FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

LUZ LOPEZ-RODRIGUEZ; FABIOLA             
GASTELUM-LOPEZ,                                  No. 06-70868
                      Petitioners,               Agency Nos.
              v.                                A78-184-178
MICHAEL B. MUKASEY, Attorney                     A78-184-179
General,                                          OPINION
                     Respondent.
                                         
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                    Argued and Submitted
              June 4, 2008—Pasadena, California

                      Filed August 8, 2008

  Before: William C. Canby, Jr. and Jay S. Bybee, Circuit
Judges, and Justin L. Quackenbush,* Senior District Judge.

                  Opinion by Judge Canby;
                 Concurrence by Judge Bybee




  *The Honorable Justin L. Quackenbush, Senior District Judge for the
Eastern District of Washington, sitting by designation.

                               10209
10212            LOPEZ-RODRIGUEZ v. MUKASEY


                         COUNSEL

Sara J. O’Connell, Morrison & Foerster, LLP, San Diego,
California, for the petitioners.

Aviva L. Poczter, (briefs) and Song Park (oral argument),
United States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, D.C., for the respondent.
                    LOPEZ-RODRIGUEZ v. MUKASEY                    10213
                              OPINION

CANBY, Circuit Judge:

  Fabiola Gastelum-Lopez (“Gastelum”) and Luz Lopez-
Rodriguez (“Lopez”) petition for review of a decision of the
Board of Immigration Appeals (“BIA”) that affirmed an order
of the Immigration Judge (“IJ”) removing them to Mexico.
They contend that the IJ and BIA erred in denying their joint
motion to suppress their respective Forms I-213 (Record of
Deportable/Inadmissible Alien) and a sworn statement by
Gastelum, because the evidence contained in these documents
was obtained in egregious violation of their Fourth Amend-
ment rights. We agree that this evidence should have been
suppressed. Because the government did not produce any
other evidence tending to show the petitioners’ alienage in the
proceedings before the IJ, we grant the petition for review,
reverse and remand.

                         BACKGROUND

   In October 2000, the Immigration and Naturalization Ser-
vice (“INS”)1 received a tip that a female by the name of Fabi-
ola was fraudulently using a birth certificate belonging to
Sugeyra Torres-Carillo, a citizen of the United States, to
obtain employment. The tip also indicated that the suspect
lived at a specified address in Fresno, California. Gastelum
and Lopez, niece and aunt, resided at that address. Gastelum
was seventeen years old at the time.

   Three INS agents decided to act on the tip and visit the resi-
dence to investigate the matter. They did not obtain an arrest
or search warrant prior to conducting their visit.2 The circum-
  1
    As of March 2003, INS became United States Citizenship and Immi-
gration Services, an agency within the Department of Homeland Security.
  2
    The record does contain a Warrant for Arrest of Alien for Lopez. This
document, however, was served at “1711 hrs,” 5:11 PM, on October 30,
10214               LOPEZ-RODRIGUEZ v. MUKASEY
stances surrounding the INS agents’ entry into the residence
were disputed, as we explain below. Ultimately, the IJ found
that the agents entered without consent. Once inside, the three
INS agents questioned Gastelum. They asked her whether she
was “Sugeyra.” She answered that she was. They asked her to
provide the names of her parents. She complied.3 They asked
her where she had been born, and she responded that she was
born in Texas. They asked where in Texas she was born, and
she did not reply. They asked, “Who is Fabiola?” She said she
was Fabiola. They immediately handcuffed her. The agents
also arrested Lopez on suspicion of being an alien unlawfully
present in the United States.4

   While in INS custody, Gastelum and Lopez were ques-
tioned about, among other things, their country of origin and
immigration status in the United States. On the basis of the
information they obtained, the INS agents prepared individual
Forms I-213, Record of Deportable/Inadmissible Aliens, for
Gastelum and Lopez. The forms reflect what the INS agents
believed to be the petitioners’ biographical information and
immigration status as well as a skeletal narrative of the arrest
of each petitioner. According to the forms, both Gastelum and
Lopez are natives and citizens of Mexico not authorized to be
in the United States. The forms also show that neither Gas-
telum nor Lopez had a criminal record.

