NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZOILA MARISOL HENRIQUEZ-PEREZ; 

DYLAN NEYMAR HENRIQUEZ-PEREZ, 

Petitioners, 

 v. 

ROBERT M. WILKINSON, Acting 

Attorney General, 

Respondent.

No. 17-72221 

17-73429 

Agency Nos. A208-416-470 

A208-416-471 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 17, 2020

San Francisco, California

Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit 

Judges.

Concurrence by Judge BERZON

Zoila Marisol Henriquez-Perez and her young son Dylan (collectively, 

“Henriquez-Perez”) petition for review of the Board of Immigration Appeals’ 

(“BIA’s”) dismissal of their appeal contending that the immigration judge (“IJ”) 

should have granted their motion to suppress evidence and terminated proceedings, 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAR 9 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

as well as the BIA’s denial of their motion to reconsider. We deny the petitions for 

review.

1. The BIA did not err in denying Henriquez-Perez’s motion to suppress 

the Forms I-213 introduced by the Department of Homeland Security. Although 

the Fourth Amendment’s “exclusionary rule generally does not apply to removal 

proceedings,” one of “two critical exceptions to this rule”—and the only one 

Henriquez-Perez raised before the BIA—is “when the agency egregiously violates 

a petitioner’s Fourth Amendment rights.” Sanchez v. Sessions, 904 F.3d 643, 649 

(9th Cir. 2018) (citation omitted). Henriquez-Perez has not made a prima facie 

showing, even if Border Patrol agents failed to question her about alienage or 

illegal entry, that her arrest near the border was an egregious violation of her 

Fourth Amendment rights. Cf. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018 

(9th Cir. 2008) (holding that entering a home without a warrant, consent, or 

exigent circumstances was an egregious Fourth Amendment violation).

2. Henriquez-Perez also has not made a prima facie showing that the 

statements she made while in detention should have been excluded as involuntary. 

The conditions of detention and the circumstances of the interview described by 

Henriquez-Perez do not suggest that her will was overborne, triggering application 

of the Fifth Amendment’s exclusionary rule. See Mincey v. Arizona, 437 U.S. 385, 

401–02 (1978). Additionally, Henriquez-Perez has not shown she was prejudiced 
 3 

by an alleged false statement in the Form I-213 that she was advised of and 

acknowledged her administrative rights in removal proceedings. Henriquez-Perez 

does not cite any statute or regulation requiring the agents to inform her of her 

rights.

3. Finally, Henriquez-Perez’s contention that the notice to appear was 

not properly filed because it lacked “a certificate showing service on the opposing 

party . . . which indicates the Immigration Court in which the charging document is 

filed,” 8 C.F.R. § 1003.14(a), is foreclosed by Aguilar Fermin v. Barr, 958 F.3d 

887, 895 n.4 (9th Cir. 2020). 

PETITIONS DENIED.
Henriquez-Perez v. Wilkinson, Nos. 17-72221, 17-73429

BERZON, Circuit Judge, concurring:

I concur in the memorandum disposition. 

With respect to the Fourth Amendment issue, I agree that Henriquez-Perez

has not made a prima facie showing of an egregious Fourth Amendment violation. 

But, in my view, she has made a prima facie showing that the Border Patrol agents 

lacked probable cause to arrest her. That lack of probable cause likely amounted to 

a regulatory violation. See 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall be made only 

when the designated immigration officer has reason to believe that the person to be 

arrested has committed an offense against the United States or is an alien illegally 

in the United States.” (emphasis added)); Tejeda-Mata v. INS, 626 F.2d 721, 725 

(9th Cir. 1980) (equating the phrase “reason to believe” with the constitutional 

requirement of probable cause). “A successful prima facie showing of a regulatory 

violation for evidentiary suppression purposes . . . entitle[s] the petitioner to a 

remand for the government to rebut the petitioner’s showing.” Sanchez v. Sessions, 

904 F.3d 643, 653 (9th Cir. 2018); see Matter of Barcenas, 19 I. & N. Dec. 609, 

611 (BIA 1988). 

But Henriquez-Perez did not adequately raise the issue of a regulatory 

violation before the Board of Immigration Appeals (“BIA”), and the BIA did not 

allude to the regulation in its opinion. Because our panel cannot grant relief on an 

FILED

MAR 9 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
issue not exhausted before or considered by the BIA, I concur in the denial of the 

petition.

I note that, although Henriquez-Perez apparently accepts that she bears the 

burden to establish a prima facie violation of the Fourth Amendment, placing the 

burden on petitioners to make a prima facie showing that probable cause was 

lacking is problematic. In the criminal context, if a defendant brings a motion to 

suppress challenging a warrantless search or seizure, “the government carries the 

burden to bring the case within one of the exceptions to the warrant requirement.” 

3A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 689 

(West 4th ed. 2020 Update); see United States v. Hawkins, 249 F.3d 867, 872 (9th 

Cir. 2001). If there is any initial burden on the defendant, it is slight: “once [the 

defendant] demonstrates that a warrantless search or seizure occurred, the burden 

shifts to the government to demonstrate a justification or exception to the warrant 

requirement.” United States v. Guevara, 745 F. Supp. 2d 1039, 1043 (N.D. Cal. 

2010) (Alsup, J.). 

Here, the BIA places the burden on petitioners to establish a prima facie case 

that probable cause was lacking, before requiring the government to state the 

reasons underlying its probable cause determinations. See Matter of Barcenas, 19 

I. & N. Dec. at 611. That is backwards, and saddles petitioners with guessing at the 

government’s reasons for arresting them, and attempting to rebut those reasons, 
before the government has even revealed them. In the regulatory context, Sanchez

avoided this anomaly by holding that the petitioner met his burden with regard to 

the weaker “reasonable suspicion” standard by establishing not that reasonable 

suspicion was in fact lacking, but that the government had “yet to offer specific and 

articulable facts that would support the Coast Guard officers’ decision to detain 

Sanchez on the basis of reasonable suspicion that he was unlawfully present in this 

country or otherwise engaged in illegal activity.” 904 F.3d at 650–51 (emphasis 

added). 

But again, the validity of the BIA’s burden-shifting approach was not raised 

before the agency, nor was it challenged before us. So I concur in denying the 

petition.