     Case: 09-60275   Document: 00511261985   Page: 1    Date Filed: 10/13/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                               October 13, 2010

                                 No. 09-60275                    Lyle W. Cayce
                                                                      Clerk

JOSE SANTOS NATAREN ESCOBAR,
                                          Petitioner,
v.

ERIC H. HOLDER, JR., U.S. Attorney General,

                                          Respondent.

                                     consolidated with


                                 No. 09-60276


EVIN ONEL NATAREN LOPEZ,

                                          Petitioner,
v.

ERIC H. HOLDER, JR., U.S. Attorney General,

                                          Respondent.

                                     consolidated with


                                 No. 09-60277


JOSE ANTONIO NATAREN ESCOBAR,

                                          Petitioner,
v.
   Case: 09-60275       Document: 00511261985          Page: 2    Date Filed: 10/13/2010

                                       No. 09-60275


ERIC H. HOLDER, JR., U.S. Attorney General,

                                                   Respondent.




                    On Petition for Review from an Order of the
                    United States Board of Immigration Appeals
                                    A088 745 173
                                   A088 745 174
                                   A088 745 175


Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       The United States Board of Immigration Appeals (BIA) affirmed the
finding of the immigration judge that the three petitioners—Jose Santos
Nataren Escobar (Santos), Evin Onel Nataren Lopez (Lopez), and Jose Antonio
Nataren Escobar (Antonio) (together, Natarens)—are Honduran citizens who
entered the United States without inspection, and are subject to removal. The
Natarens now appeal to this court, contending reversible error exists in a failure
to suppress evidence in the removal proceedings or purported violations of due
process and of the Department of Homeland Security's internal regulations. In
the alternative, they assert that they should be subject to withholding of
removal.     Lacking such violations or sufficient grounds for withholding of
removal, we affirm the decision of the BIA.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

                                              2
   Case: 09-60275   Document: 00511261985        Page: 3   Date Filed: 10/13/2010

                                 No. 09-60275

                                       I
      The Department of Homeland Security’s Immigration and Customs
Enforcement (ICE) agency detained the Natarens during an early morning
immigration raid in Maryland. This raid was the culmination of an eighteen-
month investigation, though the Natarens were not actually targets of the raid.
Though ICE obtained warrants in connection with the raid, it did not have a
warrant for the house in which the Natarens were discovered. Upon finding a
van driven by one of the raid’s targets parked by his neighbor’s home, armed law
enforcement obtained entrance to that home from its owner and occupant
Alfonso Madrid Acosta (Acosta). Other agents may or may not have already
entered through another door. ICE agents then spoke to the various individuals
present in the home. Included in that group were the Natarens, who paid rent
to Acosta and shared the home with him. The Natarens were interviewed by
ICE agents and revealed themselves to have entered the United States without
inspection. They subsequently provided sworn written statements admitting
that they entered the United States illegally.
      ICE then transported the Natarens to Texas, where they were brought
before an immigration judge.     The immigration judge found no reason to
suppress evidence collected as a result of the ICE raid, pursuant either to the
exclusionary rule of the Fourth Amendment or to due process under the Fifth
Amendment and internal ICE regulations.
      The immigration judge also rejected the Natarens’ argument that they
should be subject to withholding of removal. In support of their request for
withholding, the Natarens noted that they are members of the National Party,
one of two major parties in Honduras. Though Lopez is not a member of the
party, the Natarens argue that their family as a whole is associated with the
party. They contend that as a result they were subjected to violence when living
in Honduras.

                                       3
   Case: 09-60275         Document: 00511261985      Page: 4    Date Filed: 10/13/2010

                                       No. 09-60275

       As evidence of this violence, they submitted the following: taxis owned by
Antonio were violently robbed three times in Honduras during which the drivers
were told to find other routes, and party paraphernalia on the cabs was removed;
Antonio’s father-in-law was killed in Honduras by Jeremiah Fuentes, whom
Antonio asserts is a member of the rival Liberal Party; Antonio’s wife received
death threats in Honduras; and a relative of Jeremiah Fuentes, Alton Fuentes,
later shot Lopez in the leg. The Fuentes family then contributed towards Lopez’s
medical bills in exchange for Lopez not assisting the Honduran police in their
investigation. Though Santos stated at trial that he had never personally had
any problems as a result of his family’s politics, he testified that he now feared
that he would. By contrast, the government contended that Alton Fuentes is a
member of a violent gang, and that the Natarens were victims of gang and
economic violence, rather than political intimidation.
       The immigration judge found withholding of removal unwarranted. The
BIA found no reason to disturb the conclusions of the immigration judge. As a
result, it affirmed. The Natarens now appeal to this court, and their cases have
been consolidated.
                                            II
       We have statutory jurisdiction to review the decision of the BIA under the
Immigration and Nationality Act.1                We review constitutional claims in
immigration proceedings de novo.2            Per the statute, findings of fact are
conclusive unless any reasonable adjudicator would have to find otherwise.3
Therefore, this court will not reverse a finding of fact “so long as it is not



