Thursday, August 14, 2008

Immigration: Ninth Circuit Applies Exclusionary Rule to Illegal Immigration: Lopez & Gastelulm v. Mukasey, 536 F.3d 1012 (9th Cir. 2008)

Luz Lopez-Rodriguez & Fabiola Gastelum Lopez v. Mukasey 536 F.3d 1012 (9th Cir. 2008) Under a variety of rationales, the Supreme Court has permitted certain types of administrative searches which did not lend their application to conventional Fourth Amendment analysis; Camara v. Mun. Ct. of San Francisco, 387 U.S. 523 (1967). The Court has sanctioned various warrantless searches of railroad employees, narcotic enforcement personnel, check points for drunk driving, border searches, customs and airport searches, and immigration searches. The Supreme Court has repeatedly criticized and reversed the Ninth Circuit for their decisions on border searches and immigration searches inside the United States, not on the ground of special needs but the right of a sovereign to preserve its territorial integrity. Yet, given the Ninth Circuit record on immigration appeals, deference to the INS is unlikely as illustrated in Luz Lopez-Rodriguez & Fabiola Gastelum Lopez v. Mukasey, 2008 WL 3168847. In October 2000, Immigration & Naturalization Service agents (INS; re named in 2003) received information that Gastelum had entered the country illegally and was living at a specific address. According to the immigration judge, Agents entered the house, without consent, and, after Gastelum lied about her nationality and birthplace, learned that she and Luz Lopez, another woman living in the house, were in the country illegally. Gastelum signed a declaration admitting her illegal entry and the agents filled out forms for deportation. The immigration judge ordered removal of both women. On appeal to the Ninth Circuit, a two judge majority panel agreed the entry to the home was without a warrant and lacked consent of either woman. Under the Fourth Amendment, an illegal entry to a residence causes any evidence thereafter seized inadmissible in a criminal proceeding, but the Supreme Court has ruled the Fourth Amendment exclusionary rule does not apply in deportation proceedings where the sole issues are identity and alienage-unless an egregious violation of the Fourth Amendment occurs; INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). That decision did not deter the Ninth Circuit panel in Gastelum. Finding the entry to the residence in violation of the Fourth Amendment egregious, the panel excluded the deportation form executed by the agents and the Gastelum declaration she entered the country illegally, and dismissed the proceedings. The immigration form executed by the agents is neither contraband, drugs, stolen property, weapons or instrumentalities of crime. No evidence was seized from anyone or anywhere. The court cites no precedent for this decision, in effect, allowing two admittedly illegal aliens to continue to reside in the United States. And the court does not question why a simple year 2000 arrest was decided eight years later. This judicial use of the exclusionary rule to exclude evidence (INS forms and a declaration) is another example of its abuse already criticized by the Supreme Court. The only issue in deportation proceedings is identity and alienage. Identity in this case was undisputed and Gastelum not only lied to the agents but admitted her ineligibility to remain in the United States. According to the panel, the Fourth Amendment violation was egregious. This word has no boundaries, is highly subjective and establishes no standards other than the Ninth Circuit definition: evidence . . . obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should [have known] is a violation of the Constitution. This statement will cause a chilling effect on immigration enforcement agents because it mirrors the law conferring immunity on police officers in civil cases. Immunity is invoked by public officials in proceedings alleging statutory violation of civil rights, not deportation proceedings. The dissenting judge in Gastelum, citing Lopez-Mendoza, 468 U.S. @ 1040-51, sounds this alarm, aware of the Ninth Circuit predilection for reversing immigration cases and denying immunity to police officers in cases alleging violation of Constitutional rights. The judge wrote: The Supreme Court determined that the high costs of the exclusionary rule rendered it too costly to apply in immigration proceedings . . . Our case law appears destined to import the exclusionary rule, with all of its attendant costs, back into immigration proceedings. This is not the first case the Ninth Circuit has written adopting an exception to an unambiguous Supreme Court rule. Here is their exception in Gastelum to the Supreme Court rule that the exclusionary rule is inapplicable in deportation proceedings: ...[If] the agents committed the violations deliberately or by conduct a reasonable officer should have known;" Orhorhaghe v. INS, 38 F.3d 488 (1994). Given the number of Ninth Circuit decisions on the Fourth Amendment reversed by the Supreme Court, and innumerable decisions written by state and federal courts disagreeing on whether officers committed a violation of the Fourth Amendment, this decision is absurd. And the immigration judge saw no egregious violation either when she ordered deportation.

No comments:

Post a Comment