IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ADAN LOPEZ-MENDOZA AND ELIAS SANDOVAL-SANCHEZ No. 83-491 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the Immigration and Naturalization Service, petitions for a writ of certiorari to review the judgments of the United States Court of Appeals for the Ninth Circuit in these consolidated cases. Petition For a Writ of Certiorari to the United States Court of Appeals For the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-94a) is reported at 705 F.2d 1059. The opinions of the Board of Immigration Appeals and the immigration judges (Apps. D-H, infra, 97a-116a) are not reported. JURISDICTION The judgments of the court of appeals (Apps. B and C, infra, 95a and 96a) were entered on April 25, 1983. On July 15, 1983, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including September 22, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Fourth Amendment's exclusionary rule should be extended to civil deportation proceedings to suppress an illegal alien's admissions of unlawful presence in this country, thereby allowing him to perpetuate his unlawful conduct. STATEMENT Respondents Lopez-Mendoza and Sandoval-Sanchez sought to avoid deportation on the ground that their admissions of illegal alienage, which were used against them at their deportation hearings, were the fruits of unlawful arrests and should have been suppressed. On petitions for review of their deportation orders (consolidated by the court of appeals (see App. A, infra, 2a)), the Ninth Circuit held, in a seven to four decision, /1/ that the exclusionary rule applies in deportation proceedings. Because it concluded that Sandoval had been arrested in violation of the Fourth Amendment and that the only evidence supporting his deportability was obtained as a result of the unlawful arrest, the court of appeals suppressed that evidence and reversed Sandoval's order of deportation. The legality of Lopez's arrest had not been determined in the administrative deportation proceedings, and thus the court vacated the deportation order against Lopez and remanded his case to the Board of Immigration Appeals for determination of the Fourth Amendment issue. 1. Lopez was arrested in 1976 at his place of employment by Immigration and Naturalization Service ("INS") investigators. The investigators had received a tip about the employment of illegal aliens (L.A.R. 34), /2/ and they went to the location, which appeared to be a transmission repair shop (L.A.R. 36, 89-90), for the purpose of interviewing the persons named by the informant (L.A.R. 34). They arrived shortly before 8.00 a.m. (L.A.R. 81-82). One agent approached the proprietor and stated the purpose of their visit (L.A.R. 37-38, 84-85). The proprietor would not allow his employees to be interviewed during working hours, and he suggested that the agents return during the lunch hour (L.A.R. 59). The agents knew from past experience, however, that if they left and returned later, there would be no illegal aliens remaining (ibid). To avoid a confrontation with the proprietor, one agent approached Lopez, who was standing some distance away (L.A.R. 44). The agent first identified himself in English but received no response. The agent then identified himself in Spanish, inquired where Lopez was from, how he had entered the United States, whether he had papers, and whether he had any family in this country (L.A.R. 40). Lopez answered the questions voluntarily (L.A.R. 61). Had he refused to answer, the agent simply would have terminated the interview (L.A.R. 61, 71-72). Lopez's answers disclosed that he was an undocumented alien with no family ties in this country (L.A.R. 40, 49). Because of his lack of family ties and the consequent risk of his absconding, Lopez was taken into custody as an illegal alien (L.A.R. 49-50). Subsequently, Lopez executed an affidavit admitting his Mexican nationality and illegal entry into this country (L.A.R. 136-137). Based on Lopez's admissions, the immigration judge found him deportable (App. D, infra, 97a-99a). The immigration judge found it unnecessary to pass upon Lopez's claim that he had been unlawfully arrested, stating that "the mere fact of an illegal arrest has no bearing on subsequent deportation proceedings" (id. at 98a). The Board of Immigration Appeals ("BIA") dismissed Lopez's appeal (App. E, infra, 100a-103a). Like the immigration judge, the BIA concluded that Lopez's claim that he had been illegally arrested was irrevelant (id. at 102a): We reject the notion that an unlawful arrest can somehow transform an alien's unlawful presence in the United States into a right to remain. The BIA also rejected Lopez's claim for invocation of the exclusionary rule, noting (App. E, infra, 102a-103a) that it had thoroughly considered that issue in a prior case (Matter of Sandoval, 17 I. & N. Dec. 70 (1979)) and had there concluded that: (A)doption of the rule in deportation proceedings would (not) offer any significant deterrent to misconduct to an immigration officer who would otherwise intentionally violate an individual's Fourth Amendment rights in the hope of assisting in that alien's deportation. * * * (T)he potential benefit of the rule does not justify the societal cost of its application and * * * other means of deterring immigration officers from unlawful conduct are available. 