IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ADAN
LOPEZ-MENDOZA AND ELIAS SANDOVAL-SANCHEZ

   No. 83-491

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the Petitioner

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Introduction and summary of argument
   Argument:
      The exclusionary rule should not be extended to civil
      deportation proceedings
      A. The exclusionary rule is a remedy of last resort
          and should not be extended to an entirely new
          class of cases absent persuasive evidence that
          such a severe measure is required
      B. The costs of applying the exclusionary rule to
          deportation proceedings are excessive
      C. There is neither a demonstrated need for the
          sanction of the exclusionary rule in deportation
          proceedings nor a realistic possibility that it
          would produce meaningful incremental deterrence
      D. The court of appeals failed to give sufficient
          weight to the availability of other means
          to reduce or discourage Fourth Amendment
          violations
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-94a) is reported
at 705 F.2d 1059.  The opinions of the Board of Immigration Appeals
and the immigration judges (Pet. App. 97a-116a) are not reported.

                             JURISDICTION

   The judgments of the court of appeals (Pet. App. 95a, 96a) were
entered on April 25, 1983.  On July 15, 1983, Justice Rehnquist
extended the time within which to file a petition for a writ of
certiorari to and including September 22, 1983.  The petition was
filed on that date and was granted on January 9, 1984 (J.A. 203).  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the Fourth Amendment's exclusionary rule should be extended
to civil deportation proceedings.

                               STATEMENT

   Respondents sought to avoid deportation on the ground that their
admissions of illegal alienage, which were used against them at their
deportation hearings, were the fruits of unlawful arrests and should
have been suppressed.  On petitions for review of their deportation
orders (consolidated by the court of appeals), the Ninth Circuit held,
in a seven to four decision, /1/ that the exclusionary rule applies in
civil deportation proceedings.  Concluding that respondent
Sandoval-Sanchez had been arrested in violation of the Fourth
Amendment and that the only evidence supporting his deportability had
been obtained as a result of the unlawful arrest, the court of appeals
suppressed that evidence and reversed Sandoval's order of deportation.
 Because the legality of respondent Lopez-Mendoza's arrest had not
been determined in the administrative deportation proceedings, the
court vacated the deportation order against him and remanded his case
to the Board of Immigration Appeals for determination of the Fourth
Amendment issue.

   1. Respondent Lopez was arrested in 1976 by Immigration and
Naturalization Service (INS) agents at his place of employment in San
Mateo, California.  The investigators had received a tip about the
employment of illegal aliens there (J.A. 15-16), and they went to that
location, which appeared to be a transmission repair shop (J.A. 17),
for the purpose of interviewing the persons named by the informant
(J.A. 18, 23, 28-29).  They arrived shortly before 8:00 a.m. (J.A.
54).  One agent approached the proprietor and stated the purpose of
their visit (J.A. 18).  The proprietor would not allow his employees
to be interviewed during working hours, and he suggested that the
agents return during the lunch hour (J.A. 41).  The agents knew from
experience, however, that if they left the shop, no illegal aliens
would be there when they returned (J.A. 35-36, 52).

   To avoid a confrontation with the proprietor, one agent approached
Lopez, who was standing some distance away (J.A. 23).  The agent first
identified himself in English but received no response.  The agent
then identified himself in Spanish, inquired where Lopez was from, how
he had entered the United States, whether he had papers, and whether
he had any family in this country (J.A. 20, 36).  Lopez answered the
questions voluntarily (J.A. 37, 45).  Had he refused to answer, the
agent simply would have terminated the interview (ibid.).  Lopez's
answers disclosed that he was an undocumented alien with no family
ties in this country (J.A. 20-21, 28).  /2/ Because of his lack of
family ties and the consequent risk of his absconding, Lopez was taken
into custody as an illegal alien (J.A. 28).  Subsequently, Lopez
executed an affidavit admitting his Mexican nationality and his
illegal entry into this country (J.A. 99-101).

   On the basis of Lopez's admissions, the immigration judge found him
deportable, but granted him the privilege of voluntary departure (Pet.
App. 99a).  /3/ The immigration judge found it unnecessary to pass on
Lopez's claim that he had been unlawfully arrested, stating that "the
mere fact of an illegal arrest has no bearing on subsequent
deportation proceedings" (id. at 98a).

   The Board of Immigration Appeals (BIA or Board) /4/ dismissed
Lopez's appeal (Pet. App. 100a-103a), concluding that Lopez's claim
that he had been illegally arrested was irrelevant (id. at 102a):

      We reject the notion that an unlawful arrest can somehow
      transform an alien's unlawful presence in the United States into
      a right to remain.

   The Board also rejected Lopez's claim for invocation of the
exclusionary rule, noting that it had thoroughly considered that issue
in a prior case (Matter of Sandoval, 17 I. & N. Dec. 70 (BIA 1979)
(J.A. 163-202)) /5/ and had there concluded (Pet. App. 102a-103a):

      (A)doption of the (exclusionary) rule in deportation proceedings
      would (not) offer any significant deterent to misconduct to an
      immigration officer who would otherwise intentionally violate an
      individual's Fourth Amendment rights in the hope of assisting in
      that alien's deportation.  * * * (T)he potential benefit of the
      rule does not justify the societal cost of its application and *
      * * other means of deterring immigration officers from unlawful
      conduct are available.

   2. Respondent Sandoval was arrested in 1977 at his place of
employment, a potato processing plant in Pasco, Washington.  /6/ INS
Agent Bower and other officers went to the plant, with the permission
of its personnel manager, to check for illegal aliens (J.A. 127, 137).
 While some of the officers stationed themselves at the exits, Bower
and a uniformed Border Patrol agent entered the plant (J.A. 128).
Because a shift change was occurring, they went first to the
lunchroom, then through the plant area, and finally to the main
entrance (J.A. 128, 129).  As soon as they entered the lunchroom, they
identified themselves as immigration officers (J.A. 133).  Their
appearance caused confusion -- many people in the lunchroom rose and
either headed for the exits or milled around;  others in the plant
area left their equipment and started running;  and many of those who
were entering the plant turned around and started walking back out
(J.A. 129-130).

   The two officers eventually stationed themselves at the main
entrance to the plant.  As employees passed, the officers looked for
those who averted their heads, avoided eye contact, or tried to hide
themselves in a group.  They addressed those individuals in English,
with innocuous questions.  The conversations were terminated if the
individuals responded in English.  Those who could not respond in
English and who by their actions aroused Agent Bower's suspicions,
based on his experience as an immigration investigator, were
questioned in Spanish as to their right to be in the United States.
J.A. 133-134.

   Agent Bower testified that it was "very probable" that he, and not
his partner, had questioned Sandoval at the plant, but that he could
not be "absolutely positive" (J.A. 135, 136).  The alien whom he
thought he remembered as Sandoval had been "very evasive" -- the
individual had averted his head, turned around, and walked away when
he saw Agent Bower (J.A. 137, 138).  Agent Bower was certain that no
one was questioned about his status unless his actions had given the
officers reason to believe that he was an undocumented alien (J.A.
140).

   Thirty-seven illegal aliens, including Sandoval, were briefly
detained at the plant and later transported to the county jail for
processing (J.A. 129, 131).  At the jail, about one-third of the
aliens availed themselves of the privilege of voluntary departure, and
they were immediately put on a bus to Mexico (J.A. 141).  Those,
including Sandoval, who elected to exercise their right to a
deportation hearing were questioned further.  During this questioning,
Agent Bower reduced to writing (on a Form I-213) Sandoval's admission
of unlawful entry (Pet. App. 6a).

   Based on the written record of Sandoval's admissions, the
immigration judge found him deportable (Pet. App. 104a-109a).  The
immigration judge considered and rejected Sandoval's claim that he had
been unlawfully arrested and, in the alternative, held that an illegal
arrest "does not tend to negate the validity of a deportation hearing"
(id. at 107a, 108a).  Despite the fact that this was Sandoval's second
entry without inspection, the immigration judge, as a matter of
administrative discretion, granted his alternate request for voluntary
departure (id. at 108a-109a).

   The BIA dismissed Sandoval's appeal (Pet. App. 110a-113a).
Reviewing the entire record, including Sandoval's own testimony, the
Board concluded that the circumstances of his arrest had not affected
the voluntariness of his recorded admission (id. at 112a).  The Board
also again declined to invoke the exlusionary rule (id. at 112a-113a).

   3. The court of appeals reversed Sandoval's deportation order and
vacated and remanded Lopez's deportation order (Pet. App. 1a-94a).
Six members of the panel, in an opinion written by Judge Norris, held
that Sandoval's admission was the fruit of an unlawful arrest and that
the exclusionary rule, which was held applicable to deportation
proceedings, required suppression of the evidence (Pet. App. 1a-37a).
Judge Goodwin, in a special concurring opinion (id. at 38a), agreed
that, "for better or for worse," the exclusionary rule applies to
deportation proceedings, but noted that he joined in the finding of a
Fourth Amendment violation in Sandoval's case only "(u)nder the
compulsion of Intern.  Ladies' Garment Workers', Etc. v. Sureck, 681
F.2d 624 (9th Cir. 1982), which is the law of this circuit, but with
which I disagreed * * *." Lopez's deportation order was vacated and
his case remanded to the BIA to determine whether there had been a
Fourth Amendment violation.

   Adopting the analytical framework set forth in United States v.
Janis, 428 U.S. 433 (1976), the majority concluded that the benefits
of applying the exclusionary rule in civil deportation proceedings
out-weighed the costs.  On the "benefit" side, the majority opined
that the "deterrent impact of invoking the rule in deportation
proceedings will be 'substantial and efficient'" (Pet. App. 25a
(footnote omitted) (quoting Janis, 428 U.S.at 453)) because the
allegedly illegal evidence is used by the same agency whose officers
obtain it and because "there are no other applications of the
exclusionary rule which effectively deter the offending officers from
violating the Fourth Amendment" -- for example, reliance on the
deterrence that could be obtained by suppressing evidence only in
criminal immigration prosecutions was thought to be inadequate because
the evidence was not likely to have been obtained with such criminal
prosecutions in mind.  Pet. App. 22a-24a.  The majority also rejected
Bivens actions, injunctive relief, and internal agency discipline,
finding them inadequate alternatives to application of the
exclusionary rule (Pet. App. 33a-35a).

   On the other side of the balance, the majority found the societal
costs of suppression to be negligible.  It opined that the only real
cost to be considered was the number of illegal aliens who will
successfully avoid deportation and concluded that that number "will
not appreciably increase the number of illegal aliens in our midst"
(Pet. App. 27a).

   Judge Alarcon, joined by Judges Wright, Wallace, and Poole,
dissented from the majority's holding on the exclusionary rule issue
(Pet. App. 39a-85a).  Judge Wright also wrote a separate opinion
specially concurring in the principal dissenting opinion (id. at
86a-90a), and, as previously noted (see page 7 note 7, supra), Judge
Poole separately dissented from the majority's conclusion that
Sandoval had been unlawfully arrested (Pet. App. 91a-94a).

