                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 13-2264
                                    ___________

                       APOLONIO AGUILAR-HERNANDEZ
                         a.k.a. Hernad Aguikar-Adoloneo,
                                              Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent
                   ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A200-864-320)
                    Immigration Judge: Honorable Mirlande Tadal
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 6, 2013

             Before: CHAGARES, GARTH and SCIRICA, Circuit Judges

                          (Opinion filed: November 8, 2013)
                                     ___________

                                     OPINION
                                    ___________

PER CURIAM

      Apolonio Aguilar-Hernandez (“Aguilar”) petitions for review of a final order of

removal issued by the Board of Immigration Appeals (BIA). For the reasons set out
below, we will deny the petition for review.

       Aguilar is a citizen of Mexico. He arrived in the United States in 2005 without

being admitted. On September 26, 2010, local police in New Jersey arrested Aguilar for

driving under the influence of alcohol. The arresting officer, Sergeant Fahr, then called

Immigration and Customs Enforcement (ICE), and informed them that he had Aguilar in

custody. As a result, ICE issued a detainer on September 26, 2010, and interviewed

Aguilar in prison (where he was being held by local law enforcement) on October 4,

2010. During the interview, Aguilar acknowledged that he was a Mexican citizen and

that he did not have permission to reside in the United States. The next day, the

Department of Homeland Security (DHS) issued a notice to appear charging Aguilar with

being removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United

States without being admitted.

       Before an Immigration Judge (IJ), Aguilar sought to suppress the statements he

made to ICE. He claimed that Sergeant Fahr’s call to ICE was the result of

impermissible racial profiling, and that his statement should be excluded as the fruit of

the poisonous tree. He also claimed that ICE detained him for longer than the relevant

regulation, 8 C.F.R. § 287.7, allows. The IJ rejected Aguilar’s arguments and ordered

him removed. Aguilar then appealed to the BIA. He reiterated the arguments that he

raised before the IJ, and also contended that the IJ had violated his due process rights by

conducting just a single hearing to evaluate his motion to suppress and to determine

whether he was removable. The BIA dismissed Aguilar’s appeal, and Aguilar filed a
                                               2
timely petition for review to this Court.

       We have jurisdiction to review a final order of removal under 8 U.S.C.

§ 1252(a)(1). Where, as here, the BIA agrees with the decision and analysis of the IJ

while adding its own reasoning, we review both decisions. See Sandie v. Att’y Gen., 562

F.3d 246, 250 (3d Cir.2009) We review the agency’s factual findings for substantial

evidence and treat them as “‘conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.’” Id. at 251 (quoting 8 U.S.C. § 1252(b)(4)(B)).

We review legal conclusions de novo. Id.

       Aguilar’s primary argument is that Sergeant Fahr, in violation of his Fourth

Amendment rights, called ICE (and thus set the immigration-enforcement machinery in

motion) solely because of his race. Therefore, Aguilar continues, based on the

exclusionary rule, his subsequent statements to ICE officials should be suppressed.

       Even assuming that Sergeant Fahr’s call to ICE implicates the Fourth Amendment

(which is by no means clear, see generally Estrada v. Rhode Island, 594 F.3d 56, 63-64

(1st Cir. 2010)), the BIA did not err in concluding that Aguilar was not entitled to

suppress his statements to ICE. In removal proceedings, the exclusionary rule applies

only “in cases where constitutional violations by immigration officers are ‘widespread’ or

evidence has been obtained as a result of ‘egregious violations of Fourth Amendment or

other liberties that might transgress notions of fundamental fairness and undermine the

probative value of the evidence obtained.’” Oliva-Ramos v. Att’y Gen., 694 F.3d 259,

272 (3d Cir. 2012) (quoting I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984)).
                                             3
Aguilar, as the party challenging the legality of the evidence, bears the burden of making

a prima facie case of illegality. See id. at 273. However, he has provided nothing

beyond his own speculation to establish that Sergeant Fahr’s conduct was race-based. 1

This is not sufficient to establish an egregious violation, see Almeida-Amaral v.

Gonzales, 461 F.3d 231, 237 (2d Cir. 2006), and the BIA therefore did not err in rejecting

this claim.

