PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_____________

No. 10-3849

_____________

ERICK RODOLFO OLIVA-RAMOS,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent.

_____________

On Petition for Review of a Final Order

of the Board of Immigration Appeals

Immigration Judge: The Honorable Linda S. Wendtland

(No. A088-231-019)

_____________

Argued 

November 16, 2011

Before: McKEE, Chief Judge, RENDELL and AMBRO, 

Circuit Judges

(Opinion filed: September 13, 2012)

Nancy Morawetz, Esquire

Alina Das, Esquire

Nikki R. Reisch, Law Student (argued)

Stephen Kang, Law Student

Ruben Loyo, Law Student

Nancy Steffan, Law Student

Washington Square Legal Services, Inc.

245 Sullivan St., 5th Floor
2

New York, NY 10012

Counsel for Petitioner

Allen W. Hausman, Esquire (Argued)

Andrew J. Oliveira, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

Timothy E. Hoeffner, Esq.

DLA Piper

1650 Market Street

One Liberty Place, Suite 4900

Philadelphia, PA 19103

AMERICAN CIVIL LIBERTIES UNION

 Amicus Appellant

__________________

OPINION OF THE COURT

__________________

McKEE, Chief Judge.

Erick Oliva-Ramos petitions for review of an order of 

the Board of Immigration Appeals affirming an Immigration 

Judge‘s order removing him to Guatemala. He also seeks 

review of the BIA‘s denial of his motion to supplement the 

record and to reopen his removal proceeding before an 

Immigration Judge.1 We must decide whether the BIA erred 

in refusing to apply the exclusionary rule in a removal 

proceeding under the circumstances in this case. A related 

question that we must address is whether the BIA abused its 

 

1 We consolidated the petition for review of the BIA‘s denial 

of his motion to reopen with our review of the underlying 

removal order pursuant to 8 U.S.C. § 1252(b)(6).
3

discretion in not reopening this case to allow Oliva-Ramos to 

supplement the administrative record with evidence of 

widespread and/or egregious conduct by Immigration and 

Customs Enforcement (―ICE‖) officials. Finally, we must

determine if alleged violations of regulations entitle OlivaRamos to relief. For the reasons explained below, we will 

grant the petitions, vacate the BIA‘s order of removal, and 

remand to the BIA for further proceedings consistent with this 

opinion.2

I. Factual Background

At 4:30 a.m. on March 26, 2007, a team of armed, 

uniformed ICE officers repeatedly rang the entrance ―buzzer‖

to the Englewood, New Jersey apartment where Erick OlivaRamos lived. Oliva-Ramos shared the home with his three 

sisters (Clara, Wendy, and Maria), his nephew (Wagner), and 

his brother-in-law (Marvin). Two visiting family friends 

were also in the apartment. Of those present, only Clara 

could prove that she was legally in the United States.

According to the affidavit that was introduced at 

Oliva-Ramos‘s removal hearing, Clara heard the incessant 

buzzing, but could not tell who was ringing the bell because 

the intercom was broken.3 Since it was 4:30 a.m., she 

 

2

The BIA granted Oliva-Ramos‘s request for voluntary 

departure but that order automatically terminated upon the 

filing of the motion to reopen and the petition for review, and 

the alternate order of removal immediately took effect. 

Sandie v. Att’y Gen., 562 F.3d 246, 255 n.5 (3d Cir. 2009) 

(citing 8 C.F.R. § 1240.26(f)).

3

The IJ noted that although Oliva-Ramos submitted affidavits 

from Clara, Marvin, and Wagner, those family members were 

―not present in court and unavailable for cross-examination 

by the Department of Homeland Security.‖ The IJ ―weighed 

[these] document[s] accordingly.‖ The IJ considered the 

affidavit of Clara Oliva to the extent that it corroborated the 

testimony of the Government‘s witness on consent to enter 

the home, but did not explicitly state additional credibility 

determinations as to the weight of affidavits from family 

members not present at the suppression hearing. 
4

remotely opened the building‘s entry door because she feared 

that the repeated buzzing signaled an emergency. While in 

her pajamas, she stepped onto the landing outside her 

apartment as she held her apartment door open with her foot 

and saw five or six ICE officers coming up the stairs. 

As the officers approached the front door of the 

apartment, they waived an administrative warrant for OlivaRamos‘s other sister, Maria. Clara later stated that she 

realized that the people coming up the stairs were ICE agents 

when they said they had an order to arrest Maria. The 

officers had no information about the identity or legal status 

of any of the other occupants of the apartment. Before 

entering the apartment, the officers asked Clara for her name 

and immigration status, and she informed them that she was a 

legal permanent resident. The officers then asked if Clara 

lived in the apartment and asked permission to enter. In her 

affidavit, Clara explained that she did not deny entry even 

though Maria was not there because she (Clara) believed that 

she could not refuse and that the order to arrest Maria gave 

the officers the right to enter even in Maria‘s absence. 

At some point during the exchange with the officers, 

Clara lost her foothold on the open door and it slammed shut, 

leaving her outside the apartment. Her son let her in, 

however, after she banged on the door. As she entered, the 

officers lined up behind her and followed her inside. Once 

inside, they began waking the occupants and ordering them 

into the living room while another agent blocked the door so 

that no one could leave. 

According to Oliva-Ramos‘s affidavit and testimony 

before the IJ, Clara knocked on his bedroom door and told 

him that immigration officers were there. Oliva-Ramos 

shared his bedroom with his sister, Wendy, and her husband. 

Oliva-Ramos was sleeping, but Wendy opened the bedroom 

door.4 

 

4

Since it was before dawn, the bedroom lights were turned 

off. 
5

An armed officer in a green ICE uniform shone a 

flashlight into the room and ordered everyone to move to the 

living room. Oliva-Ramos was in his pajamas but was 

permitted to get dressed under the supervision of an ICE 

officer. He testified that ―there was no way [he] could have 

left‖ the presence of the officers. 

The officer then directed Oliva-Ramos to the living 

room and told him to sit down. In addition, Oliva-Ramos 

testified that the officer did not identify himself, show him a 

badge or identification, or tell him why he (the officer) was in 

the apartment. During the removal hearing, Oliva-Ramos 

also testified that he was not told that he could refuse to go 

with the officer.5

 After everyone was escorted to the living room, five 

or six armed ICE officers began questioning everyone about 

Maria. During that questioning, the officers blocked each 

entrance to the living room. Oliva-Ramos testified that he 

heard an officer tell Clara to sit down when she tried to stand. 

He also said he heard the officer tell her that if she did not sit, 

she could be arrested. The officers asked about the identities 

and nationalities of all of the apartment occupants. Clara‘s 

son, Wagner, initially refused to answer questions, but 

relented when the officers ordered him to speak and told him 

he could not refuse to answer them. 

The officers did not ask Oliva-Ramos any questions in 

the living room but ordered him back to his bedroom to 

retrieve his identification documents. An officer followed 

Oliva-Ramos to the bedroom as he retrieved his identification 

and escorted him back to the living room. Oliva-Ramos 

stated that he went to retrieve his documents because he 

thought that, if he did not go, he could be arrested because he 

did not have papers. He also thought that if he showed his 

Guatemalan identification to the officer, nothing would 

happen. The documents he retrieved revealed that he is a 

citizen of Guatemala; he was unable to produce any 

 

5 Oliva-Ramos testified that he was nervous and that an 

officer followed him from the bedroom to the living room.
6

documentation demonstrating that he was lawfully present in 

the United States.

The encounter lasted approximately forty-five minutes. 

During that time, Oliva-Ramos and his family were prevented 

from eating, drinking, or speaking out of turn. According to 

Clara‘s affidavit, her sister (Wendy) began menstruating 

while the family was in the living room, but Clara was not 

allowed to get any feminine hygiene products for her. 

According to Oliva-Ramos‘s affidavit, although Wendy and 

Oliva-Ramos were eventually allowed to use the bathroom, 

they had to leave the door open while an ICE officer stood 

outside the door, thus denying them the most rudimentary 

considerations of privacy. 

Clara was able to document that she was legally in the 

United States. All others were eventually handcuffed, placed 

in an ICE van and driven around while the officers made 

several more raids. At each stop, the agents followed a 

similar pattern of knocking on doors and making general 

inquiries about the legal status of all of the occupants in a 

residence. These stops resulted in two more individuals being 

placed in the van. 

At around 7:00 a.m., Oliva-Ramos and his family 

arrived at the ICE office, where they were placed in a 

detention room containing an open toilet. Oliva-Ramos 

testified that there he was told to fill out papers written in 

Spanish, and he was given the option of signing them. He 

had to wait until the afternoon before he was questioned.6 He 

claims that neither he nor his relatives were given food nor 

water in the interim. The ICE officers who conducted the 

raid eventually interviewed the detainees. Oliva-Ramos was 

interviewed by ICE Officer Marlene Belluardo. After being 

interviewed, Oliva-Ramos was charged with being removable 

and was taken to a detention facility. While there, he was 

informed of his right to a lawyer and given a list of free legal 

service providers. Between 6:00 and 7:00 p.m., he was 

finally given the first food that he had been allowed to eat 

during his 15-hour ordeal.

 

6 He stated that he was not told that he had a right to remain 

silent or that his answers could be used against him in a court 

of law. 
7

A. Immigration Court Proceedings

During the ensuing removal proceedings, Oliva-Ramos 

testified on his own behalf with the assistance of a Spanish 

interpreter. He was cross-examined about the raid, his arrest, 

and his examination at the ICE office. He also presented the 

supporting affidavits of Clara, Wagner, and Marvin, although 

they were not present in court to testify. 

The Government presented only one witness, the 

arresting and interviewing ICE officer, Marlene Belluardo. 

Officer Belluardo testified that she had taken part in 

―hundreds‖ of home raids since participating in the raid at 

Oliva-Ramos‘s apartment on March 26, 2007, but had no 

independent recollection of the raid that led to Oliva-Ramos‘s 

detention. Officer Belluardo stated that she does not 

remember anything about the apprehension, but 

acknowledged her participation based upon having filled out 

Form I-213, the Record of Deportable/Inadmissible Alien, 

which listed her as an arresting officer.7 She testified about 

the general procedures used in ICE field operations, but her 

only knowledge of Oliva-Ramos came from the I-213 form. 

Officer Belluardo recognized him from the picture contained 

on the I-213 form. She testified that she received three 

months‘ training on how to conduct investigative work, how 

to look for subjects with warrants, and about the confines of 

the Fourth Amendment. 

Belluardo also testified about the standard protocol for 

fugitive operations. She said that when she goes to a home 

with a warrant, it is a ―knock warrant,‖ which is an 

administrative warrant. Someone has to respond to her knock 

on the door and grant permission to enter, as an officer is only 

permitted to enter with permission. Officer Belluardo 

confirmed that there was no warrant for Oliva-Ramos but 

only a deportation warrant for Maria. Belluardo testified that 

it is standard protocol to get everyone in the house to a central 

location so that the officers can identify the subject and 

anyone else in the house. In addition, she testified that 

everyone is brought into the living room as a central area of 

safety for everyone in the house. Each person is asked his or 

 

7

 Three officers were listed as arresting officers. 
8

her identity, and any person found to be in the United States 

without documents or with questionable documents is taken 

into custody. Finally, Officer Belluardo testified that, when 

apprehending a suspect, questions asked are usually just to 

identify the person and that no other questions are asked until 

they are taken into custody and transported to the processing 

area. 