   On the exclusionary rule issue, the principal dissent argued that
there was nothing in the record "from which it can be reasonably
inferred that immigration officers routinely conduct unreasonable
searches and seizures," nor were there "any facts that would support
an inferrence that extending the exclusionary rule to civil
deportation proceedings would act as a significant deterrent to
present INS practices" (Pet. App. 46a).  Hence, the dissent was of the
view that the court had "created a remedy for which there is no
demonstrated need" (ibid.).  /8/ Judge Wright, in his separate
dissent, was willing to assume that there might "be a deterrent effect
if the rule were applied in deportation proceedings because these
proceedings are within immigration officers' zone of primary interest"
(id. at 87a).  After noting the costs associated with the exclusionary
rule, however, he expressed the view that "(t)hese are not cases in
which the manner of seizing evidence was so egregious as to call for
the deterrent impact of the rule" (id. at 89a).

   On the cost side, the principal dissent noted that, under the
"fruit of the poisonous tree" concept, suppression could well immunize
an alien perpetually from deportation despite his continuing violation
of the immigration laws (Pet. App. 48a-49a).  Moreover, requiring
suppression hearings in deportation proceedings "could result in
protracted interruption of the proceedings, and may seriously impede
enforcement of our nation's immigration laws" (id. at 72a).  Thus, the
dissent took issue with the majority's decision to limit its
consideration of the costs of applying the exclusionary rule in
deportation proceedings to the additional number of illegal aliens
that might be expected to escape deportation (id. at 74a-75a):

      The impact of the rule on deportation proceedings is not so much
      that the illegal alien population will increase -- indeed it
      does so every year despite heightened enforcement policies.
      Rather, the impact of the rule on civil deportation proceedings
      must be measured against the number of motions to suppress that
      will be made -- not the number of constitutional challenges that
      are meritorious.  This is the potential injury to the
      deportation proceeding that must be weighed in the balancing
      process.

   The dissent then concluded that this cost would be excessive (Pet.
App. 77a).  Finally, the dissent was of the view that INS's stringent
procedures for disciplining officers who conduct illegal searches and
seizures made application of the exclusionary rule to deportation
proceedings unnecessary (id. at 78a-82a).

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   By extending the exclusionary rule to civil deportation
proceedings, convened solely for the purpose of determining whether an
alien has the right to be in the United States, the court of appeals
has sanctioned a continuing violation of the law by freeing an illegal
alien and allowing him to perpetuate his unlawful presence in this
country.  This licensing of continuing unlawful conduct is
unparalleled in our jurisprudence, for although the suppression of
evidence in a criminal prosecution often amounts to a grant of
immunity for past criminal conduct, so too does the expiration of a
statute of limitations, the granting of a pardon, or the granting of
immunity by a prosecutor.  But it is unprecedented for the judiciary
to create rules of evidence or procedure that directly facilitate the
commission of continuing unlawful conduct.

   The reversal of respondent Sandoval's deportation order, moreover,
does more than simply offend society's notions of justice and judicial
integrity.  The court of appeals' extension of the exclusionary rule
to civil deportation proceedings will have severe practical effects:
It threatens grave injury to the enforcement of our immigation laws
and may create a new class of aliens whose only documentation is a
judge's opinion suppressing evidence -- and it does so at a time when
the Legislative and Executive Branches are attempting to regain
control over the nation's borders and stem the flood of aliens
unlawfully entering and residing in the United States.

   The suppression rule, after all, is not constitutionally mandated,
but is a judicially created remedy designed to deter unlawful police
conduct.  See, e.g., United States v. Calandra, 414 U.S. 338, 347-348
(1974).  The determinative question, therefore, is not whether the
protections of the Fourth Amendment extend to deportable aliens
discovered in this country -- a proposition we do not contest -- but
whether it is appropriate to permit illegal aliens to invoke the
exclusionary rule in civil deportation proceedings in order to
perpetuate their unlawful presence in the United States.  We submit
that it is not, and that this Court should dismantle the Ninth
Circuit's new "barrier() to law enforcement (created) in the pursuit
of a supervisory role that is properly the duty of the Executive and
Legislative Branches." United States v. Janis, 428 U.S. 433, 459
(1976).

   A. Not since Mapp v. Ohio, 367 U.S. 643 (1961), has this Court
extended the exclusionary rule to an entirely new category of cases.
It is well to bear in mind, however, that there are certain
fundamental distinctions between the situation confronting the Court
in Mapp and the cases now before the Court.  The decision in Mapp was
reached essentially as a matter of last resort, only after the Court
concluded, based on the experience of the states in the years
following Wolf v. Colorado, 338 U.S. 25 (1949), that less drastic
remedies had failed.  Here, by way of contrast, there is neither
evidence of widespread Fourth Amendment violations by immigration
officers nor any indication that those occasional violations that do
occur can be materially reduced by addition of the suppression
sanction to the array of alternative training and deterrent mechanisms
already in place.  Moreover, the Court's task in assessing the
efficacy of the alternative deterrents is greatly simplified here,
where it is the activities of a single federal agency, rather than
those of every state and local police department in the country, that
are under scrutiny.  The available evidence indicates that INS already
is taking all reasonable measures to ensure compliance by its officers
with the Fourth Amendment and that the additional sanction of the
exclusionary rule is neither needed nor likely to provide a measurable
increment of deterrence.

   B. Nothing in the Fourth Amendment or any other provision of the
Constitution either directly or implicitly provides for the exclusion
of illegally seized evidence from criminal trials, let alone
administrative deportation hearings.  Instead, decisions of this Court
over the last two decades have made it clear that the exclusionary
rule, first enunciated in Weeks v. United States, 232 U.S. 383 (1914),
and later extended to the states in Mapp, is a judicially-created
remedy, the paramount and perhaps sole purpose of which is the
deterrence of unlawful police conduct.  See, e.g., Calandra, 414 U.S.
at 348;  Desist v. United States, 394 U.S. 244, 254 n.24 (1969).  For
that reason, the Court has recognized that it makes sense to apply the
rule only to those situations in which its deterrent purpose will in
fact be significantly advanced.  Calandra, 414 U.S.at 348.

   Although the nature of the proceeding is not the controlling
inquiry, it is certainly relevant, in undertaking a cost-benefit
analysis of the exclusionary rule's applicability to deportation
proceedings, to bear in mind that "(i)n the complex and turbulent
history of the rule, the Court has never applied it to exclude
evidence from a civil proceeding, federal or state." Janis, 428 U.S.at
447 (footnote omitted).  This is so because the need for deterrence,
and hence the rationale for the rule, is strongest in criminal cases.
See Calandra, 414 U.S.at 348.  Deportation proceedings, although they
carry important consequences, have always been regarded as civil
matters.  Their sole purpose is to determine an alien's right to
remain in this country, not to punish for the commission of a crime.

   C. In our submission, a reasoned cost-benefit analysis demonstrates
that the court of appeals erred in extending the exclusionary rule to
civil deportation proceedings.  Preliminarily, however, we suggest
that this is a situation ill-suited to a strictly even-handed weighing
of costs and benefits.  By excluding unquestionably relevant evidence,
the exclusionary rule operates in precisely the opposite manner from
what we demand of other rules of evidence.  Thus, its benefits should
not simply be presumed;  they must, instead, be convincingly
demonstrated if they are to overcome the indisputable costs.
Accordingly, the exclusionary rule cannot rationally be extended to
deportation proceedings on the basis of nothing more than speculation
that it might produce some benefit.  Such drastic medicine must be
reserved for cases in which it is demonstrably likely to satisfy a
proven need.

   D. The societal costs of extending the exclusionary rule to
deportation proceedings are excessive.  First, the exclusion of oral
admissions of alienage is likely to result in a de facto grant of
resident status and immunity from the immigration laws to persons not
entitled to be in this country.  Because the vast majority of
deportable aliens enter this country without inspection, it is highly
unlikely that INS will have in its files other, untainted evidence
sufficient to support a finding of deportability.  In these
circumstances, INS may never be able to proceed against an alien who
has once reaped the windfall benefits of suppression.  In practical
effect, therefore, the court of appeals' decision is akin to judicial
sanction for the suppression of an alien's "body," a result this Court
has unequivocally rejected in the criminal context.  See United States
v. Crews, 445 U.S. 463 (1980).

   Second, application of the exclusionary rule to deportation
proceedings carries heavy systemic costs that threaten to bring the
administrative and judicial deportation process to a virtual halt.
The staggering workload of the immigration judges is manageable only
because deportability is usually conceded.  But the windfall benefits
of suppression, resulting in the termination of deportation
proceedings, cannot help but serve as an irresistible incentive to
raise suppression motions, whether meritorious or not.  The longer an
alien can delay his departure from this country, the more likely it is
that he may never be forced to leave.  Thus, proceedings that are
intended to be essentially summary in nature will not involve complex
constitutional questions that befuddle even the most experienced
jurists.  It is manifest that the deportation process cannot cope with
such a radical change absent a massive infusion of additional
resources.

   Finally, proper enforcement of the immigration laws would be
severely hampered by the decision below.  Effective immigration
enforcement requires deployment of the limited available personnel in
a manner that is likely to produce nearly simultaneous arrests of
relatively large numbers of individuals, such as those resulting from
factory or farm surveys.  Officers conducting such arrests cannot
realistically be expected to maintain the type of detailed,
individualized records that are routine in the criminal field.
Although the officers can testify that they followed certain
procedures, they generally will be unable to recall in detail the
specifics of any particular arrest or group of arrests -- as
demonstrated by Agent Bower's testimony regarding the apprehension of
respondent Sandoval.  To avoid suppression of the only evidence
supporting deportability, INS agents, no matter how scrupulously they
have adhered to the dictates of the Fourth Amendment, will thus be
compelled to adopt investigative and record-keeping methods that will
enable them to provide detailed, individualized testimony at
subsequent suppression hearings.  In addition, a considerable portion
of each officer's time will have to be devoted to attendance at
suppression hearings rather than field operations.  Inevitably, these
changed procedures will severely reduce the number of arrests that can
be made, even though the lawfulness of the general investigative
operations is not in question.

   E. The exclusionary rule's ability to deter unlawful police conduct
has always been a matter of conjecture -- intuitively plausible in the
context of criminal investigative activities, but nevertheless
unproven.  See, e.g., Stone v. Powell, 428 U.S. 465, 492 & n.32
(1976);  Janis, 428 U.S.at 449-453;  Elkins v. United States, 364 U.S.
206, 218 (1960).  Because of the rule's effectiveness is a matter of
speculation, there is no justification for applying it to a whole new
class of proceedings in the absence of both a proven pattern of abuse
requiring such a drastic "remedy" and a comparably strong "intuitive"
basis for supposing that it will afford a meaningful increment of
deterrence of unlawful conduct.  The court of appeals was forced to
acknowledge, however, that there is no evidence of widespread Fourth
Amendment violations by immigration officers (Pet. App. 28a).  Thus,
as the dissent complained, the court of appeals "has created a remedy
for which there is no demonstrated need" (id. at 46a).

   The cases before the Court highlight another serious problem that
is likely to sap the deterrent sanction of much of its potential
force.  There is no evidence in either case that the alien was in fact
subjected to an illegal seizure.  The illegality in respondent
Sandoval's case, for instance, was simply presumed on the basis of
Agent Bower's inability to remember with certainty the details of the
encourter.  But application of the exclusionary rule to conduct that
was probably lawful is hardly likely to contribute significantly to
the deterrence of illegal conduct.

