FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MYNOR MANFREDO SAMAYOA- 

MARTINEZ, No. 04-74220

Petitioner, D.C. No.

v.  Agency No.

A078-461-205 ERIC H. HOLDER, Jr., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 20, 2008*

Pasadena, California

Filed March 3, 2009

Before: Ferdinand F. Fernandez, Consuelo M. Callahan and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

2607
COUNSEL

H. Varvandeh, Los Angeles, California, for the petitionerappellant.

Richard M. Evans, Office of Immigration Litigation, United

States Department of Justice, Washington, D.C., for the

respondent-appellee. 

SAMAYOA-MARTINEZ v. HOLDER 2609
OPINION

IKUTA, Circuit Judge: 

Mynor Manfredo Samayoa-Martinez seeks relief from a

final order of removal on the ground that the immigration

judge (IJ) erred in admitting a Form I-213 (Record of

Deportable/Inadmissible Alien) into evidence. Samayoa

alleges that this Form I-213 included information that the

Immigration and Naturalization Service (INS) obtained in

violation of its own regulations. Because we conclude that the

INS did not commit any regulatory violation, we deny

Samayoa’s petition for review. 

I

On January 18, 2001, John Lomeli, a military police officer

with the China Lakes Police Department, observed a car

crossing a solid white line on a street on the China Lake

Naval Air Weapons Station. After making a routine traffic

stop, Lomeli questioned Samayoa, who was driving the car,

and the three passengers. Samayoa and his passengers admitted they were not citizens of the United States. Nor were they

able to produce valid immigration documents in response to

Lomeli’s request for identification. According to Samayoa,

Lomeli ordered Samayoa and the passengers out of the car

and handcuffed them. Lomeli contacted his supervisor, who

in turn contacted the INS.1 A border patrol agent questioned

Samayoa over the telephone but did not inform him of his

procedural rights under immigration law. After this telephone

interview, Lomeli transported Samayoa and the other passengers to a nearby police station, where they were fingerprinted

and photographed. Lomeli then transported Samayoa and the

1Congress transferred the functions of the former INS to the Department

of Homeland Security on March 1, 2003. The transfer does not affect any

legal issues in this case, and we will therefore continue to refer to the

agency involved as the INS. 

2610 SAMAYOA-MARTINEZ v. HOLDER
passengers to the Jawbone Canyon Ranger Station outside

Bakersfield, California, where they were transferred into INS

custody. Samayoa alleges he was rearrested and once again

was not advised of his procedural rights. 

While in INS custody, Samayoa and his passengers were

transferred to Bakersfield, California. The INS prepared a

Form I-213, which included Samayoa’s name, country of

nationality, and time, manner, and place of his last entry into

the United States. On the same day, the INS personally served

Samayoa with a Notice to Appear (NTA), charging him with

removeability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i)2 and

requiring him to appear in immigration court. The INS filed

Samayoa’s NTA with the immigration court on January 24,

2001. 

At Samayoa’s deportation hearing, the government moved

to enter the Form I-213 into evidence. Samayoa filed a motion

to suppress the Form I-213 on the ground (among others) that

the INS had obtained the information contained in the Form

I-213 in violation of several federal regulations. The IJ denied

the motion to suppress. Because the evidence in the Form I213 established that Samayoa was an alien, and Samayoa

could not demonstrate that he was in the United States legally,

the IJ determined that Samayoa was removable. The IJ

granted Samayoa’s request for voluntary departure. 

On appeal, the BIA affirmed the IJ’s determination, citing

Matter of Burbano, 20 I & N Dec. 872, 874 (BIA 1994).

Samayoa timely filed this petition for review. 

2

8 U.S.C. § 1182(a)(6)(A)(i) provides: “An alien present in the United

States without being admitted or paroled, or who arrives in the United

States at any time or place other than as designated by the Attorney General, is inadmissable.” 

SAMAYOA-MARTINEZ v. HOLDER 2611
II

We have jurisdiction under 8 U.S.C. § 1252(a). Because the

BIA cited its decision in Burbano and did not disagree with

any part of the IJ’s decision, “we review the IJ’s decision as

if it were that of the BIA.” Abebe v. Gonzales, 432 F.3d 1037,

1039 (9th Cir. 2005) (en banc) (internal quotation marks omitted). “Factual findings underlying an IJ’s order are reviewed

for substantial evidence.” Lopez-Rodriguez v. Mukasey, 536

F.3d 1012, 1015 (9th Cir. 2008). Questions of law are

reviewed de novo. Rodriguez-Echeverria v. Mukasey, 534

F.3d 1047, 1050 (9th Cir. 2008). 

