By Lindsay Adkin

Thirty years ago in its landmark decision, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court held that the exclusionary rule should not apply to removal proceedings. Applying a cost-benefit analysis, the Court concluded that whatever benefit exclusion offered in immigration proceedings was outweighed by the cost of allowing removable immigrants to remain in the United States. Whether or not that was a proper assessment in 1984, the state of immigration law today—especially the rise of crimmigration law—leads to the opposite conclusion: the exclusionary rule ought to be readily available to bar the federal government’s reliance on illegally obtained information.

The Court in Lopez-Mendoza began its analysis by stating that deportation is a purely civil action. It then went on to discuss the benefit, or deterrent effect, of applying the exclusionary rule in immigration proceedings. The Court found that there would be an overall lack of deterrent effect for a number of reasons. First, the Court stated that deportation would still be possible when evidence independent from illegal arrest could prove alienage. Next, the Court observed that the circumstances surrounding arrests were not challenged in the majority of cases. Then, the Court discussed the Immigration and Naturalization Service’s (“INS”) own internal training scheme for deterring Fourth Amendment violations. The Court determined that this scheme was sufficient and that applying the exclusionary rule in addition would be superfluous. Lastly, the Court found that the availability of alternative remedies, such as civil suits and police disciplinary proceedings, negated the need for the exclusionary rule.

Turning to the costs of excluding evidence of immigration status in removal proceedings, the Court found the costs of exclusion to be “unusual and significant.” These costs included the need to ignore ongoing violations of immigration law, the interference with the streamlined deportation hearing system, and the inadvertent suppression of evidence that had been obtained entirely lawfully. Based on its analysis, the Court found that the costs outweighed the benefits, thus precluding the need to apply the exclusionary rule in deportation proceedings.

Much has changed about the immigration landscape since the Court decided Lopez-Mendoza thirty years ago. This is evidenced by the massive increase in the immigrant population, both legal and illegal, over the past three decades as well as by the current debate surrounding immigration reform in this country. Because of these changes, the cost-benefit analysis that the Court performed in 1984 should no longer govern whether the exclusionary rule should be applied to immigration proceedings. In fact, if the Court performed the same cost-benefit analysis today, the outcome would be completely different.

First, the Court stated in Lopez-Mendoza that immigration proceedings are civil actions, but as crImmigration.com chronicles every week, that is clearly no longer the case. Immigration law has been increasingly criminalized over the past thirty years through the creation of new immigration-related crimes, harsher sentences, and a greater number of prosecutions for immigration-related crimes. Much of the criminalization began with the passage of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) and was accelerated by the attacks of September 11, 2001. After September 11th, prosecutions for immigration-related crimes grew continually, reaching their highest point in 2013 at nearly 100,000 new cases. Currently, immigration prosecutions make up the largest single category of federal prosecutions per month. Immigration authorities have also begun to use harsher enforcement tactics, often conducting militarized raids where collateral arrests are high. While detainees await their removal proceedings, they are housed in prison-like conditions. In fact, detainees are frequently held in county jails, sometimes even in the general population.

Secondly, the Lopez-Mendoza Court cited the lack of challenges to arrests as a reason why the deterrent effect of applying the exclusionary rule would be low. This is no longer the case, however, as there has been a rapid increase in the filing of motions to suppress. This phenomenon is most likely related to the next problem with the Court’s decades-old analysis: the INS internal regulations cited by the Court have proven inadequate at stopping discriminatory immigration policing. As found in a study by the Cardozo School of Law, Immigration and Customs Enforcement (“ICE”) agents are frequently entering homes without consent, detaining individuals without reasonable suspicion, and engaging in racial profiling. All of these actions should be thwarted by the ICE regulations, which are meant to prevent Fourth Amendment violations.

Third, since the Court’s decision in Lopez-Mendoza, alternative remedies have largely been unavailable to immigrants. The immigrant population is both vulnerable and legally marginalized. As such, immigrants are often not comfortable with initiating legal action because they are afraid of the deportation consequences. Additionally, civil suits are often useless for immigrants because they are deported prior to the opportunity to seek redress. Even if they were able to seek redress before deportation, civil suits do not remedy the appropriate injury in most cases. Most immigrants want to stay in the country, so a monetary award will not make them whole if they are then still deported.

Lastly, and probably the most significant change since the Lopez-Mendoza decision, is the increased involvement of state and local police officers in immigration enforcement. The involvement of state and local authorities greatly enhances the criminalization of immigration law because a police officer’s primary duty is to enforce criminal law, not immigration law. Additionally, the enforcement tactics used by police officers are criminal enforcement tactics. Because police officers have begun to enforce immigration law, many immigrants are now afraid to report crimes that they witness or that occur to them for fear of being reported to immigration authorities. The involvement of state and local officials creates a specific issue with the exclusionary rule because the internal regulations that supposedly govern federal authorities do not even apply to local police unless they have entered into an agreement with the federal government pursuant to INA § 287(g). A 287(g) agreement is a formal agreement between the federal government and state or local law enforcement agencies that enables those agencies’ officers to perform duties of federal immigration officers. Without these agreements, officers can essentially collect evidence without any of the self-imposed constraints that the Lopez-Mendoza Court found so reassuring.

For all of the above reasons, the cost-benefit analysis in Lopez-Mendoza is no longer a correct weighing of the costs and the benefits of applying the exclusionary rule in immigration proceedings. Because of the criminalization of immigration law as well as the overall change to the immigration landscape that has occurred over the past thirty years, the protections of the exclusionary rule should apply in full force to immigration proceedings.

Lindsay Adkin graduated from Duke University with a degree in Public Policy in 2009. She is currently a 3L at the University of Miami School of Law and the Symposium Editor of the University of Miami Law Review. She was an intern in the University of Miami School of Law Immigration Clinic as a 2L and is working as a fellow in the clinic this year. Lindsay is grateful to the Immigration Clinic for inspiring her article. She will be practicing commercial litigation upon graduation. The above article is based on Ms. Adkin’s forthcoming publication in the University of Miami Law Review entitled Why the Rule-of-Law Dictates That the Exclusionary Rule Should Apply in Full Force in Immigration Proceedings.

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