Tuesday, February 22, 2011
Nathan Treadwell has posted Fugitive Operations and the Fourth Amendment: Representing Immigrants Arrested in Warrantless Home Raids (North Carolina Law Review, Vol. 89, p. 507, 2011) on SSRN. Here is the abstract:
In the past several years, Immigration and Customs Enforcement ("ICE") has made warrantless home raids a key component of interior immigration enforcement. Such raids, which frequently bring in otherwise law-abiding undocumented immigrants, violate the Fourth Amendment when they take place without the consent of a member of the household. Press and judicial accounts of such raids show that the agency now engages in widespread unlawful entries as well as violent, demeaning, and threatening conduct. This Article sets out a litigation theory for the defense of undocumented immigrants arrested in warrantless raids. The Article presents several viable but under-utilized grounds on which immigrants subjected to ICE misconduct may seek the suppression of illegally-acquired evidence and the dismissal of a deportation proceeding.
First, notwithstanding the limited application of the exclusionary rule in immigration proceedings, immigration courts follow an exception articulated by the Supreme Court in INS v. Lopez-Mendoza, allowing suppression of evidence obtained through "egregious violations of the Fourth Amendment." Given that the protection of the home is central to the history and purpose of the Fourth Amendment, and given the heavy-handed and violent tactics ICE uses in home raids, immigrants should argue that such raids amount to egregious violations. Second, courts have a basis to broaden the reach of the exclusionary rule in light of the Supreme Court’s suggestion in Lopez-Mendoza that widespread constitutional violations by immigration authorities might justify such a step. Third, immigrants may call for suppression for ICE violations of agency regulations, which mirror Fourth Amendment and other protections. These litigation strategies could help re-establish a credible deterrent to ICE’s abusive conduct, and could provide immigration attorneys with a valuable tool for defending undocumented victims of home raids.