   Moreover, it is unrealistic to suppose that immigration officers
will be particularly responsive to the suppression sanction.  Such
officers typically arrest hundreds of deportable aliens each year and
are not likely to be greatly influenced by the possibility that one or
even several of their arrests might be held unlawful and thereby block
deportation;  their "investment" in any particular case pales in
comparison to what might be expected of police officers conducting
criminal investigations, who may make five or ten arrests per year.
In addition, the disincentive to illegal conduct that can be
anticipated from the suppression remedy is greatly diluted in the
immigration context, because the officer knows in advance that most
apprehended aliens will in any event accept voluntary departure rather
than challenge their arrest.  In these circumstances, an immigration
officer is likely to be far more responsive to internal constraints,
such as disciplinary sanctions, than to the possible suppression of
evidence.

   F. Finally, the court of appeals gave insufficient weight to the
existing, and apparently quite successful, means of curbing Fourth
Amendment violations by INS officers:  thorough training in the
requirements of the Fourth Amendment, an administrative practice of
excluding evidence seized through intentionally or flagrantly unlawful
conduct, comprehensive and effective internal disciplinary measures,
the availability of injunctive relief, and damages suits.  With these
mechanisms already in place, and no evidence to demonstrate that they
are not working reasonably well, any increased benefit to be derived
from application of the exclusionary rule cannot justify the heavy
costs previously described.

   In sum, the court of appeals has reached out for the most severe
"remedy," in the absence of any proof of a problem requiring
correction or amenable to correction by such means, and in the face of
overwhelming costs that cannot be ignored.  The court utterly failed
to provide the justification required for the "drastic measure"
(Janis, 428 U.S. at 459) it has imposed on the immigration system.

                               ARGUMENT

 THE EXCLUSIONARY RULE SHOULD NOT BE EXTENDED TO CIVIL DEPORTATION
PROCEEDINGS

 A. The Exclusionary Rule Is A Remedy Of Last Resort And Should Not Be
Extended To An Entirely New Class Of Cases Absent Persuasive Evidence
That Such A Severe Measure Is Required

   1. Before undertaking the now familiar cost-benefit analysis
employed by the Court when it considers the appropriateness of
applying the exclusionary rule to particular categories of cases, /9/
it is well to bear in mind that there are certain fundamental
distinctions between the situation now before the Court and previous
cases in which the Court has considered the need for the exclusionary
rule.  Not since Mapp v. Ohio, 367 U.S. 643 (1961), in which the Court
held that the exclusionary rule enunciated in Weeks v. United States,
232 U.S. 383 (1914), was equally applicable to state criminal
prosecutions, has the Court extended the rule to an entirely new class
or category of cases.  /10/ The situation confronting the Court in
Mapp was, however, markedly different from the situation now before
the Court.  Not only did the facts in Mapp show a particularly
flagrant violation of Fourth Amendment rights in an individual case,
but, even more importantly, the Court was confronted with the generic
conclusion that its decision in Wolf v. Colorado, 338 U.S. 25 (1949),
to entrust to the states the manner of enforcement of the Fourth
Amendment's guarantees had not worked.  /11/ The Court concluded that
the factual considerations that had supported the decision in Wolf
were no longer valid, noting in particular that, in the intervening
years between Wolf and Mapp, many of the states had voluntarily
adopted their own exclusionary rules (367 U.S. at 651).  The Court was
especially influenced by the experience of California, whose supreme
court had been "'compelled (to adopt an exclusionary rule) * * *
because other remedies have completely failed to secure compliance
with the constitutional provisions . . . .' People v. Cahan, 44 Cal.
2d 434, 445, 282 P.2d 905, 911 (1955)" (367 U.S. at 651).  The Court
added that "(t)he experience of California that such other remedies
have been worthless and futile is buttressed by the experience of
other States" (id. at 652).

   In short, the Court reached the result it did in Mapp as a decision
of last resort, and only after concluding that other, less drastic
approaches had failed to curb widespread abusive police practices.
Here, by way of contrast, there is neither evidence of widespread
Fourth Amendment violations by immigration officers nor any indication
that those isolated violations that do occur can be materially reduced
by adding a suppression remedy to the comprehensive array of
alternative training and deterrance mechanisms already in place.

   Equally important, the Court in Mapp was faced with devising a
remedy that would promote conscientious adherence to the Fourth
Amendment's commands by every state and local police force in the
country, from the most sophisticated metropolitan police department to
the smallest local constabulary.  The cases now before the Court,
however, involve the operations of a single federal agency.  It is
therefore a relatively straightforward task for the Court to determine
that the Immigration and Naturalization Service already has adopted
all reasonable measures to ensure compliance by its officers with the
Fourth Amendment, and that whether additional deterrence might be
achieved by application of the exclusionary rule in deportation
proceedings is not worth the associated costs.

   2. It is by now clearly established that the exclusionary rule "is
a judicially created remedy designed to safeguard Fourth Amendment
rights generally through its deterrent effect, rather than a personal
constitutional right of the party aggrieved." United States v.
Calandra, 414 U.S. 338, 348 (1974) (footnote omitted);  see also
United States v. Janis, 428 U.S. 433, 446 (1976);  Stone v. Powell,
428 U.S. 465, 486 (1976);  United States v. Peltier, 422 U.S. 531, 538
(1975).  Accordingly, the exclusionary rule "has never been
interpreted to proscribe the introduction of illegally seized evidence
in all proceedings or against all persons." Stone v. Powell, 428 U.S.
at 486.  Instead, application of the rule has been carefully
"restricted to those areas where its remedial objectives are thought
most efficaciously served." Calandra, 414 U.S. at 348;  see also
Janis, 428 U.S. at 447;  Peltier, 422 U.S. at 538-539.  For these
reasons, the Court has long engaged in a cost-benefit analysis when it
has confronted suggested expansions of the rule.

   In our submission, however, this weighing of costs and benefits is
not properly performed on scales that are evenly balanced.  By
excluding unquestionably relevant evidence, the exclusionary rule
operates in precisely the opposite manner from what we generally
demand of other rules of evidence.  See, e.g., C. McCormick, Handbook
of the Law of Evidence Section 72 (E. Cleary ed. 1972).  Thus, the
rule's benefits should not simply be presumed;  the rule's application
to new situations requires more than an assumption that it might have
the desired deterrent effect.  As the Chief Justice observed in his
concurrence in Stone v. Powell, 428 U.S.at 499-500 (emhasis in
original;  citation omitted):

         To vindicate the continued existence of this judgemade rule,
      it is incumbent upon those who seek its retention -- and surely
      its extension -- to demonstrate that it serves its declared
      deterrent purpose and to show that the results outweigh the
      rule's heavy costs to rational enforcement of the criminal law.
      The burden rightly rests upon those who ask society to ignore
      trustworthy evidence of guilt, at the expense of setting
      obviously guilty criminals free to ply their trade.

   See also Amsterdam, Search, Seizure and Section 2255:  A Comment,
112 U.Pa.L.Rev. 378, 389 (1964):  "(T)he rule is a needed, but
grudingly (sic) taken, medicament;  no more should be swallowed than
is needed to combat the disease."

   3. These cautionary notes were sounded in the context of the
traditional application of the exclusionary rule to criminal
prosecutions.  While Janis teaches that the same cost-benefit analysis
that is applied in criminal cases is appropriate in the civil context
as well, /12/ it is nevertheless important to bear in mind that, "(i)n
the complex and turbulent history of the (exclusionary) rule, the
Court never has applied it to exclude evidence from a civil
proceeding, federal or state." Janis, 428 U.S.at 447 (footnote
omitted).  /13/ Instead, the Court has stated that "the need for
deterrence and hence the rationale for excluding the evidence are
strongest where the Government's unlawful conduct would result in
imposition of a criminal sanction on the victim of the search."
Calandra, 414 U.S. at 348 (footnote omitted);  see also Abel v. United
States, 362 U.S. 217, 237 (1960).

   The purpose of a deportation proceeding, on the other hand, is
simply to determine an alien's right to remain in this country.
Accordingly, deportation proceedings have long been characterized as
civil in nature.  See Woodby v. INS, 385 U.S. 276, 285 (1966).
Deportation is "not a punishment for crime," but rather "a method of
enforcing the return to his own country of an alien who has not
complied with the conditions upon the performance of which the
government of the nation, acting within its constitutional authority
and through the proper departments, has determined that his continuing
to reside here shall depend." Fong Yue Ting v. United States, 149 U.S.
698, 730 (1893);  see also Mahler v. Eby, 264 U.S. 32, 39 (1924)
("(D)eportation, while it may be burdensome and severe for the alien,
is not a punishment.");  Bugajewitz v. Adams, 228 U.S. 585, 591
(1913);  Li Sing v. United States, 180 U.S. 486, 494-495 (1901).
Thus, while we do not contend that the civil nature of a deportation
proceeding is controlling, it is clearly a relevant factor for the
Court to consider in any cost-benefit analysis of the appropriateness
of applying the exclusionary rule to deportation proceedings.

   4. With these principles in mind, we demonstate below that the harm
resulting from the exclusion of evidence of alienage in deportation
proceedings far outweighs any speculative benefit to Fourth Amendment
values that could conceivably be obtained through application of the
exclusionary rule.  Although the court of appeals did employ a
cost-benefit analysis, the court went astray in the values it brought
to that analysis.  As Judge Alarcon's dissenting opinion makes clear
(Pet. App. 39a-85a), the majority totally ignored many of the costs of
suppression in the deportation context, took a grudging view of the
single cost it did consider, and greatly overstated the extent of the
incremental deterrence that its decision might promote.  More
fundamentally, the court of appeals erred in imposing the most drastic
possible sanction in the absence of any demonstrated need for such a
remedy and in the absence of any persuasive evidence that alternative
remedies are inadequate.

 B. The Costs Of Applying The Exclusionary Rule To Deportation
Proceedings Are Excessive

   The societal costs resulting from extension of the exclusionary
rule to deportation proceedings are far greater than the court of
appeals was willing to acknowledge.  The Board of Immigration Appeals
detailed those costs in its comprehensive opinion in Matter of
Sandoval, supra.  The BIA's analysis clearly reveals that the costs of
suppression in the deportation context are higher than our immigration
system can afford.  /14/

   1. The most obvious result of applying the exclusionary rule in
deportation proceedings is that an alien who is not entitled to be in
this country may nonetheless remain here indefinitely.  Matter of
Sandoval, 17 I. & N. Dec. at 81;  J.A. 178.  /15/ The effect may be a
de facto judicial grant of resident status and immunity from the
immigration laws.  In contrast, although exclusion of evidence in a
criminal proceeding may allow an accused to escape punishment for past
crimes, it does not countenance continuation of the illegal conduct in
the future.

