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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Can you afford not to hire an immigration attorney for your case?

Do I need an immigration lawyer?

Some persons dealing with an immigration matter such as applying for a spouse to come to the United States, may ask, ‘Do I really need a lawyer?’, or ‘Can’t I just handle the paperwork myself?’ Unfortunately, the denial rate for applications or petitions filed without an attorney is higher than many realize. The cost in time and money to fix immigration problems that could be avoided is astronomical.

Let me give you an example. Paul is a US citizen from the Philippines. On a trip to the Philippines he met a beautiful woman and they got married. Paul consults a lawyer who offers free consultations only to find out that the lawyer charged $2500 for the case. After recovering from the shock Paul goes to an immigration consultant to fill out papers for only $500. Paul expected to see his wife in less than a year. But unknown to him the divorce from his former wife was not final. His I-130 petition was rejected. Paul  spent thousands of dollars to return to the Philippines to complete his divorce. He also has to spend some more money to remarry the woman he thought was his wife. If Paul had consulted an immigration attorney from the beginning he would be thousands of dollars richer and reunited with his wife a lot sooner. He would have avoided strain on his relationship from a very long separation. The time they could have spent together is gone forever and money cannot bring it back.

The odds are not in favor of a person filing on his own or using a notario because immigration laws are complex and constantly changing and there are many factors that are not widely known that can affect eligibility and lead to a denial. Minor errors that seem trivial to most people can cause the denial of a visa. Other denial factors include a case without legally sufficient evidence, misrepresentations, a failure to register a change of address, in absentia orders of removal which the applicant does not know about and security grounds. And that is just the start!

Immigration laws are nearly as complex as the tax code

Immigration laws are so complex that one United States District Judge in describing the complexity of immigration laws said, “The statutory scheme defining and delimiting the rights of aliens is exceedingly complex. Courts and commentators have stated that the Immigration and Nationality Act (the “INA”) resembles “King Mino’s labyrinth in ancient Crete,” [and] and is “second only to the Internal Revenue Code in complexity.” Chan v. Reno, 1997 U.S. Dist. LEXIS 3016 *[5] (S.D.N.Y. Mar. 14, 1997).

How an immigration attorney can make your life easier?

For you to get your immigration case approved a thorough understanding of the immigration laws behind the forms is critical. Your case must also be supported by legally required and persuasive evidence to prove eligibility to adjudicators. Additionally it must address any grounds for removal. In fact some foreign national who make applications  (e.g. for asylum, deferred action or adjustment of status) without competent legal advice may be at risk of deportation without knowing it.

A competent immigration lawyer understands that getting your application approved requires an in-depth understanding of your specific facts to find the right legal course of action for you under the immigration rules. The immigration attorney will help you determining the potential risks, and legal issues that arise from your actions. The best ones will also help you prepare for critical immigration interviews at US consulates, ports of entry and at the USCIS.

Though no ethical immigration attorney can guarantee results, a licensed immigration attorney who is a member of the American Immigration Lawyer’s Association will use his or her best efforts to help you avoid denial and delays and get your US visa, green card or US citizenship case approved.

If you run into problems with an immigration or visa application, a form filling service cannot represent you before the USCIS, the National Visa Center or the US consulate. In short, a form-filler cannot contact any government agency on your behalf; only a licensed attorney can do this.


When your future and your family’s future in the United States is on the line, this is not a time for pinching pennies. A cheap attorney may not spend much time on your case because attorneys bill based upon an estimate of the time it will take to complete the case. An adjustment of status case for $750.00, may mean that the attorney will spend only three hours on your case and will not  give it the attention it deserves.

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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A discussion of the frightening Notice to Appear

What is a notice to appear?

The issue of a notice to appear (NTA) is notice to a person that removal proceedings has began against him or her. But removal proceedings begin when the notice to appear is filed in an immigration court (8 C.F.R. 1003.14). A notice to appear form I-862 is a charging document containing allegations against a person in removal or deportation proceedings. It alleges that the person is not a United States citizen, states the grounds under which the person is removable, and the specific law that supports removal.

