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United States Court of Appeals,
Fifth Circuit.
No. 97-60247
Summary Calendar.
Israel VELASQUEZ-TABIR, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Nov. 7, 1997.
Petition for Review of an Order of the Board of Immigration
Appeals.
Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Petitioner Israel Velasquez-Tabir was found guilty of using or
possessing falsified documents to satisfy the requirements of the
Immigration and Naturalization Act (INA).1 He petitions this court
for review of the order of the Administrative Law Judge (ALJ).2
Discerning no reversible error by the ALJ, we deny the petition for
review.
I
FACTS AND PROCEEDINGS
Velasquez-Tabir is a native of Mexico who entered this country
without inspection in 1987. In 1991, he presented to his employer,
18 U.S.C. § 1324c(a)(2).
2Velasquez-Tabir is able to seek review from this court of the
final order under 8 U.S.C. § 1324c(d)(5). The ALJ order became the
final agency decision and order when it went unreviewed by the
agency and was not referred to the Attorney General. 8 U.S.C. §
1324c(d)(4).
1

Texas Arai, a social security card and an alien registration card
(green card) with the alien number of another alien, Susana Wiskus
Barrios. These documents were presented as evidence of Velasquez-
Tabir's eligibility to work. Before beginning his employment,
Velasquez-Tabir filled out and signed an I-9 form stating that he
was an alien authorized to work in the United States. On the form
he gave Wiskus Barrios' assigned alien number instead of his own.
After
receiving
a
complaint,
the
Immigration
and
Naturalization Service (INS) conducted a survey and determined that
79 employees of Texas Arai had used falsified documents to comply
with the INA. Velasquez-Tabir and 29 other employees were arrested
at the same time for using or possessing falsified documents to
satisfy the requirements of the immigration laws. The arrest
occurred several days after the National Labor Relations Board
(NLRB) certified the pro-unionization results of an election of
Texas Arai's employees.
The INS issued a notice of intent to fine Velasquez-Tabir $750
and to order him to cease and desist from violating 8 U.S.C. §
1324c. After Velasquez-Tabir requested a hearing with an ALJ, the
INS filed a complaint charging Velasquez-Tabir with use and
possession of a falsified green card and seeking a fine of $250.
Velasquez-Tabir responded, denying the allegations of the complaint
and asserting an affirmative defense that his Fourth and Fifth
Amendment rights were violated. He contended that the INS warrant
for his arrest was illegally obtained by virtue of the employer's
unlawful labor action of reporting employees to the INS in
2

retaliation for the employees' union organizing efforts. He also
insisted that any evidence recovered in the INS raid was illegally
obtained.
On motion of the INS, the ALJ struck the affirmative defenses,
concluding that Velasquez-Tabir's defense regarding the INS's use
of illegally obtained evidence should be raised in a motion in
limine to exclude the evidence. The ALJ held that an employee does
not have a privacy interest in the employer's premises. Velasquez-
Tabir amended his answer, re-asserting essentially the same
affirmative defenses, which were again struck by the ALJ.3
Velasquez-Tabir then filed a motion in limine to exclude the
evidence, reiterating the argument that the evidence was illegally
obtained following his employer's unlawful labor practice and that
the search violated his privacy interest in his employer's
personnel files. The ALJ denied the motion and, following the
filing of a motion by the INS for a summary decision, rendered a
final decision and order granting summary decision against
Velasquez-Tabir. In that decision, the ALJ found that the evidence
(the social security card, green card, and records reflecting
Velasquez-Tabir's true alien registration number and showing that
the number he used belonged to another) was sufficient to support
a finding of guilt for using or possessing a falsified document for
the purpose of satisfying one of the requirements of the INA. The
ALJ noted that Velasquez-Tabir did not contest the authenticity,
3Velasquez-Tabir also asserted that he was not properly
notified of his rights because they were not in Spanish. This too
was struck by the ALJ and is not reurged by Velasquez-Tabir.
3