The Government also presented the following four 

documents to support its charge of removability: Form I-213, 

the Record of Deportable/Inadmissible Alien; Form I-215B, 

the affidavit of Erick Oliva-Ramos; the face page of a 

Guatemalan passport; and a Guatemalan consular 

identification card. Oliva-Ramos objected to that evidence 

and moved to preclude consideration of all of the 

Government‘s evidence obtained during the raid of his 

apartment and his subsequent arrest. He argued that the 

evidence had been obtained by exploiting violations of the 

Fourth Amendment that were both egregious and widespread,

and thus the exclusionary rule should apply. He also moved 

to terminate the proceedings, and requested an evidentiary 

hearing on his suppression motion.

The Immigration Judge denied the motion to suppress 

and the motion to terminate the proceedings. As a threshold 

matter, the IJ noted that the Government did not dispute that 

Oliva-Ramos had been detained without a warrant. However, 

the IJ cited to BIA authority that had relied on INS v. LopezMendoza, 468 U.S. 1032 (1984), wherein the BIA had stated: 

―[E]ven assuming a warrantless arrest, the exclusionary rule, 

which requires a court to suppress evidence that is the fruit of 

an unlawful arrest or of other official conduct that violates the 

[F]ourth [A]mendment, does not apply in deportation 

proceedings.‖ The IJ concluded that ―[i]n removal 

proceedings . . . an alien cannot generally suppress evidence 

asserted to be procured in violation of the Fourth Amendment 

unless the alleged violation(s) are so egregious as to 

 ̳transgress notions of fundamental fairness.‘‖ (citing LopezMendoza, 468 U.S. at 1050-51).

In rejecting Oliva-Ramos‘s argument that the 

Government had entered his home without valid consent in 

violation of 8 C.F.R. § 287.8(f)(2) (2008), the IJ relied on the 
9

Government‘s assertion that ―consent was obtained prior to 

immigration officers entering the Respondent‘s residence 

from a  ̳person in control of the site to be inspected,‘ namely, 

the Respondent‘s sister, Clara Oliva.‖

8

 The IJ explained: 

―[T]he I-213 clearly indicates that consent to enter the 

residence was obtained from Clara Oliva, and that ICE had a 

warrant for Maria Oliva at that address.‖ In weighing the 

testimony, the IJ noted that ―Ms. Belluardo testified that she 

ha[d] no independent recollection of the specific events of 

Respondent‘s detention, and her testimony is based on the 

facts as documented in the I-213 which she prepared in the 

ordinary course of business immediately following the 

Respondent‘s detention.‖ The IJ also relied on Officer 

Belluardo‘s testimony that ―obtaining consent prior to entry is 

consistent with training ICE officers, including her, receive in 

the course of employment with DHS.‖ In addition, the IJ 

stated that Oliva-Ramos‘s testimony, and his sister Clara 

Oliva‘s affidavit, were consistent with the testimony of 

Officer Belluardo and the I-213. Thus, the IJ found that 

―consent to enter the residence at 97A Palisade Avenue was 

properly obtained prior to ICE officers‘ entry into the 

 

8

8 C.F.R. § 287.8(f)(2) states in relevant part: ―An 

immigration officer may not enter into the non-public areas of 

a . . . residence including the curtilage of such residence, . . . 

except as provided in section 287(a)(3) of the Act, for the 

purpose of questioning the occupants . . . concerning their 

right to be . . . in the United States unless the officer has 

either a warrant or the consent of the owner or other person in 

control of the site to be inspected.‖ 

The referenced exception found in Section 287(a)(3) of the 

Immigration and Nationality Act relates to border searches. 8 

U.S.C. § 1357(a)(3), 66 Stat. 233, INA § 287(a)(3) (2006) 

(―Any officer or employee of the Service authorized under 

regulations prescribed by the Attorney General shall have 

power without warrant-- . . . within a reasonable distance 

from any external boundary of the United States, to board and 

search for aliens any vessel within the territorial waters of the 

United States and any railway car, aircraft, conveyance, or 

vehicle, and within a distance of twenty-five miles from any 

such external boundary to have access to private lands, but 

not dwellings, for the purpose of patrolling the border to 

prevent the illegal entry of aliens into the United States.‖). 
10

residence.‖ The IJ did not, however, evaluate any of the 

evidence relevant to whether circumstances might have 

existed to invalidate the alleged ―consent‖ or to determine if 

the circumstances here implicated the exception to the 

nonapplication of the exclusionary rule in removal 

proceedings under Lopez-Mendoza that we discuss in detail 

below.

Moreover, the IJ ruled that the documents OlivaRamos sought to suppress were contained in what is known 

as an ―A‖ file. The IJ relied upon United States v. HerreraOchoa, 245 F.3d 495, 498 (5th Cir. 2001), in asserting that an 

alien maintains no legitimate expectation of privacy in that 

file, and therefore lacks standing to challenge its introduction 

into evidence. 

Oliva-Ramos also sought to subpoena testimony of the 

additional ICE officers who were involved in his seizure as 

well as certain documents that the Government had not 

produced pursuant to Oliva-Ramos‘s Freedom of Information 

Act request (―FOIA‖).9Specifically, Oliva-Ramos sought the 

production of documents related to the search and seizure of 

his home and arrest, training manuals and documentation of

the ICE Fugitive Operation Task Force, relevant ICE policy 

and procedures, and records related to the ICE officers who 

arrested him. In addition, Oliva-Ramos moved to subpoena 

the ICE officers who participated in his arrest. Although the 

IJ indicated that she wanted to address the subpoenas at an 

individual merits hearing, she never ruled on the motion to 

subpoena the additional documents and witnesses.

At a later hearing on removability, the IJ found OlivaRamos removable as charged but granted his request for 

voluntary departure. Oliva-Ramos then appealed to the Board 

of Immigration Appeals. 

B. Board of Immigration Appeals Proceedings

The BIA first considered Oliva-Ramos‘s Fourth 

Amendment claim that the Government had obtained 

evidence of alienage without proper consent through coercion 

 

9

See 5 U.S.C. § 552 (1982).
11

and duress during the raid of his home. The BIA declined to 

address the claim as presented and cited to Lopez-Mendoza, 

explaining that ―the Fourth Amendment exclusionary rule is 

generally not applicable in civil removal proceedings.‖ In a 

lengthy footnote, the BIA acknowledged the following 

language in Lopez-Mendoza on which Oliva-Ramos based his 

Fourth Amendment claim: 

We are mindful that [in Lopez-Mendoza] a 

plurality of the United States Supreme Court 

opined that, in removal proceedings, ―egregious 

violations of the Fourth Amendment or other 

liberties that might transgress notions of 

fundamental fairness and undermine the 

probative value of the evidence‖ might 

potentially warrant a reconsideration of the 

exclusionary rule‘s role in civil removal 

proceedings. INS v. Lopez-Mendoza, supra, at 

1050-51. . . . Further, as the respondent makes 

the argument that the DHS engages in 

―widespread‖ violations of the Fourth 

Amendment (Respondent‘s Br. at 42), we 

acknowledge that the Supreme Court provided 

for the prospective contingency that its 

―conclusions concerning the exclusionary rule‘s 

value might change, if there developed good 

reason to believe that Fourth Amendment 

violations by INS officers were widespread.‖ 

Id. at 1050. (citation omitted). However, first, 

these comments from a plurality of the Supreme 

Court are obiter dictum; second, no such ―good 

reason to believe‖ has yet arisen in the eyes of 

the Supreme Court; and, third, our own 

precedents, by which we are bound, recognize

no such exception to the inapplicability of the 

exclusionary rule premised on widespread 

Fourth Amendment violations . . . .

The BIA also acknowledged that its precedential decisions 

―have provided for the exclusion of evidence against an alien 

in  ̳fundamentally unfair‘ circumstances.‖ The Board then 

noted that ―this principle of fundamental fairness is rooted in 

notions of due process of law, not in the Fourth Amendment 
12

exclusionary rule.‖ Thus, to the extent that the Board 

considered Oliva-Ramos‘s argument at all, it did so ―in terms 

of due process requirements.‖

The BIA found that the Government had satisfied its 

initial burden of establishing alienage through the evidence 

that Oliva-Ramos sought to suppress, including the Form I213 and Form I-215B, as well as his Guatemalan passport and 

identification card. The BIA also concluded that OlivaRamos had not rebutted that evidence prior to receiving a 

grant of voluntary departure. The BIA did not believe that 

any regulatory violations altered the outcome because the 

documents the Government presented ―[were] inherently 

reliable and were not shown to have been created under 

impermissible coercion and duress.‖

The BIA then considered Oliva-Ramos‘s challenges to 

certain administrative regulations governing ICE conduct. 

First, it considered Oliva-Ramos‘s coercion claim that the 

Government impermissibly threatened and coerced him when 

it inspected the non-public, interior areas of his residence, in 

violation of 8 C.F.R. § 287.8(f)(2).10 The BIA cited to the 

IJ‘s finding ―that the DHS first obtained the consent of one of 

the respondent‘s familial cohabitants before entering the 

premises.‖ Since the BIA did not believe that the conclusion 

was clearly erroneous, the BIA relied upon that finding when 

considering all of Oliva-Ramos‘s claims.11

 

10 The BIA relied on Leslie v. Att’y Gen., 611 F.3d 171, 180 

(3d Cir. 2010), for the principle that ―when an agency 

promulgates a regulation protecting fundamental statutory or 

constitutional rights of parties appearing before it, the agency 

must comply with that regulation. Failure to comply will 

merit invalidation of the challenged agency action without 

regard to whether the alleged violation has substantially 

prejudiced the complaining party.‖

11 The BIA also stated that it independently ―considered the 

respondent‘s asserted bases for contending that the consent to 

the officers‘ entry was coerced (or otherwise invalid) but 

[was] not persuaded by them.‖ 
13

Second, Oliva-Ramos claimed that the Government 

had violated 8 C.F.R. § 287.8(b)(1) by impermissibly 

restraining his freedom through threats and coercion during 

the inspection and investigation of his home. However, the 

BIA reasoned that INA § 287(a)(1), the statute under which § 

287.8(b)(1) was promulgated, permits warrantless 

interrogation if ICE officers reasonably believe that a person

may be unlawfully in the United States. The BIA concluded 

that requirement was satisfied once Oliva-Ramos presented 

his Guatemalan passport and identification. The BIA also 

relied on Oliva-Ramos‘s own testimony before the IJ that he 

had no intention of leaving the apartment because he ―didn‘t 

commit any crime.‖ During the hearing before the IJ, he had 

been asked: ―[W]hat would have happened if you‘d asked the 

officers to leave?‖ He responded, ―I couldn‘t tell the officers 

to leave because it‘s the law and I didn‘t have anything to tell 

them.‖

Third, Oliva-Ramos argued that the Government 

violated 8 C.F.R. § 287.8(c)(2)(i) when it arrested him 

without first obtaining a warrant. The BIA rejected that claim 

because INA § 287(a)(2) specifically authorizes warrantless 

arrests where ICE officers have reason to believe that 

someone is here in the United States illegally and poses a risk 

of flight if not detained. See also 8 C.F.R. § 287.8(c)(2)(ii). 