       1
           8 U.S.C. § 1252.
      2
        Ali v. Gonzales, 440 F.3d 678, 681 (5th Cir. 2006) (per curiam) (citing Soadjede v.
Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003) (per curiam)).
      3
           8 U.S.C. § 1252(b)(4)(B).

                                            4
   Case: 09-60275         Document: 00511261985        Page: 5     Date Filed: 10/13/2010

                                          No. 09-60275

capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so aberrational that it is arbitrary rather than the result of any
perceptible rational approach.”4 Our authority is to review the decision of the
BIA, and we have previously held that where the immigration judge’s decision
has an “impact” on the BIA’s determination we may review it as well.5 Where,
as here, the BIA largely relies on the immigration judge’s findings, it is
appropriate to review them.
                                               A
       We will address the Natarens’ suppression and due process claims first.
The Natarens assert that they are entitled to have the evidence forming the
basis of this removal action suppressed in accordance with the Fourth
Amendment. The Supreme Court held in Wong Sun v. United States that both
products of unconstitutional searches and the fruits thereof are subject to
exclusion in criminal proceedings under the Fourth Amendment unless
sufficiently attenuated.6
       The Natarens bring this challenge in an immigration proceeding, which
is a civil, not criminal, proceeding.7 As a result, the potency of the exclusionary
rule is not clear. In INS v. Lopez-Mendoza, with Justice O’C ONNOR writing for
the majority, the Supreme Court held that the exclusionary rule should not be
applied in civil deportation hearings.8 The Natarens rely, instead, on negative
inferences drawn from a later section of Justice O’C ONNOR’s opinion joined only



       4
         Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006) (quoting Pritchett v. INS, 993 F.2d
80, 83 (5th Cir. 1993) (per curiam)).
       5
           Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam).
       6
           371 U.S. 471, 487-88 (1963).
       7
           Ali, 440 F.3d at 681.
       8
           468 U.S. 1032, 1050 (1984).

                                               5
   Case: 09-60275        Document: 00511261985         Page: 6   Date Filed: 10/13/2010

                                          No. 09-60275

by a plurality, suggesting that the Court had not reached the issue 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.”9 In the instant case, we need not reach the question of whether an
egregious violation of the Fourth Amendment would warrant suppression.
Indeed, the Natarens have not demonstrated any violation of the Fourth
Amendment, egregious or not, and the burden of proof is on the Natarens to
show that exclusion is warranted.10
      The Natarens argue that their home was searched without a warrant, and
that Acosta’s consent was defective. This argument is unavailing. Here, a co-
occupant of the home consented to the entrance of law enforcement agents. The
Supreme Court has long held that a co-occupant may consent to a search of
shared premises for one not present.11 Thus, Acosta, an individual who lived in
the home, had authority to allow the agents into the home while the Natarens
slept. Once in the home, the agents needed no further consent to speak to the
Natarens. As a result, Acosta’s consent was effective.
      The Natarens contend that because Acosta was their landlord, his consent
was invalid under Chapman v. United States. In that case, the Supreme Court
held that a landlord who owned but did not live in a property, and who possessed
limited rights of access, could not consent to a police search of the home.12 As in
the instant case, however, the Court has made clear that an individual also
living at a property can consent to a search on behalf of a cotenant not currently




      9
          Id. at 1050-51 (plurality).
      10
           Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503, 505 (BIA 1980).
      11
           United States v. Matlock, 415 U.S. 164, 170 (1974).
      12
           365 U.S. 610, 616-17 (1961).

