USCIS Home Visits

Do warrantless home visits by USCIS investigators of a married couple’s home violate the Fourth Amendment? Whoever believes the answer is “no,” theorizing that one or both of the married parties granted them “consent” to search the home, is mistaken because the consent was clearly coercive.

Imagine this. Two government agents walk up to your door out of the blue. They knock on the door. You open the door and they tell you they are government agents who work for an immigration agency. They tell you they are there because you have a pending application for immigration benefits and they’d like to take a look around the home. You ask whether that’s necessary. They say it is. What do you do? You let them in. What do they do? They search your house for evidence to use against you in a legal proceeding, and also refuse to give you a copy of the evidence they gathered, collected, or created from the search. Moreover, if you deny the agents consent to search your house and look through your wife’s intimates, what happens? USCIS denies the I-130 because you refused to let them search your house, alleging that the failure to grant consent allows USCIS to take an adverse inference and use that adverse inference to presume the marriage is not bona fide. This is the literal definition of “criminal coercion.” See Criminal Coercion, Black’s L. Dict. (11th ed. 2019) (defining “criminal coercion” as meaning “[c]oercion intended to restrict another’s freedom of action by… taking or withholding official action or causing an official to take or withhold action.”); see also Coercion, Black’s L. Dict. (11th ed. 2019) (defining “coercion” as meaning: “Compulsion of a free agent by physical, moral, or economic force or threat of physical force. • An act that must be voluntary, such as signing a will, is not legally valid if done under coercion. And since a valid marriage requires voluntary consent, coercion or duress is grounds for invalidating a marriage.”); Coerce, Merriam-Webster (defining “coerce” as: “to compel to an act or choice” and “to achieve by force or threat”).

Nearly identical circumstances arising from home visits for welfare fraud investigations were considered by a federal judge in the U.S. District Court for the District of Minnesota in 1979 in the case of Reyes v. Edmunds, 472 F.Supp. 1218, 1222-26 (D. Minn. 1979). In that case, the court found a Fourth Amendment violation. Central to the Reyes court’s decision were the following facts relating to the Ramsey County welfare investigation program:

1. The Mobile Unit was organized solely to investigate complaints of welfare fraud. It was a part of the Fraud Unit of the Welfare Department. Its members were titled fraud investigators. They were not social workers. The focus of the Unit was not upon assistance or rehabilitation, nor with possible exploitation of a child, but upon law violations.

2. The Mobile Unit home visit was a surprise visit without advance written notice or arrangement. Snooping within the house was its primary purpose and the recipient's privacy was decimated.

3. The purpose of the visit was exclusively, solely, and undeniably for the purpose of obtaining information pertaining to welfare fraud, a criminal activity.

Reyes explained why these three findings were important to the Fourth Amendment analysis, stating:

The Mobile Unit did not merely conduct a home interview pursuant to prearrangement. The Mobile Unit made a surprise visit with the avowed intention of conducting just the type of snooping which the Court found not present in Wymen v. James. The rehabilitative and assistive aspects of the welfare worker's obligation to the recipient arose only peripheral and by accident. It was not the denial of an in-home interview which precipitated a termination of welfare benefits, but the withholding of a consent to investigative officers to invade dresser drawers, closets, medicine cabinets, etc. It was at the recipient's home to conduct a search directed towards discovery of infractions of the law. Whether or not the authorities later chose to prosecute for infractions is immaterial. The purpose of this Unit, as stated by the Supervisor, was solely to verify that the recipient was receiving a proper welfare grant. She also admitted that receipt of an improper welfare grant and welfare fraud could not be distinguished. This Unit was not engaged in social work, but in police work. …

Evidence obtained by the Mobile Unit would be inadmissible in a criminal action only if the search was made without valid consent. The defendants claim that this type consent was always obtained. Their policy and rationalization belie this position. If valid consent to search was always given, the evidence would always be admissible in a criminal action, and the distinction which defendants erect is nonexistent.

Only brief analysis of the nature of the consent to search which the Mobile Unit policy was designed to obtain is necessary to graphically illustrate the illegality of the procedure. There is no doubt from the testimony of the Supervisor that the recipient's grant would be terminated upon her refusal to allow the Mobile Unit to search her home, and that the fraud investigators were instructed to inform the recipient of this fact. There is some quibbling in this regard by the investigators who contend, probably correctly, that the Mobile Unit could only recommend and not actually effectuate a termination. The only inference which the Court can draw from all of the testimony is that such recommendations were always made and were routinely followed by the Welfare Department, and as a practical matter were tantamount to termination. …

No one will contend that the duty and trust imposed upon the Welfare Department to assure that public funds are expended properly is not of great significance and fraught with practical difficulties. But the integrity of financial assistance programs must be preserved only by utilizing reasonable administrative procedures. Reasonableness is the ultimate standard. Marshall v. Barlow's, Inc., supra. This does not include a suspension of the Constitution.

In the case of USCIS Home Visits, just as was true of welfare home visits in Reyes, USCIS home investigators routinely obtain consent coercively prior to searching the homes of married couples who have applied for a marriage-based immigration classification. As was true in Reyes, the USCIS “home visit[s] [are] surprise visit[s] without written notice or advance arrangement. Snooping within the house [is] its primary purpose and the [married couple’s] privacy [is] decimated.” Id. at 1224. As was true in Reyes, “[t]he purpose of the visit [i]s exclusively, solely, and undeniably for the purpose of obtaining information pertaining to [immigration] fraud, a criminal activity.” Id. As was true in Reyes, the USCIS home investigations unit “was organized solely to investigate [suspicions] of [immigration] fraud. It was part of [USCIS, a United States agency]. Its members were titled fraud investigators. They were not social workers. The focus of the Unit was not upon assistance or [benefits], nor with possible exploitation of a child, but upon law violations.” Id. As was true in Reyes, USCIS’ home visit practices are not reasonable and are violative of the Constitution.

Because the entire concept of home visits is unconstitutional, any allegedly derogatory evidence USCIS seeks to rely on gathered from a home visit when denying I-130 petitions constitutes fruit of the poisonous tree and is likely capable of suppression.

If you or a loved one has had a Form I-130 recently denied based on a home visit, or if you have recently received a Notice of Intent to Deny (“NOID”) or Request for Evidence (“RFE”) from USCIS alleging that derogatory evidence was obtained from a home visit, feel free to call our office at (651) 755-5150 or email us at nico@ratkowskilaw.com to see whether we can assist. If you already have a lawyer you like, you may want send them a copy of this article before they respond to the RFE/NOID or file an appeal.