accuracy, or relevancy of the evidence. He was ordered to pay the
minimum civil penalty of $250.4 Velasquez-Tabir petitioned this
court for review of the ALJ's final order and decision.5
II
ANALYSIS
The sole issue Velasquez-Tabir raises on appeal is that the
evidence used by the INS was illegally obtained, given his
employer's allegedly unlawful labor practice of reporting
employees' violations of INA to the INS in retaliation for the
employees' efforts to unionize the plant.6 He bases his argument
on the Supreme Court's holding in Sure-Tan, Inc. v. NLRB.7
48 U.S.C. § 1324c(d)(3)(A).
5The ALJ order was rendered on February 20, 1997. Velasquez-
Tabir filed his petition for review in this court on April 21,
1997. Under § 1324c(d)(5), Velasquez-Tabir had "45 days after the
date the final order was issued" to file his petition for review in
this court. While this court has not addressed when the 45 days
begins, § 1324c(d)(4) states that an ALJ decision and order becomes
final unless within 30 days the agency modifies or vacates the
decision and order, or unless within 60 days the decision and order
are referred to the Attorney General. 8 U.S.C. § 1324c(d)(4). The
ALJ indicated that the order would be considered the final order of
the Attorney General unless the Chief Administrative Hearing
Officer modified or vacated the order within 30 days. R. 19. The
ALJ's order became final on March 18, 1997 (30 days from the date
it was rendered), so Velasquez-Tabir's filing of his petition on
April 21, 1997, was timely. Accord A-Plus Roofing, Inc. v. INS,
929 F.2d 489, 489-90 (9th Cir.1991).
6Velasquez-Tabir does not argue on appeal, as he did before
the ALJ, that the seizure of the evidence violated his Fourth
Amendment privacy rights to his personnel records. The INS
correctly argues that this argument should be deemed waived for
review. Cf. DSC Communications Corp. v. Next Level Communications,
107 F.3d 322, 326 n. 2 (5th Cir.1997).
7467 U.S. 883, 894-98, 104 S.Ct. 2803, 2809-12, 81 L.Ed.2d 732
(1984) (unfair labor practice exists with reporting an undocumented
alien employee to INS in retaliation of the employee's protected
4

The INS responds that the evidence in question does not come
within the limited exclusionary rules of evidence which apply to
INS administrative proceedings. The INS also notes that there is
no authority holding that labor protections afforded employees can
be used to prohibit the INS from enforcing its rules.
Assuming arguendo that Texas Arai violated labor laws, the ALJ
held that such action could not serve to exclude the evidence. The
ALJ reasoned that (1) the INS was not Velasquez-Tabir's employer
and did not violate the NLRA, and (2) violation of the NLRA would
not invoke the exclusionary rule in an administrative proceeding.
We have not previously reviewed a decision from an ALJ with
respect to 8 U.S.C. § 1324c. Neither have we considered whether
evidence proffered in an INS administrative proceeding should be
excluded when it was obtained as a result of a third-party
employer's unlawful labor practices. We do so for the first time
today.
Hearings conducted under § 1324c follow the requirements of
the Administrative Procedure Act (APA).8 Generally, the APA
excludes only "irrelevant, immaterial, or unduly repetitious
evidence."9 Velasquez-Tabir does not argue that the evidence was
irrelevant, immaterial, or unduly repetitious; rather he presents
labor activity).
85 U.S.C. § 554. See 8 U.S.C. § 1324c(d)(2)(B).
95 U.S.C. § 556(d); see Calderon-Ontiveros v. INS, 809 F.2d
1050, 1053 (5th Cir.1986). Review of a question of law is de novo.
Chemical Mfrs. Ass'n v. U.S.E.P.A., 870 F.2d 177, 198 (5th
Cir.1989); see 5 U.S.C. § 706.
5