                                               6
   Case: 09-60275            Document: 00511261985      Page: 7   Date Filed: 10/13/2010

                                        No. 09-60275

objecting.13 There is no reason that a financial relationship between roommates
should limit this power to consent. Indeed, this exception is sufficiently broad
to allow Acosta to provide consent even if he had not actually lived in the home,
but merely reasonably appeared to the officers to be an occupant.14 Since a
reasonable appearance of cotenancy is sufficient for consent, there is no reason
that receiving rent from an actual cotenant should render Acosta’s consent
defective.
      The Natarens also argue that the purported entrance of other agents prior
to Acosta’s consent requires suppression of all evidence from the raid. The
immigration judge and the BIA found that there was insufficient evidence of
such an entrance, and the record does not compel a contrary view. Moreover, we
note that Acosta’s effective consent cures any defect through the inevitable
discovery exception to the exclusionary rule.                 Where evidence would be
discovered through an alternative process, unrelated to a purported violation,
the Supreme Court has held that the evidence may be admitted.15 Here, even
accepting the Natarens’ factual account, the agents entering with consent were
only moments behind the agents entering without consent and Acosta, unaware
of their presence, would have admitted the others regardless. Thus, there are
no grounds for application of the exclusionary rule.
      In the alternative, presupposing both that a violation did occur and that
an egregious violation would warrant exclusion, exclusion still is not justified.
The I.N.S. v. Lopez-Mendoza plurality offered the egregious example of Rochin
v. California.16 In Rochin, police officers watched a criminal narcotics suspect


      13
           Illinois v. Rodriguez, 497 U.S. 177, 184 (1990).
      14
           See id. at 186.
      15
           Nix v. Williams, 467 U.S. 431, 444 (1984).
      16
           468 U.S. 1032, 1051 (1984) (plurality).

                                                7
   Case: 09-60275        Document: 00511261985    Page: 8   Date Filed: 10/13/2010

                                       No. 09-60275

swallow two capsules, and when they could not manually extract the capsules
themselves, handcuffed the suspect and took him against his will to a hospital
where his stomach was pumped to recover the capsules.17 The chief evidence in
that case was the capsules recovered through the induced vomiting.18 Using
Rochin as an example of “egregious” violations of the Fourth Amendment, it is
clear that the facts of this case do not rise to the requisite level. Thus, even
supposing such a rule and violation, there would nonetheless be no cause for
exclusion.
                                            B
      The Natarens’ theory that two purported violations of ICE regulations
require suppression of evidence is similarly unavailing. The Natarens direct this
court to an operating manual for the Immigration and Naturalization Service
directing agents to give apprehended aliens a notice of rights. The Natarens fail,
however, to indicate the rights of which they were not given notice. Moreover,
we review the factual determination of whether a reasonable immigration judge
and the BIA could have found notice was given, and there is support for their
finding that no violation occurred.
      Similarly, there is support for the immigration judge’s finding that there
was no violation of applicable provisions of the Code of Federal Regulations with
respect to reasonable suspicion for interrogation and the BIA’s affirmance
thereof. To that end, the Natarens rely on a provision permitting only a brief
detention for interrogation based upon reasonable suspicion.19           Below, the
immigration judge found that ICE agents gained Acosta’s consent believing that
the raid’s original target—the van owner—was inside the home, and that this


      17
           342 U.S. 165, 166 (1952).
      18
           Id.
      19
           8 C.F.R. § 287.8(b).

                                            8
   Case: 09-60275         Document: 00511261985       Page: 9     Date Filed: 10/13/2010

                                           No. 09-60275

provided reasonable suspicion to speak to the other adults in the house. Those
adults then revealed their undocumented status.                 The conclusion that this
regulation was not violated is not unreasonable, and therefore we uphold the
BIA’s affirmance thereof. We also note in the alternative that the section of
Code of Federal Regulations the Natarens rely upon does not create an
enforceable right: “These regulations do not, are not intended to, shall not be
construed to, and may not be relied upon to create any rights, substantive or
procedural, enforceable at law by any party in any matter, civil or criminal.” 20
Thus, there is no reason to believe the drastic remedy of suppression would be
warranted even if the regulations had been violated.
       These same facts dispose of the Natarens’ contention that they were
unreasonably “seized.” They cite to California v. Hodari D., arguing that they
were “seized” at some point prior to revealing their undocumented status,21 and
that their statements must be suppressed as a result. If applicable here, that
case requires only an agent’s reasonable suspicion prior to seizure.22 We have
not disturbed the immigration judge’s findings of facts regarding the van, and
those findings provide grounds for such a reasonable suspicion for the ICE.
                                                C
       Lastly, the Natarens allege that their Fifth Amendment rights were
violated by a BIA review that they insist failed to address their evidence or
arguments. This court has held that individuals in removal hearings have a
right to fundamental fairness under due process.23 The Natarens allege that the



       20
            8 C.F.R. § 287.12.
       21
            499 U.S. 621, 623-24 (1991).
       22
            Id. at 624.
       23
         Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th Cir. 1990) (citing Bridges v. Wixon,
326 U.S. 135 (1945)).

