NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 2374

_____________ LUCIO ARRIAGA

- HERNANDEZ,

Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ,

Respondent

______________ ON PETITION FOR REVIEW FROM REINSTATEMENT

OF A PRIOR ORDER OF REMOVAL (Agency No. A098

- 007

- 534)

______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

July 13, 2017

______________ Before: McKEE , AMBRO , and ROTH , Circuit Judges

.

( F iled: November 14, 2017 )

_______________________ OPINION *

_______________________

Mc KEE, Circuit Judge.

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Petitioner Lucio Arriaga Hernandez petitions for review of the reinstatement of his deportation order. He arg ues that his arrest violated the Fourth Amendment and his removal proceedings violated due process . For the reasons that follow, we will deny his petition for review.
I

. Hernandez is a citizen of Mexico who until recently was residing in Harrisburg,
Penn sylvania. On May 2, 2016, Hernandez parked in the small parking lot of a
convenience store. He intended to wire money from the store . As Hernandez got out of his car and began walking towards the store, he saw Department of Homeland Security agents approa ching him. According to DHS, the agents had been looking for another person who lived in the same building as the convenience store. The DHS report states that , w hen the agents saw Hernandez , they “became suspicious of the individual” because “they were unable to identify the individual.” 1 As
the agents approached, Hernandez turned and walked back to his car , got in , and began backing out of the parking lot

. However, the agents “were able to stop” Hernandez and prevent him from leaving. 2 When asked for id entification, Hernandez said he was a
Mexican citizen so he didn’t have identification.
While Hernandez was detained , DHS learned his identity and that he was s ubject
to a 2013 order of removal . Accordingly, DHS initiated procedures for r einstatement of

1 App. II at 7. 2 App. II at 7.3

that order . Hernandez was removed from the country on or about May 13, 2016, but his petition for review of his removal followed.
II

. 3 Hernandez argues that the statement he made to DHS agents about his identity
should have been suppressed because it was obtained while he was detained and not free
to leave . His detention, he argues, constituted an arrest without probable cause or even
the reasonable suspicion required for a Terry 4 stop. Hernandez concedes that ordinarily when an illegal arrest leads only to the disclosure of identity , th e identity cannot be suppressed. 5 However, Hernandez argues that because “the only reason DHS had to stop [him] was based on racial or ethnic profiling,” this stop was an “egregious” violation of
the Fourth Amendment and th erefore the “identity rule” does not apply. 6 Assuming that agents violated Hernandez’s Fourth Amendment rights during the stop in the parking lot, we hold that on this record, the violation was not an egregious

one
.

3 This Court has jurisdiction to review constitutional or legal question s raised pertaining to the reinstatement order. See 8 U.S.C. § 1252(a)(2)(D); Verde

- Rodriguez v. Att’y Gen. , 734 F.3d 198, 202 (3d Cir. 2013). 4 Terry v. Ohio , 392 U.S. 1 (1968). 5 I.N.S. v. Lopez

- Mendoza , 468 U.S. 1032, 1039 (1984) (“The ‘body’ or identi ty of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.”). 6 See Oliva

- Ramos v. Att’y Gen. , 694 F.3d 259, 275 (3d Cir. 2012) (“[T]he exclusionary rule may apply in removal proceedings where an alien shows ‘egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.’” (quoting Lopez

Mendoza , 468 U.S. at 1051)).4

As we articulated in Olivia

- Ramos , w hether a violation is “egregious , ” such that evidence of an individual’s identity may be suppressed , depends on the “totality of the
circumstances” of the stop, including : [W] hether [the petitioner] can establish intentional violations of the Fourth Amendm ent, whether the seizure itself was so gross or unreasonable in addition to being without a plausible legal ground, (e.g., when the initial illegal stop is particularly lengthy, there is an unnecessary and menacing show or use of force, etc.), whether impr oper seizures, illegal entry of homes, or arrests occurred under threats, coercion or physical abuse, the extent to which the agents reported to unreasonable shows of force, and finally, whether any seizures or arrests were based on race or perceived ethni city. 7 In Olivia

- Ramos , we also adopted the reasoning of the Court of Appeals for the Second
Circuit in Almeida

- Amaral v. Gonzales

. 8 That decision noted that , “ even where the seizure is not especially severe, it may nevertheless qualify as an egregious vio lation if the stop was based on race .” 9 However, in that case the Second Circuit ultimately
concluded that the border patrol agent’s stop of a seventeen

- year
- old boy walking into a gas station parking lot was not egregious even though “ the arresting agent . . . had no valid reason or suspicion to justify his stop

. ” 10 Here, by contrast, the agents did have reason to suspect Hernandez. W hen
Hernandez spotted the agents, he change d course and w alk ed back to his car instead of

7 Id. at 2 79. An egregious violation may also be shown where the violation “undermined the reliability of the evidence in dispute.” Id. at 278. Here, however, nothing before us raises do ubts about the veracity of the evidence obtained as a result of Hernandez’s stop. 8 Id. at 278 (citing Almeida

- Amaral v. Gonzales , 461 F.3d 231, 235 (2d C ir. 2006 ). 9 Almeida

- Amaral , 461 F.3d at 235. 10 Id. at 236

.5

continuing towards the grocery sto re
. 11 Only after Hernandez turned around and got in his
car to leave did the officers prevent him from leaving the parking lot

. Furthermore, this

case presents no other indications of egregiousness as outlined in Olivia

- Ramos : T here is
no evidence that the stop was particularly lengthy, coercive, or threatening. The agents who stopped Hernandez did not use force against him, nor did they intrude on private property

. 12 Based on the record before us, we cannot conclude that that Hernandez was stopped solely bec ause of his apparent ethnicity or national origin

. Although it is certainly conceivable that Hernandez would not have been stopped if his features did not suggest his national origin, there is scant (if any) evidence in the record to support that
conclusio n. 13 Accordingly, we cannot conclude that Hernandez’s stop was egregious. As a result, even if his stop violated the Fourth Amendment, the evidence of his identity may not be suppressed. Hernandez also argues that the reinstatement procedures violate his due p rocess rights because he was unable to assert possible defenses to removal such as eligibility for DACA or VAWA protections. However, as the petitioner notes in his brief , in Ponta

Garcia v. Attorney General of the United States , 14 we held that reinst atement of removal

11 See Cervantes

- Cuevas v. I.N.S. , 797 F. 2d 707, 709

– 10 (9th Cir. 1985) (finding a basis for reasonable suspicion when agents knew undocumented individuals were fleeing an area and the petitioner slowed down , then sped up , upon seeing the Border Patrol car). 12 See Olivia

- Ramos , 694 F.3d at 279 ( noting that “inva[sion] of private property” and “illegal entry of homes” factor into whether or not a seizure is an egregious one). 13 See Almeida

- Amaral , 461 F.3d at 237 (“[The petitioner] offers nothing other than his own intuition to show that race play ed a part in the arresting agent’s decision.”). 14 557 F.3d 158 (3d Cir. 2009)

.6

proc edures do not violate due p rocess guarantees. 15 Therefore, we are constrained by precedent, and cannot rev iew his reinstatement order on due p rocess grounds. 16
III

. For the reasons set forth above, we deny the petition to review t he order of
reinstatement.

15 Id. at 163. 16 This court may review whether the removal order was properly reinstated. See id. at 165 ( remanding a reinstatement order because the petitioner may not have ree ntered illegally and the original removal order may have been invalidated ). However, Hernandez does not dispute the factual underpinnings that made reinstatement appropriate here.