On appeal, Samayoa argues that his deportation proceeding

was invalid because the INS obtained the information in his

Form I-213 in violation of various immigration regulations,

and this violation was prejudicial to his interests. This argument is based on United States v. Calderon-Medina, 591 F.2d

529 (9th Cir. 1979), where we held that the INS’s violation

of a regulation requiring detained aliens to be notified that

they could communicate with the consular or diplomatic officers of their country could invalidate a deportation proceeding

if: 1) the regulation serves a purpose of benefit to the alien;

and 2) the violation prejudiced interests of the alien that were

protected by the regulation. Id. at 531. 

Samayoa argues that he qualifies for relief under CalderonMedina because the INS violated its own regulations in two

ways. First, Samayoa argues that Lomeli violated 8 C.F.R.

§§ 287.1(g), 287.5, and 287.8, which provide that only immigration officers who meet specified qualifications have the

authority to arrest aliens suspected of immigration violations,

and that the INS must be held responsible for these violations.3

3

8 C.F.R. § 287.1(g) states: 

Basic immigration law enforcement training. The phrase basic

immigration law enforcement training, as used in §§ 287.5 and

2612 SAMAYOA-MARTINEZ v. HOLDER
Second, Samayoa alleges the INS violated § 287.3(c), which

provides that “an alien arrested without warrant and placed in

formal proceedings under section 238 or 240 of the Act” is

entitled to certain notifications.4 Samayoa argues that the

287.8, means the successful completion of one of the following

courses of training provided at the Immigration Officer Academy

or Border Patrol Academy: [list of training courses omitted]. 

8 C.F.R. § 287.5 states, in pertinent part: 

(c) Power and authority to arrest— 

(1) Arrests of aliens under section 287(a)(2) of the Act for immigration violations. The following immigration officers who have

successfully completed basic immigration law enforcement training are hereby authorized and designated to exercise the arrest

power conferred by section 287(a)(2) of the Act and in accordance with 8 CFR 287.8(c): 

[list of authorized immigration officers, not including military

police, omitted]. 

8 C.F.R. § 287.8 states, in pertinent part: 

(c) Conduct of arrests— 

(1) Authority. Only designated immigration officers are authorized to make an arrest. The list of designated immigration officers varies depending on the type of arrest as listed in 8 CFR

287.5(c)(1) through (c)(5). 

4

8 C.F.R. § 287.3(c) states: 

Except in the case of an alien subject to the expedited removal

provisions of section 235(b)(1)(A) of the Act, an alien arrested

without warrant and placed in formal proceedings under section

238 or 240 of the Act will be advised of the reasons for his or her

arrest and the right to be represented at no expense to the Government. The examining officer will provide the alien with a list of

the available free legal services provided by organizations and

attorneys qualified under 8 CFR part 1003 and organizations recognized under § 292.2 of this chapter or 8 CFR 1292.2 that are

located in the district where the hearing will be held. The examining officer shall note on Form I-862 that such a list was provided

to the alien. The officer will also advise the alien that any statement made may be used against him or her in a subsequent proceeding. 

SAMAYOA-MARTINEZ v. HOLDER 2613
INS’s violation of its regulations prejudiced his interests.

Therefore, Samayoa contends, the IJ erred in admitting the

Form I-213 into evidence, and his removal proceeding was

invalid. We consider each of these arguments in turn. 

A

We first consider Samayoa’s argument that Lomeli’s conduct amounted to a violation by the INS of 8 C.F.R.

§§ 287.1(g), 287.5, and 287.8. This argument is premised on

the theory that Lomeli (and other military police) were agents

of the INS under California law, and as such, were required

to comply with immigration regulations. To support his theory, Samayoa cites People v. Treadwell, 69 Cal. 226, 236

(1886) (enunciating basic principles of California agency law)

and various provisions of the California Civil Code. See CAL.

CIV. CODE § 2299 (“An agency is actual when the agent is

really employed by the principal”); id. § 2300 (if the principal

“intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really

employed by him,” the principal is responsible for the acts of

the ostensible agent). 

