FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA DE RODRIGUEZ-ECHEVERRIA, 

Petitioner, No. 06-73670

v. Agency No. 

M A77-983-920 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 6, 2008—Pasadena, California

Filed July 25, 2008

Before: Raymond C. Fisher and Richard A. Paez,

Circuit Judges, and James L. Robart, District Judge.*

Opinion by Judge Fisher

*The Honorable James L. Robart, United States District Judge for the

Western District of Washington, sitting by designation. 

9333
COUNSEL

Andrew Knapp, Cifuentes Knapp & Associates, Los Angeles,

California, for the petitioner. 

Jonathan Robbins (argued), Mona Maria Yousif, James A.

Hunolt, and Peter D. Keisler, Assistant Attorney General,

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

9336 RODRIGUEZ-ECHEVERRIA v. MUKASEY
OPINION

FISHER, Circuit Judge: 

Maria de Rodriguez-Echeverria (“Rodriguez”) petitions for

review of a final order of removal, arguing that the Immigration Judge (“IJ”) erred in failing to suppress her statements,

which she maintains were obtained in violation of Department

of Homeland Security (“DHS”) regulations and were coerced

in violation of the Fifth Amendment’s Due Process Clause.

She also argues that the Board of Immigration Appeals

(“BIA”) abused its discretion by affirming the IJ’s decision

without opinion. We agree that the IJ erred in determining

that Rodriguez was not under arrest at the time she gave her

incriminating statements, and so we remand for the BIA to

determine in the first instance whether her rights under the

regulation were infringed and whether her statements were

freely given. 

BACKGROUND

Rodriguez is a native and citizen of Mexico who has been

a legal permanent resident of the United States since October

2002. On the morning of January 11, 2004, she drove from

her home in Anaheim, California to Mexico along with her 7-

year-old U.S. citizen son, Erwin. While in Mexico, Rodriguez

met up with her sister, Socorro Rodriguez (“Socorro”), who

is also a legal permanent resident of the United States. The

three of them returned to the United States together with

Emmanuel Martinez, who is Rodriguez’s and Socorro’s 15-

year-old nephew and a Mexican citizen. Rodriguez testified

that she wanted to take the boy on vacation in the United

States. Emmanuel, however, did not have a visa that would

allow him to enter. 

Border patrol records show that at approximately 5:30 p.m.

on January 11, Rodriguez attempted to cross the border back

into the United States. Rodriguez testified that she was drivRODRIGUEZ-ECHEVERRIA v. MUKASEY 9337
ing the car, her sister Socorro was in the front passenger seat

and the two boys were in the back. Rodriguez handed the border patrol officer her valid green card, Socorro’s valid green

card and her son’s birth certificate. The documentation she

presented for Emmanuel was Soccoro’s son’s U.S. birth certificate. The border patrol officer became suspicious when

Emmanuel failed to respond appropriately to a question posed

to him and referred the car to secondary inspection. At secondary inspection, the officers discovered Emmanuel’s true

Mexican identification in one of his bags. The group was then

escorted inside a building, where they were fingerprinted,

photographed and made to remove their belts and shoe laces

and face a wall. At some point a Form G-166 Report of Investigation was filled out.1

 It listed the “date of arrest” as 6:56

p.m. on January 11, 2004, or about an hour and a half after

Rodriguez was referred to secondary inspection. 

The government does not dispute Rodriguez’s account of

events at the border. Rodriguez testified that after several

hours of either waiting around or being questioned, she,

Erwin, Emmanuel and Socorro were put in a locked room

with benches and a toilet. Shortly after two in the morning,

Socorro and Erwin were allowed to leave. Rodriguez said that

she was cold and hungry, having not eaten anything for over

12 hours, but she was not provided with food and was denied

a blanket. At around 3:30 a.m., another officer came on duty

and removed Rodriguez and Emmanuel from the holding cell.