2. Sandoval was apprehended in 1977 at his place of employment, a potato processing plant. /3/ INS Agent Bower and other officers went to the plant, with the permission of its personnel manager, to check for illegal aliens (S.A.R. 39-40). While some of the officers stationed themselves at the exits, Bower and a uniformed Border Patrol agent entered the plant. Because a shift change was occurring, they went first to the lunchroom, then through the plant area, and finally to the main entrance (S.A.R. 40-43). As soon as they entered the lunchroom, they identified themselves as immigration officers (S.A.R. 46). Their appearance caused confusion -- many people in the lunchroom rose and either headed for the exits or milled around, people in the plant area left their equipment and started running, and many of those who were entering the plant turned around and started walking back out (S.A.R. 42). The two officers eventually stationed themselves at the main entrance to the plant (S.A.R. 47). As the employees passed, the officers looked for those who averted their heads, avoided eye contact, or tried to hide themselves in a group. They addressed these individuals in English, with innocuous questions. The conversations were terminated if the individuals responded in English. Those who could not respond in English and who by their actions aroused Agent Bower's suspicion, based on his experience as an immigration investigator, were questioned in Spanish as to their right to be in the United States (S.A.R. 48, 54-55). Agent Bower testified that it was "very probable" that he himself rather than his partner had stopped and questioned Sandoval at the plant, but that he could not be "absolutely positive" (S.A.R. 49-50). The alien whom he thought he remembered as Sandoval was "very evasive" -- the individual had averted his head, turned around and walked away when he saw Agent Bower (S.A.R. 52-53). Agent Bower was certain that no employee was questioned about his status unless his actions had given the officers reason to believe that the employee was an undocumented alien (S.A.R. 55). Including Sandoval, 37 illegal aliens were briefly detained at the plant (S.A.R. 41) and later transported to the county jail for processing (S.A.R. 44). At the jail, about one-third of the aliens agreed to accept voluntary departure, and they were immediately put on a bus to Mexico (S.A.R. 56). Those, including Sandoval, who elected to fight deportation were questioned further; during this questioning Sandoval's admission of unlawful entry was reduced to writing by Agent Bower (S.A.R. 56, 58; App. A, infra, 6a). Based on the written record of Sandoval's admission, the immigration judge found his deportable (App. F, infra, 104a-109a). The immigration judge considered and rejected Sandoval's claim that he had been unlawfully arrested (id. at 107a) and, in the alternative, held that an illegal arrest "does not tend to negate the validity of a deportation hearing" (id. at 108a). The BIA dismissed Sandoval's appeal (App. G, infra, 110a-113a). Upon reviewing the entire record, including Sandoval's own testimony, the BIA concluded that the circumstances of his arrest had not affected his recorded admission (id. at 112a). The BIA also again declined to invoke the exclusionary rule (id. at 112a-113a). 3. The court of appeals reversed Sandoval's deportation order and vacated and remanded Lopez's deportation order. Six members of the panel, in an opinion written by Judge Norris, held that Sandoval's admission was the fruit of an unlawful arrest and that the exclusionary rule, which was held applicable to deportation proceedings, required suppression of the evidence (App. A, infra, 1a-37a). Judge Goodwin, in a special concurring opinion (id. at 38a), agreed that, "for better or for worse," the exclusionary rule applies to deportation proceedings, but noted that he joined in the finding of a Fourth Amendment violation only "(u)nder the compulsion of Intern. Ladies' Garment Workers', Etc. v. Sureck, 681 F.2d 624 (9th Cir. 1982), which is the law of this circuit, but with which (he) disagreed * * *." /4/ Lopez's deportation order was vacated and his case remanded to the BIA to determine whether there had been a Fourth Amendment violation. Adopting the analytical framework set forth in United States v. Janis, 428 U.S. 433 (1976), the majority concluded that the benefits of applying the exclusionary rule in civil deportation proceedings outweighed the costs. On the "benefit" side, the majority opined that the "deterrent impact of invoking the rule in deportation proceedings will be 'substantial and efficient', (App. A, infra, 25a (footnote omitted), quoting United States v. Janis, supra, 428 U.S. at 453) because the allegedly illegal evidence is used by the same agency whose officers obtain it and because "there are no other applications of the exclusionary rule which effectively deter the offending officers from violating the Fourth Amendment" -- for example, reliance on the deterrence that could be obtained by suppressing evidence only in criminal immigration prosecutions was thought to be inadequate because the evidence was not likely to have been obtained with such criminal prosecutions in mind. App. A, infra, 22a-24a. The majority also rejected Bivens actions, injunctive relief, and internal agency discipline, finding them inadequate alternatives to application of the exclusionary rule (App. A, infra, 33a-35a). On the other side of the balance, the majority found the societal costs of suppression to be negligible. It opined that the only real cost to be considered was the number of illegal aliens who will successfully avoid deportation and concluded that that number "will not appreciably increase the number of illegal aliens in our midst" (App. A, infra, 27a). Judge Alarcon, joined by Judges Wright, Wallace and Poole, dissented from the majority's holding on the exclusionary rule issue (App. A, infra, 39a-85a). Judge Wright also wrote a separate opinion specially concurring in the principal dissenting opinion (id. at 86a-90a), and, as previously noted (see page 8 note 4, supra), Judge Poole separately dissented from the majority's conclusion that Sandoval had been unlawfully arrested (App. A, infra, 91a-94a). On