a question of law, to-wit, whether evidence obtained through his
employer's unfair labor practice should have been used in his
proceeding.
Neither Velasquez-Tabir nor the INS has referred us to
authority addressing the question whether evidence obtained through
a violation of a regulatory statute is excludable in an
administrative proceeding conducted to assess a civil penalty under
an unrelated statute, and we have found none independently. We
therefore must plow new ground.
In the context of deportation proceedings, the Supreme Court
in INS v. Lopez-Mendoza held that the exclusionary rule does not
apply to exclude evidence obtained in violation of the Fourth
Amendment.10 The Court weighed "the likely social benefits of
excluding unlawfully seized evidence against the likely costs."11
The Court found that the benefit of excluding such evidence was
deterrence.12 The Court cited one of its earlier decisions, United
States v. Janis, in which the Court found little deterrence value
from excluding evidence in a federal civil tax assessment hearing,
given that deterrence already existed with the evidence's exclusion
in a state or federal criminal trial.13 Moreover, the Lopez-Mendoza
10468 U.S. 1032, 1040-50, 104 S.Ct. 3479, 3484-89, 82 L.Ed.2d
778 (1984).
11Id. at 1041, 104 S.Ct. at 3484.
12Id.
13Id. at 1041-42, 104 S.Ct. at 3484-85, citing United States
v. Janis, 428 U.S. 433, 446-48, 96 S.Ct. 3021, 3028-29, 49 L.Ed.2d
1046 (1976).
6

Court found that the INS had taken steps to deter Fourth Amendment
violations such that exclusion would be "unlikely to provide
significant, much less substantial, additional deterrence."14
In Janis, the taxpayer sued the IRS for a return of taxes paid
from an earlier assessment. The IRS counterclaimed for the unpaid
portion of the tax assessment. The taxpayer argued that the
evidence supporting the tax assessment, which was illegally
obtained by state police officers, should have been excluded.
Disagreeing, the Janis Court held that
exclusion from federal civil proceedings of evidence
unlawfully seized by a state criminal enforcement officer has
not been shown to have a sufficient likelihood of deterring
the conduct of the state police so that it outweighs the
societal costs imposed by the exclusion.15
Continuing its weighing approach, the Lopez-Mendoza Court
found the costs of applying the exclusionary rule in a deportation
hearing both unique and significant. It reasoned that applying the
exclusionary rule in a deportation proceeding that sought to
prevent ongoing illegal activity as opposed to punishing the alien
for past transgressions would allow courts "to close their eyes to
ongoing violations of the law,"16 and held that evidence obtained
in violation of the Fourth Amendment should not be excluded in a
deportation hearing.17
14Lopez-Mendoza, 468 U.S. at 1046, 104 S.Ct. at 3487, quoting
Janis, 428 U.S. at 458, 96 S.Ct. at 3034.
15Janis, 428 U.S. at 454, 96 S.Ct. at 3032.
16468 U.S. at 1046, 104 S.Ct. at 3487.
17Id. at 1050-51, 104 S.Ct. at 3489-90.
7

Subsequently, we applied Lopez-Mendoza in the context of a
hearing citing a company for violations of the Occupational Safety
and Health Act, and held that the exclusionary rule does not apply
in administrative proceedings to correct on ongoing violation, but
that illegally obtained evidence "must be excluded for purposes of
"punishing the crime.' "18 "Punishing the crime" includes penalties
assessed for a past violation.19 This holding does not appear to
follow Janis, however, which did not involve a continuing violation
of law, but an assessment of past violations.
Velasquez-Tabir was assessed a penalty of $250 for his
violation of § 1324c(a)(2). The relief sought by the INS could
thus be interpreted as a punishment of the crime, unrelated to
continuing violations.
Employing the weighing analysis of Lopez-Mendoza and Janis in
analyzing Velasquez-Tabir's case, we discern that the deterrence
value in excluding the evidence would be low given that Texas
Arai's actions, assuming they constituted a labor law violation,
would have been sanctionable under the NLRA, and that there may be
little deterrence to employers by excluding evidence in proceedings
not involving the employers. Nonetheless, we do not perceive the
costs in excluding the evidence here to be as significant as they
were in Lopez-Mendoza, as the relief sought by the INS was a civil
penalty against Velasquez-Tabir for his past violation of
18Smith Steel Casting, Co. v. Brock, 800 F.2d 1329, 1334 (5th
Cir.1986).
19Id.
8

