Immigration Article of the Day: Revisiting INS v. Lopez-Mendoza: Why the Fourth Amendment Exclusionary Rule Should Apply in Deportation Proceedings by Elizabeth Rossi

Revisiting INS v. Lopez-Mendoza: Why the Fourth Amendment Exclusionary Rule Should Apply in Deportation Proceedingsby Elizabeth Rossi U.S. District CourtApril 18, 2013Columbia Human Rights Law Review, Vol. 44, 2013

Abstract: The U.S. Supreme Court’s justification for its holding in INS v. Lopez-Mendoza rests on flawed intellectual ground and should therefore be reexamined and overturned. The Supreme Court held in 1984 that the Fourth Amendment exclusionary rule “need not apply” in deportation proceedings. It reached that conclusion by weighing the costs and benefits of applying the exclusionary rule in the immigration context and ultimately based its decision on two main considerations: first, that deportation proceedings were “civil” proceedings, and second, that introducing constitutional litigation into immigration courts would complicate what was supposed to be a streamlined process. In light of changes to the immigration enforcement system since 1984, neither of these assumptions can support the Court’s holding in Lopez-Mendoza. First, deportation proceedings are no longer distinct from the criminal justice system, and as such, they cannot be considered “purely civil.” Second, because a plurality of the Court qualified its holding, constitutional litigation on search and seizure issues has flooded immigration courts. In Part V of the opinion, a plurality provided that evidence might be excluded from deportation proceedings in the event of an “egregious” Fourth Amendment violation. A circuit split has arisen out of this egregious violations exception. Relying on Justice Harry A. Blackmun’s papers, housed at the Library of Congress, as well as a close reading of the *478 case, the parties’ briefs, and oral argument transcripts, this Article analyzes the intended meaning of the egregious violations exception to the Lopez-Mendoza holding. It also examines lower courts’ divergent interpretations of the exception and argues that the resulting uncertainty in the law threatens the due process rights of non-citizens in deportation proceedings. Given the enormous increase in suppression litigation in deportation proceedings, the confusion created by the Supreme Court’s egregious violations exception to the Lopez-Mendoza holding, and the so-called criminalization of immigration enforcement, Lopez-Mendoza should be revisited and overruled. The Fourth Amendment exclusionary rule should apply with full force in deportation proceedings.

KJ