the exclusionary rule issue, the principal dissent argued that there was nothing in the record "from which it can be reasonably inferred that immigration officers routinely conduct unreasonable searches and seizures," nor were there "any facts that would support an inference that extending the exclusionary rule to civil deportation proceedings would act as a significant deterrent to present INS practices" (App. A, infra, 46a). Hence, the dissent was of the view that the court had "created a remedy for which there is no demonstrated need" (ibid.). /5/ Judge Wright, in his separate dissent, was willing to assume that there might "be a deterrent effect if the rule were applied in deportation proceedings because these proceedings are within immigration officers' zone of primary interest" (id. at 87a). After noting the costs associated with the exclusionary rule, however, he expressed the view that "(t)hese are not cases in which the manner of seizing evidence was so egregious as to call for the deterrent impact of the rule" (id. at 89a). On the cost side, the principal dissent noted that, under the "fruit of the poisonous tree" concept, suppression could well immunize an alien perpetually from deportation despite his continuing violation of the immigration laws (App. A, infra, 48a-49a). Moreover, requiring suppression hearings in deportation proceedings "could result in protracted interruption of the proceedings, and may seriously impede enforcement of our nation's immigration laws" (id. at 72a). Thus, the dissent took issue with the majority's decision to limit its consideration of the costs of applying the exclusionary rule in deportation proceedings to the additional number of illegal aliens that might be expected to escape deportation (id. at 74a-75a): The impact of the rule on deportation proceedings is not so much that the illegal alien population will increase -- indeed it does so every year despite heightened enforcement policies. Rather, the impact of the rule on civil deportation proceedings must be measured against the number of motions to suppress that will be made -- not the number of constitutional challenges that are meritorious. This is the potential injury to the deportation proceeding that must be weighed in the balancing process. The dissent then concluded that this cost would be excessive (App. A, infra, 77a). Finally, the dissent was of the view that INS's stringent procedures for disciplining officers who conduct illegal searches and seizures made application of the exclusionary rule to deportation proceedings unnecessary (id. at 78a-82a). REASONS FOR GRANTING THE PETITION By extending the exclusionary rule to civil deportation proceedings, convened solely for the purpose of determining whether an alien has the right to be in the United States, the court of appeals has sanctioned a continuing violation of the law by freeing an illegal alien and allowing him to perpetuate his unlawful presence in this country. This licensing of continuing unlawful conduct is unparalleled in our jurisprudence, for although the suppression of evidence in a criminal prosecution often amounts to a grant of immunity for past criminal conduct, so too does the expiration of a statute of limitations, the granting of a pardon, or the granting of immunity by a prosecutor. But it is unprecedented for the judiciary to create rules of evidence or procedure that directly facilitate the commission of continuing unlawful conduct. The reversal of Sandoval's deportation order, moreover, does more than simply offend society's notions of justice and judicial integrity. The court of appeals' extension of the exclusionary rule to civil deportation proceedings will have severe practical effects: It threatens mortal injury to the enforcement of our immigration laws and may create a new class of aliens whose only documentation is a judge's opinion suppressing evidence -- and it does so at a time when the Legislative and Executive Branches are attempting to regain control over the nation's borders and stem the flood of illegal aliens unlawfully entering and residing in the United States. The supression rule, after all, is not constitutionally mandated, but is a judically created remedy designed to deter unlawful police conduct. See, e.g., United States v. Calandra, 414 U.S. 338, 347-348 (1974). The determinative question, therefore, is not whether the protections of the Fourth Amendment extend to deportable aliens discovered in this country -- a proposition we do not contest -- but whether it is appropriate to permit illegal aliens to invoke the exclusionary rule in civil deportation proceedings in order to perpetuate their unlawful presence in the United States. In United States v. Janis, this Court made it clear that determination of whether and under what circumstances the exclusionary rule is to be applied requires a cost-benefit analysis (428 U.S. at 454). Although the court below employed such an inquiry, the majority went wrong in the values it brought to its analysis. As Judge Alarcon's dissenting opinion makes clear (App. A, infra, 39a-85a), the majority totally ignored many of the costs of suppression in the deportation context, took a grudging view of the single cost it did consider, and greatly overstated the need for the incremental deterrence that its decision might promote. Accordingly, this Court, which has never applied the exclusionary rule "to exclude evidence from a civil proceeding, federal or state," United States v. Janis, supra, 428 U.S. at 447 (footnote omitted), should review the Ninth Circuit's creation of a new "barrier() to law enforcement in the pursuit of a supervisory role that is properly the duty of the Executive and Legislative Branches" (id. at 459). 