The I-213 stated: ―A field interview revealed that the subject 

was an alien unlawfully present in the United States and he 

was arrested without a warrant in that he appeared to be a 

flight risk.‖

The BIA also rejected Oliva-Ramos‘s claims that 

regulatory violations that did not implicate the Fourth 

Amendment entitled him to relief. The BIA did not believe

that Oliva-Ramos had established a violation of 8 C.F.R. §§ 

287.3(c) or 292.5(b) because he had been properly advised as 

required before formal removal proceedings were initiated.12 

 

12 8 C.F.R. § 287.3(c) provides in relevant part: 

[A]n alien arrested without warrant and placed 

in formal proceedings . . . will be advised of the 

reasons for his or her arrest and the right to be 

represented at no expense to the Government. 

The examining officer will provide the alien 
14

The BIA also rejected Oliva-Ramos‘s argument that his 

examination by the same DHS officer who had arrested him 

in violation of 8 C.F.R. § 287.3(a) entitled him to relief. That

regulation provides that ―[a]n alien arrested without a warrant 

. . . will be examined by an officer other than the arresting 

officer.‖

13

The BIA similarly rejected Oliva-Ramos‘s final 

regulatory claim that DHS had violated 8 C.F.R. § 

287.8(d)(1) when it left him and his fellow detainees locked 

and unattended in a van several times during a two-hour 

 

with a list of the available free legal services 

provided by organizations and attorneys 

qualified . . . that are located in the district 

where the hearing will be held. The examining 

officer shall note on Form I–862 that such a list 

was provided to the alien. The officer will also 

advise the alien that any statement made may be 

used against him or her in a subsequent 

proceeding.

8. C.F.R. § 292.5(b) provides in relevant part: ―Whenever an 

examination is provided for in this chapter, the person 

involved shall have the right to be represented by an attorney 

or representative who shall be permitted to examine or crossexamine such person and witnesses, to introduce evidence, to 

make objections . . . and to submit briefs.‖

13 The BIA held that this particular section requires a 

demonstration of prejudice, unlike several of the other 

regulatory provisions that do not require a showing of 

prejudice under Leslie. The BIA did not reach the question of 

prejudice. It concluded that Oliva-Ramos had not testified 

that he was arrested by the same agent who examined him 

after the arrest because he could not remember Officer 

Belluardo being present during the raid. As discussed above, 

Officer Belluardo had no independent recollection of this 

particular home raid but conceded that she was likely present 

since she filled out the Form I-213 for the investigation of 

Oliva-Ramos‘s home.
15

period while transporting them to the detention facility.14 The 

BIA rejected that contention because Oliva-Ramos had not 

established a regulatory violation. He had not testified before 

the IJ about any periods of time when he was left in the van. 

The BIA noted that Oliva-Ramos had merely directed the IJ‘s 

attention to an affidavit drafted before the suppression 

hearing.15 

The BIA then turned its attention to two allegations of 

misconduct by the IJ. First, it considered Oliva-Ramos‘s

allegation that a translator had improperly translated the 

Spanish word ―arma‖ into the English word ―arm‖ in the 

sense of a body part as opposed to an armament or firearm. 

The BIA found no due process violation because it concluded 

that ―the word was conscientiously translated and . . . all the 

parties present understood the respondent.‖ Second, OlivaRamos alleged that the Immigration Judge demonstrated 

improper bias but the BIA found that the transcript of the 

hearing before the IJ reflected ―that the Immigration Judge 

conducted the sometimes contentious and inherently difficult 

proceedings fairly.‖ Thus, the BIA found no due process 

violations with respect to the IJ‘s conduct of the removal 

proceedings.

Finally, the BIA considered a motion to remand the 

proceedings to the Immigration Judge to consider new 

evidence that was not presented to the IJ. On February 18, 

2009, while his appeal was pending before the BIA, OlivaRamos moved to present previously unavailable evidence of 

alleged widespread Fourth Amendment violations by ICE 

 

14 8 C.F.R. § 287.8(d)(1) provides in relevant part: ―All 

persons will be transported in a manner that ensures the safety 

of the persons being transported. . . . The person being 

transported shall not be left unattended during transport 

unless the immigration officer needs to perform a law 

enforcement function.‖

15 It appears that the BIA also required prejudice because it 

found that this alleged regulatory violation did not ―implicate 

fundamental statutory or constitutional rights at play in the 

respondent’s removal proceeding.‖
16

officials.16 He stated that on October 4, 2007, he had 

requested many documents relating to the procedures 

employed by the Fugitive Operations Teams that conducted 

the raid of his home. The Government had denied his FOIA 

request for these documents, citing FOIA Exemptions 2 and 

7(E).17 Oliva-Ramos only obtained that documentary 

evidence after proceedings before the Immigration Judge

were finished. The documents were finally obtained through 

a FOIA request and not made available until after the April 

suppression hearing and his initial appeal to the BIA.18 Those 

 

16 In addition, Oliva-Ramos also sought to present additional 

evidence relating to the translator‘s interpretation of the word 

―arma‖ discussed above.

17 In denying his FOIA request, the Government explained:

FOIA Exemption 2(high) protects information 

applicable to internal administrative and 

personnel matters, such as operating rules, 

guidelines, and manual of procedures of 

examiners or adjudicators, to the extent that 

disclosure would risk circumvention of an 

agency regulation or statute, impede the 

effectiveness of an agency‘s activities, or reveal 

sensitive information that may put the security 

and safety of an agency activity or employee at 

risk. Whether there is any public interest in

disclosure is legally irrelevant. Rather, the 

concern under high 2 is that a FOIA disclosure 

should not benefit those attempting to violate 

the law and avoid detection. 

ICE Response to Oliva-Ramos‘s FOIA request, definition of 

FOIA Exemption 2 (high) (Feb. 19, 2008)). The Government 

further explained that ―FOIA Exemption 7(E) protects records 

compiled for law enforcement purposes, the release of which 

could disclose techniques and/or procedures for law 

enforcement investigations or prosecutions, or could 

reasonably be expected to risk circumventions of the law.‖ 

Id. (citing ICE Response to FOIA Request, definition of 

FOIA Exemption 7(E) (Feb. 19, 2008)).
17

documents were attached as an exhibit to the motion to 

remand. The motion included ICE memoranda regarding the 

Fugitive Operations Teams and ICE statistics on arrests. 

The ICE memorandum dated September 29, 2006 

changed the agency‘s policy with respect to achieving an 

arrest target of 1,000 ―fugitive aliens‖ per Fugitive Operations 

Team (―FOT‖) as previously established in an ICE 

memorandum dated January 31, 2006. The January 

memorandum had specified that ―collateral arrests‖ would not 

be counted toward the goal of 1,000 arrests. The September 

memorandum changed the policy to permit up to fifty percent 

of each team‘s arrest goal to be satisfied by counting 

―collateral arrests.‖ These are arrests of persons who were 

not themselves the targets of the FOT and had not missed 

removal hearings or departure deadlines, but were discovered 

during ICE operations. In the following fiscal year, when 

Oliva-Ramos was detained by a FOT that was after someone 

else, collateral arrests comprised forty percent of the total 

number of ICE arrests by FOTs. Collateral arrests accounted 

for nearly twenty-five percent of all FOTs arrests in fiscal 

year 2007. Oliva-Ramos argued that he was detained 

pursuant to this policy, and that the policy both encouraged 

and resulted in widespread violations of the Fourth 

Amendment.

However, the Board reasoned that remand was 

unwarranted because the BIA was not bound by the LopezMendoza plurality opinion. As noted above, in LopezMendoza, the Court had recognized the possibility of the 

exclusionary rule applying to civil deportation proceedings 

based on widespread or egregious violations of the Fourth 

Amendment. 

Thus, the BIA dismissed the appeal, denied OlivaRamos‘s motion to remand, and this petition for review 

followed.

II. Standard of Review 

 

18 He obtained the documents after the evidence was released 

to the public as a result of FOIA litigation by a professor at 

the Benjamin N. Cardozo School of Law. 
18

The BIA issued its own opinion. We therefore review 

its decision rather than that of the IJ. Li v. Att’y. Gen., 400 

F.3d 157, 162 (3d Cir. 2005). Where the ―BIA‘s opinion 

directly states that the BIA is deferring to the IJ, or invokes 

specific aspects of the IJ‘s analysis and factfinding in support 

of the BIA‘s conclusions,‖ we review both the BIA and IJ 

decisions. Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 

2005). 

We review the BIA‘s denial of a motion to reopen for 

abuse of discretion. Luntungan v. Att’y Gen., 449 F.3d 551, 

555 (3d Cir. 2006). ―Under the abuse of discretion standard, 

the Board‘s decision must be reversed if it is arbitrary, 

irrational, or contrary to law.‖ Sevoian v. Ashcroft, 290 F.3d 

166, 174 (3d Cir. 2002) (internal quotation marks omitted). 

We review the BIA‘s conclusions of law such as ―whether the 

BIA applied the correct legal standard in considering the 

motion to reopen‖ and the underlying constitutional claims de 

novo. Fadiga v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir. 

2007). 

III. Discussion

We begin our analysis with a discussion of INS v. 

Lopez-Mendoza, as that case is central to our disposition of 

these petitions. We then proceed to consider, in turn, OlivaRamos‘s due process claims, Fourth Amendment claims, and 

claims predicated on various regulatory violations. 

A. Lopez-Mendoza

In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the 

Supreme Court held that the exclusionary rule generally does 

not apply to removal proceedings. The Court reached that 

conclusion after balancing the deterrent effect of the 

exclusionary rule against the social cost of extending its 

application to civil removal proceedings. However, a 

plurality of the Justices was careful to add the following 

qualifier to their discussion of that balancing: 

Our conclusions concerning the exclusionary 

rule‘s value might change, if there developed 
19

good reason to believe that Fourth Amendment 

violations by INS officers were widespread. 

Finally, we do not deal here with egregious 

violations of Fourth Amendment or other 

liberties that might transgress notions of 

fundamental fairness and undermine the 

probative value of the evidence obtained. At 

issue here is the exclusion of credible evidence 

gathered in connection with peaceful arrests by 

INS officers. We hold that evidence derived 

from such arrests need not be suppressed in an 

INS civil deportation hearing.

Lopez-Mendoza, 468 U.S. at 1050-51 (footnote omitted) 

(internal citations omitted). 

In Lopez-Mendoza, two citizens of Mexico were 

ordered deported after separate immigration proceedings. 

