By guest bloggers Katrina Bondoc and Jacob Egler, Northwestern School of Law at Lewis & Clark College

The United States Supreme Court is considering the implications of its seminal case, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (which held that the Fourth Amendment exclusionary rule is inapplicable to deportation proceedings)  in a New York State criminal proceeding.  The case is called Tolentino v. New York, 0-11556.  The question presented is: Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?

Lopez-Mendoza has always been a difficult case to grapple with in the immigration context.  In anticipating the implications of a decision in Tolentino, we’ve pulled together a summary of how Lopez-Mendoza is treated in the different circuits and the state of law regarding suppression.

The general rule from Lopez-Mendoza is that deportation proceedings (and, likewise, removal proceedings) are civil actions that determine the eligibility of an alien to remain in the United States.  Thus, certain protections afforded to defendants in criminal actions, such as the exclusionary rule, are inapplicable in removal proceedings. However, this is not unfettered. A glimmer of hope lies in language in Lopez-Mendoza pertaining to “egregious violations of the Fourth Amendment or other liberties that transgress notions of fundamental fairness and undermine the probative value of evidence obtained.” See Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 (1st Cir. 2004); see also Gonzalez-Reyes v. Holder, 313 Fed. Appx. 690, 695 (5th Cir. 2009) (exclusionary rule is inapplicable in removal proceedings, absent some egregious violations of Fourth Amendment or other liberties). See e.g. Martins v. Attorney General of the United States, 306 Fed. Appx. 802, 804 (3d Cir. 2009) (affirming denial of suppression of evidence gathered by police and immigration officials under the fairly ordinary conditions the alien was interviewed in).

The exception, while technically present, is practically nonexistent outside the Ninth Circuit. The requisite level of egregiousness is largely undefined, and courts outside the Ninth Circuit have construed the exception very narrowly. For instance, the Fifth Circuit has expressed misgivings about readily finding an egregious violation when the example given by the Lopez-Mendoza plurality involved induced vomiting. See Escobar v. Holder, 2010 WL 4009870 (5th Cir. 2010); see also Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010) (exclusion is seen as a “relatively narrow remedy” and “very minor physical abuse coupled with aggressive questioning” is not considered egregious). In addition to egregious violations of the Fourth Amendment or other liberties prong, the “and undermine probative value of evidence obtained” prong has been interpreted in some circuits to require that the unlawfully obtained evidence of an alien’s identity also undermine its probative value. The usual scenario involves obtaining an alien’s identity, which ultimately relates to her status, through other lawful means. Thus, unlawfully obtained evidence does not undermine its probative value even though the government would have never learned of the alien’s status but for the violation. In Miguel v. INS, 359 F.3d 408, 410 (6th Cir. 2004), the court refused to analyze the applicability of the exception because the alien’s removability was based on her own admissions independent from evidence gathered by INS agents that had conducted a search of her home in potential violation of the Fourth Amendment. Id at 411. Potential violations of liberties notwithstanding, the second prong effectively functions as a catch-all for the government.

The Second Circuit, however, makes use of the disjunctive “or.” The standard is not a two-part test. Rather, it is a question of whether the evidence was obtained under the context of an egregious violation or undermines the probative value of the evidence obtained. Almeida-Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir. 2006) (“the Lopez-Mendoza court inadvertently used the conjunctive ‘and’ instead of the disjunctive ‘or’ to link these two possible grounds for deeming a violation egregious”). The Eighth Circuit also appears to have adopted this view and has given further guidance on what might qualify as egregious by listing violations involving physical brutality, unreasonable show or use of force, or an arrest based solely on race. Puc-Ruiz v. Holder, 2010 WL 5185803 (8th Cir. 2010). While a disjunctive standard seemingly broadens the exception, it has yet to be successfully applied.

Only the Ninth Circuit takes an expansive view of the Lopez-Mendoza exception.  In the Ninth Circuit, the applicable test is “[a] Fourth Amendment violation is egregious if evidence is obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should have known is in violation of the Constitution.” Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008) (internal quotations omitted). See also Martinez-Medina v. Holder, 616 F.3d 1011 (9th Cir. 2010) (an egregious violation had not occurred because a reasonable officer would not have known he lacked probable cause).  The expansive nature of this interpretation of the exception is best understood through comparison with the dissent from the order denying rehearing en banc of Lopez Rodriguez v. Holder.  In the dissenting judges’ view “[The 9th Circuit] seem[s] to have turned Supreme Court plurality dicta into majority dicta simply by saying so. Then…applied that dicta, in a manner not consistent with the sole case cited in the dicta, to create a new rule-one never envisioned by either the Supreme Court majority or the plurality.” Lopez-Rodriguez v. Mukasey, 560 F.3d 1098 (9th Cir. 2009).

