FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-10108 Plaintiff-Appellant,

D.C. No.

v.  CR 01-051 DWH

LIN CHEN,

OPINION Defendant-Appellee. 

Appeal from the District Court of Guam

David W. Hagen, District Judge, Presiding

Argued and Submitted

January 12, 2006—San Francisco, California

Filed March 2, 2006

Before: A. Wallace Tashima and William A. Fletcher,

Circuit Judges, and Edward F. Shea,* District Judge.

Opinion by Judge Tashima

*The Honorable Edward F. Shea, United States District Judge for the

Eastern District of Washington, sitting by designation. 

2151
COUNSEL

Kirby A. Heller, Criminal Division, U.S. Department of Justice, Washington, D.C., for the plaintiff-appellant. 

John T. Gorman, Federal Public Defender, Mongmong,

Guam, for the defendant-appellee. 

OPINION

TASHIMA, Circuit Judge: 

In this interlocutory appeal, the government challenges the

district court’s decision to suppress statements made by

UNITED STATES v. CHEN 2153
defendant Lin Chen (“Chen”). Chen made the statements during an interview with an Immigration and Naturalization Services (“INS”)1

 agent who was investigating a third party

suspected of running an alien smuggling ring. At the time of

the interview, Chen was in custody in Guam on an administrative deportation warrant. The district court concluded that

the INS agent was required to give a Miranda2 warning before

the interview. The court therefore granted Chen’s motion to

suppress, and the government now appeals. We have jurisdiction under 18 U.S.C. § 3731 and affirm the district court’s

decision to suppress Chen’s statements.

Background

On January 10, 2001, INS Special Agent Timothy Conway

(“Conway”) and other INS agents executed a search warrant

at Apartment 101 at the Harmon Gardens apartment complex.

The search warrant was in connection with the criminal investigation of Ho Chun Li (“Li”), who was suspected of smuggling aliens. A confidential informant had revealed to the INS

that numerous illegal aliens were living in the apartment. The

agents encountered approximately 14 illegal aliens in the

apartment, including Chen. When questioned about his citizenship, Chen stated that he was a Chinese citizen. He was

then taken into administrative custody, pending a final determination by an Immigration Judge (“IJ”). 

On January 12, 2001, Chen was served with a notice

informing him that he had been arrested “because immigration officers believe that you are illegally in the United

States,” and further informing him that he had a right to a

hearing before an IJ. The same day, while Chen was in INS

1The INS has been abolished and its functions transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub. L.

No. 107-296, 116 Stat. 2142 (2002), 6 U.S.C. §§ 101-557. This opinion

will refer to the government agency as the INS. 

2Miranda v. Arizona, 384 U.S. 436 (1966). 

2154 UNITED STATES v. CHEN
custody, Conway questioned Chen about how he arrived in

Guam. According to Conway, this questioning was in connection with Conway’s investigation of Li, the suspected smuggler. Chen stated that he came to Guam on a Taiwanese

fishing boat on June 3, 2000, and that he left the ship once it

reached port. Chen further stated that he was directed to 101

Harmon Gardens, and consequently to Li, by an unnamed

stranger. At the time of the interview, Conway knew Chen

had an attorney, but did not call Chen’s attorney prior to questioning Chen. Conway also interviewed the other aliens from

101 Harmon Gardens. They, like Chen, indicated that they

had arrived in Guam as crewmen on fishing boats. 

On February 22, the IJ held a bond hearing for the aliens

who had been arrested at 101 Harmon Gardens, including

Chen. At the hearing, all of these individuals were represented

by the same attorney. Local residents signed the bonds and

paid for the releases of the aliens. Conway later testified that

at this time he became suspicious that Chen and the other

aliens were lying about their means of arrival in Guam. Conway obtained lists of the fishing vessels that had arrived in

Guam and determined that the aliens’ stories did not comport

with the fishing vessel documentation. Conway forwarded the

materials dealing with his investigation of these aliens to the

United States Attorney’s Office. 

Criminal charges were filed against Chen and four other

residents of the Harmon Gardens apartment for perjury, in

violation of 18 U.S.C. § 1621, and the making of a false statement in a matter within the jurisdiction of the INS, in violation of 18 U.S.C. § 1001. The perjury charge arose from

statements contained in Chen’s October 2000 asylum application, in which he stated that he had arrived on June 3, 2000,

on a fishing boat, and the false statement charge arose from

Chen’s allegedly false statements to Conway on January 12,

2001, recounting basically the same story. 

