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Chavez-Castillo v. Holder

United States Court of Appeals, Eighth Circuit

November 17, 2014

Jeho Chavez-Castillo, also known as Iran Castillo-Gomez, Petitioner
v.
Eric H. Holder, Jr., Attorney General of the United States, Respondent

Submitted October 7, 2014.

Petition for Review of an Order of the Board of Immigration Appeals.

For Jeho Chavez-Castillo, also known as Iran Castillo-Gomez, Petitioner: Murray David Hilts, San Diego, CA.

For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Scott Baniecke, U.S. IMMIGRATION & NATURALIZATION SERVICE, Bloomington, MN; Kevin J. Conway, Karen Yolanda Drummond, Carl H. McIntyre, Nicole Thomas-Dorris, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC.

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

OPINION

Page 1082

MURPHY, Circuit Judge.

Petitioner Jeho Chavez-Castillo, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals (BIA) decision which dismissed his appeal from an order by an Immigration Judge (IJ) removing him from the United States to Mexico. Chavez-Castillo argues that the evidence of his alienage should have been suppressed because it was obtained in violation of his Fourth Amendment rights. He also asserts that he was not afforded due process in his removal proceedings and that the IJ erred in drawing an adverse inference against him when he invoked his Fifth Amendment right against self incrimination. After due consideration, we deny the petition.

On August 21, 2011 a police officer of Belle Fourche, South Dakota stopped Chavez-Castillo for speeding. Chavez-Castillo failed to produce a valid driver license and claimed that he was a Mexican citizen named Iran Castillo-Gomez. The officer then arrested Chavez-Castillo and charged him with speeding and driving without a

Page 1083

valid driver license in violation of South Dakota law. The next day, U.S. Immigration and Customs Enforcement (ICE) interviewed Chavez-Castillo. Chavez-Castillo admitted that his true name was Jeho Chavez-Castillo, he was a Mexican citizen and did not claim lawful status in the United States, and he had purchased two false identification cards with the name Iran Castillo-Gomez. He was turned over to ICE custody, and the Department of Homeland Security (DHS) served him with a notice to appear charging him as an alien present without admission or parole under 8 U.S.C. § 1182(a)(6)(A)(i). State law charges against him for speeding and driving without a valid driver license were dismissed at that time.

In the removal proceedings, Chavez-Castillo moved to suppress all evidence that was obtained as a result of the traffic stop. He submitted an affidavit stating there was no legitimate reason for the officer to stop him because he had been " driving the lawful speed limit." He also argued that he was entitled to confront the immigration officer who prepared Form I-213 which detailed the facts of the traffic stop and stated that he had entered the United States without admission or parole. In response, DHS submitted additional evidence relating to the traffic stop including two traffic tickets, the arresting officer's " affidavit of probable cause for warrantless arrest," and the record of arrest. All of these documents stated that Chavez-Castillo was stopped and ticketed for speeding and driving without a license.

On August 21, 2012 the parties appeared at a hearing before the IJ to resolve the charge of removability. When Chavez-Castillo was questioned about his place of birth, his attorney objected and advised him to invoke his Fifth Amendment right against self incrimination. The IJ overruled the objection and stated that Chavez-Castillo, not his attorney, must invoke the right. Counsel then advised Chavez-Castillo " to invoke the Fifth Amendment on all questions." When asked about his parent's place of birth, Chavez-Castillo refused to answer, and the IJ declared that it would " take a negative inference from the refusal to answer." Nevertheless, Chavez-Castillo eventually testified that he was pulled over while driving, he provided the officer with false identification, and he had been charged with speeding.

At the close of the hearing, the IJ admitted the notice to appear and the Form I-213 into evidence, denied the motion to suppress, and ordered Chavez-Castillo removed from the country. The IJ found there was no basis to suppress the evidence and determined that Form I-213 provided sufficient evidence of removability. The BIA affirmed, concluding that Chavez-Castillo failed to present sufficient evidence to establish a prima facie case that he was stopped illegally or that the officer egregiously violated his Fourth Amendment rights. The BIA also concluded that the lack of opportunity to cross examine the immigration officer who prepared Form I-213 did not deny Chavez-Castillo due process. Further, because Form ...


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