According to Samayoa, because Lomeli was an actual or

ostensible agent of the INS, he could not arrest an alien unless

he had first fulfilled the basic training requirements set forth

in 8 C.F.R. §§ 287.8, 287.5, and 287.1(g). Because Lomeli

had not done so, Samayoa contends the arrest constituted a

violation of immigration regulations. See CAL. CIV. CODE

§ 2330. Samayoa argues that, under Calderon-Medina, those

violations were prejudicial and required the IJ to suppress the

statements Samayoa made to Lomeli. The IJ rejected this

Section 283 of the INA is codified at 8 U.S.C. § 1228 (covering expedited removal of criminal aliens). 

Section 240 of the INA is codified at 8 U.S.C. 1229a (covering removal

proceedings). 

2614 SAMAYOA-MARTINEZ v. HOLDER
argument, holding that Lomeli was not acting as an agent of

the INS when he arrested and detained Samayoa, and therefore neither Lomeli nor the INS violated any immigration regulations.

[1] We agree with the IJ. Beyond reciting basic principles

of agency law, Samayoa provides no factual or legal support

for the theory that the military police are agents of the INS

and must comply with immigration regulations, and we have

found none. Military police have independent legal authority

“to arrest and detain civilians for on-base violations of civil

law.” United States v. Banks, 539 F.2d 14, 16 (9th Cir. 1976);

see also 10 U.S.C. § 809(e) (providing that military police

may “secure the custody of an alleged offender until proper

authority may be notified”). The IJ found that Lomeli acted

independently of the INS in stopping, arresting, and detaining

petitioners, and this finding is supported by substantial evidence. There is also no evidence in the record that the INS

took steps that would cause a third person to believe the military police were agents of the INS. Accordingly, the IJ and

BIA did not err in concluding that Lomeli was not an actual

or ostensible immigration officer or agent of the INS and

therefore that he was not required to comply with INS regulations. We conclude that Samayoa’s claim that his statements

to Lomeli and other military police were obtained in violation

of 8 C.F.R. §§ 287.1(g), 287.5, or 287.8 is meritless. 

B

We next turn to Samayoa’s argument that the INS violated

8 C.F.R. § 287.3(c) when the border patrol agent interviewed

Samayoa on the telephone without first notifying him of his

rights.5 Samayoa argued to the IJ, and now argues on appeal,

that because he was under arrest at the time the border patrol

agent conducted the telephone interview, the agent was

5To the extent that Samayoa is arguing that Lomeli also violated 8

C.F.R. § 287.3, we reject this argument for the reasons explained above.

SAMAYOA-MARTINEZ v. HOLDER 2615
required to notify Samayoa of his right to counsel, that he had

a right to remain silent, and of his right against selfincrimination.6

 The IJ determined that the INS did not violate

§ 287.3(c) because at the time the border patrol questioned

Samayoa, the INS had not yet initiated formal removal proceedings against him. Because the INS’s obligation to notify

the alien of his rights does not attach until the alien has been

arrested and placed in such proceedings, the IJ concluded that

there was no violation of § 287.3(c). 

[2] We agree with the IJ’s reading of § 287.3(c). Section

287.3(c) requires the INS to inform aliens who have been “arrested without warrant and placed in formal proceedings” of

their procedural rights. Formal removal proceedings do not

commence until the INS has filed an NTA in the immigration

court. 8 C.F.R. § 1239.1(a) (“Every removal proceeding conducted under section 240 of the Act (8 U.S.C. § 1229a) to

determine the deportability or inadmissibility of an alien is

commenced by the filing of a notice to appear with the immigration court.”); see also Kohli v. Gonzales, 473 F.3d 1061,

1066 (9th Cir. 2007) (citing 8 C.F.R. § 1239.1 for the proposition that “[t]he actual removal proceeding to determine the

deportability or inadmissibility of an alien is commenced by

the filing of a notice to appear with the immigration court”

(internal quotation marks omitted)); Cortez-Felipe v. INS, 245

F.3d 1054, 1057 (9th Cir. 2001). Logically, an alien cannot be

6Although we need not address Samayoa’s arguments regarding the

nature of notifications to which he claims he is entitled, we note that

§ 287.3 does not require the government to notify the alien of a right to

remain silent or a right against self-incrimination. Indeed, in deportation

proceedings, “[i]n light of the alien’s burden of proof, the requirement that

the alien answer non-incriminating questions, the potential adverse consequences to the alien of remaining silent, and the fact that an alien’s statement is admissible in the deportation hearing despite his lack of counsel

at the preliminary interrogation-Miranda warnings would be not only inappropriate but could also serve to mislead the alien.” Trias-Hernandez v.