Before the grand jury, Conway served as the primary witness, testifying that all of the aliens’ stories were untrue

UNITED STATES v. CHEN 2155
because the boat names and dates the aliens provided in their

interviews did not comport with Guam’s port records. He also

indicated that at the time Chen was arrested, Conway already

had formed a suspicion that Chen had been smuggled: “Well,

if we think they are being smuggled into the United States and

we arrest them, we interview them as to how they came here

and that sort of thing.” The grand jury hearing concluded with

the prosecutor’s statement that “[i]t’s obvious — what I’m

doing, of course [in prosecuting the aliens for perjury] — I’m

after Ho Chun Li and nobody will cooperate with me, so I’m

going to put on a little pressure. And even then, they probably

won’t cooperate with me. They’ll probably just stonewall.” 

Chen subsequently moved to suppress his statements made

to Conway at the January 12 interview. He argued that the

questioning constituted a “custodial interrogation,” and that

Conway’s failure to administer a Miranda warning therefore

rendered the statements inadmissible. The district court held

an evidentiary hearing at which Conway testified that at the

time he interviewed Chen, he did not suspect Chen of any

criminal wrongdoing. He acknowledged that illegal entry was

a crime, but testified that such violations are “not usually”

prosecuted in Guam. He further testified that his criminal

investigation of Chen began only after his suspicions were

raised when the local Guam residents signed the aliens’

bonds. 

The court granted the motion to suppress, holding that Conway’s knowledge of Chen’s illegal presence in the country

made the questioning reasonably likely to elicit incriminating

statements. In its written opinion, the court found that Conway interrogated Chen with a “dual purpose”: both to determine whether Chen’s presence in the country was illegal, and

also to ascertain information for Conway’s criminal investigation of Li. In its oral decision, the court emphasized that a

Miranda warning was required because illegal presence in the

United States is a crime, Chen was believed to have committed that crime, he was in custody because of INS agents’ sus2156 UNITED STATES v. CHEN
picion that he had committed that crime, and the agent’s

questions related to that crime. After the ruling, the government filed a motion for reconsideration, which the court

denied. The government then filed this interlocutory appeal.

Discussion

The district court’s determination that the government’s

questioning was an “interrogation” for Miranda purposes is a

mixed question of law and fact, which we review de novo.

United States v. Padilla, 387 F.3d 1087, 1093 n.4 (9th Cir.

2004). We review the district court’s underlying findings of

fact for clear error. United States v. Camacho, 368 F.3d 1182,

1183 (9th Cir. 2004). 

[1] Miranda prohibits “custodial interrogation” unless the

government first provides the suspect with certain warnings.

384 U.S. at 444. Not every question asked in a custodial setting,3

however, constitutes “interrogation.” United States v. Booth,

669 F.2d 1231, 1237 (9th Cir. 1982). The test is whether,

under all the circumstances involved in a given case, the questions are “reasonably likely to elicit an incriminating response

from the suspect.” Id. (quoting Rhode Island v. Innis, 446

U.S. 291, 301 (1980)). The investigating officer’s subjective

intent is relevant but not determinative, because the focus is

on the perception of the defendant. United States v. MorenoFlores, 33 F.3d 1164, 1169 (9th Cir. 1994). 

Several Ninth Circuit cases have analyzed whether INS

agents’ investigations of illegal immigrants constitute “interrogations.” In United States v. Mata-Abundiz, 717 F.2d 1277

(9th Cir. 1983), we concluded that the questioning conducted

by an INS investigator constituted an “interrogation” when

there was a “close sequence” between the “civil” investigation

3The government does not contest the district court’s finding that this

interview was “custodial” for Miranda purposes. Therefore, we do not

review that finding. 

