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580

Matter of E-R-M-F- & A-S-M-, Respondents

Decided August 11, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

 Until an alien who is arrested without a warrant is placed in formal proceedings by the

filing of a Notice to Appear (Form I-862), the regulation at 8 C.F.R. § 287.3(c) (2011) does

not require immigration officers to advise the alien that he or she has a right to counsel and

that any statements made during interrogation can subsequently be used against the alien.

FOR RESPONDENT: Douglas D. Nelson, Esquire, San Diego, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Ana L. Partida, Assistant Chief

Counsel

BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.

PAULEY, Board Member:

In a decision dated April 14, 2010, an Immigration Judge terminated the

removal proceedings against both respondents. The Department of Homeland

Security (“DHS”) has appealed from that decision. The appeal will

be sustained as to the male respondent. The record of the female respondent

will be returned to the Immigration Judge without further action.

I. FACTUAL AND PROCEDURAL HISTORY

The respondents are a married couple who are natives and citizens

of Guatemala and lawful permanent residents of the United States. The

procedural history of their case is complicated. 

In a Notice to Appear (Form I-862) dated December 5, 2004, the DHS

charged that the respondents were subject to removal under section

212(a)(6)(E)(i) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(a)(6)(E)(i) (2000), for knowingly assisting another alien to enter the

United States in violation of law. In a decision dated March 2, 2007,

an Immigration Judge declined to terminate the proceedings, finding the

respondents removable based on statements they made during interrogation

at the border regarding their attempt to smuggle their nephew into the country.

The Immigration Judge ordered the respondents removed and denied their
Cite as 25 I&N Dec. 580 (BIA 2011) Interim Decision #3725

1 On March 2, 2007, the respondents withdrew their application pursuant to 8 C.F.R.

§ 1208.16(c) (2007) for protection under the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10,

1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708

(1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988). There

is consequently no issue before us today regarding that relief. 2 The DHS agreed with the respondents that a remand was warranted. We note that the

decision in Aguilar Gonzalez v. Mukasey is no longer relevant in this case.

581

application for asylum and their request for withholding of removal under

sections 208 and 241(b)(3) of the Act, 8 U.S.C. §§ 1158 and 1231(b)(3)

(2006), respectively.1

 The respondents appealed from that decision.

On November 30, 2007, we summarily affirmed the Immigration Judge’s

decision after rejecting the respondents’ brief as untimely.

The respondents filed a petition for review and a motion for stay

of removal with the United States Court of Appeals for the Ninth Circuit.

On September 29, 2008, the Ninth Circuit remanded the case to the Board for

consideration of the respondents’ untimely brief. We reinstated their appeal

on November 12, 2008.

On December 31, 2008, we vacated our November 30, 2007, decision

summarily affirming the Immigration Judge’s order of removal. We also

granted the respondents’ motion to remand the record to the Immigration

Judge in light of the Ninth Circuit’s decisions in Rodriguez-Echeverria

v. Mukasey, 534 F.3d 1047 (9th Cir. 2008), and Aguilar Gonzalez v. Mukasey,

534 F.3d 1204 (9th Cir. 2008).2

 In Rodriguez-Echeverria, the Ninth Circuit

found that the alien’s overnight detention at the border qualified as an arrest

and that the arresting officers therefore had to comply with the advisal

requirements set forth in 8 C.F.R. § 287.3(c) (2004). The Ninth Circuit

remanded the record for the Board to determine in the first instance whether

8 C.F.R. § 287.3(c) required the arresting immigration officers to warn the

alien before 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. Rodriguez-Echeverria v. Mukasey, 534 F.3d at 1051. The

court strongly suggested that we issue a precedent decision on this issue. 

Upon the agreement of both parties, another Immigration Judge

administratively closed removal proceedings on March 10, 2009, pending the

Board’s review of Rodriguez-Echeverria. On April 10, 2009, the DHS filed

a motion to recalendar the respondents’ case in light of Samayoa-Martinez

v. Holder, 558 F.3d 897 (9th Cir. 2009), which the Ninth Circuit issued after

it remanded Rodriguez-Echeverria to the Board. In that case, the Ninth Circuit

held that the obligation to notify an alien of his rights under 8 C.F.R.

