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
   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit
   Reply Brief for the Petitioner
   The central thesis of our opening brief was that the court of
appeals erred in extending the exclusionary rule to civil deportation
proceedings in the absence of any demonstrated need for such a severe
"remedy" or any convincing evidence, whether empirical or intuitive,
that the rule would have its intended deterrent effect in the
deportation context.  The court compounded its error by failing to
consider the heavy systemic costs that its decision would impose on
the administrative and judicial deportation process.  Respondents have
failed to refute our arguments.  They are unable to demonstrate the
existence of any significant pattern or practice of Fourth Amendment
violations by INS agents, nor are they able to show that the
exclusionary rule is likely to exert a meaningful deterrent impact on
the conduct of those agents.  Moreover, their attempt to downplay the
significance of the costs of the lower court's ruling is unpersuasive.
   We address these central points below.  Preliminarily, however, it
is necessary to clear away some of the rhetorical excesses that
permeate respondents' brief.
   1. Respondents repeatedly assert that application of the
exclusionary rule in deportation proceedings is essential to protect
Hispanic Americans from being "inexorably * * * swept into a net of
suspicion, humiliation and fear" (Br. 32;  see also Br. 28-32,
90-100).  They make the totally unsupported assertion that, absent the
exclusionary rule, INS agents would "inevitably intensify dragnet
techniques" so that the "Fourth Amendment rights of Hispanic Americans
would suffer a crippling blow" (Br. 31).  /1/
   It is not surprising that respondents fail to offer even a shred of
support for these ad hominem assertions.  In reality, INS goes to
great lengths to ensure that Hispanic Americans are not adversely
affected "soley because of their race) (Br. 30).  Immigration officers
are instructed that they should have a reasonable suspicion of
alienage before they may engage even in non-detentive questioning.
INS, U.S. Dep't of Justice, The Law of Arrest, Search, and Seizure for
Immigration Officers 3 (Jan. 1983) (hereinafter cited as INS
Handbook).  "Reasonable suspicion of alienage" may not be based solely
on racial factors (ibid.):
      This suspicion must be based on more than ethnic physical
      appearance, e.g., Mexican or Chinese ancestry.  This "reasonable
      suspicion" must be based on "specific articulable facts" --
      particular characteristics or circumstances which the officer
      can, if called upon, describe in words -- such as foreign manner
      of dress or grooming, apparent inability to speak English,
      officer's knowledge of a high concentration of aliens in the
      area, or a specific tip from an informant.
   This policy with respect to non-detentive questioning is followed
notwithstanding the fact that no person is constitutionally protected
against having questions addressed to him by law enforcement officers
in public places.  See, e.g., Florida v. Royer, No. 80-2146 (Mar. 23,
1983), slip op. 5-6;  Terry v. Ohio, 392 U.S. 1, 34 (1968) (White, J.,
concurring).  /2/ Thus, respondents' professed concern that Hispanic
Americans will be swept indiscriminately into "intrusive and arbitrary
INS workplace raids and neighborhood dragnets" (Br. 30 (footnote
omitted)) is grossly overstated.
   What is particularly striking is respondents' inability to point to
any widespread abuses of the Fourth Amendment rights of Hispanic
Americans (or illegal aliens) in the period following the BAA's
decision in Matter of Sandoval, 17 I & N. Dec. 70 (1979) (J.A.
163-202).  While we dispute respondents' contention that Matter of
Sandoval was a sharp break with the realities of prior immigration law
(see pages 6-8, infra), respondents have utterly failed to show that
that decision resulted in increased Fourth Amendment violations by
immigration officers.  Absent such a demonstration, the logical
conclusion to be drawn is that the supposed "abandonment" of the
exclusionary rule in deportation proceedings had no effect whatsoever
on the Fourth Amendment rights of Hispanic Americans.  /3/
   To be sure, the fact that Hispanic Americans share the physical
characteristics of vast numbers of illegal aliens undoubtedly means
that, unless immigration enforcement is to be entirely abandoned, some
Hispanic Americans will on occasion find themselves questioned
concerning their status.  But Hispanic Americans are no different in
this regard from the law-abiding residents of inner-city, high-crime
neighborhoods, who must inevitably experience more frequent encounters
with the police than their suburban counterparts.  To acknowledge that
such encounters will occur, however, does not in any way suggest that
they will be attended by frequent or serious violations of the Fourth
Amendment.  /4/
   To the extent that occasional mistakes may occur -- and what is
most striking is their apparent infrequency for any agency that
apprehends over one million deportable aliens each year -- Hispanic
Americans are the persons best situated to make use of the alternative
remedies, such as Bivens suits, actions for declaratory or injunctive
relief, or complaints to the agency.  See pages 15-20, infra.  The
exclusionary rule, on the other hand, obviously does nothing to
protect the rights of citizens and lawfully-present aliens directly,
since they will never be subjected to deportation proceedings.
