D.N.M. rejects that person living here 3 years without documentation has no standing in his own home

The government argued, and lost, that defendant being here illegally for three years meant he had no standing in his own abode. No, says the court; he does have standing. United States v. Aispuro-Haros, 2012 U.S. Dist. LEXIS 188526 (D. N.M. October 24, 2012):

To this Court’s knowledge, no court has squarely addressed the question of whether a defendant who is challenging a search on Fourth Amendment grounds has the burden of proof regarding his immigration status. There are, however, decisions from other districts within the Tenth Circuit that have examined related issues. For example, in United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254 (D. Utah 2003), the Government came forward with evidence that the defendant was a Mexican citizen who illegally entered the United States, was convicted of a felony in state court, and was then deported. Id. at 1255. The Government also introduced evidence that sometime thereafter, the defendant illegally reentered the country and thereafter the events subject to the motion to suppress took place. Id. at 1256. Relying on Supreme Court decisions, particularly United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990) as well as the text, structure, and history of the Fourth Amendment, the Utah District Court concluded that as a previously deported felonious alien, the defendant was not one of “the People” that the Fourth Amendment was designed to protect. Esparza-Mendoza, 265 F. Supp. 2d at 1273-74. The court described its ruling as “a categorical determination about previously deported aliens. In other words, an individual previously deported alien felon is not free to argue that, in his particular case, he possesses a sufficient connection to this country to receive Fourth Amendment coverage (unless, of course, he could prove he was in this country lawfully).” Id. at 1271. The court expressly made no determination as to “whether illegal aliens who have not been deported likewise lack [] a sufficient connection. The case law appears to recognize an ascending scale of rights for aliens. Whether illegal aliens who have not previously been deported are distinguishable from alien felons who have been deported is a question that can await another day.” Id. at 1273. On appeal, the Tenth Circuit affirmed the Utah District Court’s decision on other grounds, declining to examine the question of the applicability of the Fourth Amendment to previously deported illegal alien felons. United States v. Esparza-Mendoza, 386 F.3d 953, 955 (10th Cir. 2004). Two years after Esparza-Mendoza, the Utah District Court returned to the issue in United States v. Atienzo, 2005 U.S. Dist. LEXIS 31652, 2005 WL 3334758 (D. Utah Dec. 7, 2005) (unpublished). In Atienzo, the defendant was a previously deported alien, though he was not a felon. 2005 U.S. Dist. LEXIS 31652, [WL] at *1. The Utah District Court found the defendant’s lack of felony conviction to be a distinguishing fact that removed the case from the rule it announced in Esparza-Mendoza. The court held that “with respect to illegal aliens who are not felons, the decision whether they fall outside the Fourth Amendment would seem to require a case-by-case determination.” 2005 U.S. Dist. LEXIS 31652, [WL] at *4. In Atienzo, the defendant produced evidence of his connections to the country through his acceptance of societal obligations, such as payment of state and federal taxes, payment of child support for his three young American children, and almost continuous residence in the United States for approximately nine years. 2005 U.S. Dist. LEXIS 31652, [WL] at *5. The Government argued categorically that the Fourth Amendment’s protections did not extend to the defendant—a position that the court rejected—but it did not dispute his evidence of substantial connections to the country. Id. In the absence of such a dispute, the Atienzo court assumed that the Fourth Amendment’s protections applied to the defendant. Id.

The holding is not remarkable. The government’s position was.