1. The exclusionary rule was developed in the context of criminal prosecutions to safeguard Fourth Amendment rights. Under the rule, first announced by this Court in Weeks v. United States, 232 U.S. 383 (1914), evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure. See also Mapp v. Ohio, 367 U.S. 643 (1961). But the rule is not constitutionally mandated; instead, it "is a judically created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, supra, 414 U.S. at 348 (footnote omitted); see also United States v. Janis, supra, 428 U.S. at 446; Stone v. Powell, 428 U.S. 465, 486 (1976); United States v. Peltier, 422 U.S. 531, 538 (1975). Accordingly, the exclusionary rule "has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons." Stone v. Powell, supra, 428 U.S. at 486. Instead, application of the rule has been carefully "restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, supra, 414 U.S. at 348; see also United States v. Janis, supra, 428 U.S. at 447; United States v. Peltier, supra, 422 U.S. at 538-539. For these reasons, the Court has long engaged in a cost-benefit analysis when it has confronted suggested expansions of the rule. /6/ In Janis the Court declined to apply the exclusionary rule to bar the use in a federal civil tax proceeding of evidence seized by state law enforcement officials in violation of the Fourth Amendment. Recognizing deterrence as the underlying purpose of the exclusionary rule, the Court compared the costs resulting from application of the rule in the circumstances there presented with the deterrent benefit that could be anticipated and concluded that the expected benefit did not outweigh the societal costs imposed by suppression (428 U.S. at 454). In the instant case as well, balancing the potential harm resulting from excluding evidence of alienage against the benefit to Fourth Amendment values of applying the exclusionary principle reveals that the rule should not have been extended to civil deportation proceedings. 2. The societal costs resulting from extension of the exclusionary rule to deportation proceedings are far greater than the court of appeals was willing to acknowledge. The most obvious result of applying the exclusionary rule in deportation proceedings is that an alien who is not entitled to be in this country may nonetheless remain here indefinitely. /7/ The effect may be a de facto judicial grant of permanent resident status and immunity from the immigration laws. /8/ In contrast, although exclusion of evidence in a criminal proceeding may allow an accused to escape punishment for past crimes, it does not countenance continuation of the illegal conduct in the future. An even more far-reaching cost is the damage to the immigration litigation system and, consequently, to this country's ability to expel the vast numbers of illegal aliens who have entered surreptitiously, which will result from merely permitting suppression motions to be brought. The problem was detailed by the Board of Immigration Appeals in Matter of Sandoval, supra, 17 I. & N. Dec. at 80 (footnote omitted); Absent the applicability of the exclusionary rule, questions relating to deportability routinely involve simple factual allegations and matters of proof. When Fourth Amendment issues are raised at deportation hearings, the result is a diversion of attention from the main issues which those proceedings were created to resolve, both in terms of the expertise of the administrative decision makers and of the structure of the forum to accommodate inquiries into search and seizure questions. The result frequently seems to be a long, confused record in which the issues are not clearly defined and in which there is voluminous testimony, but the underlying facts (are) not sufficiently developed. The ensuing delays and inordinate amount of time spent on such cases at all levels has an adverse impact on the effective administration of the immigration laws, which to date (in view of the virtual absence of cases in which evidence has been ultimately excluded) has in no way been counter-balanced by any apparent productive result. /9/ And, referring to the realities of immigration practice, the BIA noted (17 I. & N. Dec. at 80): This is particularly true in a proceeding where delay may be the only "defense" available and where problems already exist with the use of dilatory tactics. Deportation hearings are conducted before a quasi-judicial administrative forum of special and limited function and expertise. The proceedings are -- and are intended to be -- essentially summary. See Zakonaite v. Wolf, 226 U.S. 272, 275 (1912). Indeed, given the volume of deportation proceedings, most cannot be anything but summary if the system is to continue to operate. /10/ The staggering workload is manageable only because, as the BIA explained in Matter of Sandoval, supra, 17 I. & N. Dec. at 80 n.21, "in the majority of cases, deportability is conceded and the bulk of the hearing concerns applications for various categories of mandatory and discretionary relief from deportation." Manifestly, any significant intrusion of "complex constitutional controversies" (App. A, infra, 75a) will overload the system to the point of breakdown. Moreover, it is unrealistic to expect that there will not be a significant increase in the number of suppression motions made in deportation proceedings if the decision below stands. For an illegal alien, "delay may be the only 'defense' available." Matter of Sandoval, supra, 17 I. & N. Dec. at 80. The longer an alien can postpone a final deportation order, the longer he can remain in this country and hope that something will happen to save him from deportation. A suppression motion, with the complex constitutional and factual issues it may present, offers a significant opportunity for delay. /11/ In addition, it can confidently be predicted that the