Hispanic Americans would benefit from the exclusionary rule only if it
were shown to have the deterrent effect that respondents claim for it;
 but as we demonstrated in our opening brief (at 37-39) and as we
discuss below (see pages 12-13, infra), the rule simply will not have
the intended effect in the deportation context.
   2. Respondents' arguments concerning the deterrent impact of the
exclusionary rule in the deportation context depend entirely for their
validity on the premise that, save for the period between the BIA's
decision in Matter of Sandoval, supra, and the court of appeals'
decision below, "INS has long operated in an investigative and
prosecutorial regime in which evidence seized through an illegal
search or seizure may be suppressed in deportation proceedings" (Br.
65).  Respondents repeatedly refer to the "long history of applying
the exclusionary rule to deportation proceedings" (Br. 45 (emphasis
added)).  See also, e.g., Br. 47, 70 n.50, 99.  If conditions were as
respondents imagine them to have been -- widespread Fourth Amendment
violations by INS combined with an active exclusionary rule remedy in
deportation proceedings prior to 1979 -- it is virtually inconceivable
that reported decisions would not reflect abundant litigation and
frequent applications of the suppression remedy.  In fact, however, it
is clear that the exclusionary rule has never been a meaningful
feature of deportation proceedings.
   Most telling is the fact that, prior to the decision below, the
exclusionary rule was applied by federal courts reviewing deportation
proceedings in only three reported cases.  United States v. Wong Quong
Wong, 94 F. 832 (D. Vt. 1899);  Ex parte Jackson, 263 F. 100 (D.
Mont.), appeal dismissed, 267 F. 1022 (9th Cir. 1920);  Wong Chung Che
v. INS, 565 F.2d 166 (1st Cir. 1977).  Quite clearly, a rule that has
been applied by the judiciary only three times in 76 years cannot
possibly have had any meaningful, or even noticeable, effect on agency
operations.
   Respondents also cite (Br. 67-69 nn.47-48) a number of BIA
decisions in which the Board assumed for the sake of argument that the
exclusionary rule might be applicable to deportation proceedings (but
see Matter of Sandoval, 17 I. & N. Dec. at 75 n.7 (J.A. 170)), but
declined to apply the rule, because it either found no Fourth
Amendment violation or concluded that there was independent, untainted
evidence of deportability sufficient to uphold the deportation order.
/5/ Significantly, respondents have failed to cite a single BIA
decision in which the Board actually suppressed evidence or terminated
a deportation proceeding on Fourth Amendment grounds, and we are aware
of no such decision.  /6/ It defies common sense to suppose that a
rule that has never been applied by the agency, even if theoretically
available, can have had any deterrent impact on the conduct of
immigration officers.  On the contrary, if immigration officers drew
any conclusions about the matter at all, they almost certainly would
have concluded that the threat of suppression was wholly chimerical.
In these circumstances, it cannot seriously be urged that the
exclusionary rule was having any deterrent impact on immigration
officers prior to Matter of Sandoval, nor can it be contended that
Matter of Sandoval provided any new incentives for immigration
officers to violate the Fourth Amendment.
   3. Respondents repeatedly assert that the exclusionary rule is
essential to protect the Fourth Amendment rights of Hispanic Americans
and lawfully-present aliens.  But they have not responded to our
argument (Pet. Br. 16-20) that this Court has not extended the rule to
new categories of cases except upon finding a widespread pattern of
flagrant violations that had not been corrected through reliance on
less drastic remedies.  As we have already noted (see pages 3-5 &
notes 3-4, supra), respondents are unable to document their assertion
of widespread Fourth Amendment violations by INS agents;  indeed,
their argument is contrary to the finding of the court of appeals,
which conceded that "immigration officers have not committed many
Fourth Amendment transgressions * * *" (Pet. App. 28a).
   As noted in our opening brief, application of the exclusionary rule
is particularly inappropriate in a case like Sandoval's, in which
there is nothing more than a presumed Fourth Amendment violation,
based on the agent's inability to recall the precise details of
Sandoval's detention and arrest.  /7/ Respondents' argument (Br. 103 &
n.87) that Agent Bower lacked probable cause to arrest Sandoval is not
supported by the record.  It is true that Agent Bower could not recall
with assurance the details of his encounter with Sandoval, but he
testified that the only persons questioned were those believed to be
illegal aliens (J.A. 134).  Although it is somewhat unclear from Agent
Bower's testimony precisely what legal standard he thought was
required to question persons at the factory, it appears (J.A. 138,
140) that his general practice was to apply a standard of probable
cause -- clearly more than is required by either the Fourth Amendment
or INS policy.  Significantly, respondents do not contend that even a
single one of the 37 aliens apprehended at Sandoval's place of
employment turned out to be a citizen or lawfully-present alien.  We
doubt that the agents' apparent 100% success rate (see J.A. 129) is
attributable to chance, as opposed to their careful adherence to
established procedures designed to ensure only lawful arrests.
