Lopez-Mendoza v. Immigration & Naturalization Service

705 F.2d 1059, 1983 U.S. App. LEXIS 28584

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 25, 1983
• Docket: Nos. 79-7673, 80-7189
• Status: Published

Opinions

NORRIS, Circuit Judge:

These consolidated appeals present the question whether the exclusionary rule bars the Immigration and Naturalization Service (INS) from using in deportation proceedings evidence obtained by INS officers in violation of the Fourth Amendment. In separate proceedings, appellants were ordered deported under 8 U.S.C. § 1251(a)(2) on the basis of admissions to immigration officers that they were aliens in this country illegally. At their deportation hearings, both tried unsuccessfully to suppress evidence of their admissions on the ground they were the products of arrests made in violation of the Fourth Amendment.¹ The immigration judge in Sandoval’s case ruled the evidence admissible on the ground that Sandoval’s detention did not violate the Fourth Amendment. The immigration judge in Lopez’s case held that the exclusionary rule was inapplicable in deportation proceedings, making it unnecessary for him to decide whether Lopez had been unlawfully detained by immigration officers. The appeals of both Sandoval and Lopez from their respective deportation orders were dismissed by the Board of Immigration Appeals. Both appealed directly to this court. We have jurisdiction under 8 U.S.C. § 1105a (1976).

We reverse Sandoval’s order of deportation because we hold that his detention by the immigration officers violated the Fourth Amendment, that the statements he made were a product of that unlawful detention, and that the exclusionary rule bars the INS from using, in deportation proceedings, evidence of statements it obtains illegally. Because the question whether Lopez’s detention violated the Fourth Amendment was not adjudicated in his deportation hearing, we vacate his order of deportation and remand for further proceedings in light of our opinion today in Sandoval.

I

On June 23, 1977, INS officers entered a potato processing plant in Pasco, Washington, where Sandoval worked, to search for illegal aliens. According to the testimony of the government’s only witness, Officer Bower, the officers did not have a search warrant, but did have permission from company officials to question some of the company employees. Bower testified that several officers surrounded the plant to guard the exits while he and another officer conducted the investigation. The two officers, one of whom wore a Border Patrol uniform, first entered the company lunch room and identified themselves. This caused great confusion among company employees, with some “heading for the exits” and others remaining in the lunch room. When the officers entered the plant itself, more employees “headed for the exits, leaving their machines, and some of those coming in turned and started walking away.” The officers then moved to the plant’s main entrance where they stood during a shift change.' There, they watched for workers “putting their heads down, turning their heads to the sides, avoiding eye contact, or trying to get into a tight group of people going through.” Anyone passing through the gate who aroused suspicion in the minds of the officers was asked innocuous questions in English about such things as the weather or pay at the plant. Then, Bower testified,' “[tjhose that couldn’t answer in English, appeared to have a dumb look on their face, didn’t know what was going on, and would almost start to move towards me as if they had known they were caught and the game was up, at that point, I would interrogate them in Spanish as to their right to be and remain in the United States.”

When examined further about his criteria for stopping and questioning those entering and exiting the plant; Bower repeated that he had looked for “evasive movements, trying to be bunched up in groups, being right next to somebody, or trying to walk in parallel with somebody to avoid being spoken to ... . ” Eventually, he concluded, he questioned those at the plant “when it [came] to the point where I firmly believe that they are an illegal alien.” He knew that point because, “[i]t is something each officer develops, some sooner than some others.” After stopping a suspected illegal alien, the investigators would ask him whether he “had papers.” Though Sandoval was stopped at the plant, Officer Bower testified that he had no specific recollection of Sandoval and that there was a “50-50 chance” that he had detained Sandoval and an equal chance that his partner had effected the detention. Bower thus did not know how Sandoval had responded to any questions he may have been asked or, indeed, whether he had responded at all.

“Because of the large number of people coming in and out of there,” those initially stopped at the plant gate whom the officers wished to question further were detained in a men’s restroom and clean-up area. There is no evidence in the record indicating whether Sandoval was questioned while in. the men’s room. Eventually, thirty-seven aliens who had been detained in the men’s room, including Sandoval, were transported to the Franklin County Jail and processed in the training room of the Pasco Police Department. Once the suspects arrived at the jail, they were sorted into two groups. Those who wished to depart for Mexico voluntarily were processed immediately and placed on a bus leaving that day. Those who demanded a deportation hearing were detained and processed later in the day. Sandoval was one of the latter group. During his processing, Sandoval was not orally advised of his rights but did read and refuse to sign Form 1-274, a Spanish-English language form which explains the right to a deportation hearing and to counsel. Sandoval was then asked a series of questions regarding his immigration status. Based on the answers to these questions, Officer Bower completed INS Form 1-213, indicating on the form that Sandoval was a native of Mexico and that he had entered the United States without inspection. The finding of alienage by the immigration law judge was based upon the Form I-213.²

In rejecting Sandoval’s contention that he had been seized in violation of the Fourth Amendment, the immigration judge reasoned that Sandoval “could have at some time ... reacted in a furtive manner in the presence of the officials” and that “[t]his plus foreign appearance would constitute enough articulable facts [to] give rise to a suspicion of alienage.”³ Accordingly, the judge ruled that Sandoval’s detention, first in the men’s room of the processing plant and later at the Franklin County Jail, did not violate the Fourth Amendment. On appeal, the BIA held that Sandoval’s statements were voluntary and found “no basis to conclude upon review of the record as a whole ... that the circumstances of the respondent’s arrest affected the statements contained in the Form 1-213.” The Board did not address the question of the legality of Sandoval’s arrest or the applicability of the exclusionary rule to his deportation proceeding.

On appeal to this court, Sandoval contends that because his statements were the product of an illegal arrest, the INS should be barred from using Form 1-213 as evidence in his deportation proceeding. The government first argues that Sandoval’s detention at the plant was at most an investigative stop and that the stop was lawful because the “officers’ observations were sufficient to support a reasonable suspicion of the illegal nature of petitioner’s alienage.” Yet Officer Bower could not remember Sandoval or describe his behavior. It is thus difficult to imagine that there was the requisite individualized suspicion of illegal alienage to justify even a brief Terry stop of Sandoval. See International Ladies Garment Workers Union v. Sureck, 681 F.2d 624, 634-43 (9th Cir.1982). Yet we need not decide that issue, for the dispositive question is not the lawfulness of the initial stop of Sandoval as he entered the plant, but the lawfulness of his detention at the time he was interrogated at the jail. It was there that Sandoval made the statements that were recorded by the INS agents on Form 1-213 and used against him at his deportation hearing. By the time of the interrogation at the police station, the initial stop had clearly ripened into an arrest. See Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979) (when a person is taken to a police station and placed in an interrogation room, the detention, “in contrast to the brief and narrowly circumscribed intrusion involved in [the Terry line of] cases ... [is] in important respects indistinguishable from a traditional arrest” and must be supported by probable cause). It is clear that there was no probable cause for Sandoval’s arrest. The furtive behavior attributed to the arrestees in Officer Bower’s testimony— “turning their heads to the sides,” “avoiding eye contact,” not answering questions asked in English, having “a dumb look”— was patently insufficient as a matter of law to “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that they were aliens illegally in this country. To its credit, the government does not argue to the contrary.