INS agents arrested Lopez-Mendoza at his job without a 

warrant to search the jobsite or a warrant to arrest anyone 

there. After the shop owner refused to permit the agents to 

speak with his employees during work hours, they devised a 

scheme to distract the shop owner so that they could question 

his employees. While he was being questioned, LopezMendoza told the agents that he was a citizen of Mexico, and 

that he had entered the United States without inspection by 

immigration authorities. 

In the proceedings that followed, Lopez-Mendoza 

argued that statements he made pursuant to his warrantless 

arrest should not have been admitted in his deportation 

proceedings. The Court reasoned that officers who violated 

an arrestee‘s rights were already subject to civil liability, and 

that in civil deportation proceedings the exclusionary rule ― ̳is 

unlikely to provide significant, much less substantial, 

additional deterrence.‘‖ Id. at 1046 (quoting United States v.

Janis, 428 U.S. 433, 458 (1976)). 

Nevertheless, as we quoted above, a plurality of the 

Court allowed for the possibility of suppression in the case of 
20

widespread or egregious violations of constitutional rights.19

Four Justices dissented. Each dissenting Justice believed that 

the exclusionary rule should generally apply in deportation 

proceedings. Justice White disagreed with the result of the 

majority‘s balancing of the costs and benefits of applying the 

exclusionary rule in removal proceedings. He would have 

applied the rule without the limitation imposed by the 

majority decision. See 468 U.S. at 1052 (White, J.,

dissenting) (―I believe that the conclusion of the majority is 

based upon an incorrect assessment of the costs and benefits 

of applying the rule in [civil removal proceedings].‖). Justice 

Brennan agreed, stating that ―I fully agree with Justice White 

that . . . the exclusionary rule must apply in civil deportation 

proceedings‖ not because it is a deterrent but because ―of the 

Fourth Amendment itself.‖ Id. at 1051 (Brennan, J.,

dissenting). Justice Marshall also ―agree[d] with Justice 

White that . . . [precedent] compels the conclusion that the 

exclusionary rule should apply in civil deportation 

proceedings.‖ Id. at 1060 (Marshall, J., dissenting). And,

finally, Justice Stevens joined all of Justice White‘s dissent 

except for the latter‘s conclusion that the good faith exception 

to the exclusionary rule should apply with equal force to 

warrantless immigration searches because the Court had yet 

to conclude that the good faith exception applied to 

warrantless searches generally. Id. at 1061 (Stevens, J., 

dissenting). Thus, though technically correct to characterize 

the portion of the majority opinion recognizing a potential 

exception to the Court‘s holding as a ―plurality opinion,‖ 

eight Justices agreed that the exclusionary rule should apply 

in deportation/removal proceedings involving egregious or 

widespread Fourth Amendment violations. Thus, where an 

alien can establish either of those two circumstances, the 

plurality opinion can only be read as affirming that the 

remedy of suppression justifies the social cost.20

 

19 While Chief Justice Rehnquist joined the portion of the 

opinion holding that the exclusionary rule generally did not 

apply in deportation proceedings, he did not join in the part of 

the opinion recognizing that egregious or widespread Fourth 

Amendment violations might warrant application of the 

exclusionary rule. 

20 This is not surprising since, as Justice Brennan had 

explained, lawless disregard by police for the privacy 
21

Thus, Lopez-Mendoza sanctions the application of the 

exclusionary rule in cases where constitutional violations by 

immigration officers are ―widespread‖ or evidence has been 

obtained as a result of ―egregious violations of Fourth 

Amendment or other liberties that might transgress notions of 

fundamental fairness and undermine the probative value of 

the evidence obtained.‖ Lopez-Mendoza, 468 U.S. at 1050-

51. With this rule in mind, we proceed to consider OlivaRamos‘s claims.

B. Due Process Claims

We first consider Oliva-Ramos‘s claims that the IJ 

violated his right to due process by failing to rule on his 

pending motions to subpoena witnesses and documents and 

by declining to correct translation errors. Oliva-Ramos also 

claims that the BIA denied him due process by declining to 

remand his case to the IJ to consider newly available evidence 

of egregious and/or widespread abuses. 

We are, of course, aware of the very valid concern 

expressed in Lopez-Mendoza that ―a deportation hearing is 

intended to provide a streamlined determination of eligibility 

to remain in this country. . . .‖ Id. at 1039. Nevertheless, 

removal proceedings must comport with basic notions of due 

process. Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir. 

2005). Accordingly, concerns for brevity, efficiency and 

expedience must not be used to justify denying an alien the 

right to produce witnesses where that request is appropriate

and the witnesses‘ presence appears necessary to satisfy basic 

notions of due process. That is particularly true where the 

IJ‘s refusal to issue or enforce subpoenas is contrary to the 

very regulatory scheme governing the removal process. 

 

interests protected by the Fourth Amendment creates 

significant social costs that cannot be ignored. See Stone v. 

Powell, 428 U.S. 465, 524 (1976) (Brennan, J., dissenting) 

(―To sanction disrespect and disregard for the Constitution in 

the name of protecting society from law-breakers is to make 

the government itself lawless and to subvert those values 

upon which our ultimate freedom and liberty depend.‖) 

(footnote omitted).
22

Here, the IJ‘s refusal to grant the subpoenas is contrary 

to 8 C.F.R. § 1003.35(b). Under that regulation, ―[a]n 

Immigration Judge may issue a subpoena upon his or her own 

volition or upon application of the Service or the alien.‖ Id. 

at § 1003.35(b)(1). When a party applies for a subpoena, the 

movant must ―state in writing or at the proceeding . . . what 

he or she expects to prove by such witnesses or documentary 

evidence, and . . . show affirmatively that he or she has made 

diligent effort, without success to produce the same.‖ Id. at § 

1003.35(b)(2). Although the regulation provides some 

discretion to an IJ, ―[u]pon being satisfied that a witness will 

not appear and testify or produce documentary evidence and 

that the witness‘ evidence is essential, the Immigration Judge 

shall issue a subpoena.‖ Id. at § 1003.35(b)(3) (emphasis 

added). Given the circumstances here, we believe that the IJ 

abused her discretion in determining that the witnesses and 

documents were not essential. Cf. Cuadras v. INS, 910 F.2d 

572, 573 (9th Cir. 1990) (―[T]he IJ is not required to issue the 

subpoena unless she is satisfied that the evidence is 

 ̳essential.‘ 8 C.F.R. 287.4(a)(2)(ii)(C). Since the IJ did not 

rely on the BHRHA report, he did not abuse his discretion in 

determining that the witnesses and documents were not 

essential.‖).

As we explained above, during the removal 

proceedings before the IJ, Oliva-Ramos moved to subpoena 

documents related to the search and seizure of his home and 

arrest, documents relevant to the underlying policy for 

conducting such searches and seizures, including training 

manuals and documentation of ICE Fugitive Operation Task 

Force policy and procedures, and records related to the ICE 

officers who arrested him. He also attempted to subpoena the 

other ICE officers who participated in his arrest. 

Oliva-Ramos satisfied both requirements of the 

regulation. The requested witnesses and documents were 

essential to Oliva-Ramos‘s claim of egregious or widespread 

violations and alleged constitutional violations by the 

Government. ICE policy and practice manuals on search and 

seizure practices and its practices with respect to consent and 

entry of dwellings could have shed light on the contested 

nature of Clara Oliva‘s consent, as well as whether Oliva-
23

Ramos was improperly seized. In addition, the testimony of 

additional officers who were present during the investigation 

and arrest of Oliva-Ramos could have been used to impeach 

the testimony of the Government‘s sole witness during the 

suppression hearing or to adduce additional facts that may 

have altered the analysis of alleged constitutional violations, 

including the nature of Clara‘s alleged consent. Not allowing 

Oliva-Ramos to introduce this testimony is particularly 

problematic here because the only witness who testified for 

the Government could not recall Oliva-Ramos‘s seizure or 

any facts related to it. Since the Government forced Oliva 

Ramos to litigate his FOIA request, it should have been clear 

to the IJ that, even though Oliva-Ramos had exercised 

diligence, he was not able to effectively present his case and 

that he was not attempting to delay or obfuscate the

proceedings.

We recognize that ―[o]ne who raises the claim 

questioning the legality of the evidence must come forward 

with proof establishing a prima facie case before the Service 

will be called on to assume the burden of justifying the 

manner in which it obtained the evidence.‖ Matter of 

Barcenas, 19 I. & N. Dec. 609, 611 (1988). Oliva-Ramos 

attempted to meet his burden, but was thwarted by his 

inability to obtain the evidence and witnesses necessary to do 

so. Only after the briefing before the BIA did the 

Government turn over the documents that Oliva-Ramos had 

tried to subpoena. 

As noted above, the Government had previously 

resisted that subpoena, and Oliva-Ramos appeared before the 

IJ without the benefit of those documents or the witnesses he 

had tried to subpoena. He was finally able to obtain the 

documentary evidence only after members of a clinical 

program at the Cardozo School of Law initiated FOIA 

litigation. The documents thus obtained were attached to his 

motion to reopen and were clearly relevant to his burden of 

establishing whether any abuses were widespread and/or 

egregious. Rather than tender a timely disclosure of such 

documents pursuant to the subpoena, the Government forced 

Oliva-Ramos to rely on a FOIA request to obtain documents 

that were in the exclusive custody and control of the 

Government and were clearly germane to his legal claims. 
24

We do not suggest that the documents would have 

satisfied Oliva-Ramos‘s burden had the IJ or BIA reviewed

them. We only note that the documents certainly appeared 

relevant to Oliva-Ramos‘s legal claims, and there is nothing 

to suggest that they were sought in bad faith or to delay the 

proceedings.

Because the Immigration Judge never ruled on OlivaRamos‘s motion to subpoena witnesses and documents, the 

BIA had no underlying order to review. Thus, we will grant 

Oliva-Ramos‘s motion to reopen the proceedings in order to 

permit him to subpoena the additional witnesses and to 

introduce newly available documents, and will instruct the 

BIA to remand to the Immigration Judge in the event that 

additional evidentiary proceedings are appropriate. 

We will, however, affirm the BIA‘s ruling that errors 

in the transcript and related questioning did not deny OlivaRamos the due process of law. Any such errors were clarified 

and the record demonstrates that Olivia-Ramos fully 

understood the questions asked of him during his interview 

with Officer Belluardo. 

Inasmuch as we conclude the BIA abused its discretion 

in denying Oliva-Ramos‘s motion to reopen, we need not 

reach Oliva-Ramos‘s additional due process claims based on 

the conduct of the removal hearings. 

C. The Exclusionary Rule 

We now address the heart of Oliva-Ramos‘s petition. 

Oliva-Ramos argues that the BIA misapplied Fourth 

Amendment law when evaluating his various Fourth 

Amendment claims. He claimed that the ICE agents failed to 

obtain proper consent to enter the apartment, that they 

arrested him without a warrant and without probable cause,

and that they seized him without reasonable suspicion. 