   In these circumstances, respondents' reliance (Br. 1-6, 102-104) on
Sandoval's testimony that he "was pulled out of line when he was in
the process of entering his workplace, locked * * * in a men's
restroom, and transported * * * to a police station for interrogation"
(Br. 102) is wholly irrelevant.  /8/ If, as may reasonably be inferred
from the accuracy with which illegal aliens were arrested, Agent Bower
had probable cause to arrest Sandoval, there is nothing remarkable
about his having been pulled out of line and placed in a holding area
until he could be transported to the police station.  /9/
   Because of the enforcement techniques most frequently utilized by
INS agents (see Pet. Br. 32), the situation that occurred in
Sandoval's case will inevitably be quite common.  /10/ But in the
absence of clear evidence that Fourth Amendment violations actually
are occurring in such situations, the Court must take into account the
relatively low correlation that can be expected between application of
the suppression remedy and actual Fourth Amendment violations.  /11/
This is particularly so in light of INS's voluntary abandonment of the
enforcement practices that may have offered the greatest potential for
Fourth Amendment violations and that appear to be most troubling to
respondents' counsel.  See, e.g., Br. 93.  For example, residential
searches have been restricted to searches authorized by warrant or
routine casework, i.e., searches for aliens who fail to appear for
scheduled hearings.  See Memorandum from Benjamin R. Civiletti to
David Crosland, INS Search Policy (January 13, 1981).  (A copy of this
memorandum has been lodged with the Court and served on respondents'
counsel.) INS advises us that it also has abandoned "Area Control"
operations (cf. Marquez v. Kiley, 436 F. Supp. 100 (S.D.N.Y. 1977)),
except to the extent that such operations are carried out incident to
enforcement at places of employment.  In other words, random patrols
of non-border areas known to be frequented by illegal aliens are no
longer conducted.
   4. Despite their repeated assertions that the exclusionary rule is
"the only effective device for enforcing the Fourth Amendment in the
immigration context" (Br. 18-19;  see also Br. 28, 35-36, 40),
respondents have wholly failed to offer any rationale to support their
assumption that the rule would in fact be an effective deterrent in
this context.  Respondents have done no better than the court of
appeals;  they assert (Br. 38-43) that deportation proceedings are
within immigration officers' "zone of primary interest" and that
illegal evidence obtained by immigration officers for use in
deportation proceedings is an "intra-agency" violation.  Even if both
propositions are conceded, they are merely the beginning of the
analysis, not the end.
   As we discussed in our opening brief (at 37-39), the assumption
that the exclusionary rule will exert a meaningful deterrent impact on
immigration officers is intuitively implausible.  /12/ Respondents
implicitly concede as much when they assert that "(s)trong systemic
incentives presently encourage INS agents to focus on the quantity of
apprehensions rather than their quality under constitutional
standards" (Br. 39-40).  While we dispute the charge that INS agents
are indifferent to constitutional standards, it seems clear that the
volume of arrests made by each immigration officer renders the
potential effectiveness of the suppression sanction tenuous indeed.
And if further support is needed for the behavioral assumptions noted
in our opening brief, it is surely provided by respondents' complete
inability to demonstrate any decline in INS's adherence to Fourth
Amendment requirements in the post-Matter of Sandoval period.  See
pages 3-4, supra.
   5. If, as we have previously demonstrated, there is no reason to
believe that the exclusionary rule will exert a meaningful deterrent
impact on the conduct of INS agents, there is no justification for
applying it, regardless of how one views the costs.  But we note
briefly that respondents seriously underestimate the costs actually
involved.
   First, respondents contend (Br. 79-83) that the cost of letting
illegal aliens remain in this country is insignificant and can in any
event be minimized by having INS proceed against the same aliens using
untainted evidence.  Respondents ignore the fact that in the vast
majority of cases INS has no records, and hence no independent
evidence, because the aliens have entered without inspection.  By
contrast, virtually all of the cases cited by respondents (Br. 68
n.48) involved alien crewmen who overstayed their landing permits and
who thus could be linked to records already in the agency's files.
When no such records exist, however, the problems confronting INS at
any subsequent deportation proceeding will often be insurmountable,
particularly as illegal aliens increasingly refuse, on the advise of
counsel, to answer any questions at their deportation hearings.