The officer removed cosmetics and other personal items from

Rodriguez’s purse and threw them away, telling her that she

could not keep them at “la grande prision” (the jail) that she

1

It is not clear when the officer filled out the form, because it does not

have a time stamp. The date on the form is January 11, 2004. However,

the report says that Socorro was “booked and released,” and Socorro testified that she was released sometime around 2:00 a.m. on January 12.

Therefore, it seems likely that this form was filled out sometime on or

after January 12. It is not clear how or when the officer obtained the information described in the report. 

9338 RODRIGUEZ-ECHEVERRIA v. MUKASEY
would be going to. Rodriguez was then placed in another

holding cell. 

At around 11 a.m., Rodriguez was removed from the holding cell and taken to another office to give her declaration.

The officers spoke to her in a combination of English and

Spanish; the government does not dispute that the officers did

not inform her that she had a right to an attorney or that her

statements could be used against her. An officer took Rodriguez’s tape-recorded statement in Spanish. Rodriguez was

informed that her participation was voluntary and was asked

a series of questions about how Emmanuel was brought to the

border; Rodriguez admitted responsibility for knowingly

bringing Emmanuel into the country with a false birth certificate. After the interview, another officer prepared a Form I213, Notice to Appear, charging Rodriguez with being a

removable alien under 8 U.S.C. § 1182(a)(6)(E)(i), which

makes inadmissible “[a]ny alien who at any time knowingly

has encouraged, induced, assisted, abetted, or aided any other

alien to enter or try to enter the United States in violation of

law.” The Notice to Appear contained a statement in English

informing Rodriguez that her statements may be used against

her and that she has a right to counsel of her choosing. She

was then released on her own recognizance into the United

States. 

At Rodriguez’s merits hearing before the IJ, the government sought to introduce the transcript of Rodriguez’s

recorded statement, as well as the I-213 and G-166 forms

describing the substance of Rodriguez’s admissions. Rodriguez moved to have her statements suppressed, arguing that

they were obtained in violation of DHS regulations and were

coerced in violation of the Fifth Amendment. Rodriguez submitted declarations from herself and Socorro, supporting her

contention that the statements were coerced. These affidavits

also stated that it was Socorro, not Rodriguez, who was solely

responsible for providing Emmanuel with the false identification document. No other evidence was introduced at the merRODRIGUEZ-ECHEVERRIA v. MUKASEY 9339
its hearing and neither side presented witnesses. The IJ denied

Rodriguez’s motion to suppress, finding that DHS had the

right to detain and question Rodriguez and that her statements

were not coerced. The IJ then found that clear and convincing

evidence established that Rodriguez was removable on the

lodged charge. Rodriguez appealed to the BIA, which

affirmed without opinion. Rodriguez then filed a timely petition for review with this court. 

ANALYSIS

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

BIA issued a streamlined decision, “the IJ’s decision becomes

the BIA’s decision and we evaluate the IJ’s decision as we

would that of the Board.” Lanza v. Ashcroft, 389 F.3d 917,

925 (9th Cir. 2004) (internal quotation marks omitted). Questions of law are reviewed de novo. See Hernandez-Gil v. Gonzales, 476 F.3d 803, 804 n.1 (9th Cir. 2007). Factual findings

are reviewed for substantial evidence. See Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). 

I.

[1] Rodriguez argues that the IJ erred in finding that she

was not under arrest at the time she gave her incriminating

statements, and therefore that he erred in finding that she was

not entitled to be informed of her right to counsel and her

right to remain silent as provided by DHS regulations. We

agree that the IJ erred in concluding that Rodriguez was not

under arrest. 