   The likelihood of a de facto "adjustment of status" is quite real.
Contrary to the lower court's facile suggestion that aliens who
successfully invoke the exclusionary rule can be reapprehended and
deported by the use of untainted evidence (Pet. App. 32a n.21), the
matter is not that simple.  First, and most obvious, is the fact that
once aliens are discharged from a deportation proceeding, they may
never be apprehended again.  And even if they are, it may well be
impossible to prove that the new evidence of their deportability is
not tainted by the evidence that has been previously suppressed.
Unlike the situation with respect to aliens who overstay their visas,
INS has no records concerning the vast majority of aliens who have
entered without inspection (see id. at 28a).  Thus, a reapprehended
alien is likely to be known to INS only because of the Service's prior
apprehension of him.  In the vast majority of cases, as the court of
appeals itself appeared to recognize (id. at 24a-25a n.13), it is
highly unlikely that INS's files will reveal anything about the alien,
much less untainted evidence necessary for a new deportation
proceeding.  As Board Member Farb explained in his concurring opinion
in Matter of Sandoval, 17 I. & N. Dec. at 85 (emphasis added) (J.A.
183-184):

         For Fiscal Year 1977, the Immigration and Naturalization
      Service reported that it had located 1,042,000 deportable
      aliens.  Of these, 939,000, or 90%, were listed as having
      entered without inspection.  That means that for the vast
      majority there was no reason to expect that the Immigration and
      Naturalization Service records contained prior evidence of their
      identity as aliens.  I am not condoning or encouraging violation
      of Fourth Amendment rights in the immigration investigator's
      search for solid proof of identity.  If it were done
      deliberately, discharge from Government service would be
      appropriate.  I simply don't see how we can reasonably bar the
      use of illegally obtained convincing proof that a person is an
      alien with no right of presence, when that may be all that will
      even be available to identify him.

   Thus, the practical effect of a suppression order in a deportation
proceeding may well be to immunize an illegal alien from ever being
deported.  Although the court of appeals purported to be ordering
suppression only of respondent Sandoval's statements, its judgment
reversing the order of deportation was, in reality, akin to
suppression of an alien's "body," a result this Court has found
unacceptable in criminal cases.  See United States v. Crews, 445 U.S.
463, 474 (1980);  see also id. at 477 (Powell J., concurring);  id. at
478-479 (White, J., concurring).  If respondent Sandoval is ever
reapprehended, but does not make a new, untainted statement, a second
deportation proceeding would likely be terminated as well resulting in
yet another suppression of his "body" and again permitting him to
remain in the United States in violation of the immigration laws.

   2. A more serious and far-reaching cost is the damage to the
administrative and judicial deportation process that will result from
merely permitting suppression motions to be brought.  The inevitable
consequence will be serious interference with the country's ability to
expel the vast numbers of illegal aliens who have entered
surreptitiously.  In Matter of Sandoval, 17 I. & N. Dec. at 80 (J.A.
177), the BIA first hypothesized that this cost might be deemed
minimal "in view of the fact that since 1899 we can find only two
reported cases in which unlawfully seized evidence was in fact
excluded from deportation proceedings and only one other case in which
the applicability of (the) rule was specifically addressed." Upon
closer analysis, however, the BIA found substantial "hidden" costs.
First, it described the costs to "the system" (ibid. (footnote
omitted)):

      Absent the applicability of the exclusionary rule, questions
      relating to deportability routinely involve simple factual
      allegations and matters of proof.  When Fourth Amendment issues
      are raised at deportation hearings, the result is a diversion of
      attention from the main issues which those proceedings were
      created to resolve, both in terms of the expertise of the
      administrative decision makers and of the structure of the forum
      to accommodate inquiries into search and seizure questions.  The
      result frequently seems to be a long, confused record in which
      the issues are not clearly defined and in which there is
      voluminous testimony, but the underlying facts (are) not
      sufficiently developed.  The ensuing delays and inordinate
      amount of time spent on such cases at all levels has an adverse
      impact on the effective administrative of the immigration laws,
      which to date (in view of the virtual absence of cases in which
      evidence has been ultimately excluded) has in no way been
      counterbalanced by any apparent productive result.

   And, referring to the realities of immigration practice, the BIA
noted (17 I. & N. Dec. at 80;  J.A. 178):

      This is particularly true in a proceeding where delay may be the
      only "defense" available and where problems already exist with
      the use of dilatory tactics.

   Deportation hearings are conducted before a quasi-judicial
administrative forum of special and limited function and expertise.
Neither the hearing officers nor the attorneys participating in this
those hearings are ordinarily well-versed in the considerable
intricacies of Fourth Amendment jurisprudence.  The proceedings are --
and are intended to be -- essentially summary.  See Zakonite v. Wolf,
226 U.S. 272, 275 (1912).  Indeed, given the volume of deportation
proceedings, most cannot be anything but summary if the system is to
continue to operate.  /16/ The staggering workload is manageable only
because, as the BIA explained in Matter of Sandoval, 17 I. & N. Dec.
at 80 n.21 (J.A. 177), "in the majority of cases, deportability is
conceded and the bulk of the hearing concerns applications for various
categories of mandatory and discretionary relief from deportation."
Manifestly, any significant intrusion of "complex constitutional
controversies" (Pet. App. 75a) will overload the system to the point
of breakdown.  Hearings that can now be conducted in an hour or less
will take a day or more, and decisions that can now be rendered
expeditiously will often require sophisticated and time-consuming
research and analysis by the immigration judge.

   Moreover, it is unrealistic to expect that there will not be a
significant increase in the number of suppression motions made in
deportation proceedings if the decision below stands.  For an illegal
alien, "delay may be the only 'defense' available." Matter of
Sandoval, 17 I. & N. Dec. at 80;  J.A. 178.  The longer an alien can
postpone a final deportation order, the longer he can remain in this
country and hope that something will happen to save him from
deportation.  The decision below thus compounds the problems attendant
upon enforcement of the immigration laws by providing illegal aliens
who would otherwise lack even a colorable legal defense to deportation
with a potent new strategy for delay.  /17/ It is not surprising that
the immigration bar has quickly latched on to the decision below by
increasingly asserting Fourth Amendment claims in suppression motions.
 In INS's Western Region, which encompasses the States of Arizona,
California, Hawaii, and Nevada (see 8 C.F.R. 100.4), a dramatic
increase in suppression motions is already apparent.  The decision
below was rendered on April 25, 1983 (Pet. App. 1a).  In the year
preceding the decision, INS advises us that 141 suppression motions
were filed in deportation proceedings within the Western Region.  /18/
In the seven months following the decision (from June 1, 1983, through
December 31, 1983), INS advises us that 342 suppression motions have
been filed in the Western Region.  /19/ Assuming that such motions
continue to be filed at a constant rate for the remainder of the first
year following the decision below -- undoubtedly a conservative
assumption -- a total of 586 such motions will be filed, in contrast
to the 141 motions filed in the year before the decision.  Although it
is still too early to know the disposition of most of these motions,
the indications to date support the hypothesis that they are filed
merely for purposes of delay, and not because they have any intrinsic
merit.  In the San Francisco District Office, for example, we are
advised that 100 suppression motions have been filed since the
decision below, 30 of those motions have been decided by immigration
judges (the first level of the deportation process), and only one
motion has been granted.

   Moreover, the problem of delay introduced by suppression motions
does not cease with the deportation hearing.  Although it is too early
for the increase in suppression motions to have affected the workload
of the BIA or the courts of appeals, it requires little speculation to
predict that illegal aliens whose suppression motions are denied by
immigration judges will appeal to the BIA and from the BIA to the
courts of appeals.  Indeed, the federal courts have frequently
expressed exasperation at the seemingly endless procedural maneuvering
of illegal aliens.  See, e.g., Der-Rong Chour v. INS, 578 F.2d 464,
467-468 (2d Cir. 1978);  Ballenilla-Gonzalez v. INS, 546 F.2d 515, 521
(2d Cir. 1976), cert. denied, 434 U.S. 819 (1977) ("(O)ur government
should not be forced to tolerate the practice, all too frequently
adopted by aliens once they become subject to a deportation order, of
using the federal courts in a seemingly endless series of meritless or
dilatory tactics designed to stall their departure as long as
possible.").  During the several years while administrative and
judicial appeals from the deniel of suppression motions are pending,
of course, aliens will be able to remain here notwithstanding the
complete absence of any claim of lawful right to be in the United
States.  /20/

   Thus, it is not far-fetched to predict, as the dissent suggested
(Pet. App. 72a-73a), that a considerable number of aliens who have
hitherto waived hearings and accepted voluntary departure will now
assert their right to a hearing solely in order to file such motions.
/21/ Not only would these motions add yet another significant source
of delay to the deportation process, but they are likely to add
substantially to the burdens of the courts that must review such
proceedings, as well as leading to the grant of indefinite stays to
aliens not entitled to be in this country (see pages 24-26, supra).
These results we submit, would deal a grave blow to the enforcement of
the immigration laws.

   3. There is yet another cost of applying the exclusionary rule to
deportation proceedings, one whose impact upon enforcement of the
immigration laws could considerably outweigh all other costs,
substantial as they are.  The practical effect of the court of
appeals' decision will be to require substantial modification of the
enforcement techniques that have proven to be the most effective in
apprehending illegal aliens.  As noted earlier, immigration officers
apprehend over one million deportable aliens per year.  To ensure
effective allocation of the agency's limited investigative resources,
INS's policy in areas away from the border is to utilize those
investigative procedures, such as factory and farm surveys, that are
likely to enable a relatively small number of agents to make large
numbers of essentially simultaneous apprehensions.  See Brief for the
Petitioners at 3-5 & n.3, INS v. Delgado, cert. granted, No. 82-1271
(Apr. 25, 1983) (argued Jan. 11, 1984).  (We have furnished
respondents' counsel with copies of our brief in Delgado.) One of the
factory surveys at issue in Delgado, for example, resulted in
essentially simultaneous arrests of 78 illegal aliens out of some 300
employees (id. at 5).  In light of the large number of arrests that an
individual officer may make in a single day and the inevitable time
lag between the arrest and a deportation proceeding, his recollection
of the circumstances of a particular arrest, and even of a particular
group of arrests on a single day, will understandably fade with time.
Indeed, it seems unlikely that an officer who may have arrested a
dozen or more people in the span of a few hours could accurately
recollect the facts pertinent to the arrest of each alien even if the
deportation hearing were held immediately following the arrests.  /22/
But if probable cause for a particular arrest or reasonable suspicion
for a stop is to be made an issue in deportation proceedings, INS will
find it necessary as a matter of litigative precaution to require its
officers to compile detailed, contemporaneous, written reports
recording the circumstances of each individual arrest.  /23/ Even if
it be assumed that substantial numbers of illegal aliens will continue
to depart voluntarily without a hearing, INS agents still would have
to make individualized arrest records because they could not know in
advance which aliens would exercise their right to a hearing.
Manifestly, the time consumed in executing detailed, on-the-spot
arrest reports will dramatically reduce the number of arrests that can
be made.

   In addition, it is rarely if ever necessary for the arresting
officer to attend the typical deportation hearing, at which
deportability is conceded and the only issue is discretionary relief.
The officer's only necessary contribution already has been made by
completing the I-213 "Record of Deportable Alien" that is introduced
to prove the government's case at the deportation hearing.  Once
suppression becomes an issue, however, the officer must not only be in
a position to recount the details of each arrest, but he must also
take time away from his regular duties to testify at the suppression
hearing.  Thus, a certain number of days each month that would
otherwise be devoted to the apprehension of deportable aliens will
instead be devoted to testifying at suppression hearings.  As we
domonstrate below, these diversions of INS's limited investigative
resources cannot be justified.