   Second, respondents downplay the significant impact on the
immigration litigation system of the court of appeals' ruling.  It is
true that the immigration judges and the BIA have on occasion
considered suppression motions in the past, but the handful of cases
cited by respondents, and their complete lack of success, demonstrate
that suppression issues simply have not played a major role in
deportation hearings.  By contrast, the Ninth Circuit's ruling
inevitably will cause a substantial increase in the number of such
motions filed.  /13/
   Respondents contend (Br. 86-87) that adequate tools are available
to deal summarily with frivolous suppression motions.  But if an alien
need only allege facts similar to those alleged in respondents' cases
in order to raise a colorable suppression issue, it is obvious that
the threshold is so low that virtually every alien could meet it.  The
alien need rely only on the likelihood that INS would be unable to
refute his claim because the volume of enforcement encounters makes it
difficult for agents to recall the details of each arrest.  Under
these circumstances, there is no reason (other than the inability of
many illegal aliens to secure legal advice) not to file a suppression
motion in most cases.
   The substantial systemic costs that would flow from such a radical
change in the deportation system are obvious.  As the BIA recognized,
"(t)he ensuing delays and inordinant (sic) 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 counterbalanced by any apparent
productive result" (Matter of Sandoval, 17 I. & N. Dec. at 80 (J.A.
177)).  Respondents have not demonstrated any basis for rejecting the
BIA's conclusion.
   6. Respondents contend that existing alternatives to the
exclusionary rule, such as internal discipline, Bivens suits, and
actions for declaratory or injunctive relief, are not "adequate
safeguards against the overzealous conduct of INS officers" (Br.
46-47).  The pertinent question, of course, is whether the addition of
the exclusionary rule would materially enhance the lawfulness of INS's
activities.  In our submission, it would not.  Moreover, the
alternative remedies rejected by the court of appeals, even if not
wholly effective, almost surely are more effective than the
exclusionary rule would be.
   a. Respondents assert that "there are nearly insurmountable
standing and equitable prerequisites which render injunctive relief
extremely difficult to obtain" (Br. 48-49).  While it is true that
such actions require a proper plaintiff, /14/ the obstacles are not
nearly as formidable as respondents contend.  Indeed, it is
particularly ironic that every example of a successful challenge to an
INS enforcement practice cited by respondents (Br. 30-31 n.9) arose in
the context of an action for damages or declaratory and injunctive
relief.  Respondents are unable to offer even a single example of a
policy change brought about as a result of the application of the
exclusionary rule.  Thus, if one were to accept respondents' view that
the suppression remedy was actively applied in the pre-Matter of
Sandoval period (see page 6, supra), then all respondents have managed
to demonstrate is that it is a far more feeble tool than civil actions
for declaratory or injunctive relief.  In short, it is clear from
respondents' own citations that civil actions have played an important
role in policing INS search and seizure activities.  /15/
   b. Respondents also argue (Br. 51-54) that Bivens actions are an
ineffective remedy, primarily because they rarely succeed.  /16/
Respondents complain that Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982), shields INS agents from liability "insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." But application
of the exclusionary rule to such cases would be equally inappropriate.
 See generally, Brief for the United States, United States v. Leon,
cert. granted, No. 82-1771 (argued Jan. 17, 1984).
   Moreover, as we noted in our opening brief (at 48), Bivens actions
need not be successful to exert a deterrent effect.  Respondents
dismiss this suggestion as "hollow" (Br. 53), but they offer no
support for their position.  This Court recognized the validity of the
point respondents so cavalierly dismiss in Carlson v. Green. 446 U.S.
14, 21 (1980) (footnote omitted (emphasis added)), noting that "(i)t
is almost axiomatic that the threat of damages has a deterrent
effect." INS officially recognizes the same point through its policy
of intentionally erring on the conservative side of close
constitutional questions (INS Handbook iv):
      If our policy is somewhat more restrictive than the
      Constitutional limit, * * * our officers are less likely to be
      involved in litigation over alleged violations of persons'
      Constitutional rights (Bivens suits).  Also, such suits are less
      likely to be brought, saving the Department, the agency, and the
      individual employee the expense, time, and anguish which such
      litigation entails.
   Finally, respondents contend (Br. 54) that Bivens actions "fail to
provide INS with effective incentives to adopt general policies and
procedures designed to conform officers' practices to constitutional
requirements." This assertion is wholly unsubstantiated, and it is
contrary to this Court's observation in Carlson v. Green, 446 U.S. at
21, that "responsible superiors are motivated not only by concern for
the public fisc but also by concern for the Government's integrity."
