In July 2011, a New York City immigration court judge entered a notable order: she suppressed evidence that an alien had entered the United States illegally. (1) A review of the circumstances precipitating the alien's arrest, however, would make the grant of a suppression remedy seem unexceptional to any attorney versed in Fourth Amendment doctrine.
In 2007, the respondent alien awoke one morning at five o'clock to the sound of agents shouting "Police, police, open the door!" (2) Next, according to the respondent's unrefuted testimony, the air conditioner unit in the window next to his bed collapsed, the windowpane flew open, and an arm reached through the window to bludgeon the respondent in the head three times with a heavy flashlight. (3) The arm belonged to an agent of U.S. Immigration and Customs Enforcement (ICE). (4) Without consent, approximately ten agents soon entered the apartment through the front door; four agents then came into the respondent's bedroom, and one placed him in handcuffs. (5) Though the agents had an ICE-issued administrative warrant to arrest a different occupant of the household for unlawful presence, the agents did not have probable cause to believe that the respondent had no right to be in the country. (6) ICE then transported the respondent to a processing facility in Manhattan, where agents, speaking almost entirely in English, pressured respondent to sign a statement admitting he lived in the country without authorization. (7) After seven hours in custody, he signed. (8)
In a criminal trial, even the most ardent skeptic of the efficacy of the exclusionary rule would struggle to find doctrinal wiggle room to avoid suppressing evidence obtained through exploitation of this misconduct. (9) But what distinguished this decision is that, in removal hearings, the availability of a suppression remedy is the exception, not the rule. Nearly thirty years ago, the Supreme Court held in INS v. Lopez-Mendoza (10) that the Fourth Amendment exclusionary rule is generally unavailable to immigrants ensnared by the country's immigration enforcement regime. (11) But at the end of her majority opinion in Lopez-Mendoza, Justice O'Connor expressly refrained from reaching the question of the exclusionary rule's availability for "egregious violations of [the] Fourth Amendment." (12) It was this implied egregiousness exception that the immigration judge in New York invoked to grant the respondent alien's request for suppression, and it is this exception that sustains a small body of civil immigration suppression jurisprudence.
Despite this limited opening for lodging suppression motions, courts rarely grant the remedy, and in practice almost entirely excuse the immigration-enforcement regime from Fourth Amendment strictures. One avenue, then, for channeling disquiet about an unwieldy and unsupervised immigration-enforcement apparatus vested with authority to levy increasingly harsh punishments upon the nation's undocumented immigrant population (13) would be to reconsider Lopez-Mendoza and make the exclusionary rule generally available in removal hearings.
This Chapter begins in section A by introducing Lopez-Mendoza and situating its holding within modern exclusionary rule doctrine. Section B then critically examines two features of the status quo: first, the lower courts' troubled experience attempting to make sense of the Lopez-Mendoza "egregiousness" exception, and second, an emerging lower-court interpretation that unwisely exempts state and local officials from even the limited judicial scrutiny of the Lopez-Mendoza regime. One reason for revisiting Lopez-Mendoza, then, is simply to provide helpful clarity for lower courts in construing the egregiousness exception. Section C, however, goes on to make the more aggressive case for revisiting the core holding of Lopez-Mendoza entirely. That section illustrates why assumptions crucial to Lopez-Mendoza's calculus have not withstood changes to immigration enforcement or, in the wake of Supreme Court's recent judgment in Arizona v. …