The notice to appear may also state the date, place and time of the immigration court hearing for the person to appear before an immigration judge. However the notice of hearing may be sent in a separate letter.

It is very important that any person who has received a notice to appear tell the immigration court in writing of any change of address within 5 days of any such change so that they may receive notices from the court. Otherwise an immigration court judge may issue what is known as an in absentia order. If a judge makes an in absentia order against a foreign national it can be used by ICE to rapidly remove the foreign national from the United States without the benefit of a hearing.  Avoid an in absentia order by showing up on time for court and notifying the court of any change of address.

The NTA also tells the foreign national of his or her right to an immigration attorney for representation or to answer any legal questions.

Not everyone who receives an NTA is arrested. But a person who is arrested by immigration must be issued an extra Form I-826 Notice of Rights and Request for Disposition. If you wish to stay in the United States to pursue your rights and apply for relief, you must not allow anyone to talk you into agreeing to the allegations and accepting voluntary departure. Preserve your right to a hearing before an Immigration Judge – tick the option to ask to have a hearing before an immigration judge.

Will I be put on a plane and physically removed from the United States when I appear at the immigration court?

No. This is often cited by some persons for their failure to appear at immigration court. The law does not allow a person coming to immigration court to protect his or her rights to be deported. The deportation process must be completed. Furthermore you have a right to an appeal to the BIA or to federal courts. One of the most important things to realize is that deportation is a process and it typically takes many months depending on how crowded an immigration court docket is. With appeals, the process can sometimes take years.

Do I need a lawyer?

Yes you do. Removal proceedings are one of the most serious consequences that an alien can face. This is especially so for an alien who has lived continuously in the United States for a long time such as more than 10 years. It is also a frightening experience for their United States family who are citizens or permanent residents. United States parents, spouse or children may also suffer extreme and unusual hardship from removal of their alien relatives. A person without an attorney may not have his legal rights protected. You can be assured that the government will have its attorneys working to get you deported. So lawyer up and protect your rights!

A lawyer will also help you to find the type of relief for which you are eligible and gather the right evidence (e.g. affidavits, court records etc.) necessary to support your defense and application for discretionary relief that will allow you to remain in the United States.

Conclusion – Pursue your legal rights before an Immigration Judge

The removal process can take years: removal does not happen overnight. Furthermore there are many defenses and relief from removal (e.g. cancellation of removal, withholding of removal, adjustment of status, asylum, registry etc) that may be available depending on the facts of your case. Seek legal counsel to know and protect your rights.

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How to do a late filing of form I-751 – if you must

A conditional permanent resident CPR who obtained his or her green card status through marriage of less than two years to a U.S. citizen or lawful permanent resident must file Form I-751, Petition to Remove the Conditions on Residence,  on time to remove the conditions on residence. A failure to file the I-751 will end permanent resident or green card status.

When to file?

A jointly filed form I-751 petition with supporting evidence must be filed between 21 to 24 months after the CPR’s admission or adjustment to permanent residence. An interview is usually not required but it may be required where the adjudicator determines that an interview would be useful to decide whether the marriage is in good faith.

Late filing allowed in rare circumstances

A jointly filed I-751 petition filed after 24 months since the CPR’s adjustment may be considered only if the CPR is able to prove good cause and extenuating circumstances for the failure to file in a timely manner. The circumstances that cause the delay must be extraordinary and outside of his or her control.

Written explanation required

A CPR must file an untimely petition with a written explanation (use a sworn affidavit) of his or her late filing and a request that USCIS excuse the late filing. Without a written explanation and a request for an excuse the USCIS will issue an I-751 denial notice. The denial notice may result in a notice to appear or NTA, which begins the deportation process.

What is good cause and extenuating circumstances?

Some examples of what constitute good cause and extenuating circumstances are;

  1. hospitalization,
  2. long-term illness,
  3. death of a family member,
  4. the recent birth of a child (particularly if there were complications), and
  5. a family member on active duty with the U.S. military.

The USCIS adjudicator has broad discretion to decide what is good cause and extenuating circumstances so it is important to support the explanation and request with credible evidence (e.g. medical records, affidavits) that prove good cause and extenuating circumstances.