Moreover, the government already "pays" for its officers' alleged
misconduct by defending Bivens suits, and the Administration is
supporting legislation to substitute the United States as the
defendant in Bivens-type actions.  See, e.g., S. 829, 98th Cong., 1st
Sess. (1983).  Again, therefore, the potential for Bivens actions,
whether successful or not, is at least as likely to deter unlawful
conduct by INS agents as is the exclusionary rule.
   c. Relying primarily on a 1980 report (U.S. Comm'n on Civil Rights,
The Tarnished Golden Door:  Civil Rights Issues in Immigration
(hereinafter cited as The Tarnished Golden Door)), respondents
criticize (Br. 54-61) INS's internal disciplinary program as
inadequate.  Most of the criticism, however, is both insubstantial
/17/ and obsolete.  At approximately the same time that The Tarnished
Golden Door was published, INS was voluntarily instituting a complete
restructuring of its internal disciplinary program in response to
deficiencies found not by the Civil Rights Commission but by an
internal Department of Justice audit.  The first and perhaps most
significant change was the hiring of a new director for INS's Office
of Professional Responsibility.  As described in one of respondents'
sources that is otherwise quite critical of INS (J. Crewdson, The
Tarnished Door:  The New Immigrants and the Transformation of America
212 (1983)), the agency "recruited a tough New York City police
inspector named Walter Connery to run (the OPR).  That Connery was
serious about his job quickly became evident * * *.) /18/
   As a result, many of the deficiencies cited by respondents no
longer exist.  For example, complainants are routinely notified of the
disposition of their complaints, a "Case Factor Solvability System"
has been designed and implemented to provide clear guidance to
investigators on the standards to be applied in closing or continuing
investigations, and the files of closed cases are now (and have been
since 1980) permanently retained.  /19/ In addition, more changes of
the type desired by respondents are in the planning stages.  For
example, pre-addressed, postage prepaid, Spanish/English complaint
"postcards" have been prepared (a sample is being lodged with the
Court and served on respondents' counsel) to simplify as much as
possible the process for filing complaints, and the OPR is now
considering various means for increasing public awareness of the
complaint process.  In addition, records of complaints and
investigations are being computerized so that effective monitoring
will be greatly enhanced.
   Respondents complain (Br. 58) that INS keeps no records on the
number of complaints or disciplinary actions involving Fourth
Amendment violations by INS officers.  It is true that such complaints
are not separately tracked, but we are advised by INS that complaints
involving "pure" Fourth Amendment violations are relatively rare.
Instead, such complaints are generally inextricably interwoven with
complaints falling in the broad category of "civil rights" violations.
 These complaints are thoroughly investigated and, as we noted in our
opening brief, appropriate disciplinary action is taken.  /20/
   For the foregoing reasons, and the reasons set forth in our opening
brief, the judgments of the court of appeals should be reversed.
   Respectfully submitted.
   REX E. LEE
      Solicitor General
   APRIL 1984
   /1/ Even if there were the slightest foundation for respondents'
assertions that failure to apply the exclusionary rule in deportation
proceedings would lead to "open season" on the Fourth Amendment rights
of Hispanic Americans, which there is not, respondents are hardly the
proper parties to represent such interests.  Respondents are not
Hispanic Americans;  they are illegal aliens.  Both respondents
admitted their unlawful presence in this country (J.A. 99-101;  Pet.
App. 101a, 112a);  to the extent that respondents' brief (at 5, 11)
may be read as suggesting otherwise, it is totally lacking in record
support.  Respondents have never before contended that their
admissions of illegal alienage were incorrect;  their only challenge
was to the use of those admissions because of the allegedly unlawful
arrests that preceded them.
   /2/ With respect to detentive questioning, INS requires its agents
to have a reasonable suspicion of illegal alienage (INS Handbook 3).
And to make an arrest, the agents must of course have probable cause
(id. at 4).
   /3/ Respondents do make the assertion that "(p)atterns of INS
conduct in reported cases evidence widespread Fourth Amendment
violations by immigration officers) (Br. 30 n.9).  But the handful of
cases respondents cite do not demonstrate "widespread" violations, and
they certainly do not indicate any increase in violations in the
post-Matter of Sandoval period.  INS v. Delgado, cert. granted, No.
82-1271 (argued Jan. 11, 1984), is a rather poor choice to illustrate
respondents' point, given that this Court has under submission the
question whether any Fourth Amendment violation even occurred.  LaDuke
v. Nelson, 560 F. Supp. 158 (E.D. Wash. 1982), appeal pending, No.
83-3608 (9th Cir.), involved a challenge to INS procedures used to
inspect farm labor housing units in search of illegal aliens.  The
district court noted that the challenged procedures were discontinued
in 1979 (560 F. Supp. at 161-162) and had not been resumed at the time
of decision in 1982 (id. at 164).  The discontinuance was ordered by
former Attorney General Civiletti three months after the BIA's
decision in Matter of Sandoval, supra.  Obviously, the Attorney
General did not view the BIA's decision as an incentive to declare
"open season" on Hispanic Americans.  Moreover, the district court's
decision that Fourth Amendment violations had occurred rested largely
on the reasoning of the Ninth Circuit now under review by this Court
in Delgado (see 560 F. Supp. at 162-163).  Marquez v. Kiley, 436 F.
