{"id":7713,"date":"2012-10-31T20:44:41","date_gmt":"2012-09-15T08:49:06","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-09-15T08:49:06","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=7713","title":{"rendered":"CA3: The exclusionary rule can apply to deportation cases where there is a widespread or egregious violation of the Fourth Amendment"},"content":{"rendered":"

The exclusionary rule can apply to deportation cases where there is widespread or an egregious violation of the Fourth Amendment. \u201cLopez-Mendoza sanctions the application of the exclusionary rule in cases where constitutional violations by immigration officers are \u2018widespread\u2019 or evidence has been obtained as a result of \u2018egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.\u2019 Lopez-Mendoza, 468 U.S. at 1050-51.\u201d Appellant should have been able to prove it. Oliva-Ramos v. Attorney General of the United States<\/a>, 694 F.3d 259 (3d Cir. 2012):<\/p>\n

The BIA rejected Oliva-Ramos’s reliance on Lopez-Mendoza because it regarded the “comments from a plurality of the Supreme Court [to be] obiter dictum.” The BIA explained that the Court had not yet found circumstances sufficient to apply the exclusionary rule in removal proceedings, and the Board’s “own precedents … recognize no such exception to the inapplicability of the exclusionary rule premised on widespread Fourth Amendment violations.” There are several flaws in the BIA’s approach.<\/p>\n

The BIA leapfrogged over the serious concerns it should have addressed under Lopez-Mendoza about the manner in which the evidence was obtained here. See Almeida-Amaral v. Gonzales, 461 F.3d 231, 234-35 (2d Cir. 2006); United States v. Navarro-Diaz, 420 F.3d 581, 587 (6th Cir. 2005); Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 1994); cf United States v. Stabile, 633 F.3d 219, 243 (3d Cir. 2011) (“Typically, the exclusionary rule requires that we suppress evidence obtained as a result of an illegal search.”).<\/p>\n

We must reject the BIA’s reading of Lopez-Mendoza that would only permit suppression of evidence based on “fundamentally unfair” circumstances in violation of the due process clause of the Fifth Amendment. The BIA’s analysis of Lopez-Mendoza views that opinion only as a plurality. In doing so, the BIA ignored the fact that almost all of the Justices on the Court agreed that the exclusionary rule should apply to some extent in removal hearings. As we explained above, eight of the nine Justices agreed with that proposition. Four would have limited the rule to instances of widespread or egregious violations of law by Government officials, and four others would apply the rule without that condition. See Puc-Ruiz v. Holder, 629 F.3d 771, 778 n.2 (8th Cir. 2010) (citing Lopez-Mendoza, 468 U.S. at 1051-61 (Brennan, White, Marshall, and Stevens, JJ., dissenting)); see also Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448 n.2 (9th Cir. 1994) (same).<\/p>\n

Moreover, even if the pronouncement in Lopez-Mendoza was dicta as the BIA labeled it, Supreme Court dicta should not be so cavalierly cast aside. … <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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