160                UNITED STATES v. CHEN
dant’s biographical information constituted an “interrogation”
when the information was used to determine whether the alien
should be deported or criminally prosecuted. Id. at 1226-27.
These cases are distinguishable from Salgado because such
questioning, in the words of Salgado, was “in connection with
a prosecution for violating the immigration laws” or involved
a defendant who “had been in custody on charges relating to
his immigration status.” 292 F.3d at 1172. The alienage-
related questioning in Salgado, by contrast, was merely for
the administrative purpose of assessing a defendant’s eventual
deportability and was not conducted for the purpose of a crim-
inal investigation.

   [2] None of these cases directly addresses the question of
whether routine INS questioning constitutes an “interroga-
tion” if the statements elicited would incriminate the defen-
dant only as to misdemeanor illegal entry under 8 U.S.C.
§ 1325. See Salgado, 292 F.3d at 1175 & n.1 (Pregerson, J.,
dissenting) (arguing that Miranda warnings were required by
pointing out, inter alia, that an alien-defendant’s response to
INS questioning necessarily incriminates that defendant in a
§ 1325 violation). Our previous cases, including Salgado and
Solano-Godines, focused on whether the questioning was
incriminating as to § 1326 liability, because that was the
crime actually prosecuted. See Salgado, 292 F.3d at 1173-74;
Solano-Godines, 120 F.3d at 961-62. In Mata-Abundiz, we
noted that “[c]ivil as well as criminal interrogation of in-
custody defendants by INS investigators should generally be
accompanied by the Miranda warnings.” 717 F.2d at 1279.
Were the inherent threat of § 1325 prosecution enough to ren-
der INS questioning an “interrogation,” all alienage-related
questioning, at least where the interviewing officer had reason
to suspect the defendant was an alien, would require Miranda
warnings. We need not reach that question on the particular
facts before us, however, because the facts here demonstrate
that Chen was subject to an especially heightened risk of a
§ 1325 prosecution. The particular circumstances of this case
— namely, the prosecutor’s willingness to pursue charges
                        UNITED STATES v. CHEN                         2161
against Chen in order to procure Chen’s testimony against Li,
and the fact that Chen was questioned in a district that has a
practice of prosecuting § 1325 violations — rendered Con-
way’s questioning of Chen an “interrogation” for Miranda
purposes. See Booth, 669 F.2d at 1237 (holding that the test
for determining whether questioning constitutes “interroga-
tion” should be analyzed under a totality of the circumstances
standard).

   [3] Conway testified at the suppression hearing on February
8, 2005, that illegal entry violations are “not usually” prose-
cuted and that no illegal entry cases were prosecuted in Guam
in “the last year.” Even if illegal entry violations were “not
usually” prosecuted in Guam, Chen was the subject of height-
ened INS scrutiny because of his association with Li. The
authorities suspected Chen of being a participant in a smug-
gling scheme, and needed his testimony to bolster their crimi-
nal case against Li, the suspected leader of the smuggling
ring. Chen was arrested at Li’s home, had been identified by
a confidential informant as one of several aliens smuggled
and/or housed by Li, and was likely a relative of Li’s. One
purpose, if not the principal purpose, of the government’s pur-
suit of its perjury case against Chen was to elicit incriminating
testimony from Chen against Li. At Chen’s grand jury hear-
ing, the prosecutor declared that “[i]t’s obvious — what I’m
doing, of course — I’m after Ho Chun Li and nobody will
cooperate with me, so I’m going to put on a little pressure.”
Because of the government’s interest in procuring Chen’s tes-
timony against Li, the possibility of the government prosecut-
ing Chen was especially high.

  [4] Moreover, the Federal Public Defender of the District
of Guam (“FPD”) has represented, and the government has
not contested,6 that between 1998 and 2004 the FPD’s office
has represented 48 persons accused of illegal entry in the Dis-
  6
    The government did not challenge this representation either in its reply
brief or at oral argument.
2162                   UNITED STATES v. CHEN
trict of Guam.7 Because of the government’s interest in pro-
curing Chen’s testimony and the U.S. Attorney’s practice of
prosecuting § 1325 violations, Conway’s questioning about
Chen’s alienage was reasonably likely to elicit a response that
would incriminate Chen in a § 1325 prosecution. See Mathis,
391 U.S. at 4 (requiring Miranda warnings before “routine”
tax investigations of persons in custody because such investi-
gations “frequently” lead to criminal prosecutions).

                             Conclusion

   [5] We need not decide today whether questioning that
would elicit an alien’s admission of illegal presence in the
United States will always constitute an “interrogation” for
Miranda purposes. Rather, we conclude that INS Agent Con-
way’s questioning of Chen in the circumstances of this case
constituted an “interrogation” because the government’s inter-
est in Chen’s testimony and the U.S. Attorney’s practice of
pursuing § 1325 prosecutions combined to create a heightened
threat that the defendant might actually face a § 1325 prosecu-
tion.

  [6] Accordingly, the decision of the district court granting
Chen’s motion to suppress is AFFIRMED.




  7
   The District of Guam is a small jurisdiction. In 2004, a total of 152
cases were filed in the district court, and the FPD opened 129 cases.
Office of the Circuit Executive, 2004 Annual Report, Ninth Circuit United
States Courts at 59, 69.