Supp. 100 (S.D.N.Y. 1977), involved a challenge to "Area Control"
operations, in which INS agents went to areas believed to contain
large populations of illegal aliens and questioned suspected aliens as
to their status.  The plaintiffs sought damages and declaratory and
injunctive relief.  Their claim for damages was denied, the district
court holding that the agents acted reasonably in detaining one
plaintiff and arresting another (436 F. Supp. at 107-109).  The court
granted declaratory relief, but it declined to issue an injunction
because "Area Control" operations had been voluntarily discontinued in
1973 (id. at 109, 114).  Even as to the grant of declaratory relief,
the court noted that the "issue is not free from doubt" (id. at 114)
and recognized that its decision was contrary to the decisions of
several courts of appeals (id. at 112).  In Mendoza v. INS, 559 F.
Supp. 842 (W.D. Tex. 1982), the court clarified its preliminary
injunction to make it consistent with pre-existing agency policy,
holding that INS agents need not have a reasonable suspicion of
illegal alienage before engaging a person in non-detentive questioning
and that "INS agents have the same right to enter (commercial)
premises that any other person has," i.e., without a warrant and
without reasonable suspicion that illegal aliens are present.  559 F.
Supp. at 851-852.  Although certain aspects of the search for aliens
at issue in Mendoza may have violated agency policy, there is no
suggestion in the opinion that the incidents in that case were
indicative of a widespread pattern of abuse.  Finally, the district
court's injunction in Illinois Migrant Council v. Pilliod, 398 F.
Supp. 882 (N.D. Ill. 1975), was affirmed by an equally divided en banc
court (548 F.2d 715 (7th Cir. 1977)), but only after the injunction
was modified to permit non-detentive questioning even in the absence
of reasonable suspicion of illegal alienage (ibid.).  In any event,
the most serious problems found by the district court, relating to
"Area Control" operations and warrantless entries into residences,
have been voluntarily discontinued by INS on a nationwide basis.  See
page 11, infra.
   /4/ Respondents' citation (Br. 97 nn.81-82) of books and newspaper
articles recounting a handful of incidents in which citizens or
lawfully-present aliens were apprehended by INS not only fails to show
anything approaching the widespread pattern of police misconduct that
moved the Court to extend the exclusionary rule to state criminal
trials in Mapp v. Ohio, 367 U.S. 643 (1961), but does not support the
conclusion that the Fourth Amendment rights of even those few persons
were violated.  As the Court reaffirmed in Illinois v. Gates, No.
81-430 (June 8, 1983), slip op. 16, 19-20, the concept of probable
cause deals with probabilities, not certainty.  Respondents have not
shown that the apprehensions they cite were unsupported by probable
cause.
   /5/ Not a single one of the cases cited by respondents in this
latter category (Br. 68-69 n.48) contains a finding by the BIA of a
Fourth Amendment violation.  Instead, the BIA found it unnecessary in
each case to determine whether there had been a Fourth Amendment
violation.  In Matter of Perez-Lopez, 14 I. & N. Dec. 79 (1972), the
immigration judge had initially terminated the deportation proceeding
upon finding that the evidence used to establish deportability was
tainted by a Fourth Amendment violation.  Thereafter, the proceeding
was reopened and the alien found deportable on the basis of an
anonymous tip that led INS to the same evidence in its files that
previously had been suppressed.  On appeal, the BIA affirmed the order
of deportation and expressly noted that it was unnecessary to pass on
the validity of the immigration judge's initial order terminating the
proceedings (id. at 81).
   Respondents also erroneously assert (Br. 70) that the BIA found a
Fourth Amendment violation in Matter of Sandoval, supra.  In fact, the
Board found only that Emma Sandoval had established a prima facie case
that would be sufficient to require the Service to justify its actions
or demonstrate that any taint was too attenuated to require
suppression (17 I. & N. Dec. at 73-74 (J.A. 168)).  The Board's ruling
on the applicability of the exclusionary rule rendered any such
showing unnecessary.
   /6/ The BIA does occasionally terminate deportation proceedings
when it finds that the circumstances surrounding a particular arrest
and interrogation would render use of the evidence thereby obtained
fundamentally unfair, in violation of the Fifth Amendment's Due
Process Clause.  See Pet. Br. 41-43.  But, so far as we are aware, the
Board has never suppressed evidence or terminated a deportation
proceeding on Fourth Amendment grounds alone.
