Suppression Motions, Egregious Violations, and Form I-213

INS v. Lopez-Mendoza held that the Fourth Amendment exclusionary rule does not generally apply in ordinary civil deportation proceedings in the same manner as criminal cases. The decision, however, left room for arguments involving egregious constitutional violations or widespread agency misconduct, and federal circuits have developed standards in that area.

A suppression motion must therefore start with governing circuit law, not a criminal-procedure assumption.

Matter of Barcenas requires the respondent to make a prima facie showing before DHS is called upon to justify the manner in which evidence was obtained. The respondent generally needs evidence based on personal knowledge or otherwise competent proof, not conclusory allegations.

Once the required showing is made, the litigation can shift toward DHS’s justification and the evidentiary consequence.

Matter of Mariscal-Hernandez, 28 I&N Dec. 666 (BIA 2022), applies Barcenas in a circuit recognizing suppression for egregious Fourth Amendment violations. The BIA held that the respondent had not established the required prima facie case and therefore DHS did not have to justify how it obtained the Form I-213 information.

The decision shows why the initial affidavit and supporting proof matter.

Federal courts differ in how they define an egregious Fourth Amendment violation and in the significance of race, force, home entry, lack of reasonable suspicion, and other circumstances. A nationwide BIA citation is not enough for a suppression motion.

Research the circuit governing the petition for review and identify the exact test the Immigration Judge should apply.

The declaration should state who stopped or entered, what was said, whether consent was requested, whether weapons or force were used, what identifying characteristics were invoked, where questioning occurred, and how DHS obtained the challenged evidence. Separate firsthand facts from assumptions.

A vague statement that officers acted illegally rarely satisfies Barcenas.

Warrantless entry into a home, coercive consent, pre-dawn operations, or entry based on race or ethnicity can be significant under circuit egregiousness standards. Obtain warrants, consent forms, body-camera material if available, and witness declarations.

The precise facts of entry often matter more than general criticism of the enforcement operation.

Identify the basis officers gave for the stop, duration, questioning, searches, restraints, and whether race or ethnicity played a role. Circuit law determines when the circumstances cross from an ordinary constitutional violation into an egregious one warranting suppression in removal proceedings.

Preserve contemporaneous records, location evidence, and third-party witnesses.

DHS frequently uses Form I-213 to prove identity, alienage, admissions, or encounter facts. Immigration law generally treats official records as admissible when probative and fundamentally fair, but reliability, source, coercion, translation, and constitutional acquisition can be challenged.

Compare the form with interview notes, sworn statements, and the respondent’s account.

Even if the exclusionary rule does not apply, a document can be inaccurate, unauthenticated, based on mistranslation, or otherwise unreliable. Conversely, reliable factual information can still be challenged if it was obtained through conduct meeting the governing suppression standard.

Brief the theories separately so one does not obscure the other.

Lopez-Mendoza contains language concerning identity that has generated substantial litigation. Courts distinguish jurisdiction over the person from suppression of evidence proving alienage or other facts. Counsel should use current circuit law rather than broad claims that identity can never be challenged.

Frame precisely what evidence is sought to be excluded and what element DHS needs it to prove.

FOIA, DHS disclosures, subpoenas where available, incident reports, warrants, I-213s, officer declarations, and related documents can clarify how evidence was obtained. Immigration-court discovery is limited compared with federal civil litigation, so requests should be focused and supported.

A prima facie declaration can also explain why particular government evidence is needed.

If material facts are disputed and the respondent meets the threshold showing, testimony from the respondent, witnesses, or government officers may become relevant. Counsel should identify the specific disputed facts and requested witnesses.

Prepare to address credibility without allowing the hearing to drift into unrelated removability admissions.

If primary evidence is suppressed, counsel should assess whether later statements or documents are sufficiently connected to the constitutional violation to be challenged as derivative evidence. Civil immigration precedent on attenuation and independent sources can be fact sensitive.

Do not assume criminal exclusion doctrines apply identically.