§ 287.3(c) does not attach until the alien has been arrested and formally placed
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582

in proceedings. Samayoa-Martinez v. Holder, 558 F.3d at 901-02. The court

stated that formal proceedings commence with the filing of the Notice

to Appear. Id. The Immigration Judge granted the motion to recalendar. 

On April 14, 2010, the Immigration Judge terminated the proceedings

against both respondents without prejudice, finding that the decision

in Samayoa-Martinez did not overrule or resolve the issue raised

in Rodriguez-Echeverria and was therefore not controlling. The

Immigration Judge acknowledged that the Board’s decision on remand

in Rodriguez-Echeverria was still pending and, because that decision likely

would have a direct impact on the respondents’ case, concluded that it would

be fundamentally unfair and a waste of resources to proceed without the

benefit of the Board’s guidance. 

On May 13, 2010, the DHS appealed the termination of proceedings for

both respondents. On August 19, 2010, however, the DHS withdrew its appeal

regarding the female respondent. Pursuant to 8 C.F.R. § 1003.4 (2011), there

is nothing now pending before the Board regarding that respondent. Her

record will therefore be returned to the Immigration Judge without further

action. Accordingly, we will address the DHS’s appeal from the termination

of proceedings in the male respondent’s case and the Immigration Judge’s

denial of his asylum application. 

II. ANALYSIS

A. Termination of Proceedings

The regulation at issue in this case provides in pertinent part as follows:

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 officer will also advise the alien that any statement made may

be used against him or her in a subsequent proceeding.

8 C.F.R. § 287.3(c) (emphasis added).

The DHS argues that under the holding in Samayoa-Martinez v. Holder,

558 F.3d at 901-02, the respondent’s statement during interrogation that

he knowingly used his son’s United States birth certificate to try to smuggle

his nephew into the country is admissible because 8 C.F.R. § 287.3(c) requires

notice of the alien’s procedural rights only after a Notice to Appear has been

filed. 

The respondent, relying on a brief previously submitted to the Immigration

Judge, argues that his case is factually similar to Rodriguez-Echeverria.

In particular, the respondent asserts that, like the alien in that case, his liberty
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3 We ultimately reached the same conclusion in our unpublished decision in Matter

of Rodriguez-Echeverria. The alien in that case had given the statements she sought

to suppress before the Notice to Appear was filed and therefore before the initiation

of formal removal proceedings. Moreover, she was given the required advisals upon being

served with the Notice to Appear. Consequently, we concluded that her statements were not

obtained in violation of 8 C.F.R. § 287.3.

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was restricted when he was detained at the border and that he should have been

advised of his rights prior to any questioning.

The Form I-213 (Record of Deportable/Inadmissible Alien), the contents

of which the respondent does not contest, indicates that he was referred

to secondary inspection on December 5, 2004, where he admitted that

he knowingly used his son’s birth certificate to try to smuggle his nephew into

the United States. The documents of record show that the respondent was

arrested approximately 81⁄2 hours after applying for admission, but they do not

indicate that the officers informed the respondent that he had the right to have

an attorney or that his statements could be used against him. Thus, according

to the respondent, the Form I-213 should be suppressed.

We agree with the DHS. The phrases “arrested without a warrant” and

“placed in formal proceedings” in 8 C.F.R. § 287.3(c) describe the subset

of aliens who “will” be given advisals. Thus, under the plain language of the

regulation, an alien who is arrested without a warrant is not entitled to advisals

until he or she is “placed in formal proceedings.” We therefore read the

current regulation to require the initiation of formal proceedings as a necessary

precondition to the mandatory issuance of the advisals.3

 See Matter of E-L-H-,

23 I&N Dec. 814, 823 (BIA 2005) (citing Matter of Artigas, 23 I&N Dec.

99 (BIA 2001), and stating that under the elemental rules of construction,

we apply the plain meaning of regulatory provisions). 