  The INS agents also produced a Record of Sworn State-
ment by Gastelum. In her sworn statement, Gastelum

2000, well after the agents’ entry into the residence on the morning of the
same day. Moreover, the warrant reports an alleged date and place of entry
into the United States that first became known to the INS agents during
their interrogation of Lopez. The interrogation evidently took place after
the events relevant to the motion to suppress.
   3
     It is not clear whether she provided the names listed as Sugeyra’s par-
ents on the alleged fraudulent birth certificate or the names of her actual
parents.
   4
     The agents also arrested two males, who are not parties to this case.
                 LOPEZ-RODRIGUEZ v. MUKASEY               10215
acknowledged that she was a native and citizen of Mexico.
She also admitted that she had received a birth certificate in
the name of Sugeyra from a 43-year-old foreman, Francisco
Lopez-Fuentes (Fuentes), who had supervised her when she
worked in the fields. Fuentes did not ask Gastelum for any
money in exchange for the birth certificate.

   The government issued Notices to Appear in removal pro-
ceedings to both Gastelum and Lopez. In joint proceedings,
Gastelum and Lopez moved to suppress the Forms I-213 as
well as Gastelum’s sworn statement. They submitted an affi-
davit by Gastelum asserting that she did not consent to the
INS agents’ entry into their home. In the Forms I-213, the
INS agents asserted that she had in fact consented. The IJ
required Gastelum to testify at the removal hearing in support
of her motion to suppress. She testified that, when the agents
arrived, she was asleep in her bedroom. Her aunt Lopez woke
her up to let her know that some individuals were calling her.
Gastelum went to the door, which was “slightly open and not
locked,” “opened it a little more and . . . peeked outside.” She
saw two men standing outside the door. They asked her if her
name was “Sugeyra.” She did not open the door for them and
did not allow them to enter. She testified that the two men
pushed the door and entered, accompanied by a third, female
agent. Once inside, the agents proceeded to interrogate her as
described above. After Gastelum answered several questions
and was being handcuffed, the INS agents finally identified
themselves.

   After the direct examination of Gastelum and a brief cross-
examination by the government, the IJ ruled that testimony by
the INS agents was necessary to resolve the apparent conflict
between Gastelum’s testimony and the government’s asser-
tion that she had consented to the agents’ entry. The hearing
was continued. At the next hearing, the government did not
produce any of the three agents involved in the raid. The IJ
credited Gastelum’s version of the events surrounding the
entry and recognized “some 4th Amendment problems with
10216                LOPEZ-RODRIGUEZ v. MUKASEY
the manner of entering and questioning.” She concluded,
however, that the violations were not “so egregious as to fall
under the [‘]fundamentally unfair[’] line of cases that would
suppress these events.” She denied the motion to suppress and
ordered Gastelum and Lopez removed.

   Gastelum and Lopez appealed to the BIA, which affirmed
the IJ’s decision without opinion pursuant to 8 C.F.R.
§ 1003.1(e)(4). Gastelum and Lopez have filed this timely
petition for review. We have jurisdiction pursuant to 8 U.S.C.
§ 1252.

                             DISCUSSION

   Where, as here, the BIA affirms the decision of the IJ with-
out opinion, we review the IJ’s decision. Avendano-Ramirez
v. Ashcroft, 

, 815 (9th Cir. 2004). We review de
novo constitutional challenges to removal orders. E.g., Col-
menar v. INS, 

, 971 (9th Cir. 2000). Factual find-
ings underlying an IJ’s order are reviewed for substantial
evidence. Melkonian v. Ashcroft, 

, 1065 (9th
Cir. 2003).