Even where suppression is denied, encounter facts may affect voluntariness of statements, document reliability, due process, or the discretionary record. Those theories have distinct legal standards.

Preserve each argument separately in the administrative record.

Offer the declaration, exhibits, proffered testimony, governing circuit cases, and specific evidence sought to be excluded. If the court denies a hearing or government disclosure, explain why the missing procedure matters.

Suppression issues are highly record dependent and difficult to reconstruct on appeal.

Some circuits treat stops or seizures based principally on race or ethnicity as significant to egregiousness. A suppression motion should identify the officer’s words, comparator evidence, location, absence of other justification, and any pattern evidence available.

A bare conclusion that profiling occurred is less useful than specific facts showing why race was the apparent basis.

Government officers may claim a respondent consented to entry, search, or questioning. The motion should examine language ability, number of officers, display of weapons, time of day, custody, threats, deception, and whether the person understood a request rather than a command.

Written consent forms and translations should be obtained when available.

Immigration enforcement can involve administrative warrants that differ from judicial search warrants. Home-entry authority may depend on consent or a judicial warrant even when officers possess an immigration arrest document.

Obtain and analyze the actual warrant rather than accepting the word warrant as resolving the Fourth Amendment question.

If admissions on an I-213 were made through an interpreter or by a person with limited English, determine who interpreted, what language was used, and whether the form accurately records the answer. Material translation errors can support a reliability challenge independent of suppression.

Compare later sworn statements and interview records for consistency.

Threats, prolonged detention, deprivation, or misleading promises may affect voluntariness and the fundamental fairness of using a statement. These arguments are distinct from the egregious Fourth Amendment doctrine and should be separately developed.

Identify the legal basis for exclusion or reduced weight of the statement.

Suppression matters only if the evidence affects a disputed issue. Identify whether the I-213 or statement is being used to prove alienage, entry, status, removability, identity of a conviction, or another element.

If DHS has an independent lawful source proving the same fact, the remedy may have limited effect.

Family members, neighbors, passengers, employers, or other witnesses may have observed the stop or entry. Obtain declarations early because enforcement cases can remain pending for years and memories fade.

Independent corroboration can help satisfy the prima facie Barcenas threshold.

A motion should identify each challenged document, statement, or derivative item and the legal basis for excluding it. Broad requests to suppress the entire government file make it harder for the court to connect the alleged violation to the evidence.

Where the alternative argument is unreliability rather than exclusion, state that separately.

Do not merely list troubling enforcement facts. Explain why those facts satisfy each component of the circuit’s egregious-violation standard and identify the evidence obtained as a result. Barcenas makes the threshold showing consequential because DHS may not have to justify its conduct until that showing is made.

A declaration plus legal memorandum is usually stronger than either document alone.

An I-213 may summarize interviews, database checks, and enforcement events without revealing the underlying notes or sequence. Where the source or accuracy of a material statement is contested, identify the supporting officer records and request them through available procedures.

Discrepancies between contemporaneous notes and the final form can support reliability or voluntariness challenges.

Testimony offered to prove an unlawful stop or entry can expose the respondent to questions touching alienage, entry, or identity. Counsel should define the scope of testimony, preserve objections, and understand whether statements made in the suppression litigation could affect the merits.

Strategic preparation is necessary so the effort to exclude one item does not inadvertently supply another basis for removability.

Even a strong suppression claim may not end the case if DHS can prove the same element through an independent lawful source. Review A-files, visa records, prior applications, conviction records, and admissions already made in proceedings.

This assessment helps determine whether suppression is dispositive, narrowing, or primarily relevant to due process.

Suppression in removal proceedings is narrow but real in jurisdictions recognizing exclusion for egregious Fourth Amendment violations. Lopez-Mendoza supplies the baseline, Barcenas sets the prima facie framework, and Mariscal-Hernandez shows how the BIA applies it.

A viable motion requires detailed facts, correct circuit law, and a precise connection between the violation and the evidence DHS needs.