As the Ninth Circuit found in Samayoa-Martinez v. Holder, 558 F.3d at 902,

the history of the regulation supports this conclusion. See Matter of F-P-R-,

24 I&N Dec. 681 (BIA 2008) (relying on regulatory history to interpret the

meaning of a regulation). In Matter of Garcia-Flores, 17 I&N Dec. 325, 326

(BIA 1980), we quoted the 1977 version of 8 C.F.R. § 287.3, which provided

in relevant part:

An alien arrested without warrant of arrest shall be advised of the reason for his arrest

and his right to be represented by council [sic] of his own choice, at no expense to the

Government. He shall also be adivsed [sic] that any statement he makes may be used

against him in a subsequent proceeding and that a decision will be made within

24 hours or less as to whether he will be continued in custody or released on bond

or recognizance.

We noted there that this earlier version of 8 C.F.R. § 287.3 was unclear

regarding whether the advisal of the right to counsel was required at the onset
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4 In Samayoa-Martinez v. Holder, 558 F.3d at 902, the Ninth Circuit also concluded that the

1997 revisions to 8 C.F.R. § 287.3 superseded our holding in Matter of Garcia-Flores,

17 I&N Dec. 325, that an immigration officer violates 8 C.F.R. § 287.3 when he fails to give

an alien the advisals after the alien is arrested.

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of the interview or only after it was determined that a prima facie case

of deportability existed. Id. at 327 n.3. 

The regulation was amended in 1979 to specify that “[a]fter the examining

officer has determined that formal proceedings under section 236, 237, or 242

of the Act, will be instituted, an alien arrested without warrant shall

be advised” of his rights. 8 C.F.R. § 287.3 (1980). In 1997, the regulation was

amended to its current form to change the timing of the required advisals from

the point at which the officer determined that proceedings “will be instituted”

to the time when the alien is actually “placed in formal proceedings.” See

Inspection and Expedited Removal of Aliens; Detention and Removal

of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg.

10,312, 10,390 (Mar. 6, 1997) (codified at 8 C.F.R. § 287.3(c) (1998)).4

In this case, the respondent gave his statement to the interviewing

immigration officers on December 5, 2004. The Notice to Appear was issued

on December 5, 2004, but was not filed until January 13, 2005. Thus, the

statement was made before the initiation of formal removal proceedings.

Moreover, because the required advisals are contained in the Form I-862, the

respondent was advised of his rights when he was served with the Notice

to Appear. We therefore conclude that the respondent’s statements were not

obtained in violation of 8 C.F.R. § 287.3(c) and that the documents containing

his statements are admissible in removal proceedings. Samayoa-Martinez

v. Holder, 558 F.3d at 901-02. We note in this regard that the respondent did

not object to the admission of the Form I-213 during his removal proceedings.

We are also unpersuaded by the respondent’s argument that his case

is factually similar to Rodriguez-Echeverria. As we stated previously, the

record indicates that the respondent was referred to secondary inspection,

where he admitted that he knowingly used his son’s birth certificate to try

to smuggle his nephew into the United States. Although he was arrested

approximately 81⁄2 hours after applying for admission, this is far different from

the situation of the alien in Rodriguez-Echeverria. In that case, the alien had

been arrested 16 hours before she gave her statement, during which time she

“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.’” Rodriguez-Echeverria v. Mukasey, 534 F.3d at 1051 (quoting

8 C.F.R. § 287.8(b)).

Furthermore, regardless of whether there are factual similarities,

Rodriguez-Echeverria does not require immigration officers to give the
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5 We also note that mere referral to secondary inspection does not constitute an arrest. For

example, the Ninth Circuit has stated that “[d]etention and questioning during routine

searches at the border are considered reasonable within the meaning of the Fourth

Amendment.” United States v. Zaragoza, 295 F.3d 1025, 1027 (9th Cir. 2002) (citing

United States v. Espericueta-Reyes, 631 F.2d 616, 622 (9th Cir.1980), and United States

v. Montoya de Hernandez, 473 U.S. 531, 539-40 (1985)).

6 The respondent’s application was initially filed before May 11, 2005, and is therefore not

governed by the provisions of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13,

119 Stat. 302. See Matter of S-B-, 24 I&N Dec. 42, 45 (BIA 2006).

585

pertinent advisals before the initiation of formal immigration proceedings.