immigration bar will respond to recent efforts by the Executive Branch to strengthen enforcement of the immigration laws by more forcefully asserting Fourth Amendment claims in suppression motions. It is thus safe to predict that if the decision below is allowed to stand, suppression motions in deportation proceedings will become as common and routine as they presently are in criminal cases /12/ and that, as the dissent suggests (App. A, infra, 72a-73a), a considerable number of aliens who have hitherto waived hearings and accepted voluntary departure will now assert their right to a hearing solely in order to file such motions. /13/ There is yet another cost of applying the exclusionary rule to deportation proceedings, one whose impact upon enforcement of the immigration laws could well dwarf all other costs, substantial as they are. As noted below, immigration officers make over one million apprehensions a year. In light of the huge number of arrests that an individual officer makes in one day and the inevitable time lag between the arrest and a deportation proceeding, his recollection of the circumstances of a particular arrest, and even of a particular group of arrests on a single day, will understandably fade with time. If probable cause for a particular arrest or reasonable suspicion for a stop is to be made an issue in deportation proceedings, INS will find it necessary as a matter of litigative precaution to require its officers to compile detailed, contemporaneous, written reports recording the circumstances of each individual arrest. /14/ Even if it be assumed that substantial numbers of illegal aliens will continue to depart voluntarily without a hearing, INS agents still would have to make individualized arrest records because they could not know in advance which aliens would exercise their right to a hearing. Manifestly, the time consumed in executing detailed on-the-spot arrest reports will drastically reduce the number of arrests that can be made. As we demonstrate below, this diversion of INS's limited investigative resources cannot be justified. 3. Even in the criminal context for which the exclusionary rule was first devised, this Court has noted the lack of reliable empirical evidence to support the proposition that the exclusionary rule operates effectively to deter police misconduct. See, e.g., Stone v. Powell, supra, 428 U.S. at 492 & n.32; United States v. Janis, supra, 428 U.S. at 449-453; Elkins v. United States, 364 U.S. 206, 218 (1960); Irvine v. California, 347 U.S. 128, 136 (1954). Nevertheless, just as the Court has accepted as intuitively plausible the premise that suppression in a criminal trial is likely to some extent or in some circumstances to deter police officers from committing Fourth Amendment violations, we are willing to assume that application of the exclusionary rule in deportation proceedings could to some extent deter immigration officers from committing like violations. Where the court of appeals went astray, however, was in its invocation of the rule in the absence of any demonstrated need for such a severe measure. While we do not contend that the civil nature of a deportation proceeding is necessarily controlling, the fact remains that this Court has never extended the rule to civil cases. See United States v. Janis, supra, 428 U.S. at 447. Instead, the Court has recognized that "the need for deterrence and hence the rationale for excluding the evidence are strongest where the Government's unlawful conduct would result in imposition of a criminal sanction on the victim of the search." United States v. Calandra, supra, 414 U.S. at 348 (footnote omitted); see also Abel v. United States, 362 U.S. 217, 237 (1960). /15/ In the instant case, the court itself acknowledged (App. A, infra 28a) that there is no evidence of widespread Fourth Amendment violations by immigration officers, and yet it reached out to apply the exclusionary rule to all deportation proceedings in the future. This rush to judgment, in the absence of convincing evidence of need, cannot be squared with the much more cautious approach taken by this Court to suggested expansions of the scope of the exclusionary rule. The absence of a demonstrated need to invoke the exclusionary rule is particularly striking here, where it is not at all clear that any Fourth Amendment violation actually occurred. As noted by Judge Poole in dissent (App. A, infra, 92a), the record in Sandoval's case, fairly read, reveals that the only aliens transported to the police station were those who admitted their unlawful alienage at the plant. If Agent Bower had been able to testify that he specifically recalled Sandoval's having made such an admission, clearly there would have been probable cause to arrest (see page 20 note 14, supra). Application of the exclusionary rule to a case like the present one, therefore, is not likely to "deter" official misconduct, since it appears that none in fact occurred. Instead, the result will be limited to the imposition of burdensome record-keeping requirements that will severely interfere with effective enforcement of the immigration laws (see pages 19-20, supra). Thus, even conceding the validity in general of the deterrence rationale and its potential applicability to INS agents, the exclusionary rule is not likely to perform its expected function in the type of case here presented. It is well to keep in mind in this connection the contrast between the practical circumstances surrounding the decision to stop or arrest and the legal rules governing adjudication of suppression motions. A majority of arrests of illegal aliens away from the border occur during farm, factory, or other workplace surveys. See, e.g., Brief for the Petitioners at 3-4 & n.3, INS v. Delgado, No. 82-1271 (filed Aug. 10, 