   Respondents' contention (Br. 69-69 n.48) that the unappealed and
unpublished decisions of the immigration judges likely contain
"numerous" instances of suppression is inherently implausible.  In
light of the fact that the Service has never lost a Fourth Amendment
suppression issue before the BIA, it seems most unlikely that it would
consistently decline to appeal adverse decisions by immigration
judges.
   /7/ Respondents contend (Br. 101) that the government cannot be
heard to complain that no Fourth Amendment violations occurred in the
cases now before the Court because we did not seek review on that
issue in Sandoval's case and it has yet to be determined in Lopez's
case.  It is of course true that, should the Court agree with the
Ninth Circuit that the exclusionary rule is generally applicable to
deportation proceedings, we would not be entitled to reversal on the
basis of any error in that court's conclusions on the merits of the
Fourth Amendment issues.  But that is a far cry from saying that this
Court should decide the exclusionary rule issue without considering
how the rule would work in practice.  For that purpose, the Court may
properly examine typical deportation proceedings, including the
instant cases, in order to assess our contention that there will be a
relatively poor correlation between applications of the suppression
remedy and actual Fourth Amendment violations.
   /8/ Sandoval's testimony was never credited or relied upon by the
immigration judge, the BIA, or the court of appeals.
   /9/ Respondents also assert (Br. 5) that Sandoval asked for his
attorney while at the police station, and suggest that he did so prior
to providing the information Agent Bower used to complete the I-213.
Agent Bower testified to the contrary (J.A. 143):
         Q (By respondent's counsel:) Did (Sandoval) at that time
      indicate that he wanted to talk with me in the language some of
      my clients use "Abogado Charlie?"
         A (Agent Bower:) No, he did not.  Neither he nor his wife
      indicated they wished to communicate with you at that time.
   Agent Bower testified that it was not until he was through
processing Sandoval, i.e., after he had completed the I-213, that
Sandoval indicated his desire to talk to an attorney to arrange bond
and to take care of his wife and baby (J.A. 143).
   /10/ See, e.g., INS v. Olivas-Monorrez, petition for cert. pending,
No. 83-1535.  In that case, the Border Patrol Agent who made the
arrest could not recall exact details, but he testified that his
customary procedure was not to stop anyone for questioning in the
absence of articulable facts that would lead to the belief that the
person stopped was probably an alien.  He also testified that the
arrest was part of a six-day operation in which six Border Patrol
Agents had apprehended approximately 280 undocumented Mexican aliens.
On the particular day that Olivas-Monorrez was arrested, the arresting
agent and his colleagues already had gone to several different ranches
and they "had cars and people running and going in different
directions" (A.R. 32).  (We have furnished respondents' counsel with a
copy of our petition in Olivas-Monorrez.)
   /11/ In Lopez's case, the Fourth Amendment issue has not yet been
decided.  Nevertheless, we think it clear that no violation occurred.
Respondents' argument (Br. 105-106 & n.90) that Lopez had a legitimate
expectation of privacy in the transmission repair shop where he worked
is inherently implausible.  See, e.g., Babula v. INS, 665 F.2d 293,
297 (3d Cir. 1981).  (Contrary to respondents' argument (Br. 105
n.90), Steagald v. United States, 451 U.S. 204, 208-211 (1981), in no
way forcloses us from bringing the facts of Lopez's case to the
Court's attention, nor would it prevent the government from pressing
its standing argument in the event of a remand.) Respondents also
argue (Br. 105-106) that the agents had Lopez's name prior to entering
the transmission shop and that they therefore should have obtained a
warrant for his arrest.  Respondents' version of the facts is based on
counsel's offer of proof (J.A. 71-73) and is contrary to the agents'
testimony (J.A. 15-49).  Even if respondents' version were correct,
however, it is irrelevant to the existence of a Fourth Amendment
violation.  Assuming, arguendo, that the agents had Lopez's name in
advance, they could not have secured an arrest warrant based on that
fact alone;  probable cause to justify an arrest developed only after
Lopez was questioned and voluntarily admitted his illegal alienage.
At that point, the agents concluded, based on Lopez's lack of ties to
this country, that he was likely to abscond before they could obtain a
warrant.  On the government's version of the facts, there likewise was
no basis for securing a warrant in advance, since the agents testified
that they had no prior knowledge of Lopez.  Contrary to respondents'
argument (Br. 106), however, there was no illegality because there was
no "investigatory stop" (ibid.) that required suspicion of illegal
alienage.  One of the agents merely engaged Lopez in brief,
non-detentive questioning, in response to which he voluntarily
admitted his unlawful presence.