In sum, we must conclude on the record before us that Sandoval was under arrest at the time he was interrogated at the Franklin County Jail, and that because his arrest was not based upon probable cause, it violated the Fourth Amendment.⁴ The statements obtained from Sandoval at the police station were thus the fruit of an illegal arrest.⁵ The exclusionary rule would, of course, bar the use of such oral statements in a criminal prosecution of Sandoval for violation of the immigration laws. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). See also Brown v. Illinois, 422 U.S. 590, 601-05, 95 S.Ct. 2254, 2260-63, 45 L.Ed.2d 416 (oral statements made following illegal arrest suppressed; giving of Miranda warnings prior to statements did not, in itself, purge taint of illegal arrest). We now address the question whether that evidence — specifically, the Form 1-213 — is admissible in Sandoval’s deportation hearing.⁶

II

The question of the applicability of the exclusionary rule in deportation proceedings is one of first impression in this Circuit.' See Cuevas-Ortega v. Immigration and Naturalization Service, 588 F.2d 1274, 1278 (9th Cir.1979) (question expressly reserved); Hoonsilapa v. Immigration and Naturalization Service, 586 F.2d 755 (9th Cir.1978) (same). On the one occasion the Supreme Court has had to comment on the question, it stated in dictum that: “[i]t may be assumed that evidence obtained by the [Labor] Department through an illegal search and seizure cannot be the basis of a finding in deportation proceedings.” United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155, 44 S.Ct. 54, 56, 68 L.Ed. 221 (1923). Although this language has been read by the First Circuit, Wong Chung Che v. Immigration and Naturalization Service, 565 F.2d 166, 169 (1st Cir.1977), and the commentators, see, e.g., Comment, The Exclusionary Rule in Deportation Proceedings, 14 Davis L.Rev. 955, 957 (1981) (hereinafter cited as Exclusionary Rule Note), as approving application of the exclusionary rule, it remains unclear to us whether the Court was expressing a view on the issue or simply assuming arguendo that the rule applies in deportation proceedings. We are thus hesitant to attach significant precedential weight to Bilokumsky.

The few federal courts which have squarely confronted the question have all held that evidence illegally obtained by federal agents is inadmissible in subsequent deportation proceedings. The first case to so hold was United States v. Wong Quong Wong, 94 F. 832 (D.Vt.1899). Relying on Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) (evidence obtained in violation of the Fourth Amendment excluded from proceeding imposing forfeiture as penalty for criminal offence), the court in Wong Quong Wong reasoned that the “constitutional safeguards [of the Fourth Amendment] would be deprived of a large part of their value if they could be invoked only for preventing the obtaining of such evidence, and not for protection against its use.” United States v. Wong Quong Wong, 94 F. at 834. Some years later, in Ex parte Jackson, 263 F. 110, 112-13 (D.Mont.), appeal dismissed, 267 F. 1022 (9th Cir.1920), the district court granted a writ of habeas corpus to an alien held for deportation, stating that “the deportation proceedings [were] unfair and invalid, in that they [were] based on evidence and procedure that violate the search and seizure and due' process clauses of the Constitution.”

In 1977, the First Circuit held in Wong Chung Che v. Immigration and Naturalization Service, 565 F.2d 166 (1st Cir.1977) that evidence obtained in an illegal search by INS agents is inadmissible in a deportation proceeding. Although the court found the issue troublesome, it reasoned that “there is no authority of which we are aware that would make [the evidence] admissible [and] [s]uch authority as we have found ... assumes that it is inadmissible.” Id. at 169. In making this determination, the First Circuit relied both on Bilokumsky and on the leading treatise on immigration law, which stated unequivocally that the rule does apply to deportation proceedings. 1A C. Gordon and H. Rosenfield, Immigration Law and Procedure § 5.2.c at 5-31 (rev. ed. 1980) (“[I]t is undisputed .. . that the Fourth Amendment prohibition against unreasonable searches and seizures applies in deportation proceedings and that evidence obtained as a result of an unlawful search cannot be used”); see also Fragomen, Procedural Aspects of Illegal Search and Seizure in Deportation Cases, 14 San Diego L.Rev. 151, 163 (1976) (now well established that exclusionary rule applies despite universal characterization of deportation as civil proceeding). The First Circuit also cited to other cases in which it was assumed that the exclusionary rule applied in deportation proceedings. See Wong Chung Che v. Immigration and Naturalization Service, 565 F.2d at 169, citing Illinois Migrant Council v. Pilliod, 398 F.Supp. 882, 897-98 (N.D.Ill.1975) (if this were deportation proceeding, rather than exclusion hearing, illegally obtained evidence would be suppressed). See also Huerta-Cabrera v. Immigration and Naturalization Service, 466 F.2d 759, 761 n. 5 (7th Cir.1972) (stating that illegal arrest per se does not invalidate deportation proceeding but that “[t]his would not be a case of the use of evidence seized during the course of an illegal arrest.”); Yam Sang Kwai v. Immigration and Naturalization Service, 411 F.2d 683, 690 (D.C.Cir.1969) (Wright, J., dissenting) (“[I]n my view the statement was the fruit of an [illegal] seizure . .., and should not have been admitted”). But see Hoonsilapa v. Immigration and Naturalization Service, 586 F.2d 755 (9th Cir.1978) (reserving the question).⁷

Until 1979, in fact, the INS itself had assumed in “countless cases since ... U.S. ex. rel. Bilokumsky v. Tod, 263 U.S. 149, 155 [44 S.Ct. 54, 56, 68 L.Ed. 221,]” that the rule was applicable. Matter of Sandoval, 17 I & (Applemen, Bd. member, dissenting). See also In re Tsang, 14 I & N Dec. 1, 2 (BIA 1973) (rule concerning motions to suppress “which is applied in criminal cases, has been adopted for use in deportation hearings”). It was not until 1979, two years after Sandoval’s arrest, that the BIA⁸ for the first time held, in a case unrelated to this one, that the exclusionary rule does not bar the INS from using in deportation hearings evidence obtained by INS agents. Matter of Sandoval, 17 I & N Dec. 70, 93 (1979) (BIA 1979). In sanctioning the use of evidence seized by INS agents during an illegal search of an alien’s home, the BIA cut against the grain of its own historic practice and the views of every court and commentator to have considered the issue.

