                                                                            FILED
                             NOT FOR PUBLICATION                            MAY 25 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



OSCAR MARTINEZ-MEDINA and                        No. 06-75778
LADISLAO MARTINEZ-QUINTANA,
                                                 Agency Nos.     A078-739-480
              Petitioners,                                  A078-739-481

  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 May 3, 2010
                                Portland, Oregon

Before: KLEINFELD, BEA, and IKUTA, Circuit Judges.

       Ladislao Martinez-Quintana and his son Oscar Martinez-Medina

(“Petitioners”) petition for review of the Board of Immigration Appeals’s (“BIA”)

order that denied Petitioners’ motion to suppress evidence, found Petitioners

removable, and granted Petitioners’ applications for voluntary departure.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Petitioners contend the BIA erred when it denied their motion to suppress evidence

because the evidence was obtained as the result of an egregious violation of their

Fourth Amendment rights. We deny the petition because there was no egregious

violation of Petitioners’ constitutional rights.

                                            I.

      Petitioners’ car overheated and they pulled into a gas station. While they

were parked at the gas station, a deputy sheriff arrived. He asked Petitioners about

their travel plans. Because Ladislao did not speak English, Oscar translated. The

deputy sheriff asked Petitioners for their identification, which they showed to him.

Then, he asked Petitioners if they had green cards, to which they answered no. The

Immigration Judge (“IJ”) found all parties understood the question to mean: Are

you legally present in the United States? This finding is supported by substantial

evidence. The deputy sheriff told Petitioners that they could not leave and that he

was going to call “Immigration.” Up to two hours passed before an INS agent

arrived. When he arrived, he asked Petitioners if they possessed immigration

documents that allowed them to be in the United States legally; they answered no.

The INS agent took Petitioners into custody, transported them to the border patrol

station, and filled out I-213 forms to initiate removal proceedings. The I-213




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forms contained Petitioners’ admissions to being illegally present in the United

States. The IJ denied Petitioners’ motion to suppress the forms; the BIA affirmed.

                                          II.

      Generally, the exclusionary rule does not apply in civil deportation

proceedings to evidence obtained in violation of the Fourth Amendment. INS v.

Lopez-Mendoza, 468 U.S. 1032, 1050 (1984). An exception to this rule exists

where the Fourth Amendment violation is egregious. Gonzalez-Rivera v. INS, 22

F.3d 1441, 1448 (9th Cir. 1994).

      The initial encounter between the deputy sheriff and Petitioners did not

violate Petitioners’ Fourth Amendment rights because it was consensual. A seizure

does not occur until “a reasonable person would believe that he or she is not ‘free

to leave’” or “would [not] feel free to decline the officers’ requests or otherwise

terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 435–36 (1991).

Neither the deputy sheriff’s questions about Petitioners’ travel plans, his request

for their identification, nor his question about their immigration status transformed

the encounter into a seizure. See Muehler v. Mena, 544 U.S. 93, 101 (2005);

Bostick, 501 U.S. at 434–35. A reasonable person would have felt free to walk

away from the deputy sheriff or free to refuse to answer his questions and, thus,

terminate the encounter.


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      The encounter became a seizure when the deputy sheriff told Petitioners that

they could not leave the gas station and that he was going to call “Immigration.”

However, we need not decide whether the seizure was supported by reasonable

suspicion or probable cause. Even if probable cause was necessary to detain

Petitioners until the INS agent arrived and even if the deputy sheriff lacked

probable cause, the Fourth Amendment violation was not egregious.

      A constitutional violation is not egregious unless “evidence is obtained by

deliberate violations of the [F]ourth [A]mendment, or by conduct a reasonable

officer should have known is in violation of the Constitution.” Gonzalez-Rivera v.

INS, 22 F.3d 1441, 1449 (9th Cir. 1994) (internal quotation marks and emphasis

omitted). Whether a reasonable officer should have known his conduct violated

the Constitution depends in part on whether the constitutional right was clearly

established in the particular context at issue. See Lopez-Rodriguez v. Mukasey, 536

F.3d 1012, 1018 (9th Cir. 2008) (holding that a reasonable officer should have

known his entry into a home without a warrant, consent, or exigent circumstances

constituted a constitutional violation because it was committed against an

“unequivocal doctrinal backdrop”).

      Here, there is no evidence the deputy sheriff knew his conduct violated

Petitioners’ Fourth Amendment rights. Further, the law was unclear as to whether


                                          4
an alien’s admission to being illegally present in the United States created probable

cause to seize the alien for violating federal immigration law. Because of this lack

of clarity in the law, a reasonable officer would not have known he lacked probable

cause to detain Petitioners.

      We have explained that “[a]lthough the lack of documentation or other

admission of illegal presence may be some indication of illegal entry, it does not,

without more, provide probable cause of the criminal violation of illegal entry.”

Gonzalez v. City of Peoria, 722 F.2d 468, 476–77 (9th Cir. 1983), overruled on

other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en

banc). But in a subsequent opinion, the Supreme Court stated that “entering or

remaining unlawfully in this country is itself a crime.” INS v. Lopez-Mendoza, 468

U.S. 1032, 1038 (1984). Although the Court did not elaborate on what it meant to

“remain[] unlawfully in this country,” a reasonable officer could have interpreted

this statement to mean an alien’s unlawful presence in this country is itself a

crime.1

      In addition, we stated in Martinez v. Nygaard that “[a]n individual’s

admission that she is an alien, coupled with her failure to produce her green card,



      1
        In light of our holding, we need not reach the question whether or under
what circumstances an alien’s unlawful presence in the country is a crime.

                                           5
provides probable cause for an arrest.” 831 F.2d 822, 828 (9th Cir. 1987). Based

on this case and Lopez-Mendoza, a reasonable officer could have concluded that an

alien’s illegal presence in the United States is a crime. This conclusion would have

found additional support in the Tenth Circuit’s decision in United States v.

Santana-Garcia, which held that a Utah State Trooper had probable cause to arrest

an alien without a warrant after the alien told the trooper he was illegally present in

the United States. 264 F.3d 1188, 1193 (10th Cir. 2001). The decision in Santana-

Garcia preceded Petitioners’ November 2001 detention.

      Petitioners also contend the deputy sheriff committed an egregious Fourth

Amendment violation because he seized Petitioners based solely on the fact they

are Hispanic. See Gonzalez-Rivera v. INS, 22 F.3d 1442, 1450 (9th Cir. 1994)

(holding that a border patrol agent committed an egregious Fourth Amendment

violation when he stopped an alien’s vehicle based solely on the alien’s Hispanic

appearance). This contention lacks merit. The evidence here is undisputed the

deputy sheriff did not stop Petitioners’ vehicle at the gas station, which would have

constituted a seizure. Petitioners were parked at the gas station because their car

had overheated, not because the deputy sheriff had pulled them over. Nor did the

deputy sheriff’s initial questions to Petitioners constitute a seizure. It was not until




                                            6
Petitioners had acknowledged their presence in the United States without legal

permission that the deputy sheriff detained them.

      DENIED.




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