 C. There Is Neither A Demonstrated Need For The Sanction Of The
Exclusionary Rule In Deportation Proceedings Nor A Realistic
Possibility That It Would Produce Meaningful Incremental Deterrence

   Even in the criminal context for which the exclusionary rule was
first devised, this Court has noted the lack of reliable empirical
evidence to support the proposition that the exclusionary rule
operates effectively to deter police misconduct.  See, e.g., Stone v.
Powell, 428 U.S. at 492 & n.32;  Janis, 428 U.S. at 449-453;  Elkins
v. United States, 364 U.S. 206, 218 (1960);  Irvine v. California, 347
U.S. 128, 136 (1954).  Instead, the Court has accepted as intuitively
plausible the premise that suppression in a criminal trial is likely
to some extent or in some circumstances to deter police officers from
committing Fourth Amendment violations.  Whatever the validity of that
assumption in the context of criminal investigations, it clearly is
far less plausible in the context of immigration enforcement.
Moreover, the court of appeals itself acknowledged (Pet. App. 28a)
that there is no evidence of widespread Fourth Amendment violations by
immigration officers;  nevertheless, it reached out to apply the
exclusionary rule to all deportation proceedings in the future.  This
rush to judgment, in the absence of convincing evidence of need,
cannot be squared with the much more cautious approach taken by this
Court to suggested expansions in the scope of the exclusionary rule.

   1. The absence of a demonstrated need to invoke the exclusionary
rule is particularly striking here, where it is not at all clear that
any Fourth Amendment violations actually occurred.  In respondent
Lopez's case, the Fourth Amendment issue has yet to be determined, but
the administrative record seems quite adequate to demonstrate that an
admission of alienage was made during a nonseizure encounter, and
accordingly that there was no violation's of Lopez's Fourth Amendment
rights.  /24/ Yet the result of the court of appeals' ruling is that a
known illegal alien who was apprehended nearly eight years ago is
given another round of hearings, to be followed by the inevitable
appeals, that will allow him to remain in this country for several
more years.  And in respondent Sandoval's case, the most that can be
said is that the court of appeals presumed that the Fourth Amendment
had been violated because Agent Bower could not recall the precise
circumstances surrounding Sandoval's detention and arrest.  But as
noted by Judge Poole in dissent (Pet. App. 92a), the record in
Sandoval's case, fairly read, reveals that the only aliens transported
to the police station were those who admitted their unlawful alienage
at the plant.  If Agent Bower had been able to testify that he
specifically recalled Sandoval's having made such an admission,
clearly there would have been probable cause to arrest (see page 33
note 23, supra).  Application of the exclusionary rule to a case like
Sandoval's, therefore, is not likely to "deter" official misconduct,
since it appears that none in fact occurred.  Instead, the result will
be limited to undermining lawful and effective investigative
techniques, thereby severely interfering with enforcement of the
immigration laws (see pages 31-33, supra).  Thus, even conceding the
validity in general of the deterrence rationale and its potential
applicability to INS agents, the exclusionary rule is not likely to
perform its desired function in the type of case here presented.

   It is well to keep in mind in this connection the contrast between
the practical circumstances surrounding the decision to stop or arrest
and the legal rules governing adjudication of suppression motions.  A
majority of arrests of illegal aliens away from the border occur
during farm, factory, or other workplace surveys.  See Brief for the
Petitioners at 3-4 & n.3, INS v. Delgado, supra.  As is evident from
the record regarding the circumstances attending the arrest of
respondent Sandoval, a single workplace survey can result in the
apprehension of large numbers of illegal aliens, occurring under
conditions that can only be described as chaotic.  In order to
safeguard the rights of individuals present at such surveys, some of
whom may be citizens or lawfully present aliens, INS has developed
various rules restricting stop, interrogation, and arrest practices.
See, e.g., id. at 7 n.7, 32-40 & n.25.  There is no evidence that INS
agents do not generally abide by these regulations, or, indeed, that
they did not do so in these cases.

   But when it comes time to conduct a suppression hearing the burden
is placed upon the government to prove as to each individual alien
that the discovery of his or her illegal status was not tainted by an
illegal stop or arrest.  Cf. 3 W.LaFave, Search and Seizure Section
11.2, at 499 (1978).  Given the often large number of illegal aliens
arrested in the frequently chaotic circumstances surrounding a factory
or farm survey, reconstruction of the particular observations that
prompted the agents to detain or arrest each individual is indeed an
awesome, if not impossible, task.  The agents can testify that they
follow the general rules -- i.e., that they do not detain anyone
without reasonable suspicion of illegal alienage and that they do not
arrest anyone unless there is an admission of illegal alienage or
other strong evidence thereof -- but plainly the Ninth Circuit, at
least, is unwilling to rely upon such general testimony or upon any
presumption of regularity to sustain the lawfulness of the stop or
arrest.  It prefers instead to rely on a presumption of illegality
that must be rebutted by detailed, specific, individualized proof of
the circumstances of the arrest.

   The result of this combination of factual and legal circumstances
-- so different from the focused investigative activities usually
under scrutiny in a suppression hearing in a criminal case -- is that
there will usually not in fact have been any Fourth Amendment
violation attendant upon the securing of the admissions of illegal
alienage upon which deportability frequently depends, yet it will
often be impossible to prove this with the required degree of
individualized specificity.  Application of the exclusionary rule to
deportation proceedings will thus result principally in the exclusion
of lawfully obtained evidence -- as most probably has happened in
respondent Sandoval's case.  But if the suppression sanction is to be
applied mainly to lawful actions of immigration officers, it plainly
will be a completely ineffective means of deterring misconduct.

   2. It is of course true that immigration officers are in the
business of conducting searches for and seizures of illegal aliens for
the purpose of bringing about their deportation.  And, being human,
they inevitably will make mistakes on occasion, no matter how
carefully trained and how well intentioned they may be.  Moreover, as
the court of appeals noted (Pet. App. 23a-24a), while the
investigative activities of the police are likely to culminate in a
criminal trial, those of INS agents are directed primarily toward
deportation.  On the basis of these observations, the court of appeals
concluded that extension of the exclusionary rule to deportation
proceedings can be expected to have the same deterrent impact on
illegal searches and seizures by INS agents as its current application
in criminal trials is presumed to have on criminal investigators.
This assumption simply fails to pass scrutiny.

   First, as discussed in the preceding point, the nature of INS
investigative activities is materially different from typical police
investigations, so that it is normally a great deal more difficult to
determine reliably whether the arrest of an alien resulted from a
Fourth Amendment violation than to make the same determination in the
case of the arrest or search of a criminal suspect.  But the
effectiveness of the suppression sanction very much depends on the
ability of the courts to apply it consistently to illegal conduct and
only to illegal conduct.  Frequent application of the sanction to
conduct that was not illegal can only sow confusion, not teach a
meaningful corrective lesson.

   Even were it possible to apply the sanction with surgical precision
in deportation proceedings, critical differences between INS and
conventional police activities remain that make it most unlikely that
extension of the exclusionary rule to deportation proceedings will
provide a meaningful incremental deterrent to misconduct.  For
example, the sheer volume of arrests made by an individual immigration
officer not only presents the practical problems already discussed,
but it also greatly reduces the likelihood that suppression in any
individual case will have great impact on the officer.  INS informs us
that an immigration officer averages 489 arrests of deportable aliens
each year.  By way of contrast, each field agent of the Drug
Enforcement Administration arrests an average of 8 persons per year.
It may be quite reasonable to assume that the possibility that one of
his eight arrests might not be successfully prosecuted because of his
own misconduct is likely to play some part in the DEA agent's
thinking.  For the immigration officer, on the other hand, the
possibility that one or even several aliens will not be deported
because of the exclusionary rule, when hundreds more will, cannot
possibly have a comparable impact.

   Moreover, the incentives to gather crucial evidence are obviously
strongest in a serious criminal investigation.  As the incentives to
gather evidence increase, it may be logical to assume that the need
for external disincentives to illegal conduct, such as the
exclusionary rule, become stronger.  In the immigation context,
however, where considerably less is at stake in each individual case,
there is correspondingly less incentive to engage in overzealous law
enforcement practices.  By the same token, officers know that the
great majority of deportable aliens they arrest will not demand
deportation hearings in any event, thereby greatly diluting the
potential deterrent from application of the exclusionary sanction in
those proceedings.  /25/ Thus, application of the exclusionary rule in
deportation proceedings is unlikely to have any significant behavioral
impact on the practices of immigration officers.  Instead, this is a
situation in which internal constraints, discussed below, are likely
to be much more effective.

 D. The Court Of Appeals Failed To Give Sufficient Weight To The
Availability Of Others Means To Reduce Or Discourage Fourth Amendment
Violations

   The court of appeals cavalierly dismissed the utility of less
drastic remedies for Fourth Amendment violations committed by INS
officers.  In the circumstances of this case, in which the court was
forced to acknowledge that there is no record of widespread violations
to be deterred, the court clearly erred.  The alternatives are many,
and, either singly or in combination, there is no reason to suppose
that they are inadequate or that the addition of a suppression remedy
will provide a meaningful increment of control over potential illegal
conduct.  The existing alternatives include comprehensive legal
training for immigration officers, an administrative practice of
excluding evidence seized through intentially or flagrantly unlawful
conduct, effective internal discipline, the availability of
declaratory or injunctive relief, and damages suits.

   1.a. New immigration officers go through extensive training in a
variety of subjects.  A new officer's first 18 weeks with INS are
spent at the Border Patrol Academy in Glynco, Georgia.  There, he is
required to take 126 hours of study in the Law Program, which includes
instruction in all aspects of Fourth Amendment and statutory law
affecting the work of immigration officers.  He must pass the final
examination in the Law Program with a grade of at least 70;  failure
to attain that grade results in immediate separation from the Border
Patrol.  Following his training at the Academy, the officer remains in
a probationary status for the remainder of his first year with the
Border Patrol.  He is assigned to a field office, where he spends one
full day per week in formal classroom instruction in law and Spanish,
under the supervision of a Training Officer specially assigned to him.
 During the rest of the week, he is assigned to work under the
supervision of experienced (journeymen) officers on rotating shifts so
as to obtain a broad range of field experience.  After he has been
with the Border Patrol for approximately six months, he is required to
take another pass/fail examination in law;  again, failure to achieve
a grade of at least 70 results in immediate separation.  Even after
passing his six-month examination, he remains in training as before,
continuing to take formal classroom instruction one day per week.  Ten
months after joining the Border Patrol, he takes a final examination
in law, on which he must again receive a passing grade of 70.  At the
end of his first year with the Border Patrol, he is promoted to
journeyman status if he has passed all his examinations and been
recommended for promotion by the supervisory officers under whom he
has worked.