   /12/ Respondents argue that we have asked the Court to "plac(e) on
Respondents the burden of empirically proving the beneficial effects
of applying the (exclusionary) sanction in deportation proceedings"
(Br. 44 (emphasis added)).  Since we readily acknowledged the absence
of any empirical data on the effectiveness of the exclusionary rule
(Pet. Br. 14), it is not surprising that respondents fail to offer any
citation to our brief in support of their assertion.  We do not expect
respondents to come forward with nonexistent empirical data in support
of the rule any more than we ourselves can provide empirical data
disproving its effectiveness.  Respondents do, however, legitimately
carry the burden of demonstrating some reasoned basis for accepting
the plausibility of the deterrence hypothesis in this context, an
effort they have not even attempted.
   /13/ We noted in our opening brief (at 29-30 & n.19) that such a
trend was already noticeable.  Respondents are critical of our
reliance on matters not in the record before the court of appeals, but
we do not believe it is improper to advise the Court of the effect of
the court of appeals' decision.  Obviously, this material could not
have been presented to the court of appeals.  Moreover, we readily
acknowledged that the figures noted in our brief were estimates and
that complete accuracy was not possible.  Nevertheless, a discernible
trend is apparent, and the Court should be aware of it in its
consideration of this case.
   /14/ Respondents' concern that potential plaintiffs would lack
standing to bring such actions appears exaggerated, at least in a case
such as Sandoval's.  The same question arose during oral argument in
INS v. Delgado, No. 82-1271 (argued Jan. 11, 1984).  Government
counsel was asked whether the factory employees in that case had
standing in light of the Court's decision in City of Los Angeles v.
Lyons, No. 81-1064 (Apr. 20, 1983).  He responded that they did
because of the likelihood that similar surveys would be conducted
again at the same factories.  Tr. of Oral Arg. 5, 61-62.  Here, too,
the record reflects that INS agents had been to Sandoval's place of
employment in the past (J.A. 128), and, given the effectiveness of the
surveys as an enforcement technique, there is every reason to believe
that they will be repeated at factories known to employ significant
numbers of illegal aliens.
   Apart from standing, there may well be a question concerning the
propriety of injunctive relief.  Ordinarily, a law enforcement agency
does not have to be enjoined in order to obtain its compliance with
the law, and thus declaratory relief will usually suffice.  Cf.
Marquez v. Kiley, 436 F. Supp. 100, 114 (S.D.N.Y. 1977).  Notably,
respondents do not even address the availability of declaratory
relief.
   /15/ Respondents complain (Br. 50) that injunctive relief "can be
obtained only after the deterrence mechanism has failed." But the need
to invoke the exclusionary rule in any particular case likewise means
that the deterrence mechanism has failed.
   /16/ Respondents also complain that a potential Bivens plaintiff
(1) must be aware that the INS agent's conduct was unlawful and (2)
must then be able to find a lawyer to take his case, pay for it, and
endure protracted proceedings.  The first requirement hardly seems
onerous;  if a person is not even aware that the agent's conduct was
unlawful, it seems doubtful that he has suffered any serious injury.
As for the second "obstacle," the Court may take judicial notice of
the fact that there is no shortage of lawyers willing to handle Bivens
suits or to represent persons such as respondents, as evidenced by
their counsel in this case.  Finally, the costs of litigation and the
length of the proceedings are inevitable costs associated with our
entire judicial system, and they would likewise be incurred by a
person invoking the exclusionary rule as a defense to the Service's
attempts to deport him.
   /17/ Repeatedly, The Tranished Golden Door adverts to various
deficiencies in INS's internal disciplinary program and then observes
in footnotes that INS in fact was doing precisely what the Civil
Rights Commission believed should be done, but that it had not
incorporated those practices into its official Operations
Instructions.  See, e.g., id. at 123 & nn.52, 57, 125 & nn.73, 75.  We
do not view this excessive concern with form over substance as
indicative of serious problems requiring correction.
   /18/ Prior to joining INS, Connery was the commanding officer in
charge of internal discipline for the New York City Police Department.
   /19/ These changes and others are set forth in Office of
Professional Responsibility, INS, U.S. Dep't of Justice, Investigators
Manual (Jan. 1984).  We are lodging a copy of the Investigators Manual
with the Court and furnishing one to respondents' counsel.  Although
the manual was only recently completed, many of the procedures
described therein have been in effect since 1980.  To the extent that
the Investigators Manual specifies procedures different from those
contained in INS's Operations Instructions (which are undergoing
revision in consultation with the unions representing INS employees),
INS considers the Investigators Manual to control.
   /20/ Respondents contend that INS's internal disciplinary program
is inadequate in part because it has not stopped "even the most
flagrant corruption and brutality" (Br. 55).  This is somewhat like
saying that the criminal laws should be abandoned because they fail to
stop crime.  What is important is that INS responds to these incidents
with appropriate action, ranging from administrative sanctions to
criminal prosecutions.