                                                9
  Case: 09-60275             Document: 00511261985      Page: 10     Date Filed: 10/13/2010

                                         No. 09-60275

BIA violated that right to fundamental fairness by ignoring their purported
evidence of an ICE pattern of bad behavior tantamount to an egregious violation
of the Fourth Amendment and by failing to address ICE’s lack of a warrant. In
light of the factual finding of consent that we have not disturbed on appeal,
neither issue is legally relevant. Thus, this issue is not a due process violation.
Further, the Natarens have provided two sentences in different paragraphs
asserting without citation that the BIA erred in its review of the immigration
judge’s requirement that the Natarens make a prima facie case for suppression
before entertaining testimony on that subject. This court has previously held
that failure to cite any authority in a brief constitutes abandonment of an
issue.24 Secondarily, it is notable that the Natarens have not offered any details
regarding the testimony they wish to offer. The burden lies on the Natarens to
show prejudice,25 and there is no such showing. As a result, a hypothetical
violation in the hearing below would be harmless.26
                                                III
       We now address the Natarens’ alternative theory that they are eligible for
withholding of removal. As with the factual determinations above, we will
disturb the conclusions of the immigration judge and the BIA only if they were
inconsistent with the findings of any reasonable adjudicator.27 We also will
again consider the findings of the immigration judge, as those findings had a
significant impact on the BIA’s determination.28



       24
            L & A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994).
       25
            Ali v. Gonzales, 440 F.3d 678, 681 (5th Cir. 2006) (per curiam).
       26
            Id. at 681-82.
       27
          Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006) (quoting Pritchett v. INS, 993 F.2d
80, 83 (5th Cir. 1993) (per curiam)).
       28
            Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam).

                                                10
  Case: 09-60275         Document: 00511261985          Page: 11      Date Filed: 10/13/2010

                                         No. 09-60275

      For withholding of removal, an applicant must show that “‘it is more likely
than not’ that his life or freedom would be threatened by persecution on account
of one of the five categories mentioned under asylum: race, religion, nationality,
membership in a particular social group, or political opinion.” 29 As a result of
recent statutory changes, an applicant must now show that the protected
classification will be at least one central reason for persecution.30                        The
persecution must come at the hands of the government, or with its consent or
acquiescence.31 The Natarens theorize that withholding is justified by their
family’s longstanding membership in the National Party in concert with the acts
of violence they describe. As the findings below were not unreasonable on this
point, we uphold the BIA’s affirmance of the immigration judge.
      The BIA found no reason to disturb the immigration judge’s determination
that the Nataren family was not a social group entitled to protection on account
of their political views.         Though the Natarens advance one theory for the
lamentable difficulties they have faced, there are other reasonable views. The
immigration judge found that Lopez’s shooting was linked to the shooter’s gang
membership, rather than any political affiliation. Similarly, the immigration
judge found that since Santos left Honduras before the relevant incidents, he
could not have done so on the basis of political oppression.                       Lastly, the
immigration judge concluded that, in light of the taxi robbers’ warning to find
a different route, Antonio was the victim of economic, not political, violence.
While the Natarens contend that the BIA should have reversed this finding on
the basis of their “consistently” maintaining that these crimes had political
motives, there is evidence in the record to the contrary. For instance, Antonio’s


      29
           Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002) (citing 8 C.F.R. § 208.16(b)(1)).
      30
           Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting 8 U.S.C. § 1158(b)(1)(A)).
      31
           See Adebisi v. INS, 952 F.2d 910, 913-14 (5th Cir. 1992).

                                                11
  Case: 09-60275    Document: 00511261985      Page: 12   Date Filed: 10/13/2010

                                    No. 09-60275

wife described her father’s shooting as the result of the shooter’s drunkenness.
Moreover, the Natarens repeatedly reference police involvement. Indeed, Lopez
claimed to be fearful because his shooter might think that he reneged on his
promise not to speak to the police. This information makes it difficult for the
Natarens to demonstrate government acquiescence. As a result, it cannot be
said that no reasonable adjudicator would have denied withholding of removal.
                                *        *         *
      Finding no reversible error in the BIA’s affirmance of the immigration
judge’s order, we AFFIRM.




                                        12