immigration laws.
In a criminal context, we have held that suppression of
evidence obtained in violation of a regulatory statute is
inappropriate when (1) the defendant's constitutional rights are
not violated, and (2) Congress did not express an intention that
suppression of the evidence should result when the evidence is
obtained in violation of the statute.20 We reiterated that we
discourage suppression of evidence, even for gross illegalities,
when the illegalities do not infringe the defendant's
constitutional rights.21
Velasquez-Tabir does not argue that obtaining the subject
evidence implicated a constitutional violation. And we have been
unable to locate any provision of the NLRA indicating a
Congressional intent to provide for exclusion, in an INS
proceeding, of evidence obtained in violation of the NLRA. When we
apply the holding in Kington, we come inescapably to the conclusion
that the INS's evidence in Velasquez-Tabir's case was not
improperly admitted.
The Second Circuit recently addressed the effect of Sure-Tan,
Inc., in a deportation case, holding that evidence obtained from an
20United States v. Kington, 801 F.2d 733, 737 (5th Cir.1986).
21Id. at n. 1, citing United States v. Payner, 447 U.S. 727,
734, 100 S.Ct. 2439, 2445-46, 65 L.Ed.2d 468 (1980); see also
United States v. Edgar, 82 F.3d 499, 510-11 (1st Cir.)
(Government's violation of Fair Credit Reporting Act (FCRA) was not
ground for suppression in criminal proceeding where Congress did
not provide for such a remedy in the FCRA), cert. denied, --- U.S.
----, 117 S.Ct. 184, 136 L.Ed.2d 123 (1996).
9

employer's violation of labor laws did not necessitate exclusion of
the evidence in the employee's deportation hearing.22 There the
court reasoned that excluding evidence of an alien's illegal
presence in the country because the evidence was obtained from
unlawful labor practices of his employer was wholly inconsistent
with the enforcement of the INA. "Whether or not an undocumented
alien has been the victim of unfair labor practices, such an alien
has no entitlement to be in the United States."23 Citing Lopez-
Mendoza, the Second Circuit held that if the exclusionary rule is
applicable at all, it is only in cases implicating something other
than Fourth Amendment violations, "only to deprivations that affect
the fairness or reliability of the deportation proceeding."24 The
Second Circuit saw neither unfairness in using evidence obtained
during a labor dispute nor any indication that the evidence was
unreliable.25
In Sure-Tan, Inc., the undocumented aliens were deported.
Even though the remedies for the labor violation were reinstatement
offers from the employer, the Supreme Court held that such offers
could not abrogate the congressional objectives of the INA.26
22Montero v. Immigration and Naturalization Service, 124 F.3d
381 (2nd Cir.1997).
23Id. at 385-86.
24Id., citing Lopez-Mendoza, 468 U.S. at 1050-51, 104 S.Ct. at
3489-90.
25Montero, 124 F.3d 381, 385-86.
26Sure-Tan, Inc., 467 U.S. at 902-03, 104 S.Ct. at 2814-15 ("in
devising remedies for unfair labor practices, the [NLRB] is obliged
to take into account another equally important Congressional
10

Applying this reasoning from Sure-Tan, Inc. and the analysis of
Montero, we conclude that, even if the INS's evidence was obtained
in violation of the NLRA, the Congressional intent of the INA would
be abrogated if such evidence were excluded in an INS hearing
implicating a civil penalty for a past violation of the INA. It
follows that the ALJ's consideration of the evidence purportedly
obtained in violation of the NLRA was not error. In the absence of
error, Velasquez-Tabir's petition for review should be and hereby
is
DENIED.

objective ... the objective of deterring unauthorized immigration
that is embodied in the INA").
11