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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Removing conditions on permanent residence when the U.S. petitioner dies

One of the most common questions asked by those who get a green card by a marriage that is less than two years old is, “how and when do I remove the conditions on my green card?” Sometimes the U.S. spouse may be unwilling to file a joint petition and there may be issues of domestic abuse. In a few cases however the U.S. spouse may have died after the beneficiary spouse obtained conditional permanent residence but before the two year anniversary of obtaining conditional permanent residence[1]

For those who receive a green card through a marriage that is less than two years old on the date the green card is received, Section 216 (d) (2) of the Immigration and Nationality Act provides that a conditional permanent resident must file a joint petition to remove conditions on residence I-751 within 90-day period before the second anniversary of receipt of conditional resident status – count back 90 days from the second anniversary of the Permanent Resident Card. Waiting until the last few days to send the I-751 petition with supporting evidence is a bad idea. It should get to the USCIS before the conditional green card expires. It is always a good idea to have proof of delivery.

A son or daughter of the foreign spouse who achieves conditional residence within 90 days of the principal beneficiary (the foreign spouse) may be included on the same I-751 form even though such a combined petition attracts a separate biometric fee for each son or daughter regardless of age. Otherwise the son or daughter must file a separate petition.

The permanent resident status of a conditional permanent resident who fails to file the I-751 on time, will end, unless the person can show good cause that excuses a late filing. Such a person will also begin to accumulate unlawful presence which can lead to 3 or 10 year bars from the United States, if they leave.

Section 216 (c)(1) further has two requirements for removal of the condition – a jointly filed petition and an in person I-751 interview. The service can waive an I-751 interview if it is satisfied of the bona fides of the marriage based on the petition and supporting evidence. But the USCIS sometimes conducts random interviews of joint petitioners or waiver requesters.The service is more likely to waive a joint interview if the case is well-documented but may still need an interview if verification of the information through its fraud unit turns up derogatory information.

For a person who cannot file jointly because of reasons other than death of the petitioning spouse (e.g. I-751 divorce), Section 216 (c) (4) of the immigration and Nationality Act provide for hardship waivers of the joint filing and interview requirements under certain conditions. For such hardship waivers the CPR must submit a letter with the I-751 petition.

But when the petitioning spouse dies during the 2-year conditional period the law does not require a joint petition and interview and no separate I-751 waiver is required other than that requested on form I-751. Therefore the conditional resident petitioner should select (c) in Part 2 of the I-751 form and provide documentary evidence of the death as supporting evidence. The death of the petitioning spouse does not, however relieve the I-751 petitioner from the burden to prove that the marriage which ended in death was in good faith and was not entered into solely for evading the immigration laws.

A conditional permanent resident under section 216(a) of the Immigration and Nationality Act, who is seeking to remove the conditional basis of that status and who has timely filed the petition and appeared for the interview required under section 216(c)(1), does not need a separate section 216(c)(4) hardship waiver if the petitioning spouse died during the 2-year conditional period.


If satisfied that the marriage was not for the purpose of evading the immigration laws, USCIS may approve the petition without an interview. If the USCIS approves the petition it will remove the condition on permanent residence as of the second anniversary of receipt of conditional permanent resident status and issue a new Permanent Resident card through the mail.

RFEs, or requests for more evidence

Where the initial filing is deficient the USCIS may issue a request for more information or evidence or RFE. Failure to respond would lead to a denial due to abandonment.

If the RFE is not properly responded to the USCIS may schedule an interview. If the conditional resident alien fails to appear for an interview about the petition the alien’s permanent residence status will be automatically terminated as of the second anniversary of the date on which the alien obtained permanent residence[2].


If USCIS intends to deny the petition it will provide a Notice of Intent to Deny stating any reasons for so intending. The petitioner may then send rebuttal evidence which USCIS must consider. If the petition is ultimately denied the alien’s permanent resident status will end as of the date of the written denial.

Review of denial

A person whose i-751 petition was denied can

1. request the USCIS to certify the case to the Administrative Appeals Unit[3]

2. file a motion to reopen the case based on new facts, or a motion to reconsider the case citing valid reasons[4], or

3. seek review of the decision in removal proceedings. In such proceedings ICE must prove by a preponderance of the evidence that the petition was properly terminated [5]. But the petitioner bears the burden of proving eligibility for the petition or waiver of the joint filing requirement. He or she must be prepared to submit evidence of a good faith marriage and the death of the U.S. spouse.

[1] This situation is different from a case where a foreign national obtained permanent residence based on being the widow(er) of a US citizen. In such a case, the widow(er) spouse should not file I-751.

[2] 8 C.F.R. 216.4

[3] 8 C.F.R. 103.4 (a) 4,5

[4] 8 C.F.R. 103.5

[5] 8 C.F.R. 216.3, 1216.3

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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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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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