Lucero v. Mukasey

MEMORANDUM ** Maria de Lourdes Gomez Lucero (“Gomez Lucero”) petitions for review of a BIA order dismissing her appeal. The IJ denied Gomez Lucero’s motion to terminate the proceedings and ordered her removed from the United States. We have jurisdiction pursuant to 8 U.S.C. § 1252 , and we deny the petition. Gomez Lucero argued before the IJ that her statements recorded on Form 1213 (Record of Deportable/Inadmissible Alien) should be suppressed because her request to speak with her attorney while in secondary inspection was denied in violation of her regulatory and constitutional rights. Our review of these questions of law is de novo. Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). The exclusionary rule is generally not applicable in removal proceedings, except in cases of “egregious” conduct that “transgress[es] notions of fundamental fairness and undermine[s] the probative value of the evidence obtained.” Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448 (9th Cir.1994) (quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 , 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1984)). No such conduct occurred in this case. First, Gomez Lucero’s regulatory right to counsel was not violated because there is no evidence in the record that she was the “focus of a criminal investigation.” 8 C.F.R. § 292.5 (b). Second, even if she was entitled to Miranda warnings, we have long held that violation of Miranda does not require suppx’ession in removal proceedings. Trias-Hernandez v. INS, 528 F.2d 366, 369 (9th Cir.1975). Third, there is no evidence that her statements were made involuntaxily “or otherwise affected by the circumstances of her arrest.” In re Toro, 17 I. & N. Dec. 340, 344 (BIA 1980). The 1-213 is therefore probative evidence, the use of which is not fundamentally unfair. PETITION DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9lh Cir. R. 36-3.