The relevant regulation provides that 

an alien arrested without warrant and placed in formal proceedings . . . will be advised of the reasons

for his or her arrest and the right to be represented

at no expense to the Government . . . . The officer

will also advise the alien that any statement made

9340 RODRIGUEZ-ECHEVERRIA v. MUKASEY
may be used against him or her in a subsequent proceeding. 

8 C.F.R. § 287.3(c). Another DHS regulation defines an “arrest,” and provides that an officer conducts “[i]nterrogation

and detention not amounting to arrest” when the officer asks

questions, “as long as the immigration officer does not

restrain the freedom of an individual, not under arrest, to walk

away.” 8 C.F.R. § 287.8(b)(1) (emphasis added). If an officer

makes a warrantless arrest, the officer is instructed to “adhere

to the procedures set forth in 8 C.F.R. § 287.3,” including the

requirement that the alien be informed of certain rights. 8

C.F.R. § 287.8(c)(2)(iv). 

Before she was interrogated by immigration officers,

Rodriguez was not told that she had a right to counsel or that

her statements could be used against her in a future proceeding. The IJ found that Rodriguez’s rights under the regulation

were not violated, however, because “Immigration Officers at

the port of entry had the right to detain [Rodriguez] for questioning both in conjunction with the fact that she was seeking

admission to the United States and in conjunction with the

fact that officers had reasonable suspicion that she may have

been engaging in unlawful activity.” Rodriguez does not dispute that the officers had the right to detain and question her,

nor does she dispute that they had the right to arrest her without a warrant. Rather, her sole contention is that the officers

at the border placed her under warrantless arrest shortly after

her arrival at secondary inspection, and that she was therefore

entitled to be told of her rights as provided by § 287.3(c) prior

to questioning, but was not. 

[2] As the government has now effectively conceded, the

IJ erred in concluding that Rodriguez was merely detained, as

opposed to arrested, at the time of her interrogation. The Form

G-166 Report of Investigation clearly shows that Rodriguez’s

“date of arrest” was 6:56 p.m. on January 11, or about an hour

and a half after she was referred to secondary inspection and

RODRIGUEZ-ECHEVERRIA v. MUKASEY 9341
more than 16 hours before she was asked to give her recorded

statement. Further, Rodriguez was placed in a locked room

overnight and made to remove her shoes and belt, actions

which undoubtedly “restrain the freedom of an individual . . .

to walk away.” See 8 C.F.R. § 287.8(b). Rodriguez’s overnight detention at the border therefore qualifies as a warrantless arrest under DHS regulations. The arresting officers were

accordingly obligated to comply with the requirements of

§ 287.3. 

Because the IJ erroneously concluded that § 287.3 did not

apply, the BIA on remand should determine in the first

instance whether § 287.3 requires the officers to warn Rodriguez prior to interrogation that she had a right to counsel and

that her statements could be used against her, and if so,

whether her statements should be suppressed. Any failure to

comply with the regulations may also bear on the question of

whether her statements were voluntary under the Fifth

Amendment, and so we remand this question as well. See

Navia-Duran v. INS, 568 F.2d 803, 810 (1st Cir. 1977) (noting that “[i]f the INS had complied with its own regulation,”

then “the atmosphere of coercion would have vanished”

because the alien would have been fully aware of her rights);

see also Matter of Garcia, 17 I. & N. Dec. 319, 321 (BIA

1980). 

[3] The government urges us to affirm the IJ on a number

of alternate grounds, including that the failure to provide the

warnings did not violate § 287.3, that the proper remedy for

a violation of § 287.3 would not be the suppression of Rodriguez’s statements, and that the admission of her statements,

even if in error, was harmless because there was other evidence in the record to sustain the charge of removability. It is

well established, however, that “this court cannot affirm the

BIA on a ground upon which it did not rely.” Navas v. INS,

217 F.3d 646, 658 n.16 (9th Cir. 2000); see also Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (“In reviewing the

decision of the BIA, we consider only the grounds relied upon

9342 RODRIGUEZ-ECHEVERRIA v. MUKASEY
by the agency. If we conclude that the BIA’s decision cannot

be sustained upon its reasoning, we must remand to allow the

agency to decide any issues remaining in the case.”). We

decline to speculate as to how the IJ may have ruled on these

questions and remand so that the agency may consider them

in the first instance. 

II.

