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Motions to Suppress in Removal Proceedings

Last Updated: 
Tue, Jan 28, 2014

The LAC provides practice assistance and resources to immigration attorneys seeking to prevent the use of unlawfully obtained evidence in removal proceedings. Long used in criminal trials, motions to suppress can lead to the exclusion of evidence obtained by the government in violation of the Fourth Amendment, Fifth Amendment, or related provisions of federal law. While the immediate purpose of filing a motion to suppress is to prevent the government from meeting its burden of proof, challenges to unlawfully obtained evidence can also deter future violations by law enforcement officers and thereby protect the rights of other noncitizens.

The Supreme Court held in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), that motions to suppress evidence under the Fourth Amendment in immigration proceedings should be granted only for “egregious” violations or if violations became “widespread.” Despite this stringent standard, noncitizens have in many cases prevailed on motions to suppress.



Sanchez-Lopez v. Holder, No. 13-70431 (9th Cir. amicus brief submitted Aug. 7, 2013)
Flores Perez v. Holder, No. 12-71363 (9th Cir. amicus brief submitted Jan. 3, 2014)

The LAC, in collaboration with Jenner and Block, submitted two amicus briefs challenging the Board of Immigration Appeals’ denial of motions to suppress evidence unlawfully obtained by ICE in a worksite raid.  The LAC argued that ICE violated the Fourth Amendment by seizing employees during the execution of a search warrant for documents at a restaurant, where ICE sought to question the employees as to their immigration status even though officers had no particularized suspicion that they had committed any immigration violation.  Further, the LAC argued that the Fourth Amendment violation was consistent with a widespread pattern of ICE raids on homes and businesses, conducted in order to detain and interrogate large numbers of individuals without individualized suspicion. 

In December 2013, the parties in Sanchez Lopez filed a joint motion for remand to the Board for administrative closure, which the court granted. Flores Perez currently is pending before the Ninth Circuit. The Petitioners in these cases are represented by the ACLU Immigrants’ Rights Project, Delores Street Community Services, and Morrison & Foerster.

Jimenez-Domingo v. Holder, No. 12-14048-D (11th Cir. amicus brief submitted Nov. 27, 2012)

The LAC, in collaboration with Jenner and Block, submitted an amicus brief challenging the Board of Immigration Appeals’ denial of a motion to suppress evidence unlawfully obtained after a traffic stop by local police.  The LAC argues that police violated the Fourth Amendment by unnecessarily prolonging the individual’s detention based solely on the suspicion that he was not lawfully present in the United States.  While acknowledging the Supreme Court’s holding that evidence unlawfully obtained by federal immigration officers need not always be excluded from removal proceedings, the LAC noted that the Court’s rationale does not apply to situations in which evidence was obtained through a constitutional violation by local law enforcement officers. The LAC further argued that CBP violated its own regulations and the Petitioner’s Fifth Amendment rights by repeatedly rejecting his requests to consult with his attorney after local police had turned him over to federal immigration officers.

The Petitioner is represented by the Immigration Clinic at the University of Miami School of Law. The case is scheduled for oral argument before the 11th Circuit in November 2013.

Read our press statement on Jimenez-Domingo.

Motions to Suppress Based on the Timing of Right to Counsel Advisals

The LAC submitted amicus briefs in several cases after the Board of Immigration Appeals failed to suppress statements made by arrestees who had not received certain Miranda-like warnings outlined in 8 C.F.R. § 287.3(c). The briefs address when immigration officers must provide the regulatory warnings. Read more about these cases on the LAC's Access to Counsel Before DHS webpage. 


Practice Advisories

LAC Practice Advisory, Motions to Suppress in Removal Proceedings: Fighting Back Against Unlawful Conduct by U.S. Customs and Border Protection (November 13, 2013). This practice advisory discusses some of the factual scenarios that may give rise to successful motions to suppress evidence obtained unlawfully by CBP officers, including CBP inspectors stationed at ports of entry and Border Patrol agents, who operate between ports of entry.  It also addresses some of the legal issues specific to motions to suppress evidence obtained at and near the border.

LAC Practice Advisory, “Motions to Suppress in Removal Proceedings: A General Overview” (updated Aug. 14, 2013). This practice advisory provides a general overview of motions to suppress evidence obtained by federal immigration officers in violation of the Constitution and federal law. It includes a discussion of the basic principles underlying motions to suppress and the potential for suppressing evidence obtained in violation of the Fourth Amendment, Fifth Amendment, the INA and immigration regulations, as well as information about how to file a motion to suppress. It was updated in August 2013 to reflect recent developments regarding the suppression of identity-related evidence, the “fruit of the poisonous tree” doctrine, and the impact of widespread Fourth Amendment violations. 

LAC Practice Advisory, Motions to Suppress in Removal Proceedings: Cracking Down on Fourth Amendment Violations by State and Local Law Enforcement Officers (Aug. 15, 2013). This advisory addresses legal issues that may arise when noncitizens in removal proceedings move to suppress evidence obtained as a result of constitutional violations by state or local law enforcement officers. The advisory outlines Fourth Amendment limitations on immigration enforcement efforts by state and local authorities, as well as Fifth Amendment violations that may arise from the same types of encounters.

LAC Practice Advisory, Challenging Matter of E-R-M-F- & A-S-M-: Warrantless Arrests and the Timing of Right to Counsel Advisals (Nov. 2, 2012). This practice advisory provides guidance to practitioners seeking to suppress evidence following violations of 8 C.F.R. § 287.3(c), despite negative Board of Immigration Appeals precedent on the issue. In Matter of E-R-M-F- & A-S-M, 25 I. & N. Dec. 580 (BIA 2011), the Board severely undermined the protections provided by the regulation and held that certain individuals arrested without a warrant need not be advised of their rights, including the right to counsel, prior to post-arrest examinations. The advisory highlights flaws in the E-R-M-F- decision and suggests strategies for challenging the BIA’s reading of § 287.3(c) and moving to suppress evidence obtained in violation of the regulation.

Katherine Evans and Aaron Hall, 2013 AILA Immigration Practice Pointers: Motions to Suppress: Immigration Court Challenges to Illegal Government Action (2013).

NYU Law School Immigrant Rights Clinic Practice Advisory, Understanding Oliva-Ramos v. Attorney General and the Applicability of the Exclusionary Rule in Immigration Proceedings (2012).

Reports & Articles

Cardozo Immigration Justice Clinic, Constitution on ICE (2009).

Stella Burch Elias, Good Reason to Believe: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wisc. L. J. 1109 (2009).

Nathan Treadwell, Fugitive Operations and the Fourth Amendment: Representing Immigrants Arrested in Warrantless Home Raids, 89 N.C. L. Rev. 507 (2011).