In sum, while the question whether the exclusionary rule applies in deportation proceedings is one of first impression in the Ninth Circuit, we do not write on a slate that is entirely clean. With the exception of the BIA, the authorities have uniformly favored exclusion of evidence obtained illegaily by INS agents. It is also significant that before the BIA’s decision in Matter of Sandoval, the INS performed its investigative and prosecutorial functions in a legal regime in which the exclusionary rule was thought to apply. Notwithstanding this prior history, we believe the question merits fresh consideration, especially in light of United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), the only case in which the Supreme Court has squarely addressed the applicability of the exclusionary rule to civil proceedings. Because deportation proceedings are.deemed to be civil in nature, Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 285, 87 S.Ct. 483, 487-88, 17 L.Ed.2d 362 (1966), we look to the Court’s analysis in Janis for guidance in determining whether to apply the rule here.⁹

Ill

In United States v. Janis, the Supreme Court held that the exclusionary rule did not bar the federal government from using in a civil tax proceeding evidence seized by state law enforcement officers in violation of the Fourth Amendment. 428 U.S. at 459-60, 96 S.Ct. at 3034-35. In deciding Janis, the Court employed an analysis that does not foreclose application of the exclusionary rule in all civil proceedings.¹⁰ Rather, while noting that it had never invoked the rule in a purely civil proceeding, 428 U.S. at 447, 96 S.Ct. at 3028-29, the Court ' adopted an approach that calls for selective application of the rule in civil cases. Consistent with its view that the “prime purpose of the [exclusionary] rule ... is to deter future unlawful police conduct,”¹¹ 428 U.S. at 446, 96 S.Ct. at 3028, quoting United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974), the Court in Janis made deterrence the touchstone of its analysis, inquiring whether application of the exclusionary rule in the case before it would produce a “substantial and efficient” deterrent effect. Id., 428 U.S. at 453, 96 S.Ct. at 3031. The analysis was not an empirical one, for there has been little “convincing empirical evidence on the effects of the rule.” 428 U.S. at 446, 96 S.Ct. at 3028. Instead, the Court’s evaluation of the deterrent effect of invoking the rule was based on “common sense” and on its “own assumptions of human nature and the interrelationship of the various components of the law enforcement system.” 428 U.S. at 459, 96 S.Ct. at 3034.

In deciding whether to apply the exclusionary rule in the civil case at issue in Janis, the Court balanced the deterrent benefit to be gained against the social cost of invoking the rule. The Court first focused on the likelihood that state police would be deterred from violating the Fourth Amendment if evidence they seized illegally was excluded from federal civil proceedings. The Court reasoned that “the deterrent effect of the exclusion of relevant evidence is highly attenuated when the ‘punishment’ imposed upon the offending .. . officer is the removal of that evidence from a civil suit by ... a different sovereign,” id. at 458, 96 S.Ct. at 3034. The Court did not believe that application of the exclusionary sanction in such a case would effectively deter state police because the use of evidence in federal civil proceedings is not within their “zone of primary interest.” Id. The strength of the connection between the purposes of the offending officers and the purposes of those seeking to use the illegally seized evidence was critical to the Court’s assessment of the deterrent value of applying the rule: the closer the connection, the greater the marginal deterrent value of imposing the sanction. Conversely, the deterrent effect of the sanction was believed to be attenuated when the sovereign forbidden from using the evidence is not the same sovereign whose agents illegally obtained it.

As a second step in its analysis, the Court considered the extent to which the persons whose “conduct is to be controlled,” id. at 448, 96 S.Ct. at 3029, are already subject to the deterrent effects of the rule. In Janis, the Court reasoned that because evidence obtained illegally by state police was already inadmissible in both state and federal criminal proceedings, little if any additional deterrence of state police misconduct would be gained by excluding such evidence from federal civil proceedings.

Finally, the Court determined that the attenuated impact of excluding relevant evidence from a federal civil proceeding, coupled with the existing deterrent effect of the rule on state police, created a “situation in which the imposition of the exclusionary rule ... [was] unlikely to provide significant, much less substantial, additional deterrence.” Id. at 458, 96 S.Ct. at 3034. Accordingly, the Court had no difficulty in concluding, as the third step in its analysis, that the social cost of invoking the rule— hampering enforcement of admittedly valid laws by removing “concededly relevant and reliable evidence,” id. at 447, 96 S.Ct. at 3029 — outweighed its deterrent value in a civil case involving an intersovereign violation. The Court thus held that “the judicially created exclusionary rule should not be extended to forbid the use in the civil proceedings of one sovereign of evidence seized by a criminal law enforcement agent of another sovereign.” Id. at 459-60, 96 S.Ct. at 3034-35.

IV

A

Appellant Sandoval, in arguing that evidence unlawfully obtained by INS agents should be excluded from his deportation hearing, presents- us with a question expressly left open in Janis — -whether the exclusionary rule should be applied in civil cases involving “intrasovereign violations”: cases in which “the officer committing the unconstitutional search or seizure[s] [is] an agent of the [same] sovereign that [seeks] to use the evidence.” 428 U.S. at 455-56, n. 31, 96 S.Ct. at 3033. In deciding Sandoval’s appeal, however, we engage in the same inquiry the Court made in Janis, assessing the marginal deterrent benefit of imposing the exclusionary sanction against the INS, and weighing that effect against the social cost of excluding from deportation hearings evidence that is the product of unlawful conduct by INS agents.¹²

The first step in the inquiry mandated by Janis is an examination of the connection between those who illegally obtained the evidence and those who seek to use it in subsequent proceedings. In this case, the connection could not be more direct: those who violated the Fourth Amendment in obtaining the evidence and those who seek to use it in deportation proceedings are members of the same government agency, the INS. Thus, we are presented not only with an intrasovereign violation, but with an intraagency violation as well. The connection between the offending officers and those who seek to use the tainted evidence is further strengthened by an identity of purpose between the two. The immigration officers who interrogated Sandoval after arresting him did so exclusively to aid in filling out INS Form 1-213, the form used by INS attorneys at Sandoval’s deportation hearing to prove his deportability. When, as here, the offending officer and the prosecutor share a common goal, the deterrent effect of the exclusionary sanction is maximized: an officer will have little incentive to violate the Fourth Amendment if he knows that tainted evidence will be worthless to the prosecutorial agency he serves. See Tirado v. Commissioner, 689 F.2d 307, 310-11 (2d Cir.1982).

