In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2935

Santiago Martinez-Camargo,

Petitioner,

v.

Immigration and Naturalization Service,
John D. Ashcroft, Kevin D. Rooney, and
Brian Perryman,

Respondents.

Appeal from the Board of Immigration Appeals
A75-818-973-Chicago.

Argued February 7, 2002--Decided March 5, 2002



  Before Flaum, Chief Judge, and Bauer and
Easterbrook, Circuit Judges.

  Flaum, Chief Judge. The Board of
Immigration Appeals ("BIA") dismissed
Petitioner Santiago Martinez-Camargo’s
appeal and ordered him deported from the
United States. Martinez-Camargo appeals
that decision, and, for the reasons
stated herein, we affirm.

I.   Background

  On June 16, 1997, Martinez-Camargo and
an acquaintance were sitting near a
vacant parking lot in Summit, Illinois
while Martinez-Camargo’s friend changed
the oil in his car. A police officer
approached, instructed the men that they
could not work in the vacant lot and
asked for identification. Camargo-
Martinez questioned why he had to provide
identification when he "was just sitting
there." The officer responded by radioing
for support, and several patrol cars
arrived on the scene. Immigration and
Naturalization Service ("INS") Officer
Charles Suchy, who regularly rode with
Summit police officers as part of an INS
task force, was among those who responded
to the call.

  When Suchy arrived at the scene, Summit
police officers were conversing with
Martinez-Camargo. Suchy testified before
the Immigration Judge ("IJ") that the
Summit police officers requested his
assistance to translate for Martinez-
Camargo, who spoke broken English. Suchy
identified himself as an INS agent and
asked Martinez-Camargo to produce a
driver’s license, as well as a second
state identification card. Suchy also
requested other biographical data,
including Martinez-Camargo’s date of
birth, his address and where he was born.
Martinez-Camargo responded that he was
born in Mexico and resided illegally in
the United States.

  Suchy arrested Martinez-Camargo,
handcuffed him, placed him in a police
vehicle and transported him to the Summit
Police Department. Upon arrival, Suchy
photographed and fingerprinted Martinez-
Camargo, and administered INS form I-826,
which is a notice of rights and request
for disposition. After inquiring whether
Martinez-Camargo understood his rights as
explained within form I-826, Suchy
processed Martinez-Camargo by preparing
INS Form I-213 (record of deportable
alien).

  The INS commenced removal proceedings by
filing a Notice to Appear on June 16,
1997. Martinez-Camargo appeared for a
removal hearing on October 14, 1997, at
which time Martinez-Camargo indicated
that he intended to file a motion to
suppress all evidence resulting from his
arrest. The IJ held a hearing regarding
the motion to suppress on March 27, 1998.
Martinez-Camargo argued that his arrest
constituted an egregious violation of
both the Fourth and Fifth Amendments to
the United States Constitution. In
addition, Martinez-Camargo maintained
that his arrest violated 8 C.F.R. sec.
287.3(a), which states:

An alien arrested without a warrant of
arrest under the authority contained in
section 287(a)(2) of the Act will be
examined by an officer other than the
arresting officer. If no other qualified
officer is readily available and the
taking of the alien before another
officer would entail unnecessary delay,
the arresting officer, if the conduct of
such examination is a part of the duties
assigned to him or her, may examine the
alien.
  The IJ held that the exclusionary rule
was inapplicable in immigration
proceedings and that Martinez-Camargo
failed to demonstrate the egregious
constitutional violation necessary to
exclude evidence in deportation
proceedings. The IJ noted that Officer
Suchy was riding with the Summit Police
Department as part of an immigration task
force, that officers requested his
assistance in translating, and that his
sole reason for arriving on the scene was
to investigate an allegation of a street
disturbance. In addition, the IJ ruled
that there was "substantial compliance
with the Code of Federal Regulations
under Section 287.3," and thus denied
Martinez-Camargo’s motion to suppress.
The IJ accordingly ordered Martinez-
Camargo deported.

  Martinez-Camargo appealed to the BIA and
raised the same two issues. The BIA
affirmed the order of deportation,
holding that Officer Suchy had reasonable
articulable suspicion to question
Martinez-Camargo because Martinez-Camargo
had already been detained by local
officers. Moreover, the BIA reasoned that
even if Officer Suchy instigated a
"second stop" by questioning Martinez-
Camargo regarding his citizenship, the
brief interrogation was not an egregious
constitutional violation warranting
exclusion. With respect to Officer
Suchy’s violation of Section 287.3, the
BIA held that Martinez-Camargo presented
no additional evidence to establish that
his admissions were coerced or otherwise
prejudiced by the circumstances of his
examination. As such, the evidence
obtained by Officer Suchy was inherently
trustworthy and admissible to prove
alienage and deportability.