Relying on Lopez-Mendoza, Oliva-Ramos contends that 

Fourth Amendment law provides for the suppression of 

evidence obtained as a result of these violations because they 

were egregious and/or widespread. According to OlivaRamos, the BIA erred in categorically rejecting all of Oliva-
25

Ramos‘s Fourth Amendment arguments on the ground that 

the exclusionary rule does not apply in deportation 

proceedings, and thereby erred in failing to evaluate, first, 

whether ICE agents violated Oliva-Ramos‘s Fourth 

Amendment rights, and, second, whether those violations 

were egregious or widespread. We agree. 

The BIA rejected Oliva-Ramos‘s reliance on LopezMendoza because it regarded the ―comments from a plurality 

of the Supreme Court [to be] obiter dictum.‖ The BIA 

explained that the Court had not yet found circumstances 

sufficient to apply the exclusionary rule in removal 

proceedings, and the Board‘s ―own precedents . . . recognize 

no such exception to the inapplicability of the exclusionary 

rule premised on widespread Fourth Amendment violations.‖

There are several flaws in the BIA‘s approach. 

The BIA leapfrogged over the serious concerns it 

should have addressed under Lopez-Mendoza about the 

manner in which the evidence was obtained here. See

Almeida-Amaral v. Gonzales, 461 F.3d 231, 234-35 (2d Cir. 

2006); United States v. Navarro-Diaz, 420 F.3d 581, 587 (6th 

Cir. 2005); Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 

1994); cf. United States v. Stabile, 633 F.3d 219, 243 (3d Cir. 

2011) (―Typically, the exclusionary rule requires that we 

suppress evidence obtained as a result of an illegal search.‖). 

We must reject the BIA‘s reading of Lopez-Mendoza

that would only permit suppression of evidence based on 

―fundamentally unfair‖ circumstances in violation of the due 

process clause of the Fifth Amendment. The BIA‘s analysis 

of Lopez-Mendoza views that opinion only as a plurality. In 

doing so, the BIA ignored the fact that almost all of the 

Justices on the Court agreed that the exclusionary rule should 

apply to some extent in removal hearings. As we explained

above, eight of the nine Justices agreed with that proposition. 

Four would have limited the rule to instances of widespread 

or egregious violations of law by Government officials, and 

four others would apply the rule without that condition. See 

Puc-Ruiz v. Holder, 629 F.3d 771, 778 n.2 (8th Cir. 2010) 

(citing Lopez-Mendoza, 468 U.S. at 1051-61 (Brennan, 

White, Marshall, and Stevens, JJ., dissenting)); see also

Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448 n.2 (9th Cir. 
26

1994) (same).

Moreover, even if the pronouncement in LopezMendoza was dicta as the BIA labeled it, Supreme Court dicta 

should not be so cavalierly cast aside. See Official Committee 

of Unsecured Creditors v. Chinery, 330 F.3d 548, 561 (3d 

Cir. 2003) ( ―[W]e should not idly ignore considered 

statements the Supreme Court makes in dicta‖); see also

Wroblewska v. Holder, 656 F.3d 473, 478 (7th Cir. 2011) 

(―The Supreme Court has required a showing of  ̳egregious 

violations of Fourth Amendment or other liberties that might 

transgress notions of fundamental fairness‘ before the 

exclusionary rule will apply in immigration proceedings. 

Lopez-Mendoza, 468 U.S. at 1050-51. It makes no difference 

that Wroblewska‘s argument is styled as a due-process 

argument rather than one based on the Fourth Amendment.‖).

―Accordingly, it is reasonable to read Lopez-Mendoza as

showing that eight Justices would have applied the 

exclusionary rule in circumstances where evidence was 

obtained through an  ̳egregious‘ Fourth Amendment 

violation.‖ Puc-Ruiz, 629 F.3d at 778 n.2. The fact that the 

Court has not yet applied the rule in a deportation proceeding

cannot undermine the fact that the Court has allowed for that 

possibility. The fact that the BIA believed its own precedents 

did not recognize the exception set out in Lopez-Mendoza can 

neither negate nor minimize the fact that the exception has 

been recognized by the Supreme Court. 

Accordingly, we reiterate today that the exclusionary 

rule may apply in removal proceedings where an alien shows 

―egregious violations of Fourth Amendment or other liberties 

that might transgress notions of fundamental fairness and 

undermine the probative value of the evidence obtained.‖ 

Lopez-Mendoza, 468 U.S. at 1051; see also United States v. 

Bowley, 435 F.3d 426, 430 (3d Cir. 2006) (―The Court in 

Lopez-Mendoza was careful to qualify its broad statement by 

noting that it was not considering  ̳egregious violations of 

Fourth Amendment or other liberties that might transgress 

notions of fundamental fairness and undermine the probative 

value of the evidence obtained.‘‖).

The BIA therefore erred in concluding that the 

discussion in Lopez-Mendoza lacked the force of law, and the 
27

Board clearly failed to conduct the proper analysis to 

determine whether any such egregious violations occurred. 

The IJ and the Board should have, but did not, first determine 

whether agents violated Oliva-Ramos‘s Fourth Amendment

rights and second, whether any such violations implicated the 

Lopez-Mendoza exception for being widespread or egregious. 

We will briefly note the possible merits of each prong of this 

argument against the circumstances here. 

1. Egregious Violations of the Fourth Amendment

We have not had occasion to consider when conduct 

by ICE officials (or anyone acting in a similar role) would 

constitute the kind of egregious violations that could trigger 

the protections endemic in the exclusionary rule and justify 

applying the rule in the civil arena. We now take this 

opportunity to more precisely define the standard that should 

be used in determining whether unlawful conduct by 

governmental officers rises to the level of an ―egregious‖

violation of the Fourth Amendment. 

In Lopez-Mendoza, the Supreme Court cited Rochin v. 

California, 342 U.S. 165 (1952), as an example of ―egregious 

violations of Fourth Amendment or other liberties that might 

transgress notions of fundamental fairness and undermine the 

probative value of the evidence obtained.‖ Lopez-Mendoza, 

468 U.S. at 1050-51. In Rochin, three deputy sheriffs forcibly 

entered a home and saw Rochin swallow some capsules 

which were believed to be a controlled substance. In order to 

recover that evidence, Rochin was taken to a hospital where a 

doctor induced vomiting at the direction of one of the officers 

by inserting a tube into Rochin‘s stomach and pumping a 

chemical into him. The Supreme Court found that such 

conduct offended even ―hardened sensibilities.‖ Rochin, 342 

U.S. at 172. It ―shock[ed] the conscience‖ and violated 

Rochin‘s right to due process under the Constitution. Id.

Rochin was decided before the Fourth Amendment 

was applied to the states through incorporation by the 

Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643 

(1961). ―Consequently, the Court has not relied on the 

Rochin  ̳shocks the conscience‘ standard but has instead 

applied a Fourth Amendment reasonableness analysis in cases 

that, like Rochin, involved highly intrusive searches or 
28

seizures.‖ Lester v. City of Chicago, 830 F.2d 706, 711 (7th 

Cir. 1987). Moreover, the Supreme Court has rejected the use 

of the Fourteenth Amendment‘s ―shocks the conscience‖

standard in Section 1983 claims involving excessive force 

under the Fourth Amendment. See Graham v. Connor, 490 

U.S. 386, 394-95 (1989). ―Because different standards attach 

to the various rights, identifying the proper constitutional 

approach is essential.‖ Gottlieb ex rel. Calabria v. Laurel 

Highlands School Dist., 272 F.3d 168, 171 (3d Cir. 2001). 

Thus, ―the difference between reviewing [the Government‘s] 

actions under the reasonableness standard of the Fourth 

Amendment or the shocks the conscience standard of the 

Fourteenth Amendment may be determinative.‖ Id. 

The jurisprudence that has developed for ―ordinary‖ 

Fourth Amendment violations—where the test is 

―reasonableness‖—is critical to determining whether Fourth 

Amendment violations occurred in the first instance. 

However, a violation must be more than ―unreasonable‖ for it 

to satisfy the higher threshold of an ―egregious‖ Fourth 

Amendment violation under Lopez-Mendoza. See GonzalezRivera v. INS, 22 F.3d at 1448 (―We cannot determine 

whether the IJ properly excluded the I-213 Form based solely 

on our conclusion that the officers‘ conduct was 

unreasonable.‖); Puc-Ruiz, 629 F.3d at 778 (―Lopez-Mendoza

requires more than a violation to justify exclusion.‖). The 

gap between reasonableness and egregious violations has led 

to our sister courts of appeals employing varying approaches 

to determining whether a Fourth Amendment violation is 

egregious. We consider some of those approaches here.

The Court of Appeals for the Ninth Circuit has adopted 

a test resembling the qualified immunity inquiry into whether 

a constitutional violation was the result of bad faith. 

Orhorhaghe, 38 F.3d at 493. After establishing that a Fourth 

Amendment violation has occurred, the Ninth Circuit 

considers ―whether the agents committed the violations 

deliberately or by conduct a reasonable officer should have 

known would violate the Constitution.‖ Id. The test was 

developed in Adamson v. C.I.R., 745 F.2d 541, 545 (9th Cir. 

1984), after analyzing the Janis decision, 428 U.S. 433 

(1976), that the Supreme Court relied on for the weighing of 

interests analysis in Lopez-Mendoza. The Adamson court 
29

determined from ―language in Lopez-Mendoza that deterrence 

is not the only consideration‖ underlying the exclusionary 

rule. 745 F.2d at 545. ―[I]n addition to deterrence, the 

exclusionary rule serves the vital function of preserving 

judicial integrity.‖ Id. The Ninth Circuit concluded that if 

―police unreasonably violated the defendant‘s fourth 

amendment rights, the integrity of the courts would be 

implicated.‖ Id. at 546. 

Oliva-Ramos‘s petition, however, demonstrates the 

difficulty courts and agencies face in adopting a test that is 

perched on the fulcrum of the good faith of the police. OlivaRamos has alleged that it was ICE‘s policy to detain 

individuals without reasonable suspicion and to enter homes 

during pre-dawn raids without consent. He also alleges that 

the officers who carry out these pre-dawn raids are acting 

under the guidance of ICE policy. Thus, focusing only on 

their good faith would permit conduct that may be objectively 

reasonable based on directives of the Department of 

Homeland Security, but nevertheless result in routine 

invasions of the constitutionally protected privacy rights of 

individuals.21

In Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 

2006), the Court of Appeals for the Second Circuit also 

addressed this issue. There, Almeida-Amaral, who was 17 

years old, walked into a parking lot that was adjacent to a gas 

station in southern Texas. He was approached by a 

uniformed border patrol agent who stopped him and asked for 

identification. Almeida-Amaral was arrested when he 

produced a Brazilian passport and made subsequent 

 

21 This analysis must, by its very nature, differ from an 

inquiry into an officer‘s good faith that allows evidence to be 

used at a trial even though it was seized by an overly broad 

warrant if the Government can establish the good faith of the 

officers who relied on the defective warrant. See Mass. v. 

Sheppard, 468 U.S. 981, 985-87 (1984); United States v.

