New opinion: The 4th Amendment and Exclusionary Rule in Immigration Proceedings [guest post]

This is a guest post by David Goodwin.

Erick Yoc-Us v. Att’y Gen.—Immigration—Granting Petition—Rendell

Today’s PO addresses the  other major non-DC Circuit area of administrative law: immigration petitions for review. Many immigration cases incorporate elements of criminal law, often with regard to whether certain crimes are deportable offenses.   This one, though, is a variation on the theme, asking whether the exclusionary rule of the Fourth Amendment, which prevents the government from using the fruits of an illegal search or seizure in a criminal prosecution, applies in immigration proceedings when state officials, not federal officials, are responsible for the underlying violation. In an opinion by Judge Rendell, the Court holds that the answer is “yes,” grants the petition, and remands for an evidentiary hearing so that the constitutional claim can be developed further.

Petitioners Yoc-Us and Espantzay were passengers in a van that was pulled over by a Pennsylvania state trooper, ostensibly for speeding. Greatly condensed, the officer allegedly prolonged the stop once he determined that some of the passengers were non-citizens, ordering them to a nearby rest stop and refusing to allow them to leave until ICE arrived.

At the outset of deportation proceedings, the petitioners moved to suppress the evidence of their alienage discovered as part of the traffic stop, arguing that the stop violated their Fourth Amendment rights. The immigration judge (“IJ”) denied the motion without a hearing, ruling that the exclusionary rule was not available because the sovereign that committed the violation—here, Pennsylvania—had nothing to do with the non-criminal deportation proceeding. The IJ also thought that the stop was constitutional. The Board of Immigration Appeals (“BIA”) affirmed, relying on INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), for the proposition that the exclusionary rule is only available in deportation proceedings when there are “egregious Fourth Amendment violations” that are fundamentally unfair. The BIA also agreed with the IJ that there was no prima facie case for suppression, so a hearing was not warranted.

Judge Rendell’s opinion for the Court disagrees with the agency. I will tackle the issues in a slightly different order than presented in the opinion.

First, in the main holding, Judge Rendell concludes that a “partial” exclusionary rule is available in deportation proceedings where state action (as opposed to federal action) is challengedthe “intersovereign” problem noted by the IJ. Relying on the Supreme Court’s post-Lopez-Mendoza “reluctance to have state and local officers engage in enforcement of federal immigration laws,” as expressed in recent decisions such as Arizona v. United States, 567 U.S. 387 (2012), Judge Rendell reasons that the rationale for applying the partial exclusionary rule in instances of federal officer misconduct operates with equal force when state officials have allegedly acted outside the bounds of the Constitution.

The upshot: the exclusionary rule can apply to state conduct when the record shows 1) a constitutional violation that is “fundamentally unfair,” 2) a violation that undermines the reliability of evidence, or 3) a pattern of widespread violations. In so holding, the Court joins the Fourth Circuit, which uses a similar rule.

Second, the record suggested that the petitioners had shown a prima facie violation of the Fourth Amendment because the officer arguably prolonged the stop to contact ICE and investigate their status.

Third, the allegations were egregious enough to warrant an evidentiary hearing, at least, because seizures or arrests based on race or perceived ethnicity can indeed amount to “egregious” violations of the Constitution. “The facts alleged by Petitioners,” Judge Rendell writes,” if supported by evidence, could support the conclusion that the illegal extension of the stop was solely based on race or perceived ethnicity.” Because the full facts of the claim awaited further development, Judge Rendell did not pass on its ultimate merits.

It’s a fascinating decision, although the underlying relief (basically, finding that the denial of the evidentiary hearing was an abuse of discretion) was fairly narrow, and the effect doctrinally appears to be simply extending the Third Circuit’s preexisting federal rule to the state-officer context. Of course, the opinion’s reliance on the Supreme Court’s aversion to state enforcement of federal immigration law sounds an ominous note; the author of Arizona is no longer on the Supreme Court, although Chief Justice Roberts did vote with the Arizona majority.

Joining Judge Rendell were Judges Ambro and Scirica. Joanna J. Cline of Pepper Hamilton argued for the petitioners and OIL’s Dana M. Camilleri for the government.