September 17, 2014

Wahooooo!!! September 17th is Constitution Day and that is a day of never ending irony for those of us who practice immigration law.  Did you know that ICE can illegally stop, search and arrest you as long as what they are doing is not an egregious violation of the constitution?  Yep.  Happy Constitution Day!!

The very point of excluding illegally obtained evidence is to deter law enforcement from using illegal and unconstitiutional tactics.  Well, Sandra Day O’Conner had some deep thoughts on this issue in INS v. LOPEZ-MENDOZA, 468 U.S. 1032 (1984).   In Lopez-Mendoza she wrote, justifying not fully expanding the exclusionary rule to deportation proceedings, the following:

“Every INS agent knows, therefore, that it is highly unlikely that any particular arrestee will end up challenging the lawfulness of his arrest in a formal deportation proceeding.”

Yep, INS agents (now ICE) know that the vast majority of those whose rights they violate won’t complain.  Now, that is solid reasoning.  In her opinion she basically rules that it’s pointless to challenge an unlawful arrest and validates her stance by pointing out that people generally do not challenge unlawful arrests, which makes the unlawfulness apparently not that big of a deal.  I mean, if no one complains then nothing unlawful happened, right?

She then offered this nugget:

“The exclusionary rule provides no remedy for completed wrongs.” Right…other than excluding the illegally obtained evidence, it offers no remedy.

She wasn’t done in the value she placed on our Constitution:

“Other factors also weigh against applying the exclusionary rule in deportation proceedings. The INS currently operates a deliberately simple deportation hearing system, streamlined to permit the quick resolution of very large numbers of deportation actions, and it is against this backdrop that the costs of the exclusionary rule must be assessed.”

Oh…now, we are getting there.  The INS had shit to do and all this talk about the Constitution was slowing stuff down.  It’s funny that our criminal courts, which handle way more cases on a daily basis can figure out how to incorporate that darn Constitution into proceedings, but the immigration courts can’t. She wanted this whole deportation mill to move quickly and simply.  Understood.

She ends with as blatant a lie as one can find in a Supreme Court decision:

“We do not condone any violations of the Fourth Amendment that may have occurred in the arrests of respondents Lopez-Mendoza or Sandoval-Sanchez.”

Well, spoiler alert, nothing was excluded and the Fourth Amendment violations were condoned.  She absolutely condoned the violations and did so because they were not “egregious”.  So, yes, ICE can violate the Fourth Amendment as long as they do not do so egregiously….so Happy Constitution Day!!!  Go celebrate non-egregiously!

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