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Exclusionary Rule and Deportation Hearings

When a person is arrested and charged with a criminal offense, evidence collected against the person cannot be used in a trial against him or her if the police got the evidence in violation of the person’s Fourth Amendment rights. Fourth Amendment rights are those protections that people have against unreasonable police searches and detentions. Unfortunately, the rules that do not allow evidence collected in violation of the Fourth Amendment to be used against a person accused of a criminal offence do not apply to deportation proceedings.

The United States Supreme Court has decided that deportation proceedings are civil proceedings, and as such, the rules applicable in criminal proceedings do not apply. Therefore, even if a person is arrested after an illegal stop by the police, the fact of the illegal arrest and any evidence of the person’s status that was pulled because of the arrest will be admissible at a deportation hearing.

However, even if the exclusionary rule that works in criminal proceedings does not apply in deportation hearings, it is still applicable to everyone in a criminal trial despite their immigration status, and can still protect an undocumented immigrant accused of a criminal offence. So, if in addition to being taken to a deportation hearing, the immigrant is also facing criminal charges, the criminal charges may be dropped if the evidence collected during an illegal arrest is suppressed. This is important because criminal convictions and plea bargaining can affect a person’s future chances at a deportation hearing or when seeking a change of legal status.

This difference between criminal law and immigration deportation hearings does not mean that undocumented immigrants do not have rights. Constitutional rights apply to everyone equally. When dealing with police officers, immigrants still have the right to remain silent and keep from answering questions that could affect both a criminal case and a deportation proceeding. If an undocumented immigrant is not near a border or a port of entry, he or she does not have to answer questions about how long he or she has been in the country or got into the country in the first place.

If immigration agents ask for immigration papers, the immigrant usually has to produce them. This is true of both legal immigrants in the U.S. on a visa, and illegal immigrants. If a person does not have papers on him or her, it is best to keep quiet and not try to explain his or her way out of the situation. Remember, the statements made to the agents can be used in a deportation hearing even if the arrest that led to the asking for papers was illegal.

Let Us Help You

Your immigration attorney can always present evidence that supports you in your efforts to avoid deportation. In some situations, some immigrants have sued in civil court for compensation after being illegally arrested by police officers or detained for long periods of time.

If your loved one has been arrested and is facing deportation, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.


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