However, in cases concerning criminal deportation proceedings under 8 U.S.C. § 1326, courts more readily accept the appropriateness of the “egregious violation” exception  in both jurisdictions that interpret the “identity statement” in Lopez-Mendoza as applicable to a court’s jurisdiction over a defendant, and as an evidentiary issue. In  United States v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007), the court explained that in a criminal deportation proceeding, there are instances for suppressing evidence of a defendant’s identity because the language pertaining to “identity statement” in Lopez-Mendoza is in regards to a court’s jurisdiction over a defendant, not suppression of unlawfully obtained evidence relating to his identity. The court further emphasized that the exclusionary rule does not apply in civil deportation proceedings. Id. at 230. In circuits that interpret the “identity statement” in Lopez-Mendoza as barring suppression of evidence of identity, the “egregious violation” exception is also invoked. See United States v. Bowley, 435 F.3d 426, 431 (3d Cir. 2006) (In a criminal deportation proceeding for illegal reentry, an alien needs an egregious violation of the Fourth Amendment to warrant suppression of his immigration file or its contents). See also United States v. Navarro-Diaz, 420 F.3d 581, 587 (6th Cir. 2005) (in an 8 U.S.C. § 1326 proceeding, the alien’s motion to suppress his identity was denied in the absence of an “egregious violation of the Fourth Amendment”).  On one extreme, the District Court of Massachusetts has completely done away with the exception, at least in the context of a criminal deportation proceeding, under the rationale that the exclusionary rule never operates to suppress a person’s identity because the exception language in Lopez-Mendoza is mere dicta. See U.S. v. Sandoval-Vasquez, 519 F. Supp. 2d 198, 300 (D. Mass. 2007) (In addressing the issue of whether evidence of defendant alien’s identity is suppressible because of a search and seizure under a wrongful warrant, the court reasoned that the “egregious violation” statement in Lopez-Mendoza had no application to the Court’s earlier ruling that the exclusionary rule never operates to suppress a person’s identity).

If you have a case (at any stage the proceedings) raising a suppression issues, would like to contact the authors or the AILA Amicus Committee, please send an email to amicus@aila.org

It has now been 4 ½ years since the Adam Walsh Child Protection and Safety Act (AWA) took effect. Designed to “protect the public from sex offenders and offenders against children,” the AWA made several revisions to the INA, making U.S. citizens and lawful permanent residents with certain criminal convictions disqualified from filing visa petitions for their family members or fiancées. A person found to have a conviction for a “specified offense against a minor” is excluded from eligibility to file a family-based petition on behalf of any beneficiary, unless the Secretary of DHS finds, in his or her “sole and unreviewable discretion,” that the petitioner presents “no risk” to the proposed beneficiary.

For the first several years after its implementation, visa petitions found to potentially fall within the ambit of the AWA were backlogged at USCIS, as the agency developed uniform procedures for processing the applications. In September, 2008, however, the Service issued a Standard Operating Procedure module for the adjudication of AWA petitions, leading to an increase in the pace of adjudications.

As more and more AWA decisions are issued, the Amicus Committee is interested in tapping into the collective experiences of AILA members around the country with AWA adjudications. We feel there are several, unresolved issues regarding the scope, standards and reviewability of the AWA, and the Committee hopes to be involved with—or at least aware of—any pending or contemplated legal challenges to the law.

Among the issues that we feel need additional clarification are the following:

▪   Whether the categorization of a particular conviction as a “specified offense against a minor” is done using the categorical approach, or is made with an inquiry into the specific facts of the offense? In general, the categorical approach has been adopted by courts when analyzing statutory construction in the context of immigration law. However, at least one circuit court has already rejected that approach, at least for that portion of the AWA dealing with the creation of a national sex offender registry system. In U.S. v. Dodge, the Eleventh Circuit allowed an examination of the facts of a defendant’s underlying conduct in determining what constitutes a “specified offense against a minor.” 597 F.3d 1347 (11th Cir. 2010), petition for cert. denied (U.S., Oct. 12, 2010 No. 09-11207). The Amicus Committee would be interested in any AWA decisions showing what approach is currently being taken by USCIS in AWA adjudications.

▪   Whether the definition of “conviction” found at INA § 101(a)(48)(A)—which, by its own terms, is applicable only “with respect to an alien”—is being applied by USCIS to USC petitioners. There is a strong argument that a diversionary disposition of a criminal charge, resulting in something other than a judgment of conviction, should prevent the triggering of an AWA petition bar for a USC petitioner. The Committee, therefore, would be interested in hearing about any cases in which the Service did apply (or rejected) the expanded definition of “conviction” to deferred adjudications for USC petitioners.