1983). (We are furnishing respondents' counsel with copies of our brief in Delgado.) As is evident from the record regarding the circumstances attending the arrest of respondent Sandoval, a single workplace survey can result in the apprehension of large numbers of illegal aliens, occurring under conditions that can only be described as chaotic. In order to safeguard the rights of individuals present at such surveys, some of whom may be citizens or lawfully present aliens, INS has developed various rules restricting stop, interrogation, and arrest practices. See, e.g., id. at 7 n.7, 32-40 & n.25. There is no evidence that INS agents do not generally abide by these regulations, or, indeed, that they did not do so in these cases. But when it comes time to conduct a suppression hearing, the burden is placed upon the government to prove as to each individual alien that the discovery of his or her illegal status was not preceded by an illegal stop or arrest. Given the often large number of illegal aliens arrested in the frequently chaotic circumstances surrounding a factory or farm survey, reconstruction of the particular observations that prompted the agents to detain or arrest each individual is indeed an awesome, if not impossible, task. The agents may be able to testify that they follow the general rules -- e.g., that they do not arrest anyone unless there is an admission of illegal alienage or other strong evidence thereof -- but plainly the Ninth Circuit, at least, is unwilling to rely upon such general testimony or upon any presumption of regularity to sustain the lawfulness of the stop or arrest. The result of this combination of factual and legal circumstances -- so different from the focused investigative activities usually under scrutiny in a suppression hearing related to a criminal prosecution -- is that there will usually not in fact have been any Fourth Amendment violation attendant upon the securing of the admissions of illegal alienage upon which deportability frequently depends, yet it will often be impossible to prove this with the required degree of individualized specificity. Application of the exclusionary rule to deportation proceedings will thus result principally in the exclusion of lawfully obtained evidence. Under such circumstances, the deterrent potential of suppression is exceedingly difficult to achieve. The court of appeals also failed to give adequate weight to the availability of less drastic deterrents: an administrative practice of excluding evidence seized through intentionally or flagrantly unlawful conduct, /16/ effective internal discipline, /17/ the availability of injunctive relief, /18/ and damages suits. /19/ Injunctive actions offer especially appropriate vehicles for correcting any institutional practices that might violate Fourth Amendment rights. Unlike the criminal field, in which there are hundreds of thousands of separate police forces, there is only one Immigration and Naturalization Service, and injunctive relief directed against the Service will, if necessary, be effective. And, should individual INS agents violate Service policies protecting Fourth Amendment rights, the additional remedies of internal discipline and administrative suppression of evidence seized through intentionally unlawful conduct, supplemented by Bivens actions against individual INS agents, will have their corrective effect. With these deterrent mechanisms already available, any increased benefit to be derived from application of the exclusionary rule cannot justify the heavy costs previously described. 4. In sum, the societal costs of extending the exclusionary rule to deportation proceedings are enormous and plainly outweigh any incremental increase in deterrence of illegal conduct by enforcement officials. This country is in an immigration crisis, with, as the court of appeals noted, between 3 1/2 and 12 million illegal aliens already here and over 500,000 more entering every year (see App. A, infra, 29a). The injection of complex constitutional questions into the immigration administrative hearing process, in which each immigration judge is currently making more than five adjudications per day (see page 17 note 10, supra), could bring an already dangerously overburdened system to a virtual halt. Extension of the exclusionary rule to civil deportation proceedings, the result of which could be to allow illegal aliens to perpetuate their presence in this country in violation of our immigration laws, thus seriously jeopardizes the Executive's ability to control illegal immigration. /20/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General J. PAUL McGRATH Assistant Attorney General ANDREW L. FREY Deputy Solicitor General KATHRYN A. OBERLY Assistant to the Solicitor General BARBARA L. HERWIG LAURI STEVEN FILPPU MARSHALL TAMOR GOLDING MARC RICHMAN Attorneys SEPTEMBER 1983 /1/ The court decided sua sponte to hear the cases before an en banc panel. See Rule 25 of the Rules of the United States Court of Appeals for the Ninth Circuit. /2/ "L.A.R." refers to the administrative record in Lopez-Mendoza; "S.A.R." refers to the administrative record in Sandoval-Sanchez. /3/ Respondent Sandoval is not the same individual as was involved in Matter of Sandoval, supra, in which the Board of Immigration Appeals held the exclusionary rule ordinarily inapplicable to deportation proceedings. /4/ Citing International Ladies Garment Workers Union v. Sureck, 681 F.2d 624, 634-643 (9th Cir. 1982), cert. granted sub nom. INS v. Delgado, No. 82-1271 (Apr. 25, 1983), and noting that "Officer Bower could not remember Sandoval or describe his behavior" (App. A, infra, 7a), the majority questioned whether there was "the requisite individualized suspicion of illegal alienage to justify even a brief Terry stop of