NIJC - 9th Circuit Grants Motion to Suppress I-213 and Petitioner Statement Due to Egregious Viol

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9th Circuit Grants Motion to Suppress I-213 and Petitioner Statement Due to Egregious Viol

Friday, 08 August 2008

Lopez-Rodriguez and Gastelum-Lopez v. Mukasey, No. 06-70868 (9^th Cir.)(August 8, 2008)

CANBY, Bybee (C), Quackenbush

The 9^th circuit reviewed the IJ and BIA’s decisions to deny petitioners’ joint motion to suppress their respective Forms I-213 (Record of Deportable/Inadmissible Alien) and a sworn statement by petitioner Gastelum. Petitioners argued that INS agents who came to their residence in October 2000 without an arrest or search warrant based on a tip of fraudulent use of a U.S. birth certificate committed egregious violations of the 4^th Amendment by pushing their way into petitioners’ residence.

The 9^th Circuit stated that these facts fit squarely within the basic principle that searches and seizures inside a home without a warrant are presumptively unreasonable, citing Payton v. New York, 445 U.S. 573, 586 (1980), and this presumption may only be overcome by consent or exigent circumstances. Petitioner Gastelum testified she had not consented and the INS agents did not testify. The IJ ruled that although there were “some 4^th Amendment problems with the manner of entering and questioning” the problems were not egregious violations. The BIA affirmed the IJ without decision.

The 9^th Circuit concluded that “the evidence of alienage contained in these documents was obtained in violation of (petitioners’) Fourth Amendment rights and that the violation was egregious.” The 9^th Circuit also said that “the bare fact that Gastelum neither refused to speak to them nor ordered them to leave after they pushed the door open and entered her home is insufficient to establish consent.” Since the INS officers receive extensive training in 4^th Amendment law, citing Orhorgaghe, 38 F.3d at 503 n. 23, the INS officers here should have known that their conduct was in violation of the 4^th Amendment and therefore egregious. The 9^th Circuit noted that the warrant requirement applies with the same force in the administrative process, citing Camara v. Mun. Ct. of San Francisco, 387 U.S. 523, 534 (1967). There being no other evidence of petitioners’ alienage the court granted the petition for review, reversed the decision of the BIA, and remanded with instructions to dismiss the removal proceedings against the petitioners.

Judge Bybee’s concurring opinion expressed concerns that 9^th Circuit jurisprudence on the issue of what constituted an egregious violation of the 4^th Amendment was overinclusive and that other circuits had adopted a more stringent standard for “egregious” violations of the 4^th Amendment. Also, he noted that the part of Justice O’Connor’s opinion in INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 – 51, stating in dicta that there might be an exception to the general rule that the 4^th Amendment exclusionary rule does not apply in deportation proceedings in the case of egregious 4^th Amendment violations was only joined by three other justices.