An egregious constitutional violation will activate the exclusionary rule in immigration deportation proceedings, if, for example, police engage in racial profiling and pull over an immigrant because of his race. The petitioner, Charliston Camargos Santos, a citizen of Brazil, moved to suppress evidence and to terminate his deportation proceeding. In July 2008, Hartford Immigration Judge Michael Straus denied the petitioner's motion. In April 2010 the Board of Immigration Appeals affirmed. The petitioner appealed to the 2nd Circuit and argued that evidence of his underlying conviction, which resulted from racial profiling, should have been suppressed. The 2nd Circuit found that the immigration judge wrongly failed to hold an evidentiary hearing on the petitioner's motion to suppress. It is not wrong to deny a motion to suppress, if the only evidence in support is the petitioner's intuition that he was arrested because of his race, pursuant to Almeida-Amaral v. Gonzales, a 2006 decision of the 2nd Circuit. Here, Santos alleged in an affidavit that his passenger had olive skin and dark hair, that Santos was not speeding, and that a Massachusetts state trooper followed Santos for two miles and then stopped Santos and asked Santos and his passenger whether they were citizens and how could they afford an expensive motor vehicle. Allegedly, the state trooper also claimed that Santos' license was fake, and the government did not pursue charges of unlicensed operation of a motor vehicle. Santos' evidence, viewed in the light most favorable to Santos, provides an objective, prima facie basis to believe that Santos was stopped because he looks Hispanic. "Because Santos set out a prima facie case that suppression was warranted because he was pulled over due to his race," wrote the 2nd Circuit, "the IJ erred in denying his motion without a hearing on suppression." The 2nd Circuit remanded with directions to conduct an evidentiary hearing on Santos' motion to suppress.

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