  One member of the BIA panel dissented.
The dissenting Board Member wrote that
the violation of the federal regulation
governing aliens arrested without a
warrant undermined the admissibility of
INS Form I-213 (record of deportable
alien). Because the INS failed to
introduce evidence that another officer
was unavailable, or that unnecessary
delay would result, the dissenting Board
Member stated that the regulatory
violation necessitated exclusion of the
Form I-213 and a remand to the
Immigration Judge. Martinez-Camargo
appeals.
II.    Discussion

  A.    Regulatory Violation

  Both parties agree that the INS violated
8 C.F.R. sec. 287.3 when Officer Suchy
arrested and examined Martinez-Camargo.
The question we must decide is what
effect the regulatory violation has on
the proceedings below. Martinez-Camargo
asks this court to suppress the Form I-
213, arguing that the procedural
protections in sec. 287.3 derive from
fundamental constitutional rights. In
response, the INS maintains that although
Officer Suchy may have violated sec.
287.3, Martinez-Camargo failed to allege
or to prove that he suffered prejudice as
a result of Officer Suchy’s conduct.

  Relying on Matter of Garcia-Flores, 17
I. & N. Dec. 325 (B.I.A. 1980), the BIA
dismissed Martinez-Camargo’s appeal
finding that he was not prejudiced by
Officer Suchy’s conduct. Garcia-Flores
involved a 33-year-old citizen of Mexico
who challenged the admission of two
immigration forms purporting to establish
her deportability. Garcia-Flores argued
that the evidence was inadmissible
because INS officials had not warned her
of her rights under 8 C.F.R. sec. 287.3.
At the time, sec. 287.3 provided that INS
officials must advise an alien arrested
without a warrant (1) of the reason for
her arrest, (2) of the right to be repre
sented by counsel at no expense to the
government, and (3) that any statement
may be used against her in a subsequent
proceeding. 8 C.F.R. sec. 287.3 (1977).
There was no dispute that the arresting
officer failed to advise Garcia-Flores of
her right to be represented by counsel.

  In dismissing Garcia-Flores’ appeal, the
BIA acknowledged a tension between two
general principles stemming from cases
interpreting the effects of regulatory
violations. While courts have
consistently demanded governmental
compliance with administrative
regulations designed to safeguard
individual interests, see United States
ex rel. Accardi v. Shaugnessy, 347 U.S.
260 (1954); Bridges v. Wixon, 326 U.S.
135, 152-53 (1945), not every violation
of an agency regulatory requirement
results in the invalidation of all
subsequent agency action or the exclusion
of evidence from administrative
proceedings. See United States v.
Caceres, 440 U.S. 741 (1979); American
Farm Lines v. Black Ball Freight Service,
397 U.S. 532 (1970). Based upon these
precedents, the BIA established a two-
pronged analytical framework to assess
when the INS’s failure to adhere to its
own administrative regime results in
invalidation of the agency’s action.
First, the regulation in question must
serve a "purpose of benefit to the
alien." Garcia-Flores, 17 I. & N. at 328
(citing United States v. Calderon-Medina,
591 F.2d 529, 531 (9th Cir. 1979)). If it
does, the regulatory violation renders
the proceeding unlawful only if the
violation prejudiced interests of the
alien protected by the regulation. Id. To
assess whether the alien suffered
prejudice, the BIA reasoned:

Where compliance with the regulation is
mandated by the Constitution, prejudice
may be presumed. Similarly, where an
entire procedural framework, designed to
insure the fair processing of an action
affecting an individual is created but
then not followed by an agency, it can be
deemed prejudicial.
Id. at 329. The BIA then ruled that the
violation of sec. 287.3 was not one "in
which the claimed regulatory violation
may be presumed to have prejudiced the
respondent." Id. As a consequence, the
BIA remanded the case to allow the
respondent to demonstrate prejudice.

  Our Circuit has not yet considered the
appropriateness of the analytical
framework identified in Garcia-Flores.
However, two of our sister circuits have
approved of the approach adopted by the
BIA in Garcia-Flores and followed in this
case. See Montero v. INS, 124 F.3d 381,
386 (2d Cir. 1997) ("if the regulation
does not affect a fundamental right
derived from the Constitution, the
proceeding will be invalidated only if
the petitioner shows prejudice.");
Delgado-Corea v. INS, 804 F.2d 261, 262-
63 (4th Cir. 1986). We find nothing
unreasonable in the BIA’s approach and
agree that its analysis strikes the
proper balance between recognizing the
need for administrative agencies to
follow their own rules with the practical
reality that not every agency violation
impacts an alien’s substantive rights.
  In this case, there can be no question
that Officer’s Suchy’s actions did not
impact Martinez-Camargo’s substantive
rights. Martinez-Camargo’s primary
complaint-- indeed, his only complaint--
is that Officer Suchy both arrested and
examined him. Martinez-Camargo must
therefore demonstrate that had another
officer interviewed him (the "right" to
which he was entitled under sec. 287.3),
the INS would not have discovered his
alienage or immigration status. The facts
in this case belie such a conclusion.
Martinez-Camargo did not admit his
immigration status to Officer Suchy
during the interview process, but rather
when Officer Suchy initially arrested
him. Thus, Officer Suchy’s examination,
during which he memorialized Martinez-
Camargo’s prior statements on INS Form I-
213, did not generate any additional
information. There was no coercion, and
no allegation that Martinez-Camargo’s
statements were involuntarily given. In
short, the record fully supports the
BIA’s holding regarding the absence of
prejudice, and we find no error in the
BIA’s reasoning or conclusion.