Sandoval" (ibid.). Nevertheless, the majority did not decide that issue, concluding instead that "the dispositive question is * * * the lawfulness of (Sandoval's) detention at the time he was interrogated at the jail" (ibid.). The court held that by the time of Sandoval's interrogation at the police station, "the initial stop had clearly ripened into an arrest" (ibid.) and that the "furtive behavior" observed by Officer Bower (which the court treated as the only basis for the officer's decision to detain Sandoval) constituted insufficient probable cause to support an arrest (id. at 8a). In his special concurring opinion, Judge Goodwin noted simply that he did "not believe that a 'Terry Stop' in a work place where the immigration officers have a right to be necessarily ripens into an unlawful seizure on the facts of this case" (App. A, infra, 38a). In a special dissenting opinion, Judge Poole argued that probable cause was established when, after being questioned in Spanish, the suspected aliens "answered and conceded alienage and also illegal entry" (App. A, infra, 92a). Judge Poole also noted that the "record as a whole shows that all of the persons to whom questions were addressed first in English and then in Spanish had exhibited some behavior which preceded the questioning," that Sandoval "was among those asked in Spanish whether 'they had papers'" and that "(h)e had none" (ibid.). /5/ The dissent also accused the majority of reaching "out beyond the record" because "neither appellant timely moved to suppress evidence on fourth amendment grounds" (App. A, infra, 45a). The majority held, however, that respondents' motions to "terminate" their deportation proceedings should be treated as motions to suppress (id. at 2a-3a n.1). We do not seek review of the majority's conclusion that respondents made at least the functional equivalent of suppression motions in these cases. /6/ See Brief for the United States at 34-38, United States v. Leon, No. 82-1771 (filed Sept. 15, 1983). We are furnishing respondents' counsel with copies of that brief. /7/ The court of appeals' suggestion that this is not a serious cost, because illegal aliens may not be threatening individually or criminally dangerous (App. A, infra, 31a), is mistaken. Collectively, illegal aliens pose a substantial economic threat to this country and to the citizens and lawful resident aliens against whom they compete for employment. See, e.g., De Canas v. Bica, 424 U.S. 351, 356-357 (1976) ("Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens * * *."); United States v. Brignoni-Ponce, 422 U.S. 873, 878-879 (1975) ("(T)hese (illegal) aliens create significant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services."). /8/ Contrary to the lower court's facile suggestion that aliens who successfully invoke the exclusionary rule can be reapprehended and deported by the use of untainted evidence (App. A, infra, 32a n.21), the matter is not that simple. Unlike the situation with respect to aliens who overstay their visas, INS has no records concerning the vast majority of deportable aliens -- those who have entered without inspection (see id. at 28a). Once they are discharged from a deportation proceeding, they may never be apprehended again. And even if they are, it may well be impossible to prove that the new evidence of their deportability is not tainted by the evidence that has previously been suppressed. Thus, under the decision below, the practical effect of a suppression order may well be to immunize an illegal alien from ever being deported. /9/ The court of appeals stated that, prior to the BIA's decision in Matter of Sandoval, supra, "INS performed its investigative and prosecutorial functions in a legal regime in which the exclusionary rule was thought to apply" (App. A, infra, 14a). However, in Matter of Sandoval, supra, 17 I. & N. Dec. at 75 n.7, the BIA explained that "it ha(d) not previously intended to reach the issue decided today and withdraws from any language which may be read as suggesting otherwise." The BIA also noted that there were few judicial decisions addressing the issue and none that had engaged in "a detailed analysis of the relative merits of excluding such evidence from deportation proceedings" (id. at 75). Thus, the BIA determined to give the issue fresh consideration (ibid.): Accordingly, as the Board has not previously resolved this issue, as we find only one contemporary Federal Court decision in which unlawfully seized evidence is specifically held to be excludable, and as we find no decision in which the appropriateness of applying the rule in deportation proceedings is analyzed in any detail, we will address the question as one of first impression. The single federal court decision referred to by the BIA is Wong Chung Che v. INS, 565 F.2d 166 (1st Cir. 1977). There, without analysis, the court held that the exclusionary rule should be applied in a deportation proceeding to suppress physical evidence obtained as a result of an illegal arrest. The court suggested, however, that it would not follow the same rule in the case of oral statements (565 F.2d at 168-169). /10/ According to the Office of the Chief Immigration Judge, from March 1983 (the first month for which statistics are available) until July, the 55 authorized immigration judges received 37,653 deportation cases and completed adjudication of 25,563; received 3,162 exclusion cases and completed adjudication of 2,418; and received 1,005 motions to reopen and completed adjudication of 920. Projections for fiscal year 1983 are 92,643 deportation cases received and 62,523 adjudicated; 7,620 exclusion cases received and 5,886 adjudicated; and 2,484 motions to reopen received and 2,241 adjudicated. This will amount to 70,650 completed adjudications for the year, or 6.35 adjudications