       Substantial evidence likewise supports the BIA’s conclusion that ICE did not

detain Aguilar for longer than permitted by 8 C.F.R. § 287.7. Under § 287.7(d), “[u]pon

a determination by [DHS] to issue a detainer for an alien not otherwise detained by a

criminal justice agency, such agency shall maintain custody of the alien for a period not

to exceed 48 hours . . . to permit assumption of custody by [DHS].” Here, Aguilar was in

jail for a total of more than 48 hours. Nevertheless (and even assuming, for purposes of

this case, that the exclusionary rule can apply to a violation of § 287.7), § 287.7(d) does

not purport to limit the time that local law enforcement may detain an alien for violating

state criminal laws. Here, it was reasonable for the BIA to conclude that local law

enforcement detained Aguilar for its own purposes — that is, not based on the

immigration detainer — until October 6, 2010, at which time it released him into DHS

custody. See generally Oliva-Ramos, 694 F.3d at 273 (initial burden is on the party


1
  In fact, the undisputed evidence establishes that Fahr called ICE after Aguilar could
produce no identification whatsoever; further, Aguilar testified that Fahr might have
understood Aguilar, who apparently speaks English with a heavy accent, to have stated
that he had come from Mexico. Cf. Martinez Carcamo v. Holder, 713 F.3d 916, 923 (8th
                                              4
challenging evidence). Aguilar has provided us with no basis to disturb the BIA’s

assessment of these events, and his claim therefore fails. 2

       Finally, Aguilar argues that his due process rights were violated because, rather

than holding two separate hearings, the IJ took evidence on both his suppression motion

and the underlying removability charge in one hearing. Aguilar premises this argument

on Simmons v. United States, 390 U.S. 377, 394 (1968), where the Supreme Court held

that, “when a defendant testifies in support of a motion to suppress evidence on Fourth

Amendment grounds, his testimony may not thereafter be admitted against him at trial on

the issue of guilt unless he makes no objection.”

       This claim lacks merit. The concern that animated Simmons — that because of

standing rules, to bring a Fourth Amendment claim a defendant may have to assert

ownership of contraband, which could be fatal to any defense in the underlying action —

is not present here, where Aguilar was not required, for either legal or strategic reasons,

to answer the government’s questions concerning removability. In any event, even

assuming that the IJ erred in combining the hearings in this way, we discern no error in

the BIA’s conclusion that Aguilar was not prejudiced. See, e.g., Delgado–Sobalvarro v.


Cir. 2013) (suggesting that lack of identification can provide reasonable suspicion).
2
  To the extent that Aguilar also intends to argue that local law enforcement’s decision to
detain him during this period violated his constitutional rights, he has again failed to
carry his burden. See Oliva-Ramos, 694 F.3d at 273. Aguilar has presented no evidence
whatsoever on this issue, and he thus cannot establish that the detention infringed his
constitutional rights. Finally, while Aguilar suggests that it was inappropriate for ICE to
interview him in prison, “the fact of custody alone has never been enough in itself to
demonstrate a coerced confession.” United States v. Watson, 423 U.S. 411, 424 (1976).
                                              5
Att’y Gen., 625 F.3d 782, 787 (3d Cir. 2010) (“To establish a violation of due process,

the petitioner[ ] must show that substantial prejudice resulted from the alleged procedural

errors.”). As the BIA explained, even putting aside Aguilar’s hearing testimony, the

evidence in the record (most notably, the Form I-213), was unquestionably sufficient to

establish his removability. See Gutierrez-Berdin v. Holder, 618 F.3d 647, 656-57 (7th

Cir. 2010). Thus, any error here could not have caused substantial prejudice. See United

v. Hollingsworth, 495 F.3d 795, 805-06 (7th Cir. 2007) (holding violation of Simmons

rule harmless where improperly admitted evidence was duplicative). 3

       Accordingly, we will deny Aguilar’s petition for review.




3
  To the extent that Aguilar argues that his due process claim can succeed without a
showing of prejudice, we reject his argument. While we have held that “violations of
regulations promulgated to protect fundamental statutory or constitutional rights need not
be accompanied by a showing of prejudice to warrant judicial relief,” Leslie v. Att’y
Gen., 611 F.3d 171, 178 (3d Cir. 2010), Aguilar has not identified any regulation that the
IJ violated here.
                                              6
