                                                                         FILED
                            NOT FOR PUBLICATION                          MAR 31 2014

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



                            FOR THE NINTH CIRCUIT


JOSE ALBERTO ARMAS-                           No. 10-70803
BARRANZUELA,
                                              Agency No. A094-812-114
              Petitioner,

  v.                                          ORDER

ERIC H. HOLDER, JR., Attorney General,

              Respondent.


Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.

       The Memorandum Disposition filed January 8, 2014, and appearing at docket

No. 24 is withdrawn. The concurrently filed Memorandum Disposition replaces and

supersedes the previous Memorandum Disposition.

       Respondent’s Petition for Panel Rehearing is DENIED. No further Petitions

for Rehearing or Rehearing En Banc will be entertained.

       SO ORDERED.
                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                            MAR 31 2014

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

JOSE ALBERTO ARMAS-                             No. 10-70803
BARRANZUELA,
                                                Agency No. A094-812-114
              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 December 4, 2013
                            San Francisco, California

Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.

       Jose Alberto Armas-Barranzuela (“Armas” or “Petitioner”) seeks review of a

final order of the Board of Immigration Appeals (“Board”) affirming the Immigration

Judge’s (“IJ”) denial of his motion to suppress evidence of alienage and to terminate

proceedings, and entering an administratively final removal order.         We have



         *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction pursuant to 8 U.S.C. § 1252. We grant the petition, reverse the Board’s

denial of the motion to suppress, and remand with instructions.

                             STANDARD OF REVIEW

      We review the agency’s legal analysis de novo.1 Lopez-Rodriguez v. Mukasey,

536 F.3d 1012, 1015 (9th Cir. 2008). Where, as here, the Board affirms the IJ, cites

to Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and supplements with its own

reasoning, we review both the Board’s and the IJ’s decision. Ali v. Holder, 637 F.3d

1025, 1028–29 (9th Cir. 2011).

                                    DISCUSSION

      We must consider both the substantive standard and procedural framework

applicable to suppression motions in immigration court. In our circuit, the putative

alien is entitled to the suppression of any evidence seized in connection with a Fourth

Amendment violation that is “egregious,” i.e., in which a government agent

deliberately committed the violation or did so by conduct a reasonable officer should

have known would violate the Constitution. Lopez-Rodriguez, 536 F.3d at 1015–16.

      The procedural framework for litigating suppression motions is spelled out in

Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA 1988). Under Barcenas, the



      1
          We refer to the Board and IJ collectively as “the agency.”

                                           2
putative alien first must present a prima facie case of an egregious constitutional

violation. Once a prima facie case is presented, the burden of persuasion shifts to the

government to defend the constitutionality of its actions. Id. at 611. Because the

agency held only that Armas did not state a prima facie egregious constitutional

violation, our review is confined to the first Barcenas step.2

      Before taking an individual into custody, an immigration officer must be able

to “articulate objective facts providing a reasonable suspicion that the subject of the

seizure was an alien illegally in this country.” Orhorhaghe v. I.N.S., 38 F.3d 488, 497

(9th Cir. 1994) (quoting Benitez-Mendez v. I.N.S., 760 F.2d 907, 909 (9th Cir. 1983)

(internal brackets omitted)); see also 8 C.F.R. § 287.8(c)(2)(i) (2013) (requiring

immigration officers to have a “reason to believe that the person to be arrested . . . is

an alien illegally in the United States.”). The specific, articulable facts “must provide

a ‘rational basis for separating out the illegal aliens from American citizens and legal

aliens.’” Orhorhaghe, 38 F.3d at 497 (quoting Nicacio v. I.N.S., 797 F.2d 700, 705

(9th Cir. 1985)).

      The agency reasoned that Orhorhaghe is distinguishable because Armas was

lawfully arrested by the San Francisco Police. However, Petitioner does not complain

      2
        Armas does not challenge the Barcenas framework itself, but rather the
agency’s substantive determination of Fourth Amendment law. Thus, we assume
without deciding that Barcenas is a permissible framework for adjudicating these
claims, and we follow it here.

                                           3
his initial arrest violated the Fourth Amendment, but rather that his federal arrest

occurred only because federal officials egregiously violated the Fourth Amendment,

and thus the fruit of the federal arrest should be suppressed. On this record, we agree

Armas has stated a prima facie case of an egregious Fourth Amendment violation.

      Agent Lawton’s justification for issuing the detainer against Armas falls short

of Orhorhaghe’s requirement that immigration officials, prior to making an arrest,

make some effort to determine not only an individual’s citizenship, but also whether

the individual is lawfully present in the United States, 38 F.3d at 497, a duty even the

agency’s own regulations independently impose on immigration officials, see 8 C.F.R.

§ 287.8(c)(2)(i).3 At the time of Petitioner’s arrest, these authorities would have put

a reasonable officer on notice that Petitioner’s seizure violated the Fourth

Amendment, and that is all that is required under our case law to state an egregious

violation of the Fourth Amendment.

      Because we hold Armas has carried his burden of stating a prima facie case of

an egregious violation of the Fourth Amendment, we grant the petition for review,




      3
       Because we understand Armas’s burden at the first Barcenas step to be one
of persuasion rather than production, he is entitled to rely on Agent Lawton’s
statement in making his claim.

                                           4
reverse the agency’s holding, and remand for further proceedings consistent with this

disposition.4

      This panel retains jurisdiction over any subsequent petition for review.

      PETITION GRANTED. REMANDED WITH INSTRUCTIONS.




      4
         The parties disagree as to whether the government’s decision not to examine
Agent Lawton during proceedings was a tactical decision on the part of the
government or simply reliance on Barcenas. If the government made a tactical
decision not to produce Agent Lawton (or, for that matter, additional evidence of
alienage), it might not be entitled to a second bite at the evidentiary apple on remand.
Oyeniran v. Holder, 672 F.3d 800, 806-07 (9th Cir. 2012) (collateral estoppel applies
in immigration proceedings); see id. at 807 (“[A] losing litigant deserves no rematch
after a defeat fairly suffered, in adversarial proceedings, on an issue identical in
substance to the one he subsequently seeks to raise.”) (internal citation and quotations
omitted); cf. Flores-Lopez v. Holder, 685 F.3d 857, 866–67 (9th Cir. 2012)
(remanding for further evidentiary development because, due to the state of the law
at the time, the government had “no reason” to further develop the record when it was
before the agency). We leave resolution of this issue to the agency in the first
instance.

                                           5