Taking the second step of the Janis analysis, we find that applications of the exclusionary sanction outside the deportation context are not likely to be effective in deterring immigration officers from violating the Fourth Amendment. While it is true that evidence seized illegally could not be used if Sandoval were to be criminally prosecuted for violation of the immigration laws, deportation, not criminal prosecution, is clearly the prime concern of immigration officers. Aliens apprehended for violation of the immigration laws are rarely subjected to criminal prosecution; in the vast majority of cases, they are either allowed to depart voluntarily or are deported following formal proceedings. See United States Immigration and Naturalization Service, 1979 Annual Report 5, 20 (fewer than 2% of the deportable aliens who are apprehended are ever convicted of criminal violations). Thus, criminal prosecution is simply not within the immigration officer’s “zone of primary interest.” Janis, 428 U.S. at 458, 96 S.Ct. at 3034. Contrary to the BIA’s conclusion in Matter of Sandoval, 17 I & N Dec. at 78, therefore, we deem it highly unlikely that immigration officers will be deterred from violating the Fourth Amendment by the prospect of unsuccessful criminal prosecutions.¹³

In sum, the Janis analysis, when applied here, compels the conclusion that the deterrent impact of invoking the rule in deportation proceedings will be “substantial and efficient.”¹⁴ Janis, 428 U.S. at 453, 96 S.Ct. at 3032. Not only are the officers seizing the evidence members of the same agency as those seeking to use it, they also share a common goal — the deportation of aliens in the country illegally. Finally, there are no other applications of the exclusionary rule which effectively deter the offending officers from violating the Fourth Amendment. If the exclusionary rule is the “ ‘strong medicine’ its proponents claim it to be,” Janis, 428 U.S. at 453, 96 S.Ct. at 3032, then we can imagine no more effective application than in these circumstances. Indeed, there is authority that the sanction is “routinely” applied in cases where the deterrent effect of its application is as great as it is here. See Tirado v. Commissioner, 689 F.2d at 310, 311 (rule “routinely” applied in “core” cases which “bar use of illegally seized items as affirmative evidence in the trial of the [very same] matter for which the search was conducted”).¹⁵ Nonetheless we proceed, under the Janis analysis, to assess the social cost of applying the exclusionary rule in deportation proceedings and to balance that cost against the substantial deterrent impact of the sanction on INS misconduct.

B

The social cost of applying the exclusionary rule in deportation proceedings must be measured primarily in terms of the number of aliens who will succeed in escaping deportation by the suppression of illegally obtained evidence of their alienage or illegal status. When analyzed in these terms, it becomes clear that only an infinitesimal fraction of the illegal alien population will mount challenges based on the exclusionary rule and that the small number who do so successfully will not appreciably increase the number of illegal aliens in our midst.

Historically, the exclusionary rule has been invoked infrequently in deportation proceedings. As it noted in Matter of Sandoval, the BIA was able to find only_two reported immigration cases since 1899 in which the rule was applied to bar unlawfully seized evidence, only one other case in which the rule’s application was specifically addressed, and fewer than fifty BIA proceedings since 1952 in which a Fourth Amendment challenge to the introduction of evidence was even raised. 17 I & N Dec. at 80, 98-99.¹⁶ It is perhaps curious that the rule has been invoked so sparingly in deportation proceedings, especially in view of the fact that immigration law practitioners have been informed by the major treatise in their field that the exclusionary rule was available to clients facing deportation. See 1A C. Gordon and H. Rosenfield, Immigration Law and Procedure § 5.2c at 5-31 (rev. ed. 1980). One plausible explanation is that immigration officers have not committed many Fourth Amendment transgressions because they have been effectively deterred by the exclusionary rule. As noted above, the INS, at least before the BIA’s 1979 decision in Matter of Sandoval, operated in a legal regime in which the cases and commentators uniformly sanctioned the invocation of the rule in deportation proceedings.

A second plausible explanation for the paucity of challenges based on the exclusionary rule is the relative ease with which aliens who are apprehended may reenter the United States following voluntary departure. Approximately 85% of the aliens present in this country enter from Mexico, from which entry without inspection is not difficult. See Department of Justice, Special Study Group on Illegal Immigrants from Mexico: A Program for Effective and Humane Action on Illegal Mexican Immigration 6 (1973). Thus those facing deportation to Mexico may find it simpler to leave voluntarily with the thought of reentering the United States at a later time¹⁷ rather than remain to litigate the issue of their deportability.¹⁸

Whatever the explanation, our holding today should result in no significant increase in the frequency with which the exclusionary rule is invoked in deportation proceedings. Hence, in assessing the social cost of holding that the rule bars the INS from using illegally., obtained evidence in deportation proceedings, we adopt the realistic premise that the number of aliens likely to escape deportation by invoking the rule is inconsequential. Moreover, whatever number do benefit from application of the rule is insignificant when compared with the flood of illegal immigrants who enter the United States each year. Although statistics on the number of aliens in this country illegally are necessarily unverifiable, available estimates indicate that there are from 2 to 12 million, and it is believed that over 500,000 more enter illegally each year. See Los Angeles Times, 1983 at 1, col. 3; Note, The Exclusionary Rule in Deportation Proceedings: Time for Alternatives, 14 J.Int’l L. & Econ. 349, 350 (1980) (5 million); Report of the Senate Judiciary Committee, S.Rep. 97-485, on S.2222 at 4 (97th Cong.1982) (citing estimates of the Select Commission on Immigration and Refugee Policy that 3.5 to 6 million illegal aliens were present as of 1978, and noting that “whatever the number four years ago, there are surely many more now”); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975) (12 million). If application of the rule results in aborted deportation proceedings in as many as one hundred cases a year — a number twice as great as the number of evidentiary challenges raised before the BIA since 1952 — the result would be an increase of less than one one thousandth of one percent in the illegal alien population. This is hardly an exorbitant price to pay for effective deterrence of INS misconduct. Indeed, the BIA itself has conceded that application of “the rule would not appear to have the potential to significantly impact on this country’s immigration laws and policies,” Matter of Sandoval, 17 I & N Dec. at 80.¹⁹

Thus the government cannot — and does not — base its argument about anticipated social costs on the numbers of illegal aliens who will succeed in remaining in this country by invoking the exclusionary rule.²⁰ Rather, the principal concern of the government and the BIA seems to be that by permitting otherwise deportable aliens to remain in the country, the courts will be sanctioning a continuing violation of the immigration laws. Yet neither the BIA’s nor the government’s assessment of the seriousness of this problem withstands clos& scrutiny. It strikes us as far-fetched to suggest that sanctioning the continuing “status crime” of illegal alienage is as threatening or damaging to society as is releasing, without punishment, a person known to have violated other provisions of the criminal laws. Illegal aliens are not, as a class, per se dangerous to the law-abiding members of the community. In fact just the opposite is true. “Mexican immigrants show no evidence of rejecting fundamental American values and institutions,” Cornelius, Chavez & Castro, Mexican Immigrants and Southern California: A Summary of Current Knowledge 9 (1982), and common sense tells us that illegal aliens, fearing detection by authorities, have a special incentive to be law-abiding residents of this country. In contrast, the tendency of persons who have once committed crimes to do so again is well documented, see, e.g., National Council on Crime and Delinquency, Uniform Parole Rep. Characteristics of the Parole Population, 1978 at 3 (1980) (26% of persons committed to prison had served one or more prior prison terms).

