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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.

Do You Have the Right to Stop Immigration Enforcement Agents From Entering Your Home if You are in the Country Illegally?

The Fourth Amendment to the U.S. Constitution guarantees that people have a right to be free from unreasonable searches and seizures. The limits of this guarantee have been tested in numerous court cases, and the basic rules are clear. Unless government agents have a reason that fits into a few narrow exceptions, they cannot enter your home without a valid search warrant issued based on probable cause. The question most immigrants living in the U.S. may ask themselves is, does the protection of the Fourth Amendment extend to them?

The possibility of immigration enforcement agents increasing raids to look for undocumented immigrants is one reason for this question. Immigration raids, where immigration enforcement agents go to businesses and even homes, looking for people who are in the country illegally are allowed under current immigration laws. Undocumented workers who find themselves in the midst of a raid or who are visited by agents should be aware that the U.S. Constitution and other U.S. laws do offer some protections, even to undocumented immigrants.

The Fourth Amendment protections are guaranteed to all people living within the U.S., both citizens and noncitizens. A person’s immigration status does not affect this basic protection.  This Fourth Amendment protection is one more right that is aimed at ensuring the government follows due process in arresting and deporting an immigrant. These rights apply whether a person is in his or her car or home when stopped for a search. Police officers and immigration enforcement agents also cannot stop your car for a search based on your race or religion.

Therefore, if immigration enforcement agents arrive at your home and demand entry, ask to see a search warrant. If the agents ask your permission to enter, and you grant them permission to enter, then they do not need a warrant. Your permission satisfies the requirements of the Fourth Amendment because it makes the agents’ entry reasonable. There are other ways in which the Fourth Amendment may not protect you, and if you find yourself in a situation in which you believe your rights are being violated, it is better not to do anything such as resisting arrest or presenting false papers. It is best to wait for an opportunity to speak to your attorney.

There are some constitutional protections that are reserved for U.S. citizens only, such as the right to vote. Immigrants who are in the country illegally can make their immigration situation worse by exercising rights that are reserved for U.S. citizens only.

Contact Us for Legal Advice

Regardless of your immigration status, it is important to remember that there are laws that protect your rights. If your home is searched and you are arrested by immigration enforcement agents or local police officers, you should avoid making any statements or admissions before speaking to your attorney. You should also avoid signing any documents they present you with, even if they promise it will lead to your release. Be prepared by learning more about how the law can protect you as an immigrant; contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.