   Journeymen officers return to the Border Patrol Academy
periodically for refresher courses in the law.  In addition, INS's
Office of General Counsel sends out teletypes to all field offices
advising them of new court decisions that affect their work as soon as
notice of the decisions is received.  These teletypes are read to the
officers at roll call each day, so that officers are informed as
rapidly as possible of new legal requirements.  In short, INS does
everything reasonably possible to ensure that its officers are
well-versed in the requirements of the Fourth Amendment.

   b. A fact overlooked by the court of appeals is INS's general
policy of erring on the conservative side when confronted with
questionable search and seizure issues.  INS has instructed its
officers as follows (INS, U.S. Dep't of Justice, The Law of Arrest,
Search, and Seizure for Immigration Officers at iv (Jan. 1983)):

         Many of these areas of the law are in flux and have not yet
      been settled by the Supreme Court.  * * * In these areas, the
      Service sometimes adopts a nationwide policy which does not test
      the limit of the law or the Constitution but is in conformity
      with one or more lower court decisions.  * * * The reasons for
      adopting this policy are the following:

                      * * * *

         (2) Protection of officers and the agency.  If our policy is
      somewhat more restrictive than the Constitutional limit, or if
      it does not test that limit where that limit has not yet been
      determined by the Supreme Court, our officers are less likely to
      be involved in litigation over alleged violations of persons'
      Constitutional rights (Bivens suits).  Also, such suits are less
      likely to be brought, saving the Department, the agency, and the
      individual employee the expense, time, and anguish which such
      litigation entails.

         (3) Image.  By conforming our actions nationwide to the
      requirements laid down by lower courts and not always exercising
      our authority to its very limits and testing those limits, a
      higher proportion of our contacts with citizens and lawful
      permanent residents will be in a non-confrontation setting.  We
      should therefore be able to demonstrate to the public, the
      courts, and media that the agency acts reasonably and with
      commendable restraint in the face of overwhelming enforcement
      responsibilities.

   2. The Department of Justice requires that evidence seized through
intentially unlawful conduct be excluded, as a matter of policy, from
the proceeding for which it was obtained.  /26/ In addition, the BIA
has held, subsequent to its decision in Matter of Sandoval, supra,
that evidence will be excluded if the circumstances surrounding a
particular arrest and interrogation would render admission of the
evidence thereby obtained "fundamentally unfair" and in violation of
"the fifth amendment's due process requirement * * * ." Matter of
Toro, 17 I. & N. Dec. 340, 343 (BIA 1980).  Similarly, in Matter of
Garcia, 17 I. & N. Dec. 319, 321 (BIA 1980), the Board suppressed an
admission of alienage obtained after the alien's requests to speak to
his attorney had been repeatedly refused and he had been held
incommunicado for a significant period of time.  Because the
unlawfully obtained admission was the only evidence of deportability,
the BIA ordered the deportation proceeding terminated (ibid).  The
Board reached the same result in In re Ramira-Cordova, No. A21-095-659
(BIA Feb. 21, 1980), after concluding that the only evidence of
deportability was obtained as a result of a middle-of-the-night,
warrantless entry into the aliens' residence.

   The Board's approach represents a balanced response to the problem
of Fourth Amendment violations committed by INS officers.  As the
Board recognized in In re Ramira-Cordova, supra, evidence of
deportability should be admitted so long as it is probative and its
use fundamentally fair.  See also Martin-Mendoza v. INS, 499 F.2d 918,
921 (9th Cir. 1974) ("The tests for admissibility (in deportation
proceedings) are fundamental fairness and probativeness.").  Not every
Fourth Amendment violation (or, as in respondent Sandoval's case, not
every presumed Fourth Amendment violation) necessarily requires a
finding that the admission of evidence thereby obtained would render
the proceedings fundamentally unfair.  In light of the costs to the
immigration system previously described, the Board's approach clearly
represents a reasonable reconciliation of competing interests, and it
should be endorsed by this Court.

   3. As described in the principal dissenting opinion (Pet. App.
78a-81a), INS has a "comprehensive procedure" for investigating and
punishing immigration officers who commit Fourth Amendment violations.
 "(W)hether or not any civil or criminal proceedings are commenced"
against such an officer, "he may be subject to agency disciplinary
action with possible penalties ranging from an official letter of
reprimand to removal from his job, which may bar him from future
federal employment." INS, U.S. Dep't of Justice, The Law of Arrest,
Search, and Seizure for Immigration Officers 35 (Jan. 1983) (footnote
omitted.) All INS employees are required to "report() immediately" any
allegations of misconduct directed against other employees, and
failure to report such allegations, or even delay in reporting them,
"may result in disciplinary action against (nonreporting) employees."
INS Operations Instructions ch. 287.10(e) and (g), at 4723, 4730
(1978).  The pendency of an allegation of misconduct "made by, on
behalf of, or involv(ing) an alien" requires the immediate suspension
of any action "to enforce the departure from the United States of
either the alien or of any witnesses involved until a preliminary
inquiry or an investigation of the matter has been completed" (id. ch.
287.10(f)(5), at 4730).  Thus, no alien may be deported while his
charges of a Fourth Amendment violation are under investigation.  /27/

   As the principal dissent recognized, the panoply of INS
disciplinary measures is impressive and deserving of deference from
the courts (Pet. App. 80a):

         It is readily apparent from reviewing the Immigration and
      Naturalization Service's disciplinary procedure that a sincere
      effort is being made to deter and punish search and seizure
      violations.  A police officer who conducts an unreasonable
      search and seizure may suffer anguish when a criminal defendant
      goes free because of the blunder.  He does not, however, face
      the immediate prospect of unemployment as a result of the
      exclusion of illegally seized evidence.  An immigration officer
      on the other hand, faces loss of his job and denial of future
      federal employment if he conducts an illegal search and seizure.
       These stern consequences should serve as a far greater
      deterrent to improper conduct than the possibility that
      deportation proceedings against an alien may be dismissed.  No
      evidence has been cited to this court that these harsh
      disciplinary measures proved ineffective.

   The majority dismissed these procedures, which it nevertheless
described as "commendable," because it had "no evidence whatsoever
that the guidelines are being consistently and effectively enforced"
(Pet. App. 35a).  The majority's approach was backward -- it should
have ascertained that the disciplinary procedures are not capable of
controlling any tendency immigration officers might otherwise have to
violate Fourth Amendment rights before rejecting them as inadequate.
/28/ This is especially true in light of the majority's own confessed
inability to explain why "immigration officers have not committed many
Fourth Amendment transgressions * * * " (Pet. App. 28a).  Although the
majority opined that "(o)ne plausible explanation" (ibid.) for the
paucity of such violations was the presumed applicability of the
exclusionary rule to deportation proceedings prior to the BIA's
decision in Matter of Sandoval, supra, the majority offered no
explanation, plausible or otherwise, for the equally low incidence of
Fourth Amendment transgressions in the post-Sandoval period
(1979-present).  This fact alone should have sufficed to demonstrate
that the addition or elimination of the suppression sanction has
little incremental impact on the officers' compliance with Fourth
Amendment standards.

   Moreover, the majority accepted the premise (Pet. App. 34a) that
self-policing is the most effective deterrent -- and therefore the
preferred remedy -- because it offers the most direct and immediate
feedback to the offending officer.  Having accepted that premise, the
court should not then have "ignore(d) the possibility that a rigid
application of an exclusionary rule * * * could have a serious
deterrent impact on the formulation of additional standards to govern
prosecutorial and police procedures." United States v. Caceres, 440
U.S. 741, 755-756 (1979) (footnote omitted).  As the Court emphasized
in Caceres, when "the Executive itself has provided for internal
sanctions * * * , (t)o go beyond that, and require exclusion in every
case, would take away from the Executive Department the primary
responsibility for fashioning the appropriate remedy for the violation
of its regulations" (id. at 756).  In other words, to require
exclusion in every civil deportation proceeding in which a Fourth
Amendment violation is shown would undermine what the majority
concedes to be the most effective deterrent -- self-policing.  Given
the complete lack of evidence to show that INS's internal disciplinary
sanctions are not effective, there was no basis for the court's
decision to undermine those internal sanctions by imposing an absolute
exclusionary rule in civil deportation proceedings.  At the very
least, the existence of "commendable" internal sanctions counsels
strongly against the creation of an additional "remedy," cf. Bush v.
Lucas, No. 81-469 (June 13, 1983), in the absence of specific evidence
of the ineffectiveness of the internal sanctions.

   4. Declaratory or, if necessary, injunctive actions offer
especially appropriate vehicles for correcting any institutional
practices that might violate Fourth Amendment rights.  Unlike the
criminal field, in which there are hundreds or thousands of separate
police forces, there is only one Immigration and Naturalization
Service, and declaratory relief directed against the Service will, if
necessary, be effective.

   The majority rejected the utility of prospective injunctive relief
on the theory that such relief "is generally available only after
broad scale violations that result from official policy, and is
rarely, if ever, effective to deter violations that result not from
official policy but from an individual officer's overzealousness"
(Pet. App. 34a).  Assuming, arguendo, that the majority's premise is
correct, it overlooks the fact that, for reasons of economy, INS does
not generally waste scarce investigative resources by sending
individual officers out in search of individual aliens.  Rather, as
explained in our brief in INS v. Delgado, supra (at 3-4 & n.3),
factory surveys are the most effective means of detecting illegal
aliens who have eluded the Border Patrol.  During 1982, for example,
factory surveys accounted for approximately 60% of all illegal aliens
apprehended by INS in nonborder locations.  Thus, an injunctive action
such as that brought by the Delgado respondents is clearly an
effective means for determining the validity of an INS practice that
affects large numbers of aliens.  See also Illinois Migrant Council v.
Pilliod, 540 F.2d 1062 (1976), modified on reh'g en banc, 548 F.2d 715
(7th Cir. 1977) (enjoining INS practice of questioning individuals
simply on the basis of their Mexican ancestry or Spanish surnames).

   If a recurring pattern of "overzealousness" by individual INS
agents is ever demonstrated by actual cases, there will be time enough
to devise an appropriate remedy.  As we have shown, however, neither
of the cases now before the Court involves any such problem.  Thus,
the court of appeals' out-of-hand rejection of injunctive and
declaratory actions as effective deterrents was especially
inappropriate here.

   5. Finally, the majority erred in totally dismissing the utility of
Bivens actions /29/ as a deterrent tool.  We do not disagree with the
majority's observation (Pet. App. 33a) that those illegal aliens who
have been deported are unlikely to bring many Bivens suits.  /30/ But
the majority completely overlooked the fact that citizens or lawful
aliens subjected to illegal searches or seizures can be expected to
bring such actions, /31/ and the deterrence thereby gained would
naturally extend to the future benefit of all persons.

   Moreover, the deterrence to be expected from Bivens actions does
not logically depend on the number of such cases actually filed.  Even
if successful Bivens suits are relatively rare, the mere prospect of
such suits being brought is a powerful disincentive to unlawful
conduct.  It defies common sense to suppose that fear of a suit
against an immigration officer in his individual capacity, in which he
is faced with the possibility of personal liability, has no influence
on his conduct.  As this Court has recognized, "there is the danger
that fear of being sued will 'dampen the ardor of all but the most
resolute, or the most irresponsible (public officials), in the
unflinching discharge of their duties.'" Harlow v. Fitzgerald, 457
U.S. 800, 814 (1982) (brackets in original) (quoting Gregoire v.
Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949
(1950)).