per day per immigration judge. By way of contrast, 6,023 criminal defendants were actually tried in United States District Courts during fiscal year 1982 (Annual Report of the Director of the Administrative Office of the United States Courts 141 (1982)) by 484 district judges (id. at 34). This averages out to 12.44 criminal trials per year per judge. /11/ Respondents were arrested on August 3, 1976 (Lopez), and June 23, 1977 (Sandoval), and both are still in this country because of their Fourth Amendment claims. L.A.R. 135; S.A.R. 81. /12/ One-third of all federal criminal defendants going to trial file Fourth Amendment suppression motions, and 70% to 90% of these involve formal hearings. Comp. Gen. Rep. No. GGD-79-45, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 10 (1979). Although most of these motions are denied (ibid.), the effect on judicial and prosecutorial resources is the same as if the motions were meritorious. There is no reason to expect illegal aliens to be substantially more reticent about filing nonmeritorious suppression motions than criminal defendants. /13/ As an indication of the universe from which additional assertions of the right to a hearing may come, immigration investigators and the Border Patrol apprehended 1,093,396 illegal aliens in fiscal year 1982. The projected figures for 1983 and 1984 are 1,210,000 and 1,221,000 apprehensions, respectively (Executive Office of the President, Office of Management and Budget, Budget of the United States Government -- Fiscal Year 1984: Appendix (H. Dec. No. 98-4, 98th Cong., 1st Sess.) I-N16 (1983)). Even at the rate of 5.35 adjudications per immigration judge per day, only 70,650 adjudications will be completed in fiscal year 1983 (see page 17 note 10, supra). Thus, the ability of the system to function obviously depends on the fact that only a small fraction of apprehended illegal aliens exercise their right to a hearing. /14/ Although we do not seek this Court's review of the court of appeals' Fourth Amendment ruling in Sandoval's case, it is worth noting how much emphasis the court placed on the fact that Agent Bower could not be "absolutely positive" (S.A.R. 50) that he himself had questioned Sandoval (see App. A, infra, 5a-7a). There is of course a considerable differece between an actual absence of probable cause to arrest (which we do not concede in these cases) and an agent's inability to recall the exact circumstances of any particular arrest. See pages 22-24, infra. /15/ Although the exclusionary rule has been invoked to exclude illegally seized evidence in a forfeiture proceeding, the Court was careful to note that the object of a forfeiture proceeding, like a criminal proceeding, "is to penalize for the commission of an offense against the law." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965). In contrast, the purpose of a deportation proceeding is to determine an alien's right to remain in this country. Deportation is "not punishment for crime," but rather "a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend." Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893); see also Mahler v. Eby, 264 U.S. 32, 39 (1924) ("(D)eportation, while it may be burdensome and severe for the alien, is not a punishment."). Bugajewitz v. Adams, 228 U.S. 585, 591 (1913); Li Shing v. United States, 180 U.S. 486, 494-495 (1901). /16/ The Department of Justice requires that evidence seized through intentionally unlawful conduct be excluded, as a matter of policy, from the proceeding for which it was obtained. In addition, the BIA has held, subsequent to its decision in Matter of Sandoval, supra, that evidence will be excluded if the circumstances surrounding a particular arrest and interrogation would render admission of the evidence thereby obtained "fundamentally unfair" and in violation of "the fifth amendment's due process requirement * * *." Matter of Toro, 17 I. & N. Dec. 340, 343 (BIA 1980). Similarly, in Matter of Garcia, 17 I. & N. Dec. 319, 321 (BIA 1980), the Board suppressed an admission of alienage obtained after the alien's requests to speak to his attorney had been repeatedly refused and he had been held incommunicado for a significant period of time. Because the unlawfully obtained admission was the only evidence of deportability, the BIA ordered the deportation proceeding terminated (ibid.). /17/ The principal dissenting opinion sets forth a detailed summary of INS's "comprehensive procedure" for investigating and punishing immigration officers who commit illegal searches and seizures (App. A, infra, 78a-81a). The majority dismissed these procedures, which it nevertheless described as "commendable," because it had "no evidence whatsoever that the guidelines are being consistently and effectively enforced" (id. at 35a). The majority's approach was backward -- it should have ascertained that the disciplinary procedures are not being utilized before rejecting them as inadequate. /18/ See, e.g., International Ladies Garment Workers Union v. Sureck, 681 F.2d 624 (9th Cir. 1982), cert. granted sub nom. INS v. Delgado, No. 82-1271 (Apr. 25, 1983). /19/ See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We do not disagree with the majority's observation (App. A, infra, 33a) that illegal aliens, particularly if they have been deported, are unlikely to bring many Bivens suits. But the majority completely overlooked the fact that citizens or lawful aliens subjected to illegal searches or seizures can be expected to bring such actions, and the deterrence thereby gained would naturally extend to the future benefit of all persons. /20/ Moreover, appeals from denials of suppression motions in deportation proceedings may be expected to add greatly to the burdens of the courts of appeals, and ultimately of this Court. Appendix Omitted