Ninety-Two Thousand Four Hundred Twenty-Two Dollars 

and Fifty-Seven Cents, 307 F.3d 137, 151 (3d Cir. 2002). The 

egregious inquiry under Lopez-Mendoza cannot be sanitized 

by the underlying agency policy even if the good faith of the 

immigration officer is established. 
30

statements that formed the basis of an I-213 Form and an 

order of deportation. When removal proceedings were 

instituted against him, Almeida-Amaral argued that his 

passport and statements to the police should not be considered 

because they were obtained upon a warrantless seizure and 

arrest in violation of the Fourth Amendment.22

The Court of Appeals for the Second Circuit began its 

discussion by explicitly adopting the Lopez-Mendoza 

exception applying the exclusionary rule in civil removal 

proceedings. See id. at 234 (―[W]e now apply it as the law of 

the circuit.‖). It then held that ―exclusion of evidence is 

appropriate under the rule of Lopez-Mendoza if record 

evidence established either (a) that an egregious violation that 

was fundamentally unfair had occurred, or (b) that the 

violation—regardless of its egregiousness or unfairness—

undermined the reliability of the evidence in dispute.‖ Id. at 

235. We accept the test adopted by the Second Circuit with 

slight modification. 

The Second Circuit made clear that the probative value 

of the evidence obtained is irrelevant to the inquiry. We 

agree that the probative value of the evidence obtained cannot 

be part of the calculus. In Rochin, the capsules that were 

forcibly removed from the defendant‘s stomach were highly 

probative and extraordinarily reliable evidence that he had 

consumed a controlled substance. Yet, the Supreme Court 

had no problem holding that the evidence must be suppressed 

because of the tactics the police used to extract it. See 

Gonzalez-Rivera, 22 F.3d at 1451. ―Indeed, Rochin stated in 

no uncertain terms that reliability cannot be the sole 

touchstone of the Fourth Amendment.‖ Almeida-Amaral, 461 

F.3d at 235 (citing Rochin, 342 U.S. at 173). However, we 

think it is circular to refer to an ―egregious violation that was 

fundamentally unfair,‖ or one that undermines the reliability

or the probative value of the evidence ―regardless of its 

egregiousness or unfairness,‖ because the inquiry must 

determine whether an egregious violation has occurred. We 

therefore conclude that evidence will be the result of an 

 

22 He also argued that since he was an unaccompanied minor, 

his statement was obtained in violation of applicable 

regulations. The court did not focus on that claim.
31

egregious violation within the meaning of Lopez-Mendoza, if 

the record evidence established either (a) that a constitutional 

violation that was fundamentally unfair had occurred, or (b) 

that the violation—regardless of its unfairness—undermined

the reliability of the evidence in dispute. With that alteration, 

we adopt the reasoning of the Court of Appeals for the 

Second Circuit. See id. at 235.

The Second Circuit did not discuss further the contours 

of the second prong of its approach—―that the violationregardless of its egregiousness or unfairness-undermined the 

reliability of the evidence in dispute‖—because the facts of 

the case did not raise ―doubts about the veracity of the 

evidence obtained as a result of the seizure.‖ Id. at 235. 

Rather, the court focused on when a Fourth Amendment 

violation may be ―fundamentally unfair.‖ First, the court 

emphasized that whether a violation is fundamentally unfair 

depends heavily upon the facts of each case.23 In AlmeidaAmaral‘s case, the court found that ―two principles . . . bear 

on whether petitioner suffered an egregious violation of his 

constitutional rights.‖ Id. The court explained:

First, the egregiousness of a constitutional 

violation cannot be gauged solely on the basis 

of the validity (or invalidity) of the stop, but 

must also be based on the characteristics and 

severity of the offending conduct. Thus, if an 

individual is subjected to a seizure for no reason 

at all, that by itself may constitute an egregious 

violation, but only if the seizure is sufficiently 

severe. Second, even where the seizure is not 

especially severe, it may nevertheless qualify as 

an egregious violation if the stop was based on 

race (or some other grossly improper 

consideration).

 

23 The court explained in a footnote that ―we do not intend to 

give an exhaustive list of what might constitute an egregious 

violation of an individual‘s rights. We emphasize these 

principles only because they are especially germane to the 

facts and circumstances of the case before us.‖ AlmeidaAmaral, 461 F.3d at 235 n.1.
32

Id. It added that ―exclusion may well be proper where the 

seizure itself is gross or unreasonable in addition to being 

without a plausible legal ground, e.g., when the initial illegal 

stop is particularly lengthy, there is a show or use of force, 

etc.‖ Id. at 236. And second, where ―there is evidence that 

the stop was based on race, the violation would be egregious, 

and the exclusionary rule would apply.‖ Id. at 237. 

We discern a few guiding principles from AlmeidaAmaral. First, and most importantly, courts and agencies 

must adopt a flexible case-by-case approach for evaluating 

egregiousness, based on a general set of background 

principles which fulfill the two-part Lopez-Mendoza test. See 

id. at 235 n.1 (―[W]e do not intend to give an exhaustive list 

of what might constitute an egregious violation of an 

individual‘s rights.‖). Second, those evaluating the 

egregiousness of the violation should pay close attention to 

the ―characteristics and severity of the offending conduct.‖ 

Id. at 235. As the Court of Appeals for the First Circuit 

noted, ―evidence of any government misconduct by threats, 

coercion or physical abuse‖ might be important 

considerations in evaluating egregiousness. Kandamar v. 

Gonzales, 464 F.3d 65, 71 (1st Cir. 2006). And the Court of 

Appeals for the Eighth Circuit found evidence of ―physical 

brutality‖ and an ―unreasonable show or use of force‖ 

relevant to the egregiousness inquiry. Puc-Ruiz, 629 F.3d at 

778-79. In rejecting the petitioner‘s egregiousness claim, that 

court also noted it was not dealing with ―a case in which 

police officers invaded private property and detained 

individuals with no articulable suspicion whatsoever.‖ Id. at 

779 (emphasis in original).

These cases demonstrate that there is no one-size-fitsall approach to determining whether a Fourth Amendment 

violation is egregious. Indeed, the exceptions announced in 

Lopez-Mendoza do not suggest or imply that any strict testbased approach is appropriate or warranted. Using this 

formulation of the rule as its guide, on remand, the BIA‘s 

inquiry should include such factors as: whether Oliva-Ramos 

can establish intentional violations of the Fourth Amendment,

whether the seizure itself was so gross or unreasonable in 

addition to being without a plausible legal ground, (e.g., when 

the initial illegal stop is particularly lengthy, there is an 
33

unnecessary and menacing show or use of force, etc.), 

whether improper seizures, illegal entry of homes, or arrests 

occurred under threats, coercion or physical abuse, the extent 

to which the agents reported to unreasonable shows of force, 

and finally, whether any seizures or arrests were based on 

race or perceived ethnicity. These factors are illustrative of 

the inquiry and not intended as an exhaustive list of factors 

that should always be considered, nor is any one factor 

necessarily determinative of the outcome in every case. 

Rather, the familiar totality of the circumstances must guide 

the inquiry and determine its outcome. Thus, on remand, the 

BIA (and perhaps the IJ) must meaningfully examine the 

particular facts and circumstances of the ICE agents‘ conduct. 

To the extent that the factors discussed above are relevant, 

they should consider them.

24 However, the analysis should 

not be limited to these factors, and Oliva-Ramos is free on 

remand to emphasize any particular characteristics of Clara‘s 

alleged consent, and his seizure and arrest that he believes 

renders the ICE agents‘ conduct egregious. In turn, the BIA 

(and perhaps, the IJ) must consider both whether the ICE 

agents violated Oliva-Ramos‘s Fourth Amendment rights and

whether those violations were egregious.

2. Widespread Violations of the Fourth 

Amendment

To our knowledge, no court has explicitly adopted or 

applied the portion of the Lopez-Mendoza pronouncement 

that ―conclusions concerning the exclusionary rule‘s value 

might change, if there developed good reason to believe that 

Fourth Amendment violations by INS officers were 

widespread.‖ 468 U.S. at 1050. Yet it is as much a part of 

the Lopez-Mendoza discussion as ―egregious‖ violations, and 

we cannot ignore it simply because we are forced to write on 

the proverbial ―blank slate.‖ Rather, determining when 

widespread violations of the Fourth Amendment may serve as 

an independent rationale for applying the exclusionary rule in 

 

24

 However, it is important to note—as explained above—the 

inquiry does not turn on the good/bad faith of the agents 

involved. Rather, this is but one of many circumstances that 

may be relevant in a particular case. 
34

civil removal proceedings is simply a matter of first 

impression for us.

25 Given the discussion in Lopez-Mendoza, 

we think that most constitutional violations that are part of a 

pattern of widespread violations of the Fourth Amendment 

would also satisfy the test for an egregious violation, as 

discussed above.

On other occasions, in a concurring opinion, Justice 

Kennedy has acknowledged that evidence of widespread 

Fourth Amendment violations would raise serious concerns. 

In his concurring opinion in Hudson v. Michigan, 547 U.S. 

586 (2006), Justice Kennedy explained: 

Today‘s decision does not address any 

demonstrated pattern of knock-and-announce 

violations. If a widespread pattern of violations 

 

25 Allegations of widespread violations of the Fourth 

Amendment have been presented previously before this Court

in a different context. See Argueta v. United States 

Immigration & Customs Enforcement, 643 F.3d 60 (3d Cir. 

2011). There, the plaintiffs brought a Bivens action (allowing 

for damages remedies for constitutional violations by federal 

agents) against various federal and local immigration 

officials, as well as officers who actually participated in raids 

that led to the plaintiffs‘ arrest. The plaintiffs alleged that 

Operation Return to Sender was being conducted by 

inadequately trained officers who relied on an  ̳―outdated and 

inaccurate [database] in up to 50% of cases,‘‖ id. at 64, and 

who engaged in a  ̳―practice‘ of unlawful and abusive raids 

[that] flourished as a predictable consequence of the 

 ̳arbitrary‘ and  ̳exponentially-increased quotas‘‖ that drove 

the programmatic abuses. Id. The plaintiffs further alleged 

that the predictable ―collateral arrests‖ of persons not targeted 

by the raids were allowed to count toward the inflated quotas 

of arrests that officers were expected to meet and that this 

resulted in a pattern of constitutional abuses that continued 

once the officers ―actually entered the home.‖ Id. at 64-65. 

We did not address the merits of the alleged constitutional 

torts because the only issues before us involved the 

defendants‘ qualified immunity.
35

were shown, and particularly if those violations 

were committed against persons who lacked the 

means or voice to mount an effective protest, 

there would be reason for grave concern. Even 

then, however, the Court would have to 

acknowledge that extending the remedy of 

exclusion to all the evidence seized following a 

knock-and-announce violation would mean 

revising the requirement of causation that limits 

our discretion in applying the exclusionary rule.

Id. at 604 (Kennedy, J., concurring). 

Similarly, in United States v. Navarro-Diaz, 420 F.3d 

581 (6th Cir. 2005), the court expressed the following view: 

The Supreme Court‘s language in LopezMendoza—that ―[t]he  ̳body‘ or identity of a 

defendant or respondent in a criminal or civil 

proceeding is never itself suppressible as a fruit 

of an unlawful arrest‖—when taken out of 

context, could be read to suggest that random, 

widespread detentions and questioning of 

suspected aliens would not implicate Fourth 

Amendment rights. 468 U.S. at 1039, 104 S. 