[4] Rodriguez also argues that the BIA erred by summarily

affirming, or streamlining, her appeal. DHS regulations provide that the BIA may streamline a case if it determines that

the result reached in the decision was correct; that

any errors in the decision under review were harmless or nonmaterial; and that (A) The issues on

appeal are squarely controlled by existing Board or

federal court precedent and do not involve the application of precedent to a novel factual situation; or

(B) The factual and legal issues raised on appeal are

not so substantial that the case warrants the issuance

of a written opinion in the case. 

8 C.F.R. § 1003.1(e)(4)(i). We have jurisdiction to determine

whether the BIA complied with its own regulations in deciding to streamline. See Chen v. Ashcroft, 378 F.3d 1081, 1087-

88 (9th Cir. 2004). 

Because we conclude that we must remand to the agency

based on its erroneous fact-finding, we need not reach the

question of whether the BIA abused its discretion by streamlining Rodriguez’s appeal. We note, however, that the BIA

has not issued a published opinion interpreting the regulation

at issue here, § 287.3, since 1980. See Matter of GarciaFlores, 17 I. & N. Dec. 325 (BIA 1980). The regulation has

been amended several times in the intervening years. Whereas

the 1977 version considered by the BIA in Garcia-Flores

stated that “[a]n alien arrested without warrant of arrest shall

RODRIGUEZ-ECHEVERRIA v. MUKASEY 9343
be advised” of the reason for his arrest, his right to counsel

and that any statement may be used against him, the current

version of the regulation states that “an alien arrested without

warrant and placed in formal proceedings” shall be advised

of this same information. Compare 8 C.F.R. § 287.3 (1977)

with 8 C.F.R. § 287.3(c) (2008) (emphasis added). DHS also

added a new regulation in 1994, which purports to limit the

alien’s ability to assert certain rights.2 Although the government argues that the plain language of § 287.3 indicates that

arrested aliens have no right to receive regulatory warnings

until formal proceedings are brought, the U.S. Customs and

Border Protection appears to have reached a contrary interpretation. See U.S. Customs and Border Protection, Inspector’s

Field Manual 163 (Charles M. Miller, ed.) (2006) (suggesting

that arrested aliens should “be given two hours to contact

counsel before questioning can proceed”).3

Given the considerable changes to the law since the BIA

last interpreted this regulation and the apparent disagreement

among government agencies as to what § 287.3 requires, we

direct the BIA to consider carefully on remand its decision to

streamline this case. Certainly it cannot be said that “[t]he

issues on appeal are squarely controlled by existing Board or

federal court precedent,” nor can it be said that the issues

presented are “not . . . substantial,” when they potentially

affect the conduct of every immigration officer and the rights

of all aliens subject to arrest and interrogation. See 8 C.F.R.

§ 1003.1(e)(4)(i). One of the reasons supporting the issuance

of a three-member BIA opinion is “[t]he need to establish a

precedent construing the meaning of laws, regulations, or pro2This regulation provides in relevant part that “[t]hese 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.” 8 C.F.R. § 287.12. 

3The CBP Field Inspector’s Manual is available at http://

www.srwlawyers.com/Portals/0/CBP%20Inspectors%20Field%20

Manual.pdf. 

9344 RODRIGUEZ-ECHEVERRIA v. MUKASEY
cedures.” 8 C.F.R. § 1003.1(e)(6)(ii). We believe that such

guidance is called for here. 

CONCLUSION

Because the IJ erroneously concluded that Rodriguez was

not under arrest at the time she was interrogated, we remand

so that the agency may consider in the first instance whether

Rodriguez’s rights under § 287.3 were violated and whether

her statements were offered voluntarily.4

GRANTED, REMANDED. 

4Because we grant the petition and remand, we decline to reach any of

Rodriguez’s other arguments in favor of granting the petition, including

that the IJ erred by allegedly refusing to allow Rodriguez to testify or that

he erred by admitting an allegedly improperly certified page of the I-213.

RODRIGUEZ-ECHEVERRIA v. MUKASEY 9345