   Gastelum and Lopez seek review of the IJ’s denial of their
motion to suppress the I-213 forms prepared by the INS and
Gastelum’s sworn statement. We conclude that, on the facts
developed before the IJ, the evidence of alienage5 contained
in these documents was obtained in violation of Gastelum’s
and Lopez’s Fourth Amendment rights and that the violation
was “egregious.” Because the government did not produce
any other evidence tending to show the petitioners’ alienage
  5
    “[T]he INS must show only identity and alienage; the burden then
shifts to the respondent to prove the time, place, and manner of his entry.”
INS v. Lopez-Mendoza, 

, 1039 (1984). Because the identity
of an alien in removal proceedings is “never itself suppressible as a fruit
of an unlawful arrest, even if it is conceded that an unlawful arrest, search,
or interrogation occurred,” 

suppressible evidence at issue here
is that pertaining to alienage.
                   LOPEZ-RODRIGUEZ v. MUKASEY                   10217
in the proceedings before the IJ, we grant their petition for
review and reverse the order of removal.6

   [1] In INS v. Lopez-Mendoza, the Supreme Court held that
the Fourth Amendment exclusionary rule does not generally
apply in deportation proceedings, where the sole issues are
identity and alienage. 

, 1034 (1984). “However,
the Court expressly left open the possibility that the exclu-
sionary rule might still apply in cases involving ‘egregious
violations of Fourth Amendment or other liberties that might
transgress notions of fundamental fairness and undermine the
probative value of the evidence obtained.’ ” Orhorhaghe v.
INS, 

, 492-93 (9th Cir. 1994) (quoting Lopez-

). We have since “t[aken] up
the Supreme Court’s suggestion” and “held that, even in
administrative proceedings in which . . . the exclusionary rule
[does not ordinarily apply], administrative tribunals are still
required to exclude evidence that was ‘obtained by deliberate
violations of the Fourth Amendment or by conduct a reason-
able officer should know is in violation of the Constitution.’ ”

(quoting Adamson v. Comm’r, 

, 545
(9th Cir. 1984)). In assessing whether the INS agents’ conduct
amounts to an “egregious violation” of the petitioners’ rights,
“we must first determine whether the agents violated the
Fourth Amendment. If they did, then we must determine
whether the agents committed the violations deliberately or by
conduct a reasonable officer should have known would vio-
late the Constitution.” 

  1. Fourth Amendment

  [2] “It is a ‘basic principle of Fourth Amendment law’ that
searches and seizures inside a home without a warrant are pre-
sumptively unreasonable.” Payton v. New York, 

,
  6
   Because the Fourth Amendment violation warrants suppression of the
Forms I-213 and Gastelum’ sworn statement, we do not reach petitioners’
additional arguments in support of their motion to suppress.
10218              LOPEZ-RODRIGUEZ v. MUKASEY
586 (1980) (footnote omitted). The presumption of unconsti-
tutionality that accompanies “the [warrantless] entry into a
home to conduct a search or make an arrest” may be over-
come only by showing “consent or exigent circumstances.”
Steagald v. United States, 

, 211 (1981).

   [3] The government does not dispute that the INS agents
entered the residence of Gastelum and Lopez and, after briefly
questioning Gastelum, arrested both in their home. It is also
evident that, prior to entering the premises, the INS agents did
not obtain a warrant to arrest either Gastelum or Lopez or, for
that matter, to conduct a search of their residence.7 The gov-
ernment makes no claim of exigent circumstances. Thus, in
order to overcome the presumption of unconstitutionality
attaching to the agents’ entry, the government must show that
the petitioners gave legally sufficient consent. See, e.g., Stea-

; Illinois v. Rodriguez, 

, 181
(1990); United States v. Matlock, 

, 169-71
(1974).

   In relevant part, the IJ summarized her factual findings as
follows:

      [Gastelum] evidently came to the door when they
      knocked and, upon establishing a verbal contact with
      her, [the agents] pushed the door open and entered
      and continued to talk to her. At no time did she tell
      them to leave or tell them she did not want to talk to
      them, although, apparently from what she recalls,
      they did not identify themselves until they were
      handcuffing her.