▪   In interpreting the statutory mandate that a discretionary exception to an AWA bar be available to a petitioner who poses “no risk” to the alien beneficiary, the Service has adopted, as a matter of policy, the highest possible burden of proof—beyond a reasonable doubt. Does the use of this heightened burden go beyond the express terms of the statute? And is it a permissible use of the agency’s discretion? Last year, the AAO reaffirmed the long understood principle that a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of the evidence that he or she is eligible for the benefit sought. Matter of Chawathe, 25 I & N Dec. 369 (AAO 2010), citing Matter of Martinez, 21 I & N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings). The only exception to this default standard would be those instances where a different standard was specified by law (for example, the heightened standard for proving the bona fides of a marriage entered into during proceedings). The AWA contains no language heightening the standard of proof. Therefore, it can be argued that the AWA should properly be read to require that a petitioner who has been convicted of a specified offense against a minor submit evidence that demonstrates, by a preponderance of the evidence, that he or she poses no risk to the safety and well being of the beneficiary. Have any practitioners raised similar arguments with the agency? What have been the responses?

▪   Which party—USCIS or the petitioner—bears the burden of proving that a conviction is, or is not, a specified offense against a minor? If the burden falls on the petitioner, as someone applying for a benefit, what happens in those situations where conviction records are no longer available, or are ambiguous?

▪   Where a petitioner is found to have been convicted of a “specified offense against a minor,” and the intended beneficiary is a minor, USCIS has adopted a rebuttable presumption of risk. Does the agency’s policy decision go beyond the reach of the statute?

▪   Under the terms of the AWA, the determination of whether or not the petitioner poses a risk to the beneficiary is made by the Secretary of DHS in his or her “sole and unreviewable discretion.” As a result, the BIA cases to date addressing the “no risk” prong of the AWA have been dismissed on jurisdictional grounds. A typical BIA denial reads as follows:

Since the Director has concluded that the petitioner failed to prove beyond a reasonable doubt that he does not pose a risk to the safety or well-being of the beneficiary, and that determination is unreviewable by this Board, the petitioner is not eligible to file a visa petition on behalf of the beneficiary pursuant to sections 204(a)(l)(A)(i) and 204(a)(l)(B)(i) of the Act.

But what about those situations where a petitioner raises the legal question of whether the Secretary applied the correct standard in making the risk assessment? Would that challenge be reviewable at the Board? The Committee feels that such a review would still be possible. Much like the jurisdiction-stripping provisions of the INA with regard to judicial review of discretionary determinations, there should still be room within the terms of the statute to allow for purely legal arguments. What has been the experience of practitioners to date with BIA jurisdiction over AWA claims?

▪   Are there Constitutional concerns raised by the limitations created by Congress on the ability of a USC or LPR to petition for a family member? On the one hand, the existing case law on this topic can be discouraging, with the Supreme Court repeatedly upholding Congress’s broad plenary powers to regulate immigration and citizenship issues. See, e.g., Knauff v. Shaughnessy, 338 U.S. 537 (1950); Shaughnessy v. Mezei, 345 U.S. 206 (1953); Kleindienst v. Mandel, 408 U.S. 753 (1972); and Fiallo v. Bell, 430 U.S. 787 (1977), all recognizing extremely broad Congressional plenary powers to exclude or expel immigrants. On the other hand, it may still be possible to craft a Constitutional argument by distinguishing this line of cases as focusing on the status of the immigrant, and not on the status of the petitioner. What have been the experiences of any practitioners raising Constitutional issues regarding an AWA petition denial?

▪   Finally, USCIS takes the position that the AWA applies to all petitions filed or pending on the date of enactment. But are any retroactivity concerns raised by situations where the conviction for a “specified offense against a minor” took place before the effective date of the AWA? Couldn’t it be argued that Congress’s creation of a bar to filing certain family petitions due to past conduct attached a “new disability” to that conduct, and is therefore impermissibly retroactive? What have been the experiences with any practitioners raising these concerns before the agency?

This list of issues is hardly exhaustive. As more AWA cases are filed with the Service, and challenged administratively and judicially, the exact boundaries of the new law will become increasingly clear.

For example, just recently, the Amicus Committee was notified of a pending AWA BIA appeal in which the Board requested supplemental briefing on several of the topics mentioned above. The Committee agreed to prepare its own amicus brief, and was in the process of drafting that document, when the Service suddenly moved the Board—after the case had been pending for over a year—for a remand, so that the agency could issue a new decision. It would appear that USCIS is maneuvering strategically to avoid further analysis of some of its policy decisions, or avoiding the issuance of a precedential decision from the Board.

Nevertheless, the Board’s unusual request for additional briefing certainly suggests that it has taken a keen interest in exploring the exact parameters of the AWA, and we can probably expect important AWA cases coming from the Board in the near future. You can help AILA in defining those boundaries by passing along your own experiences with the AWA, and suggesting other areas ripe for litigation.