OUTLINE

A. Preliminary Considerations

B. Fourth Amendment Violation

1. Seizure? A reasonable person, in the light of all the circumstances surrounding the incident, would have believed that he is not free to leave. Factors to consider include the presence of several officers, the display of a weapon, physical contact, and the use of language or tone of voice indicating that an officer’s request might be compelled.

a. Reasonable Suspicion? Officer articulates objective facts providing a reasonable suspicion that the subject of the seizure was an alien illegally in this country.

b. Egregious Violation? Statements or physical evidence obtained by deliberate violations of the Fourth Amendment or by conduct a reasonable officer should know is in violation of the Constitution.

2. Warrantless Arrest?

a. Reason To Believe Alien in the United States Unlawfully? Officer must have probable cause to arrest the alien.

b. Likely To Escape Before a Warrant Can Be Obtained?

c. Egregious Violation? Statements or physical evidence obtained by deliberate violations of the Fourth Amendment or by conduct a reasonable officer should know is in violation of the Constitution.

3. Warrantless Search?

a. Consent? Alien voluntarily consented to search, without any duress or coercion, express or implied.

b. Exception?

i. Border or Functional Equivalent?

ii. Incident to an Arrest?

c. Egregious Violation? Statements or physical evidence obtained by deliberate violations of the Fourth Amendment or by conduct a reasonable officer should know is in violation of the Constitution.


C. Fifth Amendment Violation

1. Involuntary or Coerced Statement? Statement was obtained, for example, through physical abuse, hours of interrogation, denial of food or drink, threats or promises, or interference with the alien’s attempt to exercise his rights.

2. Right to Counsel Violated?

a. Answered Questions Freely? Alien did not answer questions freely after invoking right to counsel.

D. Regulatory Violation

1. Respondent Under Arrest?

a. Regulation Adhered To?

i. Officer Did Not Advise Alien of Reasons for Arrest (8 C.F.R. § 287.3)?

ii. Officer Did Not Advise Alien That Any Statement Could Be Used Against Him (8 C.F.R. § 287.3)?

iii. Officer Did Not Provided Alien With a List of Available Free Legal Services (8 C.F.R. § 287.3)?

iv. Warrantless Arrest Without Reason to Believe Likely To Escape (8 C.F.R. § 287.3(c)(2)(ii))?

v. Arresting Officer Examined Alien When Other Qualified Officer Was Readily Available and Taking Alien Before Said Officer Would Not Have Entailed Unnecessary Delay (8 C.F.R. § 287.3(a))?

b. Regulation Intended To Serve a Purpose or Benefit to the Alien?

c. Violation Prejudiced Alien’s Interest By Affecting Outcome of Proceedings? Alien produced “concrete evidence” that violation had the potential for affecting the outcome of the proceeding. Prejudice generally occurs when evidence supporting removability arises after the alleged violation.

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