  Despite these facts, Martinez-Camargo
argues that a violation of sec. 287.3
falls into the limited category of cases
where prejudice should be presumed. As a
general rule, the BIA in Garcia-Flores
found that an alien alleging a regulatory
violation must prove prejudice. However,
the BIA also stated that an agency action
can be deemed prejudicial when it
violates the Constitution, or when the
agency disregards an entire procedural
framework "designed to insure the fair
processing of an action affecting an
individual." Id. at 329.

  We find that the regulatory violation at
issue in this case is not one that can be
deemed prejudicial. There can be no
question that the "right" at stake here
is not constitutionally mandated. Nor is
this a case involving the complete
disregard of a framework designed to
insure the fair processing of an
individual. To be sure, the BIA failed to
adhere to one aspect of sec. 287.3, but
Martinez-Camargo was advised of his right
to counsel, notified of the charges
against him, and instructed that any
statements made to the officer could be
used against him in a subsequent
deportation proceeding. See 8 C.F.R. sec.
287.3 (b)(c) and (d). The Constitution
requires nothing more. Indeed, the
Supreme Court has held that where an
administrative regulatory violation does
not adversely affect a petitioner’s
substantive rights an exclusionary remedy
is not available. See United States v.
Caceres, 440 U.S. 741 (1979). In that
case, the Supreme Court acknowledged that
"where the rights of individuals are
affected, it is incumbent upon agencies
to follow their own procedures," Caceres,
440 U.S. 751 n. 14 (citing Morton v.
Ruiz, 415 U.S. 199, 235 (1974) (emphasis
added)), but, as we have already
discussed, Officer Suchy’s conduct in
this case did not impact Martinez-
Camargo’s constitutional rights.

  B.   Fourth Amendment Violation

  Martinez-Camargo next argues that his
arrest constituted an egregious violation
of the Fourth Amendment warranting
suppression of the evidence against him.
While the exclusionary rule is ordinarily
inapplicable to deportation proceedings,
INS v. Lopez-Mendoza, 468 U.S. 1032,
1038-39 (1984), it may apply in cases
involving "egregious violations of the
Fourth Amendment or other liberties that
might transgress notions of fundamental
fairness and undermine the probative
value of the evidence obtained." Id. at
1050-51. Martinez-Camargo argues that an
egregious violation occurred in this case
because INS officers questioned him in
the absence of reasonable suspicion of
unlawful alienage.

  We need not reach the question of
egregiousness because Officer Suchy’s
actions did not offend the Constitution
in any respect. In assessing the validity
of an investigatory stop, we examine the
reasonableness of the officer’s actions
based upon the totality of the
circumstances. United States v. Cortez,
449 U.S. 411, 417-18 (1981). Here, Summit
Police Officers detained Martinez-Camargo
pursuant to a routine criminal
disturbance call. Martinez-Camargo does
not challenge this initial seizure, but
rather Officer Suchy’s later questions
regarding his alienage. Questions,
however, are neither searches nor
seizures, United States v. Childs, 277
F.3d 947, 949 (7th Cir. 2002), so while
Officer Suchy’s questions may be
considered in assessing the
reasonableness of Martinez-Camargo’s
detainment, they did not constitute a
seizure independent and distinct from the
original investigatory stop. With these
principles in mind, we find that Officer
Suchy’s questions were not unreasonable
given their limited breadth and scope.
Officer Suchy questioned Martinez-Camargo
only after Summit police officers
requested his assistance in translation.
When Officer Suchy became involved, he
asked Martinez-Camargo routine
biographical questions, such as his name,
birth date and place of birth. Such
interrogation--if it can even be called
that--is not unreasonable, and it
certainly does not rise to the level of
an egregious violation of the Fourth
Amendment. Accordingly, the BIA properly
rejected this argument.

III.   Conclusion

  Because Martinez-Camargo has failed to
prove that the violation of 8 C.F.R. sec.
287.3 prejudiced him, or that Officer
Suchy’s actions constituted an egregious
violation of the Fourth Amendment, we
AFFIRM the decision of the BIA dismissing
Martinez-Camargo’s appeal.