If you are making a late filing of form I-751 please contact an immigration attorney before doing so. There are also I-751 waivers for battered spouses of U.S. citizens or LPRs that will excuse  a late filing.

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Backdating passport stamps

I have a 10-year multiple B-1/B-2 visa. I entered the U.S., and was given six months by the Immigration Officer at the airport, but overstayed by only a few years.  

I would like to take a brief trip to Jamaica, in order to visit my family, but I need to return for my job. I was told that if I “back date” or “back stamp” the immigration entry date to Jamaica in my passport, to cover up that I overstayed, that I won’t have any problems.

Non-US passport holders (holders of green cards and non-immigrant visas) who illegally “backdate” or “back-stamp” their foreign passports to forge their actual physical presence in the United States are subject to removal and cancellation of their US visas.

Passport Stamps


The illegal practice of backdating arises because visitors who spend too much time in the States may be thought of as having immigrant intent, and permanent residents who spend too much time outside the U.S. may be deemed to have abandoned their U.S. Permanent Resident status.

A non-immigrant who backdated his passport may face the cancellation of his US visa and expedited removal upon seeking admission to the United States. Additionally a non-immigrant who overstayed in the United States for more than 6 months and accumulates unlawful presence and departs the United States may be barred from admission for 3 years or 10 years. Furthermore back-stamping or back-dating your passport constitutes fraud, and could result in a lifetime ban from the United States. A green card holder who is deemed to have abandoned his status may be subject to deportation.

Backdating is no longer effective for proving actual physical presence in the United States because the Department of Homeland Security now uses various databases for obtaining arrival and departure evidence. These include the US VISIT program under which biometrics and I-94/I-94W of non-US passport holders are checked. Though biometrics is not checked upon departure at this time, this may soon be the case. Another database is the Electronic Advance Passenger Information System, or eAPIS which allows airlines and other carriers to furnish lists of arriving and departing passengers to the Customs and Border Protection (CBP).  

The best thing to do is to be truthful to the US immigration authorities and to use your visa or green card for its intended purpose. Persons on a non-immigrant visa who want to live and work in the United States should seek advice from an immigration attorney about their immigration and non-immigrant visa options. Green card holders who wish to stay outside of the United States for extended periods should seek legal advice about avoiding the harsh immigration consequences of doing so including the consequences for becoming a U.S. Citizen.

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B2 visa extension of stay

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and go with her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To keep your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. You should direct the application to the USCIS service center with jurisdiction for your area.

Required documentation

  1. Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and send USCIS Form I-102 with the proper fee together with Form I-539.
  2. Photocopy of your passport showing that it is valid for the period of your intended stay.

Written statement/letter

You must also send a written statement explaining in detail;

  1. The reason for the extension,
  2. Departure arrangements, and
  3. Any effect the extension would have on your permanent residence and employment in Jamaica.

Supporting evidence

A signed affidavit from your daughter explaining why you are seeking to delay your departure would be persuasive. Your daughter should also get a letter written by a recognized, licensed health care practitioner treating her. The practitioner should write the letter on his or her own professional letterhead stationery and it should state the specific (explained) medical condition that has caused you to seek an extension to spend more time with your daughter and grandchildren.The letter should also specify the dates involved in your daughter’s injury and that the practitioner expects the medical condition to end at a specified time.

You should also send a copy of your return ticket to Jamaica showing the date of your intended departure. You should show that you have funds to support yourself for the period of the intended stay in the U.S. If you have a job in Jamaica you should send a letter from your employer temporarily excusing you from work for the extra time you will spend in the United States.

What if authorized stay has expired?

The USCIS may exercise discretion to excuse your failure to apply before the end of your authorized when;

1.the delay was due to extraordinary circumstances beyond your control

2. the delay is right for the circumstances

3. you have not violated your non-immigrant status in other ways (e.g. unauthorized work)

4. you are still a good faith visitor to the United States, and

5. you are not in deportation or removal.

Processing time and effect of prompt application

The processing time for I-539 applications can take up to 3 -4 months. The time in which your application is pending will continue your authorized stay in the United States. The current filing fee for a Form I-539 application is available here. If USCIS approves your extension of stay application it will do so in six month increments.

