Ninth Circuit Grants Suppression Motion in Immigration Court after Illegal Home Raid

On August 8, 2008, the Ninth Circuit granted a suppression motion filed in immigration court, overturning the immigration judge and BIA's denials! The case is Lopez-Rodriguez v. Mukasey (9th Cir. Aug. 8, 2008).

Filing suppression motions in immigration court is a growing strategy for immigrants to respond to illegal raids by immigration agents and local police. In criminal court, evidence from illegal raids cannot be used (with small exceptions) to try to obtain a criminal conviction. In immigration court, the law is less clear -- many courts follow a rule from the 1980s that evidence will be suppressed for egregious Fourth Amendment violations and other types of violations.

On the one hand, it is appropriate to revisit the 1980s decision and see whether suppression must be applied for an even wider variety of violations, not just egregious Fourth Amendment violations or regulatory violations. Still, even using the narrow rule from the 1980s decision of Lopez-Mendoza v. INS (1984), it is possible to win cases in immigration court with suppression motions.

In the Lopez-Rodriguez case, immigration agents illegally entered someone's house by pushing through an open door when an occupant opened the home door a bit to talk to the officers. There are a series of key points in the decision:

• Committing a search that a reasonable officer should have known was clearly illegal is an egregious violation of the Fourth Amendment that requires suppressing the evidence in immigration court.
• Invading someone's home without a warrant or a valid reason is a clearly illegal search.
• Opening the door to your home a few inches is not consent to let officers push the door open the rest of the way and invade your home.

Congratulations to Sara J. O'Connell at Morrison & Foerster LLP in San Diego, California! Lawyers on the losing side from the Department of Justice (their Civil Division, Office of Immigration Litigation), trying to defend the illegal searches, were Aviva L. Poczter and Song Park.

As reports of widespread illegal immigration searches continue to come up in the news, these suppression motions will be fought more often. And lawyers should be raising not only suppression for egregious Fourth Amendment violations and regulatory violations, but also for all Fourth Amendment violations, Vienna Convention violations, and state constitutional rights.