3 Cir: Exclusionary rules applies in removal proceedings

By University of Denver Sturm College of Law
Oct 2, 2012

In an impressively articulated and groundbreaking decision, the U.S. Court of Appeals for the Third Circuit held that the exclusionary rule can apply in removal proceedings when ICE agents engage in egregious or widespread constitutional violations. Oliva-Ramos v. Attorney General, No. 10-3849, slip op. (3d Cir. Nov. 16, 2011) (McKee, Rendell, and Ambro, JJ.). Judge McKee wrote the panel’s decision.

The events that led up to this case being litigated read like a nightmare. At 4:30 in the morning armed ICE agents appeared at the apartment that Oliva-Ramos shared with his three sisters, nephew, and brother-in-law. Oliva-Ramos, No. 10-3849, slip op. at 3. After repeatedly ringing the doorbell and waiving an administrative warrant for a sister who wasn’t home, the agents followed another sister into the apartment. Oliva-Ramos, No. 10-3849, slip op. at 3-4.

While one agent blocked the door so no one could leave, other agents moved through the apartment shining flashlights and guns into darkened bedrooms, waking everyone, and ordering them into the living room. Oliva-Ramos, No. 10-3849, slip op. at 4-5. Five or six officers, the court reported, began questioning the occupants about the missing sister; when Oliva-Ramos’s nephew refused to answer their questions “the officers ordered him to speak and told him he could not refuse to answer them.” Oliva-Ramos, No. 10-3849, slip op. at 5.

At some point another sister “began menstruating while the family was in the living room, but [another sister] Clara was not allowed to get any feminine hygiene products for her.” Oliva-Ramos, No. 10-3849, slip op. at 6. When the officers finally relented, they required the menstruating woman to use the bathroom with the door open “while an ICE officer stood outside the door.” Oliva-Ramos, No. 10-3849, slip op. at 6.

Eventually everyone but the one sister who could prove she was lawfully present was “handcuffed, placed in an ICE van and driven around while the officers made several more raids.” Oliva-Ramos, No. 10-3849, slip op. at 6. All the while, Oliva-Ramos was forced to go without food or water. “Between 6:00 and 7:00 p.m., he was finally given the first food that he had been allowed to eat during his 15-hour ordeal.” Oliva-Ramos, No. 10-3849, slip op. at 6.

Oliva-Ramos sought to exclude the evidence of his removability, including all the evidence obtained during this search and the

subsequent arrest. Oliva-Ramos, No. 10-3849, slip op. at 8. The IJ denied the motion, concluding that the exclusionary rule doesn’t apply in removal proceedings. Oliva-Ramos, No. 10-3849, slip op. at 8. The BIA affirmed. Oliva-Ramos, No. 10-3849, slip op. at 11.

The Third Circuit disagreed based on the widespread or egregious violation exception that the Supreme Court implied in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). In Lopez-Mendoza, the Court held “the exclusionary rule need not be applied in such a [deportation] proceeding.” Lopez-Mendoza, 468 U.S. at 1034. But, it added, “Our conclusions concerning the exclusionary rule’s value might change if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread,” the Court added. “Finally, we do not deal here with egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Lopez-Mendoza, 468 U.S. at 1051-51.

The Third Circuit began by noting that four justices joined this plurality opinion, but another four justices would have adopted a broader position: they would have allowed the exclusionary rule to apply in all deportation proceedings (now called removal proceedings). Oliva-Ramos, No. 10-3849, slip op. at 20. As such, eight of the nine justices in Lopez-Mendoza, the Third Circuit concluded, recognized, at a minimum, that the exclusionary rule can be invoked in removal proceedings when the government engages in widespread or egregious constitutional violations. Oliva-Ramos, No. 10-3849, slip op. at 20.

Having concluded that Olivas-Ramos was entitled to seek to suppress unconstitutional evidence, the court noted that the next question was whether the evidence was obtained in a manner that can be characterized as either an egregious Fourth Amendment violation or part of a widespread pattern of constitutional violations. The BIA failed to do this because it concluded that the exclusionary rule never applies in removal proceedings. The court didn’t decide whether the claims made by Olivas-Ramos rise to the level of egregious or widespread abuses; instead, it remanded to the BIA to decide this. Oliva-Ramos, No. 10-3849, slip op. at 38.

In determining whether a constitutional violation was egregious, the court adopted a version of the Second Circuit’s test: exclusion is appropriate “within the meaning of Lopez-Mendoza, if the record evidence established either (a) that a constitutional violation that was fundamentally unfair had occurred, or (b) that the violation—regardless of its unfairness—undermined the reliability of the evidence in dispute.” Oliva-Ramos, No. 10-3849, slip op. at 31 (discussing Almeida-Amaralv. Gonzales, 461 F.3d 231 (2d Cir. 2006))). This, the court added, is a flexible, multi-factor determination that takes into account the totality of the circumstances. Oliva-Ramos, No. 10-3849, slip op. at 32-33. Importantly, the court explained, “the inquiry does not turn on the good/bad faith of the agents involved.” Oliva-Ramos, No. 10-3849, slip op. at 33 n.24.

The court then turned to the widespread violation exception about which, it acknowledged, there was no guidance. Oliva-Ramos, No. 10-3849, slip op. at 33. As a starting point, it explained that “most constitutional violations that are part of a pattern of widespread violations of the Fourth Amendment would also satisfy the test for an egregious violation.” Oliva-Ramos, No. 10-3849, slip op. at 34. It did not provide much more detail except to note that Oliva-Ramos’s allegations, if true, “may well illustrate the precise situation that was anticipated in Lopez-Mendoza.” Oliva-Ramos, No. 10-3849, slip op. at 35. Since the IJ denied Oliva-Ramos’s subpoena of ICE documents and the BIA ignored this evidence once Oliva-Ramos was able to obtain it through a FOIA request, the court remanded with an instruction that the BIA (or IJ) consider the facts presented in these documents—facts detailing the government’s rampant use of militarized, high-intensity tactical units with a penchant for violating Fourth Amendment norms.

All in all, this is a fabulous decision that promises to go a long way in reigning in the extreme policing strategies that ICE favored during the late years of the second Bush Administration. Many congratulations are due to the folks over at NYU Law’s immigration clinic that represented Oliva-Ramos.