Online Resources

B Visa Refusal Rates by Country


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US deportation rate skyrockets; Information-sharing boosts US deportation levels

Some criminal illegal immigrants in the custody of local law enforcement face quicker identification and deportation under a growing biometric-information sharing program between local law enforcement and ICE, the agency of the Department of Homeland Security charged with enforcement of immigration and deportation laws, and the investigation and prosecution of immigration violations. The program is known as Secure Communities.

What is Secure Communities

Secure Communities is a program that allows ICE to quickly find criminal illegal immigrants in local police custody and begin the deportation process for those who pose a danger to public safety. Under the program DHS can automatically verify the immigration status of aliens taken into the custody of local police and find the most dangerous criminal aliens using the records in its databases.  If the alien has potentially violated immigration laws DHS may issue a detainer against the alien. A detainer is a request to local law enforcement not to release the person before notifying DHS so that DHS may decide if it wants to transfer the person to the custody of ICE during deportation proceedings.

Where Secure Communities exists

As of December 6, 2011 Secure Communities is fully or partially activated in 44 jurisdictions. The fully activated jurisdictions on this date were;

1.  Arizona,

2. California,

3. Delaware,

4. Florida,

5. Georgia

6. Hawaii,

7. Idaho,

8. Michigan

9. Mississippi

10. Missouri

11. New Mexico,

12. North Carolina,

13. Ohio,

14. Oklahoma,

15. Oregon,

16. Rhode Island,

17. South Carolina,

18. Texas,

19. Virginia,

20. West Virginia,

21. Wisconsin, and

22. Puerto Rico.

The jurisdictions that have no active Secure Communities program included Alaska, Washington D.C., Maine, Minnesota, New Hampshire, New Jersey, North Dakota, Vermont, and the United States Virgin Islands. All other jurisdictions were partially activated. In New York, for example, 31 of 62 counties participated in Secure Communities while in Nevada 14 of 17 counties participated. In Maryland and Ohio, the number of active counties were 22 of 24  and 77 of 88 respectively.

ICE Deportation of Illegal Immigrants
ICE Deportation of a young woman in error?











Is Secure Communities targeting dangerous aliens or is it a broad dragnet?

U.S. Immigration and deportation law experts have expressed mounting concern that the program unintentionally encourages local police to engage in racial and ethnic profiling. Though ICE has a priority system for deportation of criminal aliens and not mere immigration violators, some immigration lawyers and activists argue that the priority system is confusing. Furthermore they argue that ICE has no clear mechanism for ensuring that its agents act according to its priorities. As a result, some non-violent offenders (nannies and gardeners) convicted of minor crimes such as traffic violations are deported. There may also be mistakes in criminal records that lead to deportation of green card holders and other aliens in error. Some of the foreign nationals affected by these errors may choose to leave the United States rather than stay in ICE detention while fighting deportation.

Record level of US deportations and contribution of Secure Communities

Through Oct. 31, 2011, ICE removed more than 110,000 immigrants convicted of crimes, including more than 39,500 convicted of aggravated felony (level 1) offenses like murder, rape and the sexual abuse of children from the United States after identification through Secure Communities.

In Fiscal Year 2011, ICE deported a record-breaking 396,906 people. Fifty five percent of those deported in Fiscal Year 2011—216,698 —were convicted of felonies or misdemeanors, an increase of 89 percent since 2008. This includes 1,119 aliens convicted of homicide; 5,848 aliens convicted of sexual offenses; 44,653 aliens convicted of drug related crimes; and 35,927 aliens convicted of driving under the influence. The number of aliens deported as a result of Secure Communities in Fiscal Year 2010 alone was 35,910.

Want to know if your county participates?  ICE listing of Secure Communities.

Useful Resources:

1. US Immigration and Customs News Release October 18, 2011

2. Secure Communities: Get the Facts

3. Activated Jurisdictions – Is Secure Communities active in your county?

4. Deported teen returns to US. How many Americans are mistakenly banished? – The Christian Science Monitor

This post was last updated on January 08, 2012


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