Motions to suppress
The exclusionary rule generally does not apply in removal proceedings. But evidence obtained through an egregious violation of the Fourth Amendment, or through coercion, can be excluded, and when the government's only proof of alienage is the statement an officer took at the moment of arrest, excluding it can end the case. Suppression is granted rarely. When it is granted, it is decisive.
Current as of September 2026. We re-check this page every quarter and after any rule change.
Almost every removal case starts with an encounter: a traffic stop, a home visit, a workplace raid, a knock at the door at six in the morning. The officer writes down what happened and what the person said. That report becomes the Form I-213, and the I-213 becomes the government's proof that the person is not a citizen and how they entered. A motion to suppress asks the judge to keep that proof out because of how it was obtained. Where it fits among the ways to end a case before any application for relief is the first half of removal defense.
The rule and the exception
In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court held that the Fourth Amendment exclusionary rule does not ordinarily apply in civil deportation proceedings. The Court weighed the deterrent value of exclusion against its cost in a civil system and came out against it. That is the rule, and it is why most unlawful arrests do not lead to suppression.
The exception is for egregious violations. The Second Circuit, which hears petitions from New York, applied it in Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 2006), and again in Cotzojay v. Holder, 725 F.3d 172 (2d Cir. 2013), which involved a warrantless nighttime entry into a home. Evidence obtained through an egregious violation of the Fourth Amendment, or through coercion, may be excluded. What makes a violation egregious is decided case by case, on the character of the conduct, and it is the question the whole motion turns on.
The regulation the officers are supposed to follow
8 C.F.R. 287.8 sets the enforcement standards for immigration officers. It limits the use of force, requires the officer making an arrest to identify himself or herself as an immigration officer, and requires a warrant for an arrest unless the officer has reason to believe the person is likely to escape before one can be obtained. On questioning it draws three lines that matter in a suppression motion. An officer may question anyone, with no suspicion at all, so long as the person is free to walk away. An officer may briefly detain a person for questioning only on reasonable suspicion, based on specific articulable facts, that the person is engaged in an offense or is in the United States unlawfully. And an officer may arrest only with reason to believe the person has committed an offense or is unlawfully present, the standard the courts treat as probable cause. A stop based on appearance or language alone, a detention with nothing articulable behind it, or a warrantless arrest of someone who was going nowhere, is the factual core of most motions. The regulation is what the affidavit is measured against, and the constitutional standard is what the judge applies.
What a suppression motion looks like
The Board set the procedure decades ago and it has not changed. Under Matter of Toro, 17 I&N Dec. 340 (BIA 1980), and Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988), the motion must be supported by a specific, detailed affidavit that establishes a prima facie case. If it does, the burden shifts to DHS to justify the way the evidence was obtained, which usually means calling the officer. If it does not, the motion is denied on the papers and the I-213 comes in.
The affidavit is the motion. It is written in the first person, in the person's own words as translated, and it states:
- Where and when the encounter happened, minute by minute if possible.
- Who was present: how many officers, what they wore, what they said about who they were, whether anyone showed a warrant.
- How the encounter began. Whether the person was stopped, and on what stated basis. Whether the officers entered a home, and whether anyone consented, and what "consent" looked like.
- What was asked and in what language, whether an interpreter was used, and whether the person understood.
- Whether the person was free to leave, and what made them think they were not.
- Any force, threats or promises, and any refusal of a request to call a lawyer.
- What the person said and what they signed, and whether they were told what it was.
The motion attaches the affidavit, any corroboration (a witness declaration, a photograph of the doorway, a police report from the stop, the I-213 itself with its internal inconsistencies marked), a statement of the facts as the affidavit shows them, and the legal argument that those facts amount to an egregious violation under Lopez-Mendoza, Almeida-Amaral and Cotzojay, and a violation of 8 C.F.R. 287.8. It asks the judge to hold an evidentiary hearing, suppress the I-213 and any statements, and terminate.
The motion goes with a denial, not after a concession
A suppression motion protects a denial of the allegations. If you admit alienage or the manner of entry at the master calendar, the admission is evidence and the I-213 no longer matters. The motion is filed with, or before, written pleadings that deny the allegations the I-213 supports, and it is filed by the deadline the judge sets. See the master calendar hearing.
