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Motions to Suppress in Removal Proceedings

ARCHIVED ISSUE PAGE (LAST UPDATED JULY 2011)

Long used in criminal trials, motions to suppress seek to exclude evidence obtained by the government in violation of the Fourth Amendment, Fifth Amendment, or related provisions of federal law. While the immediate purpose of filing a motion to suppress is to prevent the government from meeting its burden of proof, challenges to unlawfully obtained evidence can also deter future violations by law enforcement officers and thereby protect the rights of other noncitizens.

The Supreme Court held in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), that motions to suppress under the Fourth Amendment should be granted only for “egregious” violations. Immigrants in removal proceedings can also use motions to suppress for violations of the Fifth Amendment, as well as certain provisions of the Immigration and Nationality Act and federal regulations relating to the collection of evidence. The Legal Action Center has published a practice advisory offering guidance on filing motions to suppress in removal proceedings.

Federal Circuit decisions | BIA decisions | Immigration Judge decisions | Resources

FEDERAL CIRCUIT DECISIONS

First Circuit

Westover v. Reno, 202 F.3d 475 (1st Cir. 2000) (upholding denial of motion to suppress for asserted violations of Fourth Amendment and INA § 287(a)(2) arising from warrantless home entry)

Navarro-Chalan v. Ashcroft, 359 F.3d 19 (1st Cir. 2004) (upholding denial of motion to suppress for asserted violations of the Fourth Amendment, Fifth Amendment, and 8 C.F.R. §§ 287.3 and 242.2(c) arising from arrest in airport terminal)

Kandamar v. Gonzales, 464 F.3d 65, 66 (1st Cir. 2006) (upholding denial of motion to suppress for asserted violations of the Fourth and Fifth Amendments arising from NSEERS interview)

Second Circuit

Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 2006) (adopting “egregious violation” exception from Lopez-Mendoza; holding that Border Patrol officer violated Fourth Amendment by detaining petitioner without reasonable suspicion of unlawful alienage but that violation was not sufficiently egregious to warrant exclusion of evidence)

Melnitsenko v. Mukasey, 517 F.3d 42 (2d Cir. 2008) (upholding denial of motion to suppress for asserted violations of the Fourth Amendment and INA § 287(a)(3) arising from detection at Border Patrol checkpoint; declined to consider argument that Fourth Amendment violations by immigration officers are now “widespread” because claim was not exhausted before the agency)

Pinto-Montoya v. Mukasey, 540 F.3d 126 (2d Cir. 2008) (upholding denial of motion to suppress for asserted violation of Fourth Amendment arising from questioning in airport terminal)

Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) (upholding denial of motion to suppress for asserted violations of the Fourth Amendment, Fifth Amendment, and 8 C.F.R. §§ 287.3, 287.8(c)(2), and 292.5(b) arising from NSEERS interview).

Singh v. Mukasey, 553 F.3d 207 (2d Cir. 2009) (reversing denial of motion to suppress for asserted violation of Fifth Amendment arising from coercive interview during secondary inspection; respondent was interrogated for hours in the middle of the night; repeatedly threatened with imprisonment; and denied the opportunity to read the statement before signing it).

Third Circuit

Oliva-Ramos v. Att’y Gen, No. 10-3849 (3d Cir. appeal docketed Sept. 24, 2010) (pending case involving asserted Fourth Amendment violations arising from pre-dawn home raid)

Seventh Circuit

Martinez-Camargo v. INS, 282 F.3d 487 (7th Cir. 2002) (upholding denial of motion to suppress for asserted violations of Fourth Amendment and 8 C.F.R. § 287.3(a) arising from public arrest).

Gutierrez-Berdin v. Holder, 618 F.3d 647 (7th Cir. 2010) (upholding denial of motion to suppress for asserted violation of Fourth Amendment arising from arrest at home)

Eighth Circuit

Puc-Ruiz v. Holder, 629 F.3d 771 (8th Cir. 2010) (adopting “egregious” violation exception from Lopez-Mendoza; holding that local police violated Fourth Amendment by arresting petitioner without probable cause but that violation was not sufficiently egregious to warrant exclusion of evidence)

Ninth Circuit

Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008) (reversing denial of motion to suppress for egregious Fourth Amendment violation where immigration officers entered private residence without a warrant or consent)

Martinez-Medina v. Holder, 616 F.3d 1011 (9th Cir. 2010) (upholding denial of motion to suppress where law not clearly established regarding authority of state officers to arrest for civil violations of the INA)

BOARD OF IMMIGRATION APPEALS DECISIONS

Matter of Chen, 12 I&N Dec. 603 (BIA 1968) (denying motion to suppress for asserted violation of INA § 287(a)(2) where arresting officer had reason to believe respondent would escape before warrant could be obtained)

Matter of Yau, 14 I&N Dec. 630 (BIA 1974) (denying motion to suppress where immigration officer had reasonable suspicion prior to making “Terry stop” that respondent was illegally in the United States)