These findings reflect Gastelum’s in-court testimony describ-
ing the circumstances of the agents’ entry. The government,
on the other hand, did not offer any testimony or consent
  7
    The IJ’s finding that the entry was made in the absence of a warrant
is supported by substantial evidence. See supra note 2.
                 LOPEZ-RODRIGUEZ v. MUKASEY               10219
forms to show consent. Rather, it relied on the arresting offi-
cer’s out-of-court assertion that “[c]onsent to enter was
obtained from Fabiola GASTELUM-Lopez”—a statement
contained in one of the Forms I-213 that petitioners seek to
exclude. In the absence of any further evidence to support the
government, we conclude that the IJ’s factual findings adopt-
ing Gastelum’s testimony are supported by substantial evi-
dence. We therefore deem them conclusive. See 

.

   [4] We agree with the IJ’s apparent conclusion that, with
these factual findings, the government’s entry did not satisfy
the requirements of the Fourth Amendment. As we have made
clear, “the government may not show consent to enter from
the defendant’s failure to object to the entry.” United States
v. Shaibu, 

, 1427 (9th Cir. 1990); see also
United States v. Albrektsen, 

, 955 (9th Cir. 1998)
(suspect’s moving aside to avoid physical contact with enter-
ing officers is insufficient to establish implied consent). We
have sustained an inference of consent to enter a residence
only under very limited circumstances—i.e., where the offi-
cers have verbally requested permission to enter and the occu-
pant’s action suggests assent, see United States v. Garcia, 

, 1281 (9th Cir. 1993) (holding that the officers’
request to talk, combined with the suspect’s affirmative
response and step back clearing way for officers’ entry,
implied consent to enter), or where prior collaborative interac-
tions between the suspect and the officers make the inference
of consent unequivocal, see United States v. Rosi, 

, 412 (9th Cir. 1994) (holding that a request by suspect
who had been lawfully arrested outside the home to retrieve
clothing from his home implied consent to officers’ entry
where the suspect gave a house key to the officers); United
States v. Gilbert, 

, 964 (9th Cir. 1985) (per
curiam) (request that officers retrieve clothing from home
amounts to consent). Here, there is no indication that the offi-
cers made any request to enter or that Gastelum collaborated
with the INS officers in any way when they were at the door.
10220                LOPEZ-RODRIGUEZ v. MUKASEY
Accordingly, the bare fact that Gastelum neither refused to
speak to them nor ordered them to leave after they pushed the
door open and entered her home is insufficient to establish
consent. As a consequence, the arrest of the petitioners in
their home violated their Fourth Amendment rights. See Pay-

.

   The government contends that it had a right to detain Gas-
telum for questioning because it had a reasonable suspicion
that she had used a false birth certificate. The government
relies on our statement—originally made in Benitez-Mendez
v. INS—that “INS investigators may not detain workers for
citizenship status questioning unless the investigators are able
to articulate objective facts providing them with a reasonable
suspicion that each questioned person, so detained, is an alien
illegally in this country.” 

, 909 (9th Cir. 1983).8
This argument misses the point. The question is not whether
the agents could have detained Gastelum for questioning had
they encountered her outside of her residence. The issue is
whether they could enter her home without a warrant or con-
sent. In the absence of exigent circumstances, they could not.
See, e.g., 

; 

-
28; see also Camara v. Mun. Ct. of San Francisco, 

, 534 (1967) (holding that warrant is required before pri-
vate home may be entered for administrative search in
absence of consent or exigent circumstances). We therefore
reject the government’s contention.

  2. Applicability of the Exclusionary Rule for
  “Egregious” Violations

   [5] The statements sought to be suppressed were obtained
from Gastelum and Lopez in the custody immediately follow-
ing the unconstitutional entry of their residence. The govern-
  8
   But see 

n.14 (noting, without deciding,
that “[a] stricter standard [than reasonable suspicion] may apply where . . .
the encounter takes place inside a residence . . . .” ).
                 LOPEZ-RODRIGUEZ v. MUKASEY             10221
ment has made no attempt to bear its burden of showing any
change in circumstances or attenuation that would prevent the
statements from qualifying as fruits of the Fourth Amendment
violation. See Brown v. Illinois, 

, 604-05 (1975).
The statements would therefore be excludible in a criminal
case. See Wong Sun v. United States, 

, 485-86
(1963). In the present proceeding, however, we must next
consider whether “the violations were sufficiently egregious
to warrant the application of the exclusionary rule in these
civil deportation proceedings.” 

