CA9: When the 4A question isn’t settled, the alleged 4A violation can’t be egregious in immigration cases

“In immigration proceedings, the exclusionary rule applies to evidence obtained in violation of the Fourth Amendment only when the violation is egregious. … Petitioners bear the burden of making a prima facie showing of an egregious Fourth Amendment violation. … In support of their motion to suppress, Petitioners provided a declaration by Portillo that, when confronted by the Customs and Border Patrol Agent, she did not admit alienage and was not asked about alienage or illegal entry. On this basis Petitioners contend their arrest must have resulted in an egregious violation of their Fourth Amendment rights. There is no requirement that those particular questions be asked before an arrest for unlawful entry ….” Therefore, it’s not egregious. Portillo-Flores v. Wilkinson, 2021 U.S. App. LEXIS 1983 (9th Cir. Jan. 25, 2021). [Sort of like qualified immunity.]

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