INS, 528 F.2d 366, 368 (9th Cir. 1975); see also United States v. SolanoGodines, 120 F.3d 957, 960-61 (9th Cir. 1997). 

2616 SAMAYOA-MARTINEZ v. HOLDER
placed in formal proceedings until those proceedings have

been commenced with the filing of the NTA. See 8 C.F.R.

§ 245.1(c) (for purposes of determining eligibility for adjustment of status, “[t]he period during which the alien is in

deportation, exclusion, or removal proceedings . . . commences . . . [w]ith the filing of a Form I-862, Notice to

Appear, with the Immigration Court”); cf. RodriguezEscheverria, 534 F.3d at 1051 (not reaching the question

whether the alien in that case had been placed “in formal proceedings” for purposes of § 287.3(c)). 

[3] In this case, the INS did not file the NTA for Samayoa

in immigration court until January 24, 2001, several days after

the border patrol agent questioned him and completed the

Form I-213 on January 18, 2001. The NTA, which was served

on Samayoa on January 18, 2001, days before he was placed

in formal proceedings, includes a statement that he was entitled to representation at no cost to the government. Therefore,

Samayoa was notified, even before he was placed in formal

proceedings, of his procedural rights. 

Nor do Matter of Garcia-Flores, 17 I & N Dec. 325 (BIA

1980), and Navia-Duran v. INS, 568 F.2d 803 (1st Cir. 1977),

support Samayoa’s claim that the INS violated § 287.3(c).

Both cases are inapposite because they interpret the previous

version of § 287.3(c). Before March 1997, § 287.3 provided

that “[a]fter the examining officer has determined that formal

proceedings under sections 236, 237, or 242 of the Act, will

be instituted, an alien arrested without warrant of arrest shall

be advised of the reason for his/her arrest and the right to be

represented by counsel of his/her choice, at no expense to the

government.” 8 C.F.R. § 287.3 (1996). The revised regulation

changed the timing of this requirement to after the alien is

“placed in formal proceedings.” See 62 Fed. Reg. 10312,

10390 (Mar. 6, 1997) (amending § 287.3 to its current formulation); see also Rodriguez -Escheverria, 534 F.3d at 1052

(discussing the history of § 287.3). The conclusion in GarciaFlores and Navia-Duran that the INS violates § 287.3 when

SAMAYOA-MARTINEZ v. HOLDER 2617
it fails to give an alien warnings after an arrest was superceded by the 1997 revisions to the regulations. Therefore,

those cases do not avail petitioner here. 

Because the INS did not violate § 287.3(c) when it obtained

information from Samayoa before notifying him of his procedural rights under immigration law, we need not reach

Samayoa’s argument that this lack of notice made his statements to the border patrol involuntary. To the extent Samayoa

argues that his statements to Lomeli and the INS were involuntary, such an argument also fails. The IJ found that

Samayoa’s statements were made voluntarily, and substantial

evidence supports this determination. Samayoa points to no

evidence in the record indicating that he was coerced to tell

Lomeli or the border patrol agent that he was not a United

States citizen. “[W]here there is nothing in the record indicating that the alien’s statement was induced by coercion, duress,

or improper action on the part of the immigration officer, and

where the petitioner introduces no such evidence, the bare

assertion that a statement is involuntary is insufficient.”

Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979).7

III

[4] Because Samayoa has failed to demonstrate that the

INS violated its regulations in obtaining the information used

to prepare the Form I-213, the IJ did not err in denying

Samayoa’s motion to suppress the Form I-213. Accordingly,

we reject Samayoa’s claim that his removal proceedings were

invalid. 

7For the first time on appeal, Samayoa raises the arguments that his

Form I-213 was inadmissible hearsay and the government erred in failing

to produce a witness subject to cross-examination at the immigration hearing to the BIA. Because Samayoa failed to exhaust these issues before the

BIA, we lack jurisdiction to consider them. Barron v. Ashcroft, 358 F.3d

674, 677 (9th Cir. 2004). 

2618 SAMAYOA-MARTINEZ v. HOLDER
PETITION FOR REVIEW DENIED. 

SAMAYOA-MARTINEZ v. HOLDER 2619