Matter of King and Yang, 16 I&N Dec. 502 (BIA 1978) (holding that immigration officers must possess “reasonable suspicion of alienage” under § INA 287(a)(1) before questioning an individual about his immigration status)

Matter of Sandoval, 17 I&N Dec. 70 (BIA 1979) (holding exclusionary rule not available for Fourth Amendment violations)

Matter of Garcia, 17 I&N Dec. 319 (BIA 1980) (granting motion to suppress where respondent’s statements were obtained involuntarily in violation of the Fifth Amendment; respondent conceded alienage after arresting officers physically prevented him from giving his attorney’s phone number to his employer, failed to advise him of his rights under 8 C.F.R. § 287.3(c), and refused his requests to contact counsel)

Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980) (establishing test for suppressing evidence obtained in violation of federal regulations; respondents must demonstrate (1) that the violated regulation was promulgated to serve “a purpose of benefit to the alien,” and (2) the violation “prejudiced interests of the alien which were protected by the regulation.”)

Matter of Toro, 17 I&N Dec. 340 (BIA 1980) (holding that Latin appearance not sufficient to initiate questioning about immigration status under INA § 287(a)(1))

Matter of Guevara, 20 I&N Dec. 238 (BIA 1991) (holding that respondent’s silence at removal proceedings not sufficient standing alone to establish alienage)

Matter of Cervantes-Torres, 21 I&N Dec. 351 (BIA 1996) (acknowledging existence of “egregious” violation exception in Ninth Circuit)

Matter of [Redacted] (BIA May 7, 2009) (upholding grant of motion to suppress where

reasonable officer should have known reaching into respondent’s pocket and removing his identification card from his wallet during a traffic stop violated the Fourth Amendment)

Matter of Cervantes-Valerio (BIA Oct. 2, 2009) (vacating removal order and remanding for further determination of whether respondents were stopped in violation of Fourth Amendment)

Matter of [Redacted] (BIA March 4, 2011) (upholding grant of motion to suppress where immigration officers conducted pre-dawn home raid without warrant or consent)

Matter of Guevara-Mata (BIA June 14, 2011) (upholding grant of motion to suppress and motion to terminate where immigration officers broke into respondents’ bedroom without a warrant or consent; rejecting government assertion that evidence of prior admission in DHS database constituted “independent” evidence)

IMMIGRATION JUDGE DECISIONS

Denver, CO (October 21, 2010) (granting motion to suppress and terminating proceedings where immigration officers conducted pre-dawn home raid without warrant or consent)

Hartford, CT (June 2, 2009) (granting motion to suppress and terminating proceedings where immigration officers committed egregious Fourth Amendment violation by conducting home raid without a warrant or consent)

Los Angeles, CA (Feb. 10, 2009) (granting motion to suppress and terminating proceedings where immigration officers committed egregious Fourth Amendment violation and violated 8 C.F.R. §§ 287.8(b) and (c) during factory raid; ICE agents blocked all factory exits, handcuffed workers who tried to leave premises)

Los Angeles, CA (Jan. 8, 2010) (granting motion to suppress and terminating proceedings where immigration officers committed egregious Fourth Amendment violation and violated 8 C.F.R. §§ 287.8(b) and (c) during factory raid; ICE agents blocked all factory exits, handcuffed workers who tried to leave premises)

New York, NY (October 3, 2007) (granting motion to suppress and terminating proceedings where immigration officers detained respondent solely on account of his Middle Eastern appearance in violation of the Fourth Amendment and 8 C.F.R. § 287.8(b)(2)).

New York, NY (May 13, 2008) (granting motion to suppress where immigration officers entered home with an administrative arrest warrant but not a judicially authorized search warrant)

New York, NY (June 30, 2008) (granting motion to suppress and terminating proceedings where immigration officers committed egregious Fourth Amendment violation by conducting home raid without warrant or consent)

New York, NY (May 28, 2009) (granting motion to suppress and terminating proceedings where immigration officers committed egregious Fourth Amendment violation by conducting home raid without warrant or consent)

New York, NY (July 1, 2011) (granting motion to suppress and terminating proceedings where immigration officers committed egregious Fourth Amendment violation by conducting home raid without warrant or consent; rejected government argument that birth certificate was “identity” evidence not subject to suppression)

San Francisco, CA (July 13, 2011) (granting motion to suppress and terminating proceedings where immigration officers constructively arrested respondent without reason to believe she was unlawfully present in violation of 8 C.F.R. § 287.8(c)(2)).

RESOURCES

LAC Practice Advisory: Motions to Suppress in Removal Proceedings: A General Overview (May 31, 2011). This practice advisory discusses issues, strategies, and procedures relating to the filing of motions to suppress in removal proceedings.

Stella Burch Elias, Good Reason to Believe: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wisc. L. J. 1109 (2009).

Cardozo Immigration Justice Clinic, Constitution on ICE (2009).