We recognize that the problem of illegal immigration is an intractable one. Despite the best efforts of the INS, millions of aliens have managed to enter this country without inspection and to remain here undetected. For various reasons, as Justice White noted seven years ago, “[t]he entire system [of enforcement of the immigration laws] has been notably unsuccessful in deterring or stemming [the] heavy flow of illegal immigrants.” United States v. Ortiz, 422 U.S. 891, 915, 95 S.Ct. 2585, 2598, 45 L.Ed.2d 623 (1975) (White, J., dissenting). Indeed, it has been estimated that 21,000 officers would be needed to control the 75-mile stretch of border at El Centro, California alone. Id. at 900 n. 2, 95 S.Ct. at 2590 (appendix to opinion of Burger, C.J., concurring). We thus appreciate the magnitude of the enforcement task that Congress has assigned the INS. We cannot believe, however, that the difficulty of the task would be perceptibly eased by exempting the INS from the exclusionary sanction.

Were we to give the INS a license to use tainted evidence in deportation proceedings, the agency could no doubt deport some handful of additional aliens who would otherwise escape deportation by invoking the rule. But surely the incremental social cost of harboring those few aliens who do succeed in escaping deportation on this basis and remain in the United States²¹ is inconsequential when compared with the marginal deterrence of INS misconduct to be gained by application of the rule. We thus conclude that the marginal deterrent benefit far outweighs the social cost of barring the INS from using in deportation proceedings evidence which its officers seize in violation of the Fourth Amendment.

Before holding that the rule must be applied in deportation proceedings, however, we treat the final contention advanced in Matter of Sandoval. Both the BIA in that case and the dissent here suggest that even if the deterrent effect of application of the exclusionary rule in the deportation context is substantial, there are less costly alternatives by which to achieve the rule’s goal of deterrence. We disagree. The alternatives proposed simply will not provide the deterrent necessary to ensure that official conduct comports with the Fourth Amendment.

C '

The alternatives to the exclusionary rule suggested by the BIA in Sandoval are both unrealistic and unacceptable. The BIA reasoned that the offending officer could be sued for damages in a Bivens²² action. Matter of Sandoval, 17 I & N Dec. at 82. Yet it is unlikely enough that citizens whose rights have been violated will bring a civil action for damages. It is even harder to imagine that illegal aliens — -particularly those who have been deported — will do so. See generally Exclusionary Rule Note, supra, at 369-70; Schroeder, Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule 69 Geo.L.J. 1361, 1393 (1981) (“even damage actions that are pursued with reasonable frequency before an unbiased tribunal and against a financially able government ... are not an adequate substitute for the exclusionary rule.”) Over 97% of the illegal entrants apprehended by the Border Patrol in 1979 were Mexican nationals. United States Immigration and Naturalization Service, 1979 Statistical Yearbook of the Immigration and Naturalization Service, 80. These individuals have a poor command of English, are fearful of authority and are unfamiliar with American culture and values. W. Cornelius, L. Chavez & J. Castro, supra, at 57-8. It is hard to believe that they are likely to possess the financial, emotional or cultural wherewithal to pursue a civil damage action against an INS officer when their rights have been violated.

Similarly, prospective injunctive relief, while effective in some circumstances, see, e.g., International Ladies Garment Workers Union v. Sureck, 681 F.2d 624 (9th Cir. 1982), is not a satisfactory alternative here. Injunctive 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. See generally Exclusionary Rule Note, supra at 367-68; Schroeder, supra, at 1407-09.

The final alternative, internal discipline, presents a closer question. In theory, self-policing should be the most effective deterrent to illegal conduct because it offers the most direct and immediate feedback to the offending officer. Yet the practical experience of other law enforcement agencies indicates that internal review is rarely effective in deterring Fourth Amendment violations. See Schroeder, supra, at 1401-07; Note, The Administration of Complaints by Civilians Against the Police, 77 Harv.L.Rev. 499 (1964).

Judge Alarcon is apparently convinced that the INS system does not suffer the defects of other self-policing systems. See, infra, p. 1092 (Alarcon, J., dissenting). Yet, although his dissent cites at length from the INS disciplinary guidelines, it offers no evidence whatsoever that the guidelines are being consistently and effectively enforced. We agree that the INS has made a commendable effort to design an effective disciplinary system, but “[i]t would ... be myopic to presume from the existence of a remedy its effective and consistent implementation.” Exclusionary Rule Note, supra, at 371. Even if we could assume adequate enforcement of the INS guidelines, it would be unrealistic to assume that illegal aliens who have been the victims of unlawful behavior by INS agents will report their experiences to the INS. See Schroeder, supra, at 1402.

We are hopeful that the INS’ efforts will be an effective complement to the exclusionary rule. Yet we are hesitant to place sole responsibility for ensuring that citizens and aliens alike are free from unwarranted government intrusions into their privacy on the same officers responsible for patroling the borders and apprehending persons they suspect are aliens in this country illegally. As Justice Murphy observed in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (overruled by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)), “[sjelf-scrutiny is a lofty ideal, but its exaltation reaches new heights if we expect a District Attorney to prosecute himself or his associates for well-meaning violations of the search and seizure clause during a raid the District Attorney or his associates have ordered.” 338 U.S. at 42, 69 S.Ct. at 1369 (Murphy J., dissenting).

CONCLUSION

In holding that evidence obtained by the INS in violation of the Fourth Amendment is inadmissible in subsequent deportation proceedings, we do not break new legal ground. Rather, we follow a line of case law directly on point broken only by the BIA’s split decision in Matter of Sandoval. We also follow a line of cases in which the exclusionary rule has been applied as a matter of routine where those who illegally seized evidence were of the same agency and pursuing the same law enforcement goals as those who sought to use it. Finally, although the Supreme Court has expressly reserved the question whether the rule applies in cases in which those who illegally seized the evidence are agents of the same sovereign who seeks to use it, we believe that its analysis in Janis dictates the result we reach in this particular case.

Until 1979, when the BIA decided Matter of Sandoval, immigration officers had been making arrests and seizing evidence apparently on the assumption that evidence they obtained in violation of the Fourth Amendment could not be used to prove illegal alienage. 17 I & N Dec. at 93 (Applemen, Bd. member, dissenting). There is no indication that the belief that the exclusionary rule applied significantly impaired the investigative or prosecutorial efforts of the INS. The 200,000 deportation cases successfully prosecuted between 1971 and 1979, the millions of voluntary departures during the same period, and the paucity of cases terminated because of Fourth Amendment violations belie such a notion. We simply cannot believe that our confirmation of the historic view that the exclusionary rule applies in deportation proceedings will seriously impede the INS in the discharge of its statutory duties. Indeed, as aptly put by the dissent in Matter of Sandoval, “[t]he rule having been accepted and followed for so many years, the natural inquiry is what reason is there for a change now?” Matter of Sandoval, 17 I & N Dee. at 94 (Apple-men, Bd. member, dissenting). Whatever the solution to the problem of illegal immigration, we do not think that it lies in judicial compromise of Fourth Amendment values.

If the Fourth Amendment is to retain its vitality as guardian of the privacy of citizens and non-citizens alike, the federal judiciary must be constantly vigilant in ensuring adherence- to its commands by those charged with enforcing our laws. We are convinced that the best and indeed the only realistic way to ensure that immigration officers respect the precious values embodied in the Fourth Amendment is to apply the exclusionary rule in deportation proceedings.

