Unpublished Disposition, 917 F.2d 1307 (9th Cir. 1990)

No. 89-70421.

United States Court of Appeals, Ninth Circuit.

Nov. 7, 1990.

Before REINHARDT, LEAVY, Circuit Judges, and KING^* , Senior United States District Judge.

MEMORANDUM^*

Petitioner Victor Olmedo-Monroy appeals the admission into evidence at his deportation hearing of the information that he provided in connection with the INS's completion of a Form 213. He challenges the admissibility of that evidence on Fourth and Fifth Amendment grounds. He also appeals the immigration judge's denial of voluntary departure. We affirm.

The Supreme Court has held that the exclusionary rule does not apply in deportation proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984). The Court left open the possibility that evidence might be excluded if acquired through "egregious violations." Id. at 1050-51. However, even accepting the allegations in petitioner's affidavit as true, petitioner does not make out a case egregious government conduct.

Petitioner has alleged that Border Patrol officials stopped and questioned him solely because he appeared to be Hispanic. However, the officials testified and the immigration judge accepted as true that the officials approached petitioner for other reasons. Further, although the officials' conduct at the Temecula station may have fallen short of the proper standard, it was neither "egregious" for purposes of the Fourth Amendment nor "coercive" as that term is understood in context of the Fifth Amendment. Therefore, the admission of the Form 213 into evidence does not provide a basis for reversal.

This court reviews the immigration judge's decision on voluntary departure under an abuse of discretion standard. Cuevas-Ortega v. INS. 588 F.2d 1274, 1278 (9th Cir. 1979). The immigration judge relied on the fact that petitioner has previously voluntarily departed this country nine times. We hold that, based on petitioner's history of repeated voluntary departures and re-entries, the immigration judge did not abuse his discretion in this case.

AFFIRMED.