NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        NOV 7 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

EDGAR ALBERTO GUZMAN-                           No.    17-70087
DELACRUZ, AKA Edgar Alberto De La
Cruz, AKA Edgar Alberto Guzman,                 Agency No. A088-721-411

                Petitioner,
                                                MEMORANDUM*
 v.

WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                          Submitted November 4, 2019**
                              Pasadena, California

Before: SCHROEDER and FRIEDLAND, Circuit Judges, and ROSENTHAL,***
District Judge.

      Edgar Alberto Guzman-Delacruz, a native and citizen of Mexico, petitions



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
for review of an order of the Board of Immigration Appeals (“BIA”) affirming an

Immigration Judge’s (“IJ”) denial of Guzman-Delacruz’s motion to suppress and

terminate removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We

review de novo the denial of a motion to suppress and claims of constitutional

violations. Martinez-Medina v. Holder, 

, 1033 (9th Cir. 2011). We

deny the petition.

      Guzman-Delacruz argues that the BIA erred in denying his motion to

suppress and terminate the removal proceedings because the evidence the

Government submitted to prove his alienage was the product of a stop and arrest

that violated the Fourth Amendment. Guzman-Delacruz alleges that he was

driving to work on the morning of January 16, 2014, when a Customs and Border

Protection agent stopped Guzman-Delacruz’s vehicle without any cause. After

arresting him and taking him into custody, the Government located its records from

a 2009 immigration proceeding involving Guzman-Delacruz, including a Form I-

213 “Record of Deportable/Inadmissible Alien” showing that he was not lawfully

present in the United States.

      The IJ and BIA did not err in denying Guzman-Delacruz’s motion to

suppress, even assuming that his stop and arrest violated the Fourth Amendment.

Guzman-Delacruz alleges that the Government located the documents from his

2009 immigration proceedings by using evidence of his identity, including his


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fingerprints, obtained after his arrest. But the identity of an individual who is in

immigration proceedings is not suppressible, even if it came to be known through

an egregious constitutional violation. See United States v. Del Toro Gudino, 

, 1001 (9th Cir. 2004). And “there is no sanction to be applied when an

illegal arrest only leads to discovery of the man’s identity and that merely leads to

the official file or other independent evidence” of alienage. 

States v. Orozco-Rico, 

, 435 (9th Cir. 1978)). The evidence of

Guzman-Delacruz’s alienage from his 2009 proceedings was not suppressible.

      We also reject Guzman-Delacruz’s contention that the IJ and BIA erred in

admitting his 2009 Form I-213 into evidence without allowing him to cross-

examine the immigration officer who prepared it. “The sole test for admission of

evidence [in removal proceedings] is whether the evidence is probative and its

admission is fundamentally fair.” Espinoza v. INS, 

, 310 (9th Cir.

1995). Here, the Form I-213 was probative as to Guzman-Delacruz’s immigration

status, and he cited no evidence “cast[ing] doubt upon its reliability” or suggesting

its admission would be fundamentally unfair. He accordingly failed to meet his

burden of establishing his entitlement to cross-examine the Form’s preparer or its

inadmissibility. 

      PETITION DENIED.




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