Ct. 3479. We do not believe, however, that 

Lopez-Mendoza sanctions such a result. The 

Supreme Court qualified its holding when it 

stated in the last paragraph of Lopez-Mendoza

that ―we do not deal here with egregious 

violations of Fourth Amendment or other 

liberties that might transgress notions of 

fundamental fairness.‖

Navarro-Diaz, 420 F.3d at 587. 

Oliva-Ramos alleges that the ICE officers‘ conduct 

here is both egregious and widespread. If true, the allegations 

here may well illustrate the precise situation that was 

anticipated in Lopez-Mendoza. Clearly, a single Fourth 

Amendment violation is not sufficient to extend the 

exclusionary rule to civil removal proceedings unless it is also 

egregious. Not every illegal entry into a home will rise to that 
36

level. But Oliva-Ramos has alleged much more than the 

forcible warrantless entry into a single home. 

It is uncontested that Oliva-Ramos was taken into custody 

during the course of a pre-dawn raid. Such raids of homes 

have traditionally been viewed with particular opprobrium 

unless the timing is justified by the particular circumstances. 

See Fed. R. Crim. P. 41(e)(2)(A) (―The warrant must 

command the officer to: (ii) execute the warrant during 

daytime [defined as ―the hours between 6:00 a.m. and 10:00 

p.m. . . . ,‖ Fed R. Crim. P. 41(a)(2)(B)], unless the judge for 

good cause expressly authorizes execution at another time . . .

;‖ see also United States ex rel. Boyance v. Myers, 398 F.2d 

896, 897 (3d Cir. 1968) (―The time of a police search of an 

occupied family home may be a significant factor in 

determining whether, in a Fourth Amendment sense, the 

search is  ̳unreasonable.‘‖).

Oliva-Ramos has attempted to introduce evidence of a 

consistent pattern of conducting these raids during 

unreasonable hours, such as the 4:30 a.m. raid that occurred 

here. Oliva-Ramos is trying to support these allegations by 

resorting to documents that were not available when he had 

his hearing before the IJ, but were presented to the BIA for its 

consideration on appeal. This evidence included ICE 

Memoranda regarding the Fugitive Operations Teams and 

ICE arrest statistics. It appears from this record the 

documents were not available for the IJ to consider initially 

because they were produced only after Oliva-Ramos litigated 

their disclosure under the Freedom of Information Act. In his 

FOIA request dated October 4, 2007, Oliva-Ramos requested 

―ICE policies, directives, and memoranda regarding collateral 

arrests made at the suspected locations of individuals targeted 

by ICE.‖ Id. The Government refused to release these 

documents, citing FOIA exemptions. Id. As Oliva-Ramos 

notes, the Government‘s withholding of these documents 

impeded Oliva-Ramos‘s ability to present evidence before the 

IJ in the first instance prior to his April 23, 2008 suppression 

hearing.

Oliva-Ramos argues that ICE conceded that it has a 

policy of rounding up everyone in a home, without any 

particularized suspicion, in order to question all of the 
37

occupants about their immigration status.26 The BIA‘s refusal 

to even consider that evidence was contrary to LopezMendoza. By turning a blind eye to that evidence, the BIA 

prevented Oliva-Ramos from potentially demonstrating that 

the circumstances of his seizure fit within the narrow 

exception left open in Lopez-Mendoza.27

 

26

 In Argueta, the petitioners alleged that the unconstitutional 

pre-dawn raids continued ―until the agents‘ van was filled.‖

643 F.3d at 65. 

27 The Government acknowledges that Oliva-Ramos was 

detained as the result of ―Operation Return to Sender.‖ In 

May 2006, the Government launched this nationwide 

program to capture fugitive aliens using dragnet-like home 

and office raids. Argueta, 643 F.3d at 63-67. In a 2009 

report prepared under the guidance of an advisory panel of 

law enforcement professionals, a Cardozo law school clinic 

issued a public study purporting to document ―a suspiciously 

uniform pattern of constitutional violations during ICE 

[Immigration and Customs Enforcement] home raids. Bess 

Chiu et al., Cardozo Immigration Justice Clinic, Constitution 

on ICE: A Report on Immigration Home Raid Operations 9

(2009). Available at

http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/i

mmigrationlaw-741/IJC_ICE-Home-RaidReport%20Updated.pdf. The report attempted to detail 

―[t]actical pre-dawn or nighttime home entries, conducted by 

heavily armed seven member teams, with residents who often 

do not speak English . . . .‖ Id. at 29. Individuals purportedly 

involved in one such raid alleged routine constitutional 

violations by government officials, which led one 

commentator to state: ―While any law enforcement entry into 

the home is likely to seem threatening to residents, the 

accounts of ICE enforcement operations indicate that the 

agency uses excessive displays of force. . . . Evidence now 

abounds that officers frequently enter without consent—that 

they threaten or intimidate residents, make misrepresentations 

of authority, push their way through open doors, or simply 

enter without waiting to speak to a resident at all. With no 

valid warrants, no exigent circumstances, and often no valid 

consent, one major plank of ICE‘s interior enforcement 

efforts depends on routine violations of a core constitutional 
38

In attempting to supplement the record and have the 

BIA remand to the IJ for additional proceedings where the 

newly obtained records could be considered, Oliva-Ramos is 

merely asking for an opportunity to present evidence that the 

raid leading to his apprehension falls within the narrow 

exception recognized in Lopez-Mendoza, and that it was 

therefore error to categorically refuse the remedy of 

suppression without affording him an opportunity to establish 

that the Government was engaging in the kind of egregious or 

widespread abuses that justifies suppression under LopezMendoza. We do not suggest that these allegations are 

established fact, nor that they would necessarily satisfy OlivaRamos‘s burden under Lopez-Mendoza even if proven. That 

is for the IJ and BIA to determine in the first instance. 

However, these allegations are woven into the fabric of the

central issue before us, and cannot properly be resolved

absent the materials Oliva-Ramos sought to present in the 

removal proceedings.

We believe the BIA erred in not allowing OlivaRamos an opportunity to support his Fourth Amendment 

claim. We take no position, however, on the underlying 

question of whether the circumstances here are so egregious 

or widespread as to justify a suppression order. We merely 

conclude that Oliva-Ramos must be permitted to present 

evidence to support his contention that the Government‘s 

conduct here falls within the exception the Supreme Court 

was careful to allow in Lopez-Mendoza. 

D. Regulatory Violations

1. 8 C.F.R. § 287.8(f)(2) (consent to enter)

As we summarized above, the IJ and BIA dismissed 

Oliva-Ramos‘s claims because they concluded that Clara 

consented to entry and that Oliva-Ramos could not, therefore,

establish any Fourth Amendment violation. However, we 

 

guarantee.‖ Nathan Treadwell, Fugitive Operations & the 

Fourth Amendment: Representing Immigrants Arrested in 

Warrantless Home Raids, 89 N.C. L. Rev. 507, 516-18 (2011)

(footnotes omitted).
39

agree that the BIA failed to apply the proper Fourth 

Amendment inquiry.

The BIA considered the question in the context of 8 

C.F.R. § 287.8(f)(2) which provides: 

An immigration officer may not enter into the 

non-public areas of a business, a residence 

including the curtilage of such residence, or a 

farm or other outdoor agricultural operation, 

except as provided in section 287(a)(3) of the 

Act, for the purpose of questioning the 

occupants or employees concerning their right 

to be or remain in the United States unless the 

officer has either a warrant or the consent of the 

owner or other person in control of the site to be 

inspected. When consent to enter is given, the 

immigration officer must note on the officer‘s 

report that consent was given and, if possible, 

by whom consent was given. If the immigration 

officer is denied access to conduct a site 

inspection, a warrant may be obtained. 

In affirming the IJ‘s decision that no Fourth 

Amendment violation occurred because the entry was 

consensual, the BIA stated that ―we have considered the 

respondent‘s asserted bases for contending that the consent to 

the officers‘ entry was coerced (or otherwise invalid) but we 

are not persuaded by them.‖ ―Although the BIA  ̳is not 

required to  ̳write an exegesis‘ on every contention,‘ the 

 ̳analysis‘ offered here is simply inadequate to afford the 

meaningful review that both‖ Oliva-Ramos and the 

Government deserve. Zubeda v. Ashcroft, 333 F.3d 463, 477 

(3d Cir. 2003) (quoting Mansour v. INS, 230 F.3d 902, 908 

(7th Cir. 2000)).

The Supreme Court has made clear that ―[c]onsent 

must be given voluntarily.‖ Stabile, 633 F.3d at 230 (citing 

Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). Thus,

the Court requires a careful examination of the totality of the 

circumstances surrounding how that consent was obtained. 

See United States v. Drayton, 536 U.S. 194, 206-07 (2002). 

The appropriate inquiry into the voluntariness of a purported 
40

consent would include, without limitation: ―the age, 

education, and intelligence of the subject; whether the subject 

was advised of his or her constitutional rights; the length of 

the encounter; the repetition or duration of the questioning; 

and the use of physical punishment.‖ United States v. Price, 

558 F.3d 270, 278 (3d Cir. 2009). We have also ―identified 

as relevant  ̳the setting in which the consent was obtained 

[and] the parties‘ verbal and non-verbal actions.‘‖ Id. In 

addition, the number of officers and displays of force are 

important factors. See United States v. Kim, 27 F.3d 947, 954 

(3d Cir. 1994). This kind of particularized scrutiny was not 

applied to the evidence here because it was assumed that the 

Fourth Amendment remedy of suppression did not apply. 

Rather, the Form I-213 that was relied on to establish a 

consensual entry indicated that ―[c]onsent to enter the 

premises was provided by Clara Oliva.‖ That appears to have 

largely been the beginning and the end of the inquiry. As

noted above, however, Officer Belluardo did not recall the 

specifics of the entry; she merely testified based upon what 

she said was normal procedure. 

The BIA, therefore, erred in finding valid consent 

without analyzing the totality of the circumstances under the 

Fourth Amendment. Again, we take no position on what the 

outcome of that inquiry should be here. We only hold that the 

inquiry that appears on this record is not sufficient given the 

nature of Oliva-Ramos‘s claims. 

2. 8 C.F.R. §§ 287.8(b)(1) (seizure)

The BIA correctly noted that 8 U.S.C. 1357(a)(1) 

permits an ICE agent, without a warrant, to ―interrogate any 

alien or person believed to be an alien as to his right to be or 

to remain in the United States.‖ 8 U.S.C. § 1357(a)(1). We 

have made clear, however, that the ―authority under Section 

1357(a)(1) to interrogate a person believed to be an alien is 

limited by the restrictions of the fourth amendment.‖ Babula 

v. Immigration & Naturalization Service, 665 F.2d 293, 295 

(3d Cir. 1981) (citation omitted). As we noted in Babula, 

―[s]ince the same standards govern the validity of a seizure 

under section 1357(a)(1) as under the fourth amendment, 

questioning that is permissible under the fourth amendment is 

also permissible under section 1357(a)(1).‖ Id. 
41

8 C.F.R. § 287.8 was promulgated pursuant to 8 

U.S.C. § 1357(a)(1). This regulation incorporates the test that 

―a person has been  ̳seized‘ within the meaning of the Fourth 

Amendment only if, in view of all of the circumstances 

surrounding the incident, a reasonable person would have 

believed that he was not free to leave.‖ United States v. 