Rather, the Ninth Circuit held only that the general provisions for disposition

of cases of aliens arrested without warrant under 8 C.F.R. § 287.3 applied

because the alien’s overnight detention at the border was a warrantless arrest.5

Importantly, however, the Ninth Circuit remanded the case to the Board

to decide in the first instance whether 8 C.F.R. § 287.3 requires that advisals

be given before an immigration officer interrogates an alien. We conclude that

the regulation only requires immigration officers to advise the alien of his

or her rights after the alien is placed in formal proceedings by the filing

of a Notice to Appear.

The Immigration Judge determined in his March 2, 2007, decision that the

Form I-213 clearly established the respondent’s inadmissibility on the alien

smuggling charge. We agree. For the reasons stated above, we conclude

that the proceedings against the respondent were incorrectly terminated

on April 14, 2010. The DHS’s appeal will therefore be sustained.

B. Asylum

Because we previously vacated our November 30, 2007, decision summarily

affirming the Immigration Judge’s denial of relief and reinstated the

respondent’s appeal, we now address his challenge to the Immigration Judge’s

March 2, 2007, determination that he did not sufficiently demonstrate past

persecution or a nexus between the harm experienced and a protected ground.6

In this regard, we note that the Immigration Judge made the following findings

of fact concerning the relevant aspects of the respondent’s asylum claim.

Except with respect to the issue of the alleged persecutors’ motivation,

addressed below, the respondent does not assert that the Immigration Judge’s

factual findings are clearly erroneous. Nor do we discern any such error. See

8 C.F.R. § 1003.1(d)(3)(i) (2011). 

During the 1960s, the respondent’s father was a member of the judicial

police in Guatemala. The respondent’s father was aware of, and was set

to disclose, the problem of public corruption. In 1966, the respondent’s father
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and an aunt were shot to death as they were walking in the street. The

respondent believed that the Guatemalan Government was responsible for the

shooting because in the days prior to the incident, the family saw a military

vehicle roaming the area around the family’s residence. 

The respondent entered a Government military academy as a cadet in the

1980s. Shortly after enrolling, he started to receive notes in his personal

belongings signed by the Guerilla Army of the Poor (“EGP”) asking for

information about the location of keys to an arms storage warehouse. The

notes threatened harm to the respondent and his family if he did not collaborate

with the EGP. The respondent agreed to cooperate, but stopped after 11⁄2 years

because he realized that the EGP was opposed to the Government. After

he stopped cooperating, the EGP delivered more aggressive notes to his home

threatening harm to him and his family.

In 1985, the respondent withdrew from the military academy and moved

in with his mother. The threatening notes continued. To protect his mother

from harm, the respondent decided to move in with his then fiancée’s family

in 1988. That year he learned that his mother had been killed by a blow to her

head and that her home had been burned down. The respondent believed that

the EGP was responsible for his mother’s death. Notes discovered at the scene

of the fire warned that the same would happen to other family members.

The respondent then left Guatemala.

The respondent argues that the death of his father in 1966 by Government

agents, the threats to the respondent by the EGP guerilla group, and the killing

of his mother in 1988, considered cumulatively, amount to past persecution.

He also asserts that the EGP guerilla group interpreted his decision to stop

cooperating with them as a political act, which created a nexus for purposes

of the Act. 

We find no reason to disturb the Immigration Judge’s ruling. First, even

if the Government killed the respondent’s father in 1966 to keep him from

speaking out against its corruption, the record does not indicate that the

Government carried a vendetta against the respondent or his family members.

In fact, there is no indication that the Guatemalan Government threatened

or harmed the respondent or his family. We are not persuaded that the father’s

death in 1966 warrants a determination of past persecution or a well-founded

fear of persecution under the Act with respect to the respondent.

Second, the record does not indicate that the EGP imputed a political

opinion to the respondent or threatened him because he was following in his

father’s footsteps by enrolling in a Government military school. The record

shows that the EGP initially left threatening notes for the respondent in his

belongings at military school to get information regarding the location

of Government arms. The respondent initially agreed to cooperate with the

EGP guerilla group and did so for 11⁄2 years. When he decided to stop

cooperating, the EGP resumed their threats by leaving threatening notes at his
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7 In light of our conclusion, we need not address the respondent’s argument that the

Immigration Judge erred in denying his request for a grant of humanitarian asylum. We also

need not decide whether the Immigration Judge properly denied asylum in the exercise

of discretion.

