ELEUTERIO BENITEZ-MENDEZ, PETITIONER,

v.

IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT

We grant the INS’s petition for rehearing and modify our opinion, Benitez-Men-dez v. INS, 707 F. 2d 1107, slip op. at 2697 (9th Cir.1983), as follows:

Slip op. at 2698, second column, 707 F. 2d at 1108 second column:

Delete see ILGWU v. Sureck, 681 F. 2d 624, 631 (9th Cir.1982), cert. granted sub. nom. INS v. Delgado, 461 U.S. 904, 103 S.Ct. 1872, 76 L.Ed.2d 805, 497 (U.S. 1983)” so that cite simply reads “Id. at 939 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.).”

Insert “ILGWU v. Sureck, 681 F. 2d 624, 638 (9th Cir.1982), rev’d on other grounds sub nom. INS v. Delgado, — U.S. —, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984).” after “When the stop in question rises to the level of a “seizure” under the Fourth Amendment, we have formulated a constitutional standard applicable to detentive questioning of suspected illegal alien workers.”

Insert the call to the following footnote # 1 after “681 F. 2d at 638.”:

The facts of the instant case, distinguishable from those in Delgado, establish that the INS agents’ conduct did constitute a seizure. In Delgado, “the INS agents' conduct ... consisted simply of questioning employees and arresting those they had probable cause to believe were unlawfully present in the factory.” Id. Here, in addition to questioning Ben-itez-Mendez about his immigration status, the Border Patrol officer placed him in a Border Patrol vehicle before the officer had reasonable suspicion, let alone probable cause, to believe that Ben-itez-Mendez was illegally in the country. Such conduct amounts to a seizure under Anderson and warrants application of the Sureck “articulable facts/reasonable suspicion” test.

Slip op. at 2699, second column, 707 F. 2d at 1109, first column:

Insert the call for the following footnote # 2 after “ ‘he had a person there who claimed to be legal status; however, his papers was [sic] in his vehicle.’ ”:

Delete the paragraph at headnote #4 beginning with “Because petitioner’s arrest violated the Fourth Amendment ...” and substitute the following:

“We granted rehearing in light of the Supreme Court’s decision in INS v. Lopez-Mendoza, — U.S. —, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), that the exclusionary rule does not apply in civil deportation proceedings. Accordingly, even though we have found that petitioner’s arrest violated the Fourth Amendment, the information obtained as the result of the arrest (petitioner’s statements on Form 1-213) was admissible at his deportation hearing.

On the basis of this evidence, we affirm the immigration judge’s order of deportation. To enable petitioner to seek any available alternative forms of relief and to move for a stay of deportation, our mandate shall issue forty-five days from the date of entry of this judgment. We also reinstate the immigration judge’s grant of 30 days voluntary departure time, to commence on the effective date of any order of deportation issued against petitioner.”