Saturday, September 24, 2005

Another Motion To Suppress Not Preserved For Appeal

In the case of Abdul Karim v. Gonzales decided by the First Circuit in case number 04-2206 on September 22, 2005, the immigrant once again failed to make his motion to suppress evidence in the right manner.

The problem is that if you are going to argue that the government should not be allowed to use certain evidence to prove that the immigrant is deportable, you have to make sure that you raise this issue without conceding that the immigrant is deportable. If you admit that the immigrant is deportable, then it doesn't matter whether the government is or is not allowed to use the controversial evidence -- the court can rely on the admission of deportability.

In the Abdul Karim case, the immigrant conceded removability, so any complaints about whether evidence was improperly obtained could not be pursued or appealed.

The First Circuit did indicate that it is unclear whether the exclusionary rule would apply in immigration court for all unlawful searches and seizures, citing the Lopez Mendoza case. Because the First Circuit was not focused on the issue, it did not go through the required analysis to determine whether the exclusionary rule should apply for all unlawful searches and seizures. There are strong arguments for requiring the exclusionary rule to apply in immigration courts in the same way it applies in criminal cases. We shall see whether the courts agree with this theory.

Update: additional analysis is provided by the Appellate Law & Practice Blog, which is by the way an excellent blog that focuses for the most part on the First Circuit for immigration decisions.

Addition: another appeal lost because the immigrant conceded alienage at the hearing and all the allegations is Miguel v. INS, No. 02-3758 (6th Cir. Feb. 26, 2004).


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