   The threat of Bivens actions can be expected to be a particularly
effective deterrent for immigration officers.  As we have noted,
immigration officers arrest deportable aliens in such large numbers
that their interest in any particular alien's deportation, and hence
their incentive to engage in unlawful conduct, is extremely low.
Under these circumstances, in which an immigration officer can make
hundreds of arrests with very little effort, there is simply no reason
for him to risk personal liability through overzealous conduct in any
individual case.  Thus, the Bivens deterrent is in fact substantial,
and the court of appeals should not have rejected it.

   6. In sum, the societal costs of extending the exclusionary rule to
deportation proceedings are enormous and plainly outweigh any
incremental increase in deterrence of illegal conduct by enforcement
officials.  This country is in an immigration crisis, with, as the
court of appeals noted, between 3 1/2 and 12 million illegal aliens
already here and over 500,000 more entering every year (see Pet. App.
29a).  The injection of complex constitutional questions into the
immigration administrative hearing process, in which each immigration
judge is currently making more than six adjudications per day (see
pages 27-28 note 16, supra), could bring an already dangerously
over-burdened system to a virtual halt.  Extension of the exclusionary
rule to civil deportation proceedings, the result of which could be to
allow illegal aliens to perpetuate their presence in this country in
violation of our immigration laws, thus seriously jeopardizes the
Executive's ability to control illegal immigration.  Janis makes clear
that those who seek the extension of the exclusionary rule must
demonstrate "sufficient justification for (that) drastic measure" (428
U.S.at 459).  No such justification exists here.

                              CONCLUSION

   The judgments of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   RICHARD K. WILLARD

      Acting Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   KATHRYN A. OBERLY

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   MARSHALL TAMOR GOLDING

   HOWARD S. SCHER

      Attorneys

   MARCH 1984

   /1/ The court decided sua sponte to hear the cases before an en
banc panel.  See Rule 25 of the Rules of the United States Court of
Appeals for the Ninth Circuit.

   /2/ The information provided by Lopez was memorialized in a
document called a "Record of Deportable Alien" (Form I-213), which was
introduced into evidence before the immigration judge (Pet. App.
101a).

   /3/ By accepting "voluntary" departure, an alien is relieved of the
legal constraints that attend any attempted lawful reentry by one who
has been previously deported.  See 8 U.S.C. 1182(a)(17) (aliens who
have been deported are "ineligible to receive visas and shall be
excluded from admission into the United States").

   /4/ The BIA is an agency of the Department of Justice that is
separate from the INS.  See 8 C.F.R. 3.1.  The Board exercises powers
delegated by the Attorney General, who retains discretionary authority
to review its decisions.  See 8 C.F.R. 3.1(h).

   /5/ For convenience, the Board's decision in Matter of Sandoval,
supra, is reproduced in the Joint Appendix at pages 163-202.

   /6/ Respondent Sandoval is not the same individual who was involved
in Matter of Sandoval, supra, in which the Board held the exclusionary
rule ordinarily inapplicable to deportation proceedings.

   /7/ The majority, citing International Ladies Garment Workers'
Union v. Sureck, 681 F.2d 624, 634-643 (9th Cir. 1982), cert. granted
sub nom. INS v. Delgado, No. 82-1271 (Apr. 25, 1983) (argued Jan. 11,
1984), and noting that "Officer Bower could not remember Sandoval or
describe his behavior" (Pet. App. 7a), questioned whether there was
"the requisite individualized suspicion of illegal alienage to justify
even a brief Serry stop of Sandoval" (ibid.).  Nevertheless, the
majority did not decide that issue, concluding instead that "the
dispostive question is * * * the lawfulness of (Sandoval's) detention
at the time he was interrogated at the jail" (ibid.).  The court held
that by the time of Sandoval's interrogation at the police station,
"the initial stop had clearly ripened into an arrest" (ibid.) and that
the "furtive behavior" observed by Agent Bower (which the court
treated as the only basis for the officer's decision to detain
Sandoval) constituted insufficient probable cause to support an arrest
(id. at 8a).

   In his special concurring opinion, Judge Goodwin noted simply that
he did "not believe that a 'Terry Stop' in a work place where the
immigration officers have a right to be necessarily ripens into an
unlawful seizure on the facts of this case" (Pet. App. 38a).

   In a special dissenting opinion, Judge Poole argued that probable
cause was established when, after being questioned in Spanish, the
suspected aliens "answered and conceded alienage and also illegal
entry" (Pet. App. 92a).  Judge Poole also noted that the "record as a
whole shows that all of the persons to whom questions were addressed
first in English and then in Spanish had exhibited some behavior which
preceded the questioning," that Sandoval "was among those asked in
Spanish whether 'they had papers'" and that "(h)e had none" (ibid.).

   /8/ The dissent also accused the majority of reaching "out beyond
the record" because "neither (respondent) timely moved to suppress
evidence on fourth amendment grounds" (Pet. App. 45a).  The majority
held, however, that respondents' motions to "terminate" their
deportation proceedings should be treated as motions to suppress (id.
at 2a-3a n.1).  We have not sought review of the majority's conclusion
that respondents made at least the functional equivalent of
suppression motions in these cases.

   /9/ See generally Brief for the United States at 34-38, United
States v. Leon, cert. granted, No. 82-1771 (June 27, 1983) (argued
Jan. 17, 1984).  We have furnished respondents' counsel with copies of
that brief.

   /10/ Respondents' contrary contention notwithstanding (see Br. in
Opp. 18), the question presented in this case is the "extension" of
the exclusionary rule to deportation proceedings, rather than its
"retention" in such proceedings.  Although some courts have assumed
that the rule always has applied to deportation proceedings, in fact
the issue has received virtually no administrative or judicial
attention in the past.  In Matter of Sandoval, 17 I. & N. Dec. at 75
n.7 (J.A. 170), the BIA explained that it "ha(d) not previously
intended to reach the issue decided today and withdraws from any
language which may be read as suggesting otherwise." The BIA also
noted that there were few judicial decisions addressing the issue and
none that had engaged in "a detailed analysis of the relative merits
of excluding such evidence from deportation proceedings" (17 I. & N.
Dec. at 75;  J.A. 170).  Thus, the BIA determined to give the issue
fresh consideration (17 I. & N. Dec. at 75;  J.A. 171):

         Accordingly, as the Board has not previously resolved this
      issue, as we find only one contemporary Federal Court decision
      in which unlawfully seized evidence is specifically held to be
      excludable, and as we find no decision in which the
      appropriatness of applying the rule in deportation proceedings
      is analyzed in detail, we will address the question as one of
      first impression.

   The single federal court decision referred to by the BIA is Wong
Chung Che v. INS, 565 F.2d 166 (1st Cir. 1977).  There, without
analysis, the court held that the exclusionary rule should be applied
in a deportation proceeding to suppress physical evidence obtained as
a result of an illegal arrest.  The court suggested, however, that it
would not follow the same rule in the case of oral statements (565
F.2d at 168-169), which are what is at issue in the present cases.

   This Court itself clearly has not decided the issue presented
today.  In United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155
(1923), the Court stated in dictum that "(i)t may be assumed that
evidence obtained by the (Labor) Department through an illegal search
and seizure cannot be made the basis of a finding in deportation
proceedings." On the merits, however, the Court rejected Bilokumsky's
claim that unlawfully obtained evidence had been used against him
(ibid.).  Moreover, other language in the opinion suggests that the
Court would not have invoked the exclusionary rule even if it had
found an illegality (id. at 157 (footnotes omitted;  citations
omitted;  emphasis added)):

      So far as appears, there was nothing in the circumstances under
      which Bilokumsky was examined which would have rendered his
      answer inadmissible even in a criminal case.  * * * And since
      deportation proceedings are in their nature civil, the rule
      excluding involuntary confessions could have no application.
      Moreover, a hearing granted does not cease to be fair, merely
      because rules of evidence and of procedure applicable in
      judicial proceedings have not been strictly followed by the
      executive;  or because some evidence has been improperly
      rejected or received.  To render a hearing unfair the defect, or
      the practice complained of, must have been such as might have
      led to a denial of justice, or there must have been absent one
      of the elements deemed essential to due process.

   And, as the principal dissenting opinion below noted (Pet. App.
54a), this Court later observed, without reference to Bilokumsky,
that, "(a)ccording to the uniform decisions of this Court deportation
proceedings are not subject to the constitutional safeguards for
criminal prosecutions." Abel v. United States, 362 U.S. 217, 237
(1960).

   The only other judicial decisions to have confronted squarely the
issue now before this Court are Ex parte Jackson, 263 F. 110, 112-113
(D. Mont.), appeal dismissed, 267 F. 1022 (9th Cir. 1920), and United
States v. Wong Quong Wong, 94 F. 832 (D. Vt. 1899).  As the principal
dissenting opinion below explained in considerable detail (Pet. App.
49a-52a), neither of those cases contains any critical analysis of the
issue, and certainly neither purports to follow the cost-benefit
approach to exclusionary rule questions that this Court has employed
for nearly two decades.  It is worth noting, however, that Ex parte
Jackson, supra, rests not on the Fourth Amendment exclusionary rule
alone, but instead on a conclusion that the challenged search rendered
the deportation proceedings "unfair and invalid" (263 F. at 112) under
the Due Process Clause of the Fifth Amendment.  As we explain later
(see pages 41-42, infra), the BIA follows the same approach today to
ensure that deportation proceedings are fundamentally fair.

   /11/ In Wolf, the Court held that while the guarantees of the
Fourth Amendment are enforceable against the states through the Due
Process Clause of the Fourteenth Amendment, it was nevertheless "not
for this Court to condemn as falling below the minimal standards
assured by the Due Process Clause a State's reliance upon other
methods which, if consistently enforced, would be equally effective"
(338 U.S.at 31).  The Court added that it could not "brush aside the
experience of States which deem the incidence of such conduct by the
police too slight to call for a deterrent remedy not by way of
disciplinary measures but by overriding the relevant rules of
evidence" (id. at 31-32).

   /12/ In Janis, the Court declined to apply the exclusionary rule to
bar the use in a federal civil tax proceeding of evidence seized by
state law enforcement officials in violation of the Fourth Amendment.
Recognizing deterrence as the underlying purpose of the exclusionary
rule, the Court compared the costs resulting from application of the
rule in the circumstances there presented with the deterrent benefit
that could be anticipated and concluded that the expected benefit did
not outweigh the societal costs imposed by suppression (428 U.S. at
454).

   /13/ Although the exclusionary rule has been invoked to exclude
illegally seized evidence in a forfeiture proceeding, the Court was
careful to note that the object of a forfeiture proceeding, like a
criminal proceeding, "is to penalize for the commission of an offense
against the law." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.
693, 700 (1965).  Moreover, "(i)t would be anomalous indeed, * * * to
hold that in the criminal proceeding the illegally seized evidence is
excludable, while in the forfeiture proceeding, requiring the
determination that the criminal law has been violated, the same
evidence would be admissible" (id. at 701 (footnote omitted)).  See
Janis, 428 U.S.at 447 n.17.