For the foregoing reasons, we hold that Sandoval’s statements were inadmissible in his deportation hearing and REVERSE his order of deportation. We VACATE Lopez’s order of deportation and REMAND his case for further proceedings consistent with this opinion.

1 . At their respective deportation hearings, Sandoval and Lopez each challenged the use of Form 1-213 on the ground that it was the product of an illegal arrest. Sandoval’s attorney questioned the immigration officer at length about his authority, in the absence of a search warrant, to question the plant workers; about the criteria he used to determine which workers to question regarding their immigration status; and about Sandoval’s responses to questions he was asked. All of the attorney’s questions were intended to ascertain the legality of Sandoval’s arrest. The immigration judge participated in the questioning and in his order noted specifically that “[rjespondent is contending in regard to his denial of deportability that the evidence relied upon by the Government should be suppressed as it is the result of the ‘fruit of the poisoned tree.’ He stated that his arrest was unlawful, was without a warrant, and he was not advised of his Miranda rights.” He went on to rule that the information obtained from Sandoval was not tainted by any Fourth Amendment violation because Sandoval’s arrest was lawful.

Lopez’s counsel also argued vigorously that Lopez had been arrested illegally. Although he styled his request as a motion to terminate the proceedings rather than, as a motion to suppress evidence, the only reasonable way to interpret the motion to terminate is as one that includes both a motion to suppress and a motion to dismiss. The only evidence introduced against Lopez was the INS Form 1-213 and the affidavit of the immigration officer. Since both were completed based on information obtained as a product of Lopez’s arrest, Lopez’s argument must be that both must be excluded if his arrest violated the Fourth Amendment. If all the evidence introduced against Lopez must be excluded, there is then no evidence on which he may be deported, and the proceedings must be terminated. This appears to be the way in which the BIA interpreted the motion.

2 . In deportation proceedings involving unlawful entry into the country, the burden of proof is on the government to prove alienage. Once the government has met its burden, it is then up to the alien to prove his legal status in the United States. Iran v. INS, 656 F.2d 469, 471 (9th Cir.1981); 8 U.S.C. § 1361 (West Supp. 1982).

3 . The immigration judge decided Sandoval before we held in International Ladies Garment Workers Union v. Sureck, 681 F.2d 624 (9th Cir.1982) that an initial stop must be based on articulable facts giving rise to an individualized suspicion of illegal alienage, not simply alien-age alone.

4 . For purposes of review, we accept the historical facts as found by the immigration law judge. The question whether, on these facts, Sandoval’s arrest was based upon probable cause, however, is one of law which is freely reviewable on appeal. See United States v. Chesher, 678 F.2d 1353, 1359 (9th Cir.1982) (court of appeals makes own determination whether agreed facts are sufficient to provide probable cause for issuance of a warrant); United States v. One Twin Engine Beech Airplane, etc., 533 F.2d 1106, 1109 (9th Cir.1976) (“While we will defer to findings of basic facts, especially those depending on the credibility of witnesses and the subtleties of the evidence, we are required to review the determination of probable cause in a forfeiture proceeding as an application of a rule of law”). Since the applicability of the exclusionary rule when a violation of the Fourth Amendment has occurred is also a question of law, no purpose would be served by a remand to the immigration judge for a ruling on this point. See Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975) (record sufficient to enable reviewing court to determine for itself whether confession was voluntary; unnecessary to remand for further findings by lower court).

5 . The government does not contend, and we do not believe, that Sandoval’s statements at the police station were so distant from his arrest that they were sufficiently “an act of free will to purge the primary taint” of the illegal arrest. Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Sandoval made the statements within a brief time after his arrest and with no intervening period of freedom. The fact that some form of Miranda warnings may have been given Sandoval does not, standing alone, dissipate the taint of his illegal arrest. Brown v. Illinois, 422 U.S. 590, 602-03, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975).

6 . Unlike criminal prosecutions for violation of the immigration laws, deportation proceedings have historically been classified as civil in nature. See Woodby v. Immigration and Naturalization Serv., 385 U.S. 276, 285, 87 S.Ct. 483, 487-88, 17 L.Ed.2d 362 (1966).

7 . Several courts have, in addition, considered objections to the use in deportation proceedings of evidence allegedly obtained in violation of the Fourth Amendment, but have found no violation. See, e.g., Cordon de Ruano v. INS, 554 F.2d 944, 945-6 (9th Cir.1977). See also Matter of Sandoval, supra, at 36, (app. to dissent) and Note, The Exclusionary Rule in Deportation Proceedings: A Time for Alternatives, 14 J.Int’l Law & Econ., 349, 363 (1980), for lists of cases considering objections to evidence. The fact that these courts found it necessary to decide whether evidence had been seized in violation of the Fourth Amendment may suggest that they assumed the exclusionary rule would apply if a violation were found. Although such cases may not be disregarded as precedent, see generally Mitchum v. Foster, 407 U.S. 225, 231, 92 S.Ct. 2151, 2156, 32 L.Ed.2d 705 (1972), we recognize that these courts may simply have chosen to consider the Fourth Amendment issue first and, having found no violation, declined to reach the exclusionary rule issue. See the debate in Tirado v. Commissioner, 689 F.2d 307 (2d Cir.1982) between Judge Newman, writing for the majority, id. at 309 n. 2, and Judge Oakes concurring, id. at 315, on the order in which the issues of Fourth Amendment violation and application of the exclusionary rule should be considered.

8 . After an alien suspected of being in the country illegally is apprehended, he is brought before an immigration law judge who conducts his deportation hearing. 8 U.S.C. § 1252(b). The Board of Immigration Appeals hears appeals from decisions of the immigration law judges. 8 C.F.R. § 3.1(b). The BIA is an agency of the Department of Justice that is separate from the Immigration and Naturalization Service. 8 C.F.R. § 3.1.

9 . It is, of course, settled law that the exclusionary rule applies in criminal, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), and quasi-criminal, One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), proceedings.

Although we do not decide the case on this ground, we believe it is arguable that application of the exclusionary rule to deportation proceedings could be justified by characterizing such proceedings as quasi-criminal, applying the rationale of One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). A deportation proceeding closely resembles the quasi-criminal forfeiture proceeding that was the subject of that case. Deportation is a severe sanctidn in itself (although “deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times a most severe one — cannot be doubted,” Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103 (1945)) and is certainly more serious a penalty than that usually imposed in criminal prosecutions for violation of the immigration laws. Matter of Sandoval, 17 I & N Dec. at 96 (Applemen, Bd. member, dissenting). Furthermore, deportation is imposed for violation of the same immigration laws on which criminal prosecutions are based. As Board Member Applemen noted in his dissent in Sandoval,

In essence, civil and criminal proceedings walk hand in hand in intrasovereign wedlock ... [t]he government may have a criminal action against an alien for violation of [the immigration laws] ... thrown out because of fatally contaminated evidence, and then turn right around and proceed against him in a deportation proceeding of equal or greater consequence, relying on the identical evidence. This is wrong.... Underlying the majority decision is the premise that there is something inherent in a civil deportation proceeding, as against a criminal proceeding, which makes the application of the rule (a) less necessary, and (b) less effective. Neither of these assumptions is acceptable.

Id. at 95-96.

10 . The Court in Janis pointedly refrained from adopting a categorical test making the applicability of the exclusionary rule turn on the characterization of the proceeding as criminal, quasi-criminal or civil. Had it intended to do so, its lengthy analysis of the deterrent effect on state police of excluding evidence from federal civil proceedings would have been a futile exercise. Furthermore, the Court would not have left open the question whether the exclusionary rule is to be applied in civil cases involving intrasovereign violations, cases where the evidence sought to be excluded is seized by agents of the same sovereign attempting to use the tainted evidence in a civil proceeding. United States v. Janis, 428 U.S. at 456 n. 31, 96 S.Ct. at 3033 n. 31. Such a test for application of the exclusionary rule bears no relationship to the policy objectives pursued by application of the rule. As Judge Newman pointed out in Tirado v. Commissioner, 689 F.2d 307, 313-14 (2d Cir. 1982),

A test for the exclusionary rule that turns on the civil or criminal character of the proceeding does not comport with an objective of achieving substantial deterrence.... More important, the rule can have a deterrent effect in appropriate civil proceedings, as numerous federal courts have recognized.... And if it is not used in such circumstances where it is needed, “the Government would be free to undertake unreasonable searches and seizures in all civil cases without the possibility of unfavorable consequences.” ... We therefore agree that the exclusionary rule can be properly and beneficially applied in those civil proceedings where it has a realistic prospect of achieving marginal deterrence.

The dissent reads United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) as dictating application of the exclusionary rule depending on the civil or criminal nature of the proceeding. We do not so read Calandra. The entire focus of the Court in Calandra was on whether exclusion of illegally seized evidence from grand jury proceedings would significantly further the goal of deterrence of police misconduct. The Court concluded that because illegally seized evidence was already excluded from criminal trials, exclusion of such evidence from grand jury proceedings would not provide significant incremental deterrence. As Justice Powell noted for the majority,

Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal.

Id. at 351, 94 S.Ct. at 621. There was simply no suggestion in Calandra that the civil or criminal nature of the case had anything to do with whether the exclusionary rule should be applied.

The dissent’s suggestion, see infra p. 1096, that NLRB v. South Bay Daily Breeze, 415 F.2d 360 (9th Cir.1969), cert. denied, 397 U.S. 915, 90 S.Ct. 919, 25 L.Ed.2d 96 (1970), dictates application of the rule depending on the civil or criminal character of the case is incorrect. There, we held that the exclusionary rule should not be applied to exclude evidence from an NLRB hearing because the challenged evidence was not seized directly by agents of the government nor with their approval. Id. at 363. Our court noted that the rationale for applying the rule did not exist because “[t]here is no logic in excluding evidence to prevent the government from violating an individual’s constitutional rights in a case when the government is not guilty of such a violation.” 415 F.2d at 364.

We did note in South Bay Daily Breeze that even in the absence of Supreme Court decisions declining to apply the rule when the evidence illegally seized was not taken by the government, we would still decline to apply the rule because “neither criminal proceedings nor sanctions are involved.” We did not, however, rest our decision on that point. More important, South Bay Daily Breeze was decided before the Supreme Court’s decision in Janis. To the extent that it suggested a focus on the character of a proceeding in deciding whether to apply the rule, we believe it has been displaced by the Janis analysis.

11 . Although the Supreme Court has emphasized that the deterrent impact of application of the exclusionary rule is the primary inquiry in deciding whether to invoke it, see Janis, 428 U.S. at 446, 96 S.Ct. at 3028, the idea that application of the rule is also demanded by the “imperative of judicial integrity” is tenacious. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446-47, 4 L.Ed.2d 1669 (1960) (rule applied in federal criminal proceeding despite fact that state officials were responsible for Fourth Amendment violation); Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416 (1975) (“application of the exclusionary rule ... protects] Fourth Amendment guarantees in two respects: ‘in terms of deterring lawless conduct by Federal officers,’ and by ‘closing the doors of the federal courts to any use of evidence unconstitutionally obtained.’ ... These considerations of deterrence and of judicial integrity, by now, have become rather commonplace in the Court’s cases” [citing. Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963) ]). See also United States v. Calandra, 414 U.S. 338, 357, 94 S.Ct. 613, 624, 38 L.Ed.2d 561 (1974) (Brennan, J., dissenting) (“The exclusionary rule, if not perfect, accomplished the twin goals of enabling the judiciary to avoid the taint of partnership in official lawlessness and of assuring the people — all potential victims of unlawful government misconduct — that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.”); Tirado v. Commissioner, 689 F.2d at 315-16 (Oakes, J., concurring) (“I disagree that deterrence is the sole rationale of the exclusionary rule.... [Justice Day in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) ] stressed personal rights and correlative governmental duties”). While we have no occasion to rule on the question whether this rationale has been entirely supplanted by a deterrence approach, it is worth noting that concern for maintenance of the integrity of the judicial system and the fairness of deportation proceedings, in which the government is already given tremendous discretion and advantage, also tends to support the result we reach here.

12 . Judge Alarcon in dissent relies on a number of cases which are inapposite because of the fundamental distinction between the jurisprudence of the exclusionary rule on the one hand and that of constitutional rights personal to an accused on the other. The Fourth Amendment exclusionary rule, unlike the rules excluding evidence obtained in violation of the Fifth and Sixth Amendments, is not intended to remedy the constitutional violation personally suffered by the party who invokes it; rather, it is a prophylactic rule designed primarily to deter future invasions of the Fourth Amendment privacy interests of all persons, citizens and aliens alike. As the Court noted in Calandra:

The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim:

“[T]he ruptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late.”

Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601 (1965). Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures:

The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.

Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).

In sum, the 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.

414 U.S. at 348-9, 94 S.Ct. at 620.

Thus the cases relied on by the dissent, Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952); Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938); United States ex rel Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221 (1923); United States ex rel Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719, 48 L.Ed. 979 (1904); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Martin-Mendoza v. Immigration and Naturalization Serv., 499 F.2d 918 (9th Cir.1974); Lavoie v. Immigration and Naturalization Serv., 418 F.2d 732 (9th Cir.1969), cert. denied, 400 U.S. 854, 91 S.Ct. 72, 27 L.Ed.2d 92 (1970); and United States ex rel Circella v. Sahli, 216 F.2d 33 (7th Cir.1954) are inapposite. As cases dealing with rights under the ex post facto clause and the Fifth, Sixth and Eighth Amendments, they have to do with rights personal to the defendant. In any event, all respondents in deportation proceedings, whatever their status, are protected by the due process clause even though they may not enjoy the full panoply of Fifth and Sixth Amendment safeguards afforded a defendant in a criminal proceeding. Shaughnessy v. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953) (“It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to the traditional standards of fairness encompassed in due process of law.”)