UNITED STATES v. CHEN 2157
and the criminal prosecution. Id. at 1279-80. The defendant in

Mata-Abundiz had been jailed on charges of carrying a concealed weapon and possession of a firearm by an alien. Id. at

1278. The INS agent’s questioning about alienage was likely

to elicit incriminating responses because the INS investigator

knew that evidence of alienage, coupled with evidence of firearms possession, could lead to federal prosecution under 18

U.S.C. § 1202. Id. at 1279. Moreover, the INS investigator

began a “full-fledged criminal investigation[ ]” only three

hours after he ended the “civil” or administrative INS interview. Id. In concluding that the INS questioning constituted

an “interrogation,” we relied on Mathis v. United States, 391

U.S. 1 (1968), in which the Supreme Court held that Miranda

warnings are required before conducting “routine” tax investigations of persons in custody, because tax investigations “frequently” lead to criminal prosecutions. Mata-Abundiz, 717

F.2d at 1279 (citing Mathis, 391 U.S. at 4). Mata-Abundiz

concluded that the facts in that case demonstrated the need for

a Miranda warning in civil custodial investigations “even

more vividly” than did the facts in Mathis. Id.

By contrast, in United States v. Salgado, 292 F.3d 1169

(9th Cir. 2002), we concluded that an INS agent’s purely

administrative interview of the defendant was not an interrogation for Miranda purposes. Id. at 1174. The defendant in

Salgado was arrested on state law charges in 1998 and, while

in state custody, the INS interviewed the defendant for the

“sole purpose” of determining whether the defendant was subject to an administrative action for deportation. Id. at 1172.

After being deported, the defendant illegally re-entered the

country in 1999 and was prosecuted for illegal re-entry under

8 U.S.C. § 1326.4Id. at 1171-72. 

4

8 U.S.C. § 1326 makes it a crime for an alien who has been excluded,

deported, or removed to reenter the United States without the consent of

the Attorney General. 8 U.S.C. § 1325 makes it a crime for an alien to

enter the United States improperly, e.g., by eluding a border inspection or

by a false representation. Any differences between a prosecution for illegal reentry under § 1326 and for illegal entry under § 1325 are immaterial

to the disposition of this case. 

2158 UNITED STATES v. CHEN
We held that the 1998 statements to the INS agent were

admissible in the 1999 prosecution even though no Miranda

warnings had been administered. Id. at 1174. In doing so, we

distinguished this case from those in which the INS questioning was “in connection with a prosecution for violating the

immigration laws,” or where the defendant “had been in custody on charges relating to his immigration status.” Id. at

1172 (internal quotation marks omitted). We emphasized that

the INS’ questioning of the defendant was “solely for the

administrative purpose” of determining whether the defendant

was deportable after release from jail. Id.

In Salgado, we reasoned that the questioning had not been

likely to elicit incriminating statements because the INS agent

could not have reasonably foreseen that the defendant would

re-enter the country a year later and commit another crime.5

Id. at 1173. Moreover, the INS’ questioning did not relate

directly to “an element of the crime which the investigator

had reason to suspect that [the defendant] had committed.” Id.

Between Mata-Abundiz and Salgado, we decided United

States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir. 1990),

where we suppressed un-Mirandized statements elicited by

border patrol officers when the statements were actually “used

to help prove the charges of illegal entry and being a deported

alien found in the United States.” Id. at 1047. Likewise, in

United States v. Equihua-Juarez, 851 F.2d 1222 (9th Cir.

1988), we held that an INS agent’s questions about defen5

Salgado relied heavily on United States v. Solano-Godines, 120 F.3d

957 (9th Cir. 1997), which held that an IJ’s questioning during civil deportation proceedings did not require Miranda warnings, even though the

statements elicited at the hearing were used in the defendant’s subsequent

prosecution for illegal reentry. Id. at 962. Salgado concluded that SolanoGodines was controlling, because neither the IJ in Solano-Godines nor the

INS agent in Salgado could have reasonably anticipated that the defendant

would be prosecuted for a subsequent illegal re-entry in which the earlier

statements about immigration would be used by the prosecution. See Salgado, 292 F.3d at 1173-74. 

UNITED STATES v. CHEN 2159
dant’s biographical information constituted an “interrogation”

when the information was used to determine whether the alien

should be deported or criminally prosecuted. Id. at 1226-27.

These cases are distinguishable from Salgado because such

questioning, in the words of Salgado, was “in connection with

a prosecution for violating the immigration laws” or involved

a defendant who “had been in custody on charges relating to

his immigration status.” 292 F.3d at 1172. The alienagerelated questioning in Salgado, by contrast, was merely for

the administrative purpose of assessing a defendant’s eventual

deportability and was not conducted for the purpose of a criminal investigation. 

[2] None of these cases directly addresses the question of

whether routine INS questioning constitutes an “interrogation” if the statements elicited would incriminate the defendant only as to misdemeanor illegal entry under 8 U.S.C.

