Category: Fourth Amendment

Eighth Circuit Rules that Evidence Obtained through a Warrantless ICE Arrest is not Suppressible

The Eighth Circuit ruled this week that evidence of alienage obtained through a warrantless  ICE search is not suppressible in removal proceedings. The petitioners were placed in removal proceedings and moved to suppress evidence of alienage under the Fourth Amendment‘s unreasonable search and seizure clause. They alleged in their affidavits that ICE agents barged into their home and arrested them. The immigration judge denied their motion to suppress since the information contained in their forms I-213 was reliable and the BIA upheld. 
In the petition for review, the petitioners argued that their rights under the Fourth and the Fifth Amendments were violated because the immigration judge did not grant their request for a suppression hearing and did not allow them to confront the ICE agents. In denying their petition, the Eighth Circuit reasoned that the exclusionary rule under the Fourth Amendment does not apply in civil deportation proceedings. The court added that the application of the rule in removal proceedings is reserved to “egregious violations”.  The court ruled that such violation did not exist since the agents went to the petitioners’ home after receiving a tip from an informant. Since the information was obtained from another source, the court upheld the immigration judge and the BIA. The court also denied the petitioners’ argument under the Fifth Amendment since it was a reiteration of their argument under the Fourth Amendment
I agree with the Eighth Circuit’s decision regarding the Fourth Amendment since the agents received evidence of alienage from another credible source. However, the denial of the petition on Fifth Amendment grounds is unfounded since they emanate from different amendments which protect different rights.  It is time to challenge the presumption that information in form I-213 is reliable especially when violation of protected rights occur.  

Suppressing Evidence in Removal Proceedings

One of the biggest problems in removal proceedings is the limited circumstances under which a respondent could challenge the government’s evidence. Usually the Service tries to introduce unreliable evidence to support the respondent’s deportability. I have had several cases when the government tried t o introduce hearsay statements from unnamed sources. The problem is that the Supreme Court has ruled that removal proceedings are civil in nature, decreasing the protections aliens receive. As a result the respondent would be unable to the Fourth Amendment to suppress evidence. A respondent could use the Fifth Amendment to suppress evidence if the evidence is unreliable and its introduction would be fundamentally unfair.  I have used the Fifth Amendment Due Process Clause to suppress evidence in removal proceedings before.
However, several circuits have applied the Fourth Amendment to suppress or even terminate removal proceedings. These cases are limited to egregious cases where the Service violates a respondent’s protected rights. The BIA has recently terminated proceedings where the Service committed these violations.
My dream is to argue a case where I would challenge the Supreme Court’s determination that removal proceedings are civil. I believe that this classification is erroneous. Removal proceedings have become more sophisticated and more aliens are being removed for criminal violations. These respondents deserve to receive Due Process if they are being banished from the country.