.
A Fourth Amendment violation is “egregious” if “evidence is
obtained by deliberate violations of the [F]ourth
[A]mendment, or by conduct a reasonable officer should
[have known] is in violation of the Constitution.” Gonzalez-
Rivera v. INS, 

, 1449 (9th Cir. 1994) (quoting

) (emphasis and final alteration
original). We conclude that reasonable officers should have
known that they were violating the Fourth Amendment in
entering Gastelum’s and Lopez’s home without a warrant,
consent, or exigent circumstances.

   [6] Few principles in criminal procedure are as well estab-
lished as the maxim that “the Fourth Amendment has drawn
a firm line at the entrance to the house. Absent exigent cir-
cumstances, that threshold may not reasonably be crossed
without a warrant.” 

. Accordingly,
although the voluntary consent of a party who has authority
over the premises renders the warrantless entry of a person’s
home by law enforcement personnel constitutionally valid,
see, e.g., 

, exceptions to the war-
rant requirement are “jealously and carefully drawn,” Jones v.
United States, 

, 499 (1958). As we have already
noted, in keeping with the narrow scope of the consent excep-
tion, we “ha[ve] never sanctioned entry to the home based on
inferred consent” in the absence of a request by the officers
or ongoing, affirmative cooperation by the suspect. 

(citing United States v. Impink, 

, 1233-34 (9th Cir. 1984)); see also Albrektsen, 

              LOPEZ-RODRIGUEZ v. MUKASEY
at 955; cf. 

; 

;

. Indeed, a full decade before the
events giving rise to this litigation took place, we held that “in
the absence of a specific request by police for permission to
enter a home, a defendant’s failure to object to such entry is
not sufficient to establish free and voluntary consent. We will
not infer both the request and the consent.” 

.

   [7] Against this unequivocal doctrinal backdrop, reasonable
officers would not have thought it lawful to push open the
door to petitioners’ home simply because Gastelum did not
“tell them to leave or [that] she did not want to talk to them.”9
There is nothing ambiguous or arcane about our holding in
Shaibu, which was handed down ten years prior to the INS
agents’ entry of petitioners’ home. Nor has the government
pointed to any authority in our Fourth Amendment jurispru-
dence suggesting that the warrant requirement applies with
any less force in the administrative context. See 

(requiring a warrant for civil administrative
searches of residences). We conclude that reasonable INS
agents should have known that they were violating the Fourth
Amendment when they entered Gastelum’s and Lopez’s resi-
dence. Our confidence in this result is further underscored by
our cognizance of “the extensive training INS agents receive
in Fourth Amendment law.” 

n.23
(citing 

). Thus, the INS
agents’ Fourth Amendment violation was “egregious” under
this Circuit’s controlling interpretation of the term. See Adam-
  9
    We also note that valid consent to enter could not be inferred from the
fact that the door was apparently “slightly open” when the INS agents
showed up at the petitioners’ doorstep. “Although an open door may . . .
affect the range of permissible action for police possessing a warrant [in
“knock notice” cases], there is no authority that an open door gives police
legal grounds to enter the home without explicit request when they infer
consent from mere acquiescence.” 

(citing

n.3).
                 LOPEZ-RODRIGUEZ v. MUKASEY               10223

. The fruits of the constitutional violation
accordingly should have been suppressed.

                       CONCLUSION

   The IJ erred in denying the petitioners’ motion to suppress
the Forms I-213 and Gastelum’s sworn statement. Because
the government did not introduce any other evidence tending
to show the petitioners’ alienage, the petition for review is
granted. We reverse the decision of the BIA and remand with
instructions to dismiss the removal proceedings against the
petitioners.

