Application of the Fourth Amendment to unreasonable searches in deportation cases

In the event that you or a family member get detained by ICE, or receive a Notice to Appear, you should know that deportation is not inevitable. You should also know that there are ways to challenge the evidence that ICE relies upon to seek your deportation. The Fourth Amendment to the United States Constitution provides one way to kick out evidence before it is admitted against you.

The Fourth Amendment

The Fourth Amendment of the United States Constitution prohibits unreasonable search and seizure of persons, houses, papers and effects by government agents. A government agent is any person acting in an official capacity for a Federal or state government such as an immigration officer or local law enforcement.

What is a Search under the Fourth Amendment?

A search under the Fourth Amendment takes place any time there is an intrusion into an area where a person has a reasonable expectation of privacy. An example of a place where a person has a reasonable expectation of privacy is in a house or dwelling. This is consistent with the age-old English law maxim that every man’s house is his castle and fortress [Sir Edward Coke, Semayne’s Case (1605)]. Therefore the Fourth Amendment applies when the police or ICE agents enter a dwelling or intrudes upon anything on which a person has a reasonable expectation of privacy. The Fourth Amendment requires that the search be reasonable.

What is a reasonable search?

To be a reasonable search the courts will require the government agents to have had a warrant supported by probable cause. Also to be reasonable a search with a warrant must not exceed the scope of the warrant and must be conducted reasonably. The police cannot use a warrant as permission to knock down the door of a dwelling without announcing themselves and giving the occupants, if any an opportunity to answer (The Knock and Announce Rule). Besides a warrant there are certain limited exceptions to a warrant. No warrant is required for a consent search. A search in the case of a house or dwelling may also be reasonable if government agents have the consent of an adult occupant (not a minor) of the dwelling. The consent of the landlord is not enough. The other limited exceptions to a warrant are known as exigent circumstances. These include a search indent to a lawful arrest, hot pursuit of a felon and good faith reliance on a defective warrant- United States v. Leon, 468 U.S. 897 (1984).

Border Searches

Section 287(c) of the Immigration and Nationality Act gives immigration officers and employees the power to search, without a warrant, the person and personal effects of any person seeking admission to the United States if they have reasonable cause for suspecting that such a search would disclose grounds for exclusion from the United States.

The remedy for Fourth Amendment rights violation.

One of the principles for interpreting the United States Constitution is the maxim “For every right there is a remedy.” The remedy for the violation by government officers of a person’s right to be free from unreasonable intrusion into a place where a person has a reasonable expectation of privacy is the Exclusionary Rule. The Exclusionary rule is a judicially carved rule that is designed to deter future official violations of the Fourth Amendment. It provides legal grounds to object (by way of a motion to suppress) to evidence introduced against a respondent before the evidence if admitted by the judge. It also provides that evidence indirectly obtained as a result of a violation of the Fourth may be similarly suppressed under what is known as the fruits of the poisonous tree doctrine, if the link between the violation and the evidence is not too attenuated or remote.

Again the purpose is to deter official misconduct by suppressing the tainted evidence. Therefore if an unreasonable search leads to an arrest, the party arrested may move to exclude or suppress admissions made while in custody as the tainted fruits of an unlawful search. The exclusionary rule is most applicable in a criminal context.

Exclusionary rule in immigration cases – limited application

Evidence admitted in a deportation case must not only be probative of a fact to be decided but it its use must be fundamentally fair so as not to deprive the respondent of due process of law. Matter of Toro, 17 I. & N. Dec. 340 (B.I.A. 1980) ; Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980). .

The application of the Fourth Amendment to the non-criminal context such as deportation proceedings was severely limited (but not barred)  by the United States Supreme Court ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (U.S. 1984). The Court decided that the application of the exclusionary rule to civil deportation proceedings can be justified only if the rule is likely to add significant protection to Fourth Amendment rights. INS v. Lopez-Mendoza, 468 U.S. 1032, 1045 (U.S. 1984).

However in Matter of Toro, the Bureau of Immigration Appeals excluded evidence from a violation the Fourth Amendment where the misconduct of government agents was egregious.  Therefore flagrant violations of the Fourth Amendment may trigger the exclusionary rule in a deportation proceeding. The warrant-less entry into a respondent’s apartment without securing his voluntary consent, and based solely on the fact that he had a Nigerian sounding name, is one example of an egregious Fourth Amendment violation.  Orhorhaghe v. INS, 38 F.3d 488,497 (9th Cir. 1994).

Sometimes the manner of acquisition of evidence in a deportation case may be so egregious that use of the evidence would deprive a respondent of his constitutionally protected right to due process of law under the Fifth Amendment and render the deportation proceedings as fundamentally unfair. In such a case a timely motion to the court to suppress the evidence is warranted.

If you have any questions please speak to a qualified immigration attorney. Feel free to email me at I also urge you to subscribe to this blog or the RSS feed so you can see when new articles are posted.

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Gary Goodin

Northern Virginia immigration lawyer Gary Goodin provides effective personal legal advice and representation in immigration and citizenship cases from his law office in Tysons Corner, VA. His practice area includes marriage green cards, k1 visas, employment based visas and complex naturalization, and citizenship cases. To learn more about Gary Goodin visit the home page of this green card and US immigration law blog. More information is also available at

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