I saw, with a real sense of disgust, the videos that have circulated recently on the internet. First, I saw the video of the attorney, who has taken an oath to protect rights, rail at a restaurant because other patrons were speaking Spanish. Second, I saw the Border Patrol agent speak to two United States citizens about his suspicions because they were speaking Spanish, allegedly in a place where only “English” is spoken. As Ana Navarro has put it on CNN today, unless you are speaking Cherokee, this arrest should not have happened because we are all children and grandchildren of immigrants. This, however, started me thinking about whether speaking “Spanish” in a predominantly white neighborhood is enough to land you in removal proceedings. I will answer this question: NO!!!
CAN I TERMINATE REMOVAL PROCEEDINGS BASED ON A FOURTH AMENDMENT VIOLATION?
Merely speaking Spanish is not enough to land you in removal proceedings. This is America. Everyone has rights, including the undocumented. However, even if you land in removal proceedings for speaking Spanish, can you use the Fourth Amendment to dismiss your case?
The answer to this one is more complicated. Since removal proceedings are civil in nature, the United States Supreme Court has ruled that using the Fourth Amendment to suppress evidence, and terminate removal proceedings, is only allowed in egregious situations. The Court in INS v. Lopez Mendoza, 468 U.S. 1032 (1984). Several courts have dealt with the issue, and the Court in Lopez Mendoza, that the exclusionary rule would apply in cases where the egregious Fourth Amendment violations were widespread and fundamentally unfair and the unfairness undermined the reliability of the evidence. Id. at 1050-51.
WHAT SHOULD YOU DO IF YOU BELIEVE YOU WERE PLACED IN PROCEEDINGS FOR SPEAKING SPANISH?
So if the two ladies in Wyoming ended up in removal proceedings, could they use the exclusionary rule to suppress and terminate the proceedings? Possibly. (That is assuming that they were not United States citizens).
Several courts have ruled that evidence of identity and alienage are suppressible if such violation occurs. In Pretzantzin v. Holder, 736 F.3d 641, 646-51 (2nd Cir. 2013), the Second Circuit applied the rule and upheld the immigration judge’s decision doing the same and terminating proceedings. In that case, the Department of Homeland Security conducted a warrantless nighttime raid and arrested several individuals.
A competent immigration attorney should move to suppress the I-213, the record of deportable alien, dismiss the Notice to Appear and terminate proceedings. I have filed several of these motions during my career, some of them were successful, in cases that were very similar to the case discussed above. However, such cases are very rare, and such results are very rare.
You can also use the Fifth Amendment’s Due Process Clause to suppress unconstitutional evidence in removal proceedings.
SHOULD THE EXCLUSIONARY RULE APPLY IN REMOVAL PROCEEDINGS?
I believe that the time is ripe for a challenge to the Lopez Mendoza decision. With the criminalization of removal proceedings (the widespread use of criminal law to remove immigrants), I do not believe that such result would be the same today. I would believe, however, that is removal proceedings were deemed criminal, there would be a right to counsel established, which might not be a desirable result by the government.
Our two Spanish speakers might have to fight in removal proceedings to suppress such evidence. However, because of the video, in which the Patrol Agent admits to the constitutional violation, their chances might be excellent.
As a last note, I am sad that this is happening in the United States. Call us today at 1-888-963-7326 if you are in removal proceedings.