   /14/ The BIA's views are, we submit, entitled to substantial
deference.  By delegation of authority from the Attorney General (see
8 C.F.R. 3.1(a)(1) and (d)(1)), the Board is the agency charged with
the interpretation of the immigration laws.  As such, it is intimately
familiar not only with the laws it interprets but with the practical
needs of the immigration system as well.  In light of the exclusionary
rule's status as a judicially-created remedy (see page 20, supra), the
BIA's conclusion that the rule should not be extended to civil,
administrative deportation proceedings carries great weight.  See,
e.g., Miller v. Youakim, 440 U.S. 125, 144-145 n.25 (1979) (quoting
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969)) (courts
accord great deference to the agency responsible for the day-to-day
administration of a statute and should reject that agency's views only
if "'there are compelling indications that (the agency) is wrong'").
Judge Alarcon made the same point in the principal dissenting opinion
below (Pet. App. 75a):  "(T)he BIA's damage assessment should be
compelling, as that court, more so than this one, is in a position to
anticipate the cost to the system in which it functions."

   /15/ The court of appeals' suggestion that this is not a serious
cost, because illegal aliens may not be threatening individually or
criminally dangerous (Pet. App. 31a), is misguided.  This Court has
itself noted that, collectively, illegal aliens pose a substantial
economic threat to this country and to the citizens and lawful
resident aliens against whom they compete for employment.  See, e.g.,
De Canas v. Bica, 424 U.S. 351, 356-357 (1976) ("Employment of illegal
aliens in times of high unemployment deprives citizens and legally
admitted aliens of jobs;  acceptance by illegal aliens of jobs on
substandard terms as to wages and working conditions can seriously
depress wage scales and working conditions of citizens and legally
admitted aliens * * * .");  United States v. Brignoni-Ponce, 422 U.S.
873, 878-879 (1975) ("(T)hese (illegal) aliens create significant
economic and social problems, competing with citizens and legal
resident aliens for jobs, and generating extra demand for social
services.").  Respondents' contention (Br. in Opp. 32 n.14) that
illegal aliens "probably benefit the economy" not only runs counter to
this Court's pronouncements but also disregards Congress's judgment
(in an area in which its powers are "'more complete'" than any other
(Fiallo v. Bell, 430 U.S. 787, 792 (1977) (citation omitted) that an
"open door" immigration policy is contrary to the national interest.
Even if respondents' views are sociologically and economically sound,
it is for Congress, not the courts, to reexamine the wisdom of the
laws providing for deportation of illegal aliens.

   /16/ According to the Office of the Chief Immigration Judge, from
March 1983 (the first month for which statistics are available) until
December 1983, the 55 authorized immigration judges received 70,202
deportation cases and completed adjudication of 51,277;  received
6,078 exclusion cases and completed adjudication of 5,125;  and
received 1,967 motions to reopen and completed adjudication of 1,857.
Annualizing these data, the Chief Immigration Judge projects that
there will be 69,910 completed adjudications in a one-year period, or
6.3 adjudications per day per immigration judge.  (In our Petition (at
17 n.10), we projected a rate of 5.35 adjudications per immigration
judge per day.  That figure was based on certain general assumptions,
including a 48-week work year for each immigration judge.  The present
figure is based on the Chief Immigration Judge's records of time
actually worked by each immigration judge and also reflects the fact
that until recently not all 55 judgeships were filled.) In addition to
the substantive adjudications just noted, immigration judges also
handle 16,000 bond hearings each year.

   By way of contrast, 6,023 criminal defendants were actually tried
in United States District Courts during fiscal year 1982 (Annual
Report of the Director of the Administrative Office of the United
States Courts 141 (1982)) by 484 district judges (id. at 34).  This
averages out to 12.44 criminal trials per year per judge.

   /17/ Respondents were arrested on August 3, 1976 (Lopez) (J.A. 15),
and June 23, 1977 (Sandoval) (J.A. 162), and both are still in this
country because of their Fourth Amendment claims.

   /18/ These motions were filed between June 1, 1982, and May 31,
1983.  This time period was selected for examination because it
allowed a one-month "percolation" period for the practicing bar to
learn of the court of appeals' decision.

   /19/ Prior to January 16, 1984, INS did not keep written records of
the number of suppression motions filed in deportation proceedings.
The number of motions filed in the year preceding the court of
appeals' decision and the number filed in the seven months thereafter,
noted above in text, were derived from a variety of sources, including
examination of open case files, pending appellate briefs before the
BIA, and the reconstructive efforts of INS's trial attorneys.  The
trial attorneys were instructed not to count any case about which they
were not absolutely certain.  Although the numbers supplied in text
thus represent estimates, INS has a high degree of confidence in their
accuracy.  In addition, the reliability of the estimates is borne out
by the one month of written records that INS does have.  Between
January 16, 1984, and February 15, 1984, 53 suppression motions were
filed in deportation cases in the Western Region.  This corresponds
closely to the estimate that 342 such motions were filed in the seven
months following the court of appeals' decision.

   /20/ A particularly ironic example of the potential for delay
inherent in suppression motions is Montero v. Ilchert, No. C-84-0470
(N.D. Cal. filed Jan. 31, 1984).  Petitioners in that case were found
deportable by an immigration judge, but they were granted the
privilege of voluntary departure and permitted five months in which to
leave the country.  At the end of the five months, petitioners filed a
motion to reopen their deportation proceedings, alleging that they had
been denied effective assistance of counsel because their lawyer --
the same attorney who represented respondent Lopez in the instant case
-- had failed to file a suppression motion in the deportation
proceedings.  The immigration judge and INS's district director denied
petitioners' motion for a stay of deportation pending further
proceedings on the motion to reopen.  On February 16, 1984, the
district court granted the petition for habeas corpus filed in
Montero, finding that INS had abused its discretion in denying a stay
of deportation pending further inquiry into petitioners' claim of
ineffective assistance of counsel.

   /21/ As an indication of the universe from which additional
assertions of the right to a hearing may come, the Border Patrol
apprehended 1,106,683 deportable aliens in fiscal year 1983.  The
projected figures for 1984 and 1985 are 1,262,000 and 1,500,000
apprehensions, respectively (OMB, Exec. Off. of the President, Budget
of the United States Government -- Fiscal Year 1985:  Appendix, H.R.
Doc. 98-139, 98th Cong., 2d Sess., at I-N16 (1984)).  Even at the rate
of 6.3 adjudications per immigration judge per day, only 69,910
adjudications will be completed in the one-year period between March
1983 and February 1984 (see pages 27-28 note 16, supra).  Thus, the
ability of the system to function obviously depends on the fact that
only a small fraction of apprehended illegal aliens exercise their
right to a hearing, as well as the fact that most hearings are
relatively brief and uncomplicated.

   /22/ Added to this is the subtlety and complexity of the Fourth
Amendment analysis applicable to these situations, involving initial
observations of behavior, contacts between officer and alien that may
or may not amount to a Fourth Amendment seizure, and the further
development of the interaction leading ultimately to an arrest.  One
need only look to the same type of issue as it has emerged in the
airport drug surveillance cases to appreciate how detailed and subtle
the inquiry at a suppression hearing is likely to be.  See, e.g.,
Florida v. Royer, No. 80-2146 (Mar. 23, 1983).

   /23/ although we have not sought this Court's review of the court
of appeals' Fourth Amendment ruling in Sandoval's case, it is worth
noting how much emphasis the court placed on the fact that Agent Bower
could not be "absolutely positive" (J.A. 136) that he himself had
questioned Sandoval (see Pet. App. 5a-7a).  There is of course a
considerable difference between an actual absence of probable cause to
arrest (which we do not concede in these cases) and an agent's
inability to recall the exact circumstances of any particular arrest.
See pages 35-36, infra.

   /24/ It is debatable whether the agents' continued presence on the
premise at the time of their conversation with Lopez violated the
rights of the proprietor, but that issue is immaterial to Lopez's
claim for suppression.

   /25/ As the court of appeals noted (Pet. App. 29a n.17), fewer than
2.5% of the deportable aliens apprehended each year exercise their
right to a formal hearing.  Although we have explained (see pages
26-31, supra) the systemic damage that would result from even a small
increase in the number of aliens requesting hearings, the fact remains
that the individual officer still would know that most of his
apprehensions would not lead to hearings, thereby diluting the potency
of the suppression sanction.

   /26/ This policy arose out of former Attorney General Civiletti's
consideration of the BIA's decision in Matter of Sandoval, supra.  The
Attorney General had been requested to review the Board's decision in
that case pursuant to 8 C.F.R. 3.1(h), which reserves to the Attorney
General discretionary authority to review any BIA decision.  After
consideration by the Department's Office of Legal Counsel and members
of the Attorney General's staff, the Attorney General decided not to
review the BIA's decision, concluding that it was correct as a matter
of law and in conformity with existing Department policy.
Nevertheless, the Attorney General took the opportunity to clarify the
Department's internal policy with respect to Fourth Amendment
violations.  The result was a directive forbidding the use of evidence
seized through intentionally unlawful conduct and providing that
employees who commit such violations are to be subjected to the most
severe administrative penalties available.  The directive also
addresses reckless and negligent violations of the Fourth Amendment
and establishes appropriate disciplinary sanctions for such
violations.  See Memorandum from Benjamin R. Civiletti to Heads of
Offices, Boards, Bureaus and Divisions, Violations of Search and
Seizure Law (Jan. 16, 1981).  (A copy of this memorandum has been
lodged with the Court and served on counsel for respondents.)

   /27/ Significantly, however, the "stay" of deportation that may
accompany INS's investigation into a charge of misconduct does not
result in the substantial delays associated with supression motions.
INS's disciplinary procedures contain strict time limits for the
completion of investigations.  Preliminary inquiries, which may be all
that are required to resolve many cases, must be completed within 10
working days.  INS Operations Instructions ch. 287.10(j)(3), at
4733-4734 (1978).  More detailed investigations must be completed
within 60 days, and extensions of time may be granted only for
"compelling" reasons (id. ch. 287.10(l), at 4737-4738).

   /28/ In fact, INS's disciplinary rules are not mere paper
procedures.  INS advises us that in the preceding four fiscal years,
20 officers have been suspended or terminated for misconduct affecting
aliens.  These infractions have come to light both by virtue of
reports made by fellow officers and complaints filed by aliens.

   /29/ Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).

   /30/ It is worth noting, however, that Bivens suits have become yet
another tool in illegal aliens' never-ending quest for delay.  In
Ortega v. Rowe, CA No. 5-81-198 (N.D. Tex. filed Dec. 9, 1981), three
illegal aliens, representing a class of illegal aliens who might be
arrested by the Border Patrol in Lubbock, have brought a Bivens suit
claiming that they have been abused by Border Patrol agents and
challenging the conditions of confinement at the jail where the named
plaintiffs have been held.  The district court granted the motion of
the named plaintiffs for a stay of deportation so that they would not
be separated from their attorneys during the pendency of their Bivens
suit.

   /31/ Several such actions are pending.  See, e.g., Cervantez v.
Whitfill, C.A. No. 2-79-206 (N.D. Tex. filed Dec. 12, 1979) (Bivens
action by legal aliens and citizens alleging unlawful arrest and
detention);  Ramirez v. Webb, No. K-81-344-CA8 (W.D. Mich. filed Sept.
4, 1981) (Bivens action brought on behalf of Hispanic surnamed persons
alleging unlawful detention and arrest).

   Moreover, almost as a matter of definition, a majority of persons
arrested without probable cause or detained without reasonable
suspicion will not be illegal aliens.  Consequently, illegal aliens
constitute a minority of potential Bivens plaintiffs.