Why it matters most when the I-213 is the only proof of alienage
Under 8 C.F.R. 1240.8(c), for a person charged with being present without having been admitted or paroled, DHS must first establish alienage. Only then does the burden shift to the respondent. And under Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999), the Form I-213 is presumptively reliable and is admitted without the officer being called, unless the respondent shows that it contains information that is incorrect or was obtained by coercion or duress.
Put those two rules together. In a case that began with a street or home arrest, the I-213 is often the only document in the government's file that says where the person was born. If the I-213 is suppressed, and the person has not admitted anything, DHS has no proof of alienage. The burden never shifts. The charge cannot be sustained, and under 8 C.F.R. 1003.18(d) the judge must terminate. That is the whole reason the motion exists. See contesting removability and motions to terminate.
The converse is also true. Where DHS has other proof of alienage, such as a prior immigration file, a visa application, a passport, or an earlier removal, suppressing the I-213 changes little, and the motion is not worth the credibility it costs. The first question in evaluating a suppression motion is not "was the arrest bad." It is "what else does the government have."
Rebutting the I-213 without suppressing it
Suppression is one route. The other is rebuttal under Ponce-Hernandez itself: showing that the document contains information that is incorrect or was obtained by coercion or duress. A detailed declaration, an internal contradiction in the form, proof that no interpreter was used, or a date of entry that other government records contradict can defeat the presumption without reaching the constitutional question. The two arguments are made together, in the alternative.
An honest note on how often this works
Suppression is granted rarely. Lopez-Mendoza is the rule and the egregious violation is the exception, and judges hold the exception to its name. Most motions fail for one of three reasons: the affidavit describes an arrest that was unpleasant but not egregious, the government has another source for alienage, or the judge credits the I-213 over the affidavit. We do not publish a success rate because none exists, and we do not file the motion on facts that cannot carry it, because a motion the judge finds overstated colors everything that follows in the case.
Where the facts are strong, a home entered at night without a warrant or consent, a stop with no articulable basis, a statement taken by force or by threat, and where the government's file is thin, it is the strongest motion available. It ends the case without any application for relief, without any concession, and without a removal order.
Preserving the issue
If the judge denies the motion, the case goes on and the denial is reviewed by the Board as part of the appeal from the final decision, with findings of fact reviewed for clear error and the legal question de novo under 8 C.F.R. 1003.1(d)(3). Whether a violation was egregious is a question of law applied to established facts, which under Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), the court of appeals can reach on a petition for review. The facts are established at the suppression hearing. Ask for one, put the person and any witnesses on the stand, and object on the record if it is refused.
Read next: contesting removability, motions to terminate, detained removal defense, or every form of relief.
Common questions
Does the exclusionary rule apply in immigration court?
Generally not. In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court held that the Fourth Amendment exclusionary rule does not ordinarily apply in civil deportation proceedings. The opening it left is for egregious violations, and the Second Circuit has applied that exception in Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 2006), and Cotzojay v. Holder, 725 F.3d 172 (2d Cir. 2013). Evidence obtained through coercion can also be excluded.
What does a suppression motion have to contain?
A specific, detailed affidavit. Under Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988), and Matter of Toro, 17 I&N Dec. 340 (BIA 1980), the motion must be supported by an affidavit that establishes a prima facie case of an egregious violation, and only then does the burden shift to DHS to justify how the evidence was obtained. A general claim that the arrest was unfair is not enough.
What happens if the motion is granted?
The suppressed evidence, usually the Form I-213 and the statements in it, is excluded. If that was the government's only proof of alienage, DHS cannot establish alienage, which under 8 C.F.R. 1240.8(c) it must do before the burden shifts to a person charged with being present without admission. Without that proof the charge fails and the case is terminated.
How often does this work?
Rarely. Most motions are denied because the affidavit does not describe an egregious violation, because the government has other proof of alienage, such as a prior immigration file, or because the judge finds the I-213 reliable. We say so because a motion filed on weak facts costs credibility. Where the facts are strong and the government's proof is thin, it is the strongest motion in removal defense.
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