4th Amendment Protections under Immigration Law

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By: Alexander Carl, Esq. Law Offices of Ally Bolour, APC

8 C.F.R. 287.8(b)(2) provides that an immigration officer may briefly detain an individual only if the officer has “reasonable suspicion, based on specific articulable facts” that the person is engaged in an offense or is an alien illegally in the United States. This regulation is designed to benefit persons and aliens in the United States.

The Fourth Amendment in the United States Constitution, in general, protects people against unreasonable searches and seizures. Any evidence that is the fruit – result – of an unreasonable search and seizure can not be used against an individual in court. This is sometimes referred to as fruit of the poisonous tree.

In Sanchez v Sessions, the U.S. Court of Appeals for the Ninth Circuit, which is our circuit court here in California, made an important ruling.

The U.S. Court of Appeals for the Ninth Court held that Coast Guard officers who detained Sanchez, after they assisted him when his boat died of the coast of Oxnard California, and thereafter called ICE because they suspected he was in the U.S. illegally, committed an egregious Fourth Amendment violation because they detained Sanchez solely based on his Latino ethnicity.

The Court concluded that because the Coast Guard seized Sanchez based on his Latino ethnicity alone, the seizure violated Sanchez’s 4th Amendment right under the U.S. Constitution. Therefore, any evidence obtained as a result of the unlawful seizure is inadmissible in court. Consequently, Form I-213 (Record of Deportable/Inadmissible Alien) which was prepared after Sanchez’s immigration arrest, and was used to establish Sanchez’s illegal entry into the U.S. and alienage, could not be used against him in Immigration Court.

Furthermore, the Court held that the Government violated its own regulation, 8 C.F.R. 287.8(b)(2), which is provided above, and therefore Sanchez’s removal proceedings must be terminated.

This case is important because it upholds aliens rights under the 4th Amendment to the U.S. Constitution and protection under 8 C.F.R. 287.8(b)(2), whether or not you reside in the U.S. lawfully or unlawfully.

In general, this means that while in the U.S. an officer may briefly detain you only if the officer has reasonable suspicion based on specific articulable facts that you have committed an offense or are in the U.S. unlawfully. One’s ethnicity is not a lawful basis for brief detention, frisk or arrest. Any evidence which is the fruit of this can not be used against the individual in Removal Proceedings and can be a basis for termination of Removal Proceedings.

Your ethnicity is not a lawful basis to conduct a search or seizure.

Every case is unique and this article is not intended to be legal advice, and should not be taken as such. If you believe you or someone you know has been placed in Removal Proceedings as a result of a violation of your 4th Amendment rights or rights due under 8 C.F.R. 287.8(b)(2), you should contact an attorney about the specifics of your case. Contact the Law Offices of Ally Bolour, APC for a consultation on the specific of your case by phone at (323) 857-0034 or at alex@americanvisas.net. We can also be found at our website, americanvisas.net.

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