§ 1325. See Salgado, 292 F.3d at 1175 & n.1 (Pregerson, J.,

dissenting) (arguing that Miranda warnings were required by

pointing out, inter alia, that an alien-defendant’s response to

INS questioning necessarily incriminates that defendant in a

§ 1325 violation). Our previous cases, including Salgado and

Solano-Godines, focused on whether the questioning was

incriminating as to § 1326 liability, because that was the

crime actually prosecuted. See Salgado, 292 F.3d at 1173-74;

Solano-Godines, 120 F.3d at 961-62. In Mata-Abundiz, we

noted that “[c]ivil as well as criminal interrogation of incustody defendants by INS investigators should generally be

accompanied by the Miranda warnings.” 717 F.2d at 1279.

Were the inherent threat of § 1325 prosecution enough to render INS questioning an “interrogation,” all alienage-related

questioning, at least where the interviewing officer had reason

to suspect the defendant was an alien, would require Miranda

warnings. We need not reach that question on the particular

facts before us, however, because the facts here demonstrate

that Chen was subject to an especially heightened risk of a

§ 1325 prosecution. The particular circumstances of this case

— namely, the prosecutor’s willingness to pursue charges

2160 UNITED STATES v. CHEN
against Chen in order to procure Chen’s testimony against Li,

and the fact that Chen was questioned in a district that has a

practice of prosecuting § 1325 violations — rendered Conway’s questioning of Chen an “interrogation” for Miranda

purposes. See Booth, 669 F.2d at 1237 (holding that the test

for determining whether questioning constitutes “interrogation” should be analyzed under a totality of the circumstances

standard). 

[3] Conway testified at the suppression hearing on February

8, 2005, that illegal entry violations are “not usually” prosecuted and that no illegal entry cases were prosecuted in Guam

in “the last year.” Even if illegal entry violations were “not

usually” prosecuted in Guam, Chen was the subject of heightened INS scrutiny because of his association with Li. The

authorities suspected Chen of being a participant in a smuggling scheme, and needed his testimony to bolster their criminal case against Li, the suspected leader of the smuggling

ring. Chen was arrested at Li’s home, had been identified by

a confidential informant as one of several aliens smuggled

and/or housed by Li, and was likely a relative of Li’s. One

purpose, if not the principal purpose, of the government’s pursuit of its perjury case against Chen was to elicit incriminating

testimony from Chen against Li. At Chen’s grand jury hearing, the prosecutor declared that “[i]t’s obvious — what I’m

doing, of course — I’m after Ho Chun Li and nobody will

cooperate with me, so I’m going to put on a little pressure.”

Because of the government’s interest in procuring Chen’s testimony against Li, the possibility of the government prosecuting Chen was especially high. 

[4] Moreover, the Federal Public Defender of the District

of Guam (“FPD”) has represented, and the government has

not contested,6 that between 1998 and 2004 the FPD’s office

has represented 48 persons accused of illegal entry in the Dis6The government did not challenge this representation either in its reply

brief or at oral argument. 

UNITED STATES v. CHEN 2161
trict of Guam.7

 Because of the government’s interest in procuring Chen’s testimony and the U.S. Attorney’s practice of

prosecuting § 1325 violations, Conway’s questioning about

Chen’s alienage was reasonably likely to elicit a response that

would incriminate Chen in a § 1325 prosecution. See Mathis,

391 U.S. at 4 (requiring Miranda warnings before “routine”

tax investigations of persons in custody because such investigations “frequently” lead to criminal prosecutions). 

Conclusion

[5] We need not decide today whether questioning that

would elicit an alien’s admission of illegal presence in the

United States will always constitute an “interrogation” for

Miranda purposes. Rather, we conclude that INS Agent Conway’s questioning of Chen in the circumstances of this case

constituted an “interrogation” because the government’s interest in Chen’s testimony and the U.S. Attorney’s practice of

pursuing § 1325 prosecutions combined to create a heightened

threat that the defendant might actually face a § 1325 prosecution. 

[6] Accordingly, the decision of the district court granting

Chen’s motion to suppress is AFFIRMED. 

7The District of Guam is a small jurisdiction. In 2004, a total of 152

cases were filed in the district court, and the FPD opened 129 cases.

Office of the Circuit Executive, 2004 Annual Report, Ninth Circuit United

States Courts at 59, 69. 

2162 UNITED STATES v. CHEN