 PETITION FOR REVIEW GRANTED; REVERSED;
REMANDED with instructions.



BYBEE, Circuit Judge, concurring:

  I concur fully in the majority opinion. I write separately to
caution that our precedent has set us on a collision course
with the Supreme Court.

   In INS v. Lopez-Mendoza, Justice O’Connor, writing for a
five-justice majority of the Supreme Court announced a
straightforward rule: the exclusionary rule does not apply in
civil deportation proceedings to suppress evidence obtained in
violation of the Fourth Amendment. 

, 1046,
1050 (1984). After the final statement of this rule, Justice
O’Connor’s opinion continued, but the fifth vote did not.
Writing only for a four-justice plurality, Justice O’Connor
announced, in dicta, a possible exception to the rule:

    Finally, we do not deal here with egregious viola-
    tions of Fourth Amendment or other liberties that
    might transgress notions of fundamental fairness and
10224               LOPEZ-RODRIGUEZ v. MUKASEY
     undermine the probative value of the evidence
     obtained.

(Opinion of O’Connor, J.).

   In a series of three subsequent cases, we took this dicta
from the portion of the opinion that was not binding and
adopted an exception of our own. See Orhorhaghe v. INS, 

(9th Cir. 1994); Gonzales-Rivera v. INS, 

(9th Cir. 1994); Adamson v. Comm’r, 

(9th
Cir. 1984). The exception we adopted is, frankly, rather
broad. In our circuit, the exclusionary rule must be applied in
a deportation proceeding if the agents violated the Fourth
Amendment and “the agents committed the violations deliber-
ately or by conduct a reasonable officer should have known
would violate the Constitution.” 

.
If I am reading our decisions correctly, we have linked the
exclusionary rule in civil cases to the qualified immunity stan-
dard: any constitutional violation for which an officer would
lose immunity from suit is sufficient to trigger the exclusion-
ary rule in a civil deportation proceeding. See Saucier v. Katz,

, 202 (2001). Regardless of how we arrived at
this definition of “egregious,” it is a definition of an exception
that is almost certain, over time, to swallow up the rule.1
Moreover, I suspect it is a definition which might even
include the unseemly conduct of the INS agents in Lopez-
Mendoza, which the Court held did not warrant applying the
   1
     The First and Second Circuits appear to have adopted a more stringent
definition of “egregious.” A mere violation—even an obvious violation—
is not grounds for excluding the evidence without some additional aggra-
vating circumstance. See Kandamar v. Gonzales, 

, 71 (1st Cir.
2006) (requiring “specific evidence of . . . government misconduct by
threats, coercion, or physical abuse” to demonstrate egregiousness);
Almeida-Amaral v. Gonzales, 

, 236 (2d Cir. 2006) (“Lopez-
Mendoza requires more than a violation to justify exclusion. It demands
“egregiousness.” . . . Thus, the exclusion may well be proper where the
seizure itself is gross or unreasonable in addition to being without a plau-
sible legal ground . . . .” (emphasis added)).
                 LOPEZ-RODRIGUEZ v. MUKASEY               10225
exclusionary rule in that petitioner’s immigration proceed-
ings. See 

(describing
how INS agents created a chaotic mass exodus of workers
from a processing plant and then positioned themselves at the
plant exits to observe which fleeing workers could not speak
English and which averted their eyes).

   The Supreme Court determined that the high costs of the
exclusionary rule rendered it too costly to apply in immigra-
tion proceedings. See 

.
I need not recite that analysis here. Suffice it to say that the
exclusionary rule improves the behavior of law enforcement
even as it stymies the enforcement of the law, and Americans
of all sensibilities continue to debate its merits. See, e.g.,
Adam Liptak, American Exception: U.S. Stands Alone in
Rejecting All Evidence When Police Err, N.Y. TIMES, July 19,
2008, Late Edition, at A1. Our case law appears destined to
import the exclusionary rule, with all of its attendant costs,
back into immigration proceedings, after the Court has taken
it out. At some point, we may wish to revisit our position.