Mendenhall, 446 U.S. 544, 554 (1980). Specifically, the 

regulation states: ―An immigration officer, like any other 

person, has the right to ask questions of anyone as long as the 

immigration officer does not restrain the freedom of an 

individual, not under arrest, to walk away.‖ 8 C.F.R. § 

287.8(b)(1) (emphasis added). 

In order to conduct a proper analysis under the Fourth 

Amendment, the BIA should have considered among the nonexclusive list of relevant factors, the circumstances that the 

Supreme Court described in Mendenhall. The Mendenhall

Court explained that ―[e]xamples of circumstances that might 

indicate a seizure, even where the person did not attempt to 

leave, would be the threatening presence of several officers, 

the display of a weapon by an officer, some physical touching 

of the person of the citizen, or the use of language or tone of 

voice indicating that compliance with the officer‘s request 

might be compelled.‖ Mendenhall, 446 U.S. at 554. 

Although we do not decide whether those factors in 

fact existed, we discuss by way of example some of the 

considerations that could have influenced the Mendenhall 

analysis. Here, armed ICE officers entered Oliva-Ramos‘s 

room shining flashlights that woke him up at 4:30 in the 

morning. After he got up, he was told to go to the living 

room where officers blocked several exits and detained his 

family members. The record also indicates at least six armed 

uniformed ICE officers were present and that certain family 

members were told to sit down when they tried to stand.

In concluding that Oliva-Ramos was not improperly 

seized, the BIA relied exclusively on Oliva-Ramos‘s 

testimony during the suppression hearing that he had no 

intention of leaving the premises because he ―didn‘t commit 

any crime.‖ Yet the question of intent to leave is less relevant 

under the Fourth Amendment than whether he felt free to 

leave. See Brendlin v. California, 551 U.S. 249, 255 (2007) 
42

(―[T]he Court adopted Justice Stewart‘s touchstone 

[Mendenhall test], but added that when a person  ̳has no 

desire to leave‘ for reasons unrelated to the police presence, 

the  ̳coercive effect of the encounter‘ can be measured better 

by asking whether  ̳a reasonable person would feel free to 

decline the officers‘ requests or otherwise terminate the 

encounter.‘‖) (internal citations omitted). 

Mendenhall makes clear that ―circumstances that 

might indicate a seizure‖ may exist ―even where the person 

did not attempt to leave . . . .‖ Mendenhall, 446 U.S. at 554. 

Here, while Oliva-Ramos may not have intended or attempted 

to leave his apartment at 4:30 a.m., the BIA must also inquire 

into whether he felt free to leave. (Question: ―What would 

have happened if you‘d asked the officers to leave?;‖

Response ―I couldn‘t tell the officers to leave because it‘s the 

law and I didn‘t have anything to tell them.‖). The BIA, 

therefore, erred in rejecting Oliva-Ramos‘s claim of a 

regulatory violation without an adequate inquiry into whether 

Oliva-Ramos was seized before proceeding to find reasonable 

suspicion to detain him. 

We caution, however, that nothing in this opinion is 

intended to undermine the ability of immigration officers to 

ask questions of a person to obtain his or her immigration 

status so long as the inquiry is consistent with the limitations 

imposed by the Fourth Amendment. See Florida v. Bostick, 

501 U.S. 429, 434-35 (1991). Bostick makes clear that ―even 

when officers have no basis for suspecting a particular 

individual, they may generally ask questions of that 

individual, ask to examine the individual‘s identification, and 

request consent to search . . . as long as the police do not 

convey a message that compliance with their requests is 

required.‖ Id. (internal citations omitted). ―So long as a 

reasonable person would feel free  ̳to disregard the police and 

go about his business,‘ the encounter is consensual and no 

reasonable suspicion is required.‖ Id. at 434 (internal citation 

omitted). But the encounter ―loses its consensual nature‖ and 

a seizure has occurred ―when the officer, by means of 

physical force or show of authority, has in some way 

restrained the liberty of a citizen . . . .‖ Id. 
43

Our discussion of these principles is not intended to 

resolve the merits of Oliva-Ramos‘s Fourth Amendment 

claims. Rather, we simply explain that the inquiry undertaken 

by the BIA was wrongly guided by its assumption that 

suppression is not permitted in removal proceedings. Cf.

Babula, 665 F.2d at 296 (finding reasonable suspicion in the 

context of an automobile stop). 

3. 8 C.F.R. § 287.8(c)(2)(i) (warrantless arrest)

We must also consider whether the BIA properly 

construed 8 C.F.R. § 287.8(c)(2)(i), which states that ―[a]n 

arrest shall be made only when the designated immigration 

officer has reason to believe that the person to be arrested has 

committed an offense against the United States or is an alien 

illegally in the United States.‖ 8 C.F.R. § 287.8 (c)(2)(i). 

Section 287.8(c)(2)(i) emanates from INA § 287(a)(2), 8 

U.S.C. § 1357(a)(2). We held in Babula that ―under section 

1357(a)(2) . . .  ̳arrest‘ means an arrest upon probable cause, 

and not simply a detention for purposes of interrogation.‖ 

665 F.2d at 298. 

In Tejeda-Mata v. Immigration & Naturalization 

Service, 626 F.2d 721 (9th Cir. 1980), a case upon which the 

BIA relied in finding that Oliva-Ramos posed a flight risk, the 

Court of Appeals for the Ninth Circuit held that, in addition to 

the background circumstances of the interrogation, an 

uncoerced admission that a petitioner ―came from Mexico . . . 

constitute[d] a clearly sufficient basis for his warrantless 

arrest.‖ Tejeda-Mata, 626 F.2d at 725. There, Tejeda-Mata 

drove through a parking lot in Washington when an officer 

―recognized an alien whom he had previously arrested and 

who had been granted voluntary departure.‖ Id. at 723. After 

the officer parked his car to block Tejeda-Mata, he jumped 

out of the car and asked the officer what was happening. The 

officer asked where he was from and Tejeda-Mata responded 

that he came from Mexico. 

Here, it should be clear from what we have thus far 

explained that we cannot conclude that any statements related 

to Oliva-Ramos being a flight risk were uncoerced, without 

an examination by the BIA or the IJ in the first instance into 

whether Oliva-Ramos was improperly seized during the home 
44

raid and subsequent arrest. See Wong Sun v. United States, 

371 U.S. 471, 484 (1963) (stating that if evidence is obtained 

as a result of an unlawful seizure, it is to be excluded as the 

― ̳fruits‘ of the [officer‘s] unlawful action.‖). The BIA relied 

solely on a statement contained in the Form I-213 that OlivaRamos posed a flight risk, and thus § 287.8(c)(2)(i) permitted 

a warrantless arrest. Whether Oliva-Ramos‘s warrantless 

arrest was valid depends upon whether he was illegally 

seized. Thus, we will vacate the BIA‘s ruling as to regulatory 

violation 8 C.F.R. § 287.8(c)(2)(i) and remand for further 

consideration in light of the potential illegal seizure of OlivaRamos.

4. 8 C.F.R. § 287.8(c)(2)(vii) (coerced statements)

8 C.F.R. § 287.8(c)(2)(vii) prohibits ―[t]he use of 

threats, coercion, or physical abuse by the designated 

immigration officer to induce a suspect to waive his or her 

rights or to make a statement . . . .‖ 8 C.F.R. § 

287.8(c)(2)(vii). The BIA combined its analysis of this 

regulatory provision with the discussion of an improper 

seizure under 8 C.F.R. § 287.8(b)(1). Based on our 

discussion of the circumstances surrounding the potential 

improper seizure and coercion, we will remand for further 

consideration of 8 C.F.R. § 287.8(c)(2)(vii) and any potential 

violation of the Due Process Clause of the Fifth Amendment. 

5. 8 C.F.R. § 292.5(b) (right to counsel)

In addition to the regulatory violations discussed 

above, Oliva-Ramos also claims that ICE agents violated 8 

C.F.R. § 292.5(b). That regulation provides: 

Whenever an examination is provided for in this 

chapter, the person involved shall have the right 

to be represented by an attorney or 

representative who shall be permitted to 

examine or cross-examine such person and 

witnesses, to introduce evidence, to make 

objections which shall be stated succinctly and 

entered on the record, and to submit briefs. 

Provided, that nothing in this paragraph shall be 

construed to provide any applicant for 

admission in either primary or secondary 
45

inspection the right to representation, unless the 

applicant for admission has become the focus of 

a criminal investigation and has been taken into 

custody.

8 C.F.R. § 292.5. The BIA rejected Oliva-Ramos‘s challenge 

to this provision, concluding that the Government is only 

required to inform an alien of his right to legal representation 

after he is placed into formal proceedings. See SamayoaMartinez v. Holder, 558 F.3d 897, 901-02 (9th Cir. 2009)). 

We agree with the Board‘s interpretation of § 292.5. Formal 

removal proceedings begin only after the Government has 

filed a Notice to Appear in immigration court. See 8 C.F.R. § 

1239.1(a) (―Every removal proceeding conducted under 

section 240 of the Act (8 U.S.C. § 1229a) to determine the 

deportability or inadmissibility of an alien is commenced by 

the filing of a notice to appear with the immigration court.‖). 

Here, although the Government issued its Notice to Appear 

for Oliva-Ramos on March 26, 2007, the notice was not filed 

with the Immigration Court—thus initiating formal 

proceedings—until March 29, 2007. That Notice to Appear 

also provided a statement informing Oliva-Ramos of his right 

to representation. Thus we will affirm the BIA as to its ruling 

on § 292.5 because we conclude that Oliva-Ramos was 

notified of his right to counsel before he was placed in formal 

proceedings.28

Conclusion

For the reasons discussed above, we will vacate in part 

and will affirm in part, the BIA‘s August 31, 2010 order, and 

we will remand to the BIA with instructions that it grant the 

motion to reopen the proceedings and that it conduct further 

 

28 We need not consider additional regulatory violations 

reached by the BIA as Oliva-Ramos has not appealed the 

BIA‘s decision as to 8 C.F.R. § 287.3 (failure to provide 

―timely‖ advice of rights), 8 C.F.R. § 287.3(a) (examination 

by same officer who arrested respondent), and 8 C.F.R. § 

287.8(d)(1) (conditions of prolonged detention in a van).
46

proceedings (which may include a remand to the IJ) 

consistent with this opinion.29 

 

29 The panel notes that Ms. Nikki Reisch argued on behalf of 

Petitioner as an eligible law student pursuant to Local 

Appellate Rule 46.3. The Court commends her exceptional 

oral advocacy and expresses its gratitude to her and to the 

New York University School of Law and the Washington 

Square Legal Services, Inc. for the pro bono representation 

provided for the Petitioner in this matter.