8 We note that the Immigration Judge improperly stated that the facts did not “compel”

a finding of past or future persecution. Whether the facts of record compel a particular

outcome is an issue for the courts of appeals to decide in their review of Board decisions.

See, e.g., Prasad v. INS, 47 F.3d 336, 338-39 (9th Cir. 1995) (explaining the standard

of appellate review of Board decisions as set forth by the Supreme Court in INS

v. Elias-Zacarias, 502 U.S. at 479, 481, 483-84).

587

house. The notes, which were sometimes anonymous and sometimes “signed

by the EGP,” indicated that the respondent should be “fighting for the poor”

instead of “helping and cooperating with the government.” However, the

content of the notes is not sufficient to substantiate the respondent’s assertion

that the EGP’s threats were motivated, even in part, by an actual or imputed

political opinion.

We emphasize that a “persecutor’s actual motive is a matter of fact

to be determined by the Immigration Judge and reviewed by us for clear

error.” Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011). As the

Immigration Judge found, the resumption of the threats seems to indicate that

the EGP was angered by the respondent’s decision to stop helping them, but

it does not sufficiently support the respondent’s claim that the EGP interpreted

his decision not to help them as a pro-Government political stance. In this

regard, we note that the respondent did not claim to have spoken out against

the EGP.

We acknowledge that the respondent’s mother was apparently killed

by a blow to the head and that her home was burned down. We also

acknowledge that a note discovered after her death referenced her killing and

intimated that the respondent would suffer the same fate. The respondent’s

mother’s death was tragic and horrifying. Nonetheless, based on the record

before us, the threatening notes appear to relate to the respondent’s decision

not to cooperate with the EGP rather than being on account of an actual

or imputed political opinion. Thus, we find no clear error in the Immigration

Judge’s finding that the respondent did not demonstrate that the threats

of harm were motivated by a protected ground. See INS v. Elias-Zacarias, 502

U.S. 478 (1992).7

For these reasons, we conclude that the respondent did not meet his burden

of proof to establish his eligibility for asylum.8

 It follows that the respondent

also failed to meet the higher burden for withholding of removal under section

241(b)(3) of the Act. 
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III. CONCLUSION

Under 8 C.F.R. § 287.3(c), an alien who is arrested without a warrant must

be “placed in formal proceedings” by the filing of a Notice to Appear before

he is entitled to be advised that he has a right to counsel and that any

statements made during interrogation can subsequently be used against him.

Consequently, any statements made prior to the initiation of formal

proceedings are not obtained in violation of 8 C.F.R. § 287.3(c), and the fact

that no advisals were given at that time does not render the documents

containing those statements inadmissible in removal proceedings.

 The respondent’s statements were made before the initiation of formal

removal proceedings and were therefore not obtained in violation of 8 C.F.R.

§ 287.3(c). Consequently, in the decision on March 2, 2007, the Immigration

Judge properly determined that the Form I-213 containing the respondent’s

statements was admissible and established his removability. Because the

proceedings against the respondent were incorrectly terminated in the April 14,

2010, decision, the DHS’s appeal will be sustained, the decision of the

Immigration Judge will be vacated, and the proceedings will be reinstated.

Furthermore, the respondent’s appeal from the denial of his applications for

relief will be dismissed, and he will be ordered removed from the United

States.

ORDER: The appeal of the Department of Homeland Security from the

termination of proceedings in the male respondent’s case is sustained, the

April 14, 2010, decision of the Immigration Judge is vacated, and the removal

proceedings against the male respondent are reinstated.

FURTHER ORDER: The male respondent’s appeal from the

Immigration Judge’s March 2, 2007, denial of relief is dismissed, and he

is ordered removed from the United States to Guatemala pursuant to the order

of removal issued on that date.

FURTHER ORDER: The record of the female respondent is returned

to the Immigration Judge without further action.