Matter of Garcia-Flores, 17 I. & N. Dec. 325, 329 (BIA 1980) (adopting administrative exclusionary rule allowing respondent to exclude evidence where government violates a regulation intended to benefit the respondent who can show prejudice as the result of the violation).



Note: This remedy is rooted in the Fifth Amendment, but is a third remedy in addition to Fifth amendment and possibly egregious Fourth amendment violations. Thanks to Dan Kesselbrenner.

In the Ninth Circuit, the controlling cases on egregious Fourth amendment violations are Orhorhage v. INS, 38 F.3d 488, 503 (9th Cir.1994) and Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994). The Immigration Judge has authority to consider the constitutional claim that evidence is inadmissible as a result of egregious Fourth Amendment violations, i.e., when a reasonable officer knew or should have known that the Fourth amendment rights would be violated by this conduct and proceeded anyway.

United States v. Lara-Garcia, ___ F.3d ___ (10th Cir. March 7, 2007) (federal agent's failure to Mirandize a lawfully detained suspect prior to inquiring about immigration status does not require suppression of that status where fingerprint evidence subsequently confirms it).
http://laws.lp.findlaw.com/10th/064155.html

A noncitizen who is removed and reenters, or attempts to reenter, the United States is inadmissible. INA 212(a)(9)(C)(i)(II).

Covarrubias v. Gonzales, __ F.3d __ (9th Cir. May 29, 2007) (alien smuggling, as defined in 8 U.S.C. 1182(a)(6)(E)(i), does not end once the noncitizen crosses the border, but continues until the initial transporter who brings the noncitizen into the U.S. ceases to transport the person).

Kharana v. Gonzales, 487 F.3d 1280 (9th Cir. May 29, 2007) (noncitizen who pleads guilty to fraud in misappropriating more than $10,000 but later repays the entire loss, so the victims have been made whole, has not "paid down" the "loss to the victims" below the statutory threshold so that her offense no longer qualifies as an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), vacating Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005).(under the equal protection principle enunciated in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), each petitioner's eligibility for a waiver of deportability under INA 212(c) must turn on whether a similarly situated lawful permanent resident in exclusion proceedings would be given similar treatment).

"DHS regulations specifically provide that the respondent has such a burden only "[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply." 8 C.F.R. 1240.8(d) (emphasis added). Thus, in a case where deportability is not at issue but eligibility for relief is, the regulations clarify that there must first be evidence that indicates that the offense may be an aggravated felony before the burden shifts to the respondent seeking cancellation of removal to establish that his or her offense is not an aggravated felony.

Matter of Garcia, 24 I&N Dec. 179 (BIA 2007) (applicant for special rule cancellation may continue to accrue physical presence until the issuance of a final administrative decision), following Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005). Cuadra v. Gonzales, 417 F.3d 947 (8th Cir. 2005), which holds to the contrary will be followed in that the eighth circuit only.

People v. Feyrer, 151 Cal.App.4th 506 (Cal.App. 2 Dist. May 29, 2007) (trial court may reduce a felony "wobbler" offense to a misdemeanor despite the admission of an enhancement that a defendant inflicted great bodily injury in the commission of the offense).