As for Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1892), it too has nothing to do with the Fourth Amendment. Fong Yue Ting involved a challenge by several Chinese laborers to a federal statute providing that Chinese in the United States could remain only upon proof that they were here in 1882. Such proof had to consist of a certificate issued by the Collector of Internal Revenue or, if such certificate were lost or stolen, of the testimony of at least “one credible white witness.” The Court held that the act was constitutional.

Equally telling is the fact that the proceeding in Fong Yue Ting had nothing to do with determining whether the Chinese were aliens. Chinese in 1892 could not legally become naturalized citizens of the United States. The defendants in the case were undisputably aliens and the question presented was whether they had met the statutory requirements to remain in the country. The entire purpose of a deportation proceeding, however, is to determine whether someone is an alien and, if so, whether he is in the country illegally.

13 . The BIA reasoned also that even if an alien’s identity is discovered through an illegal arrest or search, the INS can still establish the alien’s deportability with untainted evidence from its files. See Hoonsilapa v. Immigration and Naturalization Serv., 575 F.2d 735, 738 (9th Cir.1978), modified, 586 F.2d 755 (9th Cir.1978) (“We hold that there is no sanction to be applied when an illegal arrest only leads to discovery of the man’s identity and that merely leads to the official file or other independent evidence.”) Thus, the BIA concluded, as long as INS agents believe they will have access to independent evidence of alienage, they will not be deterred by the prospect of suppression of evidence obtained by illegal conduct. Matter of Sandoval, 17 I & N Dec. at 78. That conclusion is unrealistic. It is indeed the law of this circuit, see Hoonsiiapa, supra, that a person’s identity cannot be suppressed, and may thus provide a link to independent evidence in INS files. INS figures suggest, however, that in the large majority of cases the INS has no independent evidence. See Matter of Sandoval, 17 I & N Dec. at 85 (Farb, Bd. member, concurring); see also Wong Chung Che v. Immigration and Naturalization Serv., 565 F.2d 166, 168 (1st Cir.1977). To prove alienage in those cases in which it has no independent evidence, the INS must rely on evidence obtained simultaneously with the apprehension. Id. Since an INS agent will not know in advance whether the alien to be searched or apprehended is one about whom the INS has existing information, we cannot conclude that this possibility significantly undermines the deterrent value of suppression.

14 . Because the circumstances here present such a compelling case for application of the exclusionary rule, and because we have here much more than simply an intrasovereign violation, we need not decide the broad question left open in Janis — whether the exclusionary rule applies generally in civil proceedings when intrasovereign violations are involved.

15 . In Tirado, the Second Circuit held the exclusionary rule inapplicable to a civil case involving an intrasovereign violation: use by the IRS in a federal tax proceeding of evidence seized illegally by federal narcotics agents. Despite its holding, however, the court noted that

courts routinely prohibit governmental authorities from using illegally seized evidence in the proceedings for which the search was conducted, not only in a criminal prosecution, e.g., Mapp v. Ohio, 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961), but also in a variety of civil proceedings, e.g., Wong Chung Che v. INS, 565 F.2d 166, 168-69 (1st Cir.1977) (documents seized by immigration officials investigating illegal aliens excludable from subsequent deportation hearing); Knoll Associates v. FTC, 397 F.2d 530, 534-35 (7th Cir.1968) (documents seized for purposes of FTC investigation excluded from resulting hearing); Smyth v. Lubbers, 398 F.Supp. 777, 786 (W.D.Mich.1975) (drugs seized from dormitory rooms by state college officials investigating violations of college rules excluded from resulting disciplinary proceeding); Iowa v. Union Asphalt & Roadoils, Inc., 281 F.Supp. 391, 406-09 (S.D.Iowa 1968), aff’d sub nom. Standard Oil Co. v. Iowa, 408 F.2d 1171 (8th Cir.1969) (business records seized by state attorney general excluded from resulting civil antitrust proceeding).

689 F.2d at 311.

We agree, and would add to this list other “core” cases, id. at 311, in which the exclusionary rule was applied as a matter of course. See, e.g., Powell v. Zuckert, 366 F.2d 634, 639-41 (D.C.Cir.1966), (error to admit goods illegally seized from home of civilian employee by Air Force special investigations officers for use in Air Force proceeding to discharge the employee); Rogers v. United States, 97 F.2d 691 (1st Cir.1938) (liquor illegally seized by federal government officers excluded from use in subsequent civil suit by government to recover Customs duties); United States v. Blank, 261 F.Supp. 180, 183-84 (N.D.Ohio 1966) (evidence illegally seized by IRS agents excluded in federal civil tax assessment proceeding); Lassoff v. Gray, 207 F.Supp. 843, 846-49 (D.C.Ky.1962) (IRS assessment of excise wagering tax illegally made where IRS had used unconstitutionally seized evidence to establish liability). But see Morale v. Grigel, 422 F.Supp. 988, 1000-01 (D.N.H.1976) (evidence illegally seized in student dormitory by school officials admitted in subsequent school disciplinary proceeding).

16 . The BIA declined to identify which “reported cases” it understood to treat the exclusionary rule issue, although it had previously made reference to Ex parte Jackson and United States v. Wong Quong Wong, supra. The point important for our consideration, however, is that it could isolate few cases of any sort in which the exclusion of evidence was discussed, much less accepted.

17 . INS statistics indicate that the overwhelming majority of those apprehended choose to depart voluntarily: of the approximately one million illegal aliens who are apprehended each year, fewer than 2.5% are deported following formal INS adjudication of their status. Statistical Yearbook of the Immigration and Naturalization Service (1979).

18 . Those who remain to litigate their status and are deported following formal proceedings are also subjected to constraints on any legal reentry they may later try to make. See 8 U.S.C. § 1182(a)(16), (17) (aliens who have been deported are “ineligible to receive visas and shall be excluded from admission into the United States”).

19 . We thus reject the contention of the BIA, Matter of Sandoval, 17 I & N Dec. at 80, and the dissent, see infra p. 1089, that the potential administrative costs of applying the exclusionary rule outweigh its deterrent value. Their drastic predictions of the fiscal and administrative consequences that will result from application of the rule are not defensible in light of past experience. See infra p. 1073.

20 . Indeed, for the government to do so would put it in the awkward position of arguing that violations of the Fourth Amendment by immigration officers are widespread. The government cannot have it both ways. Either violations — and therefore successful challenges— will be few, or they will be extensive, resulting in greater impact of application of the rule but highlighting the need for a strong deterrent.

21 . There is, of course, nothing to prevent the INS from later deporting such an illegal alien on evidence not the fruit of a Fourth Amendment violation.

22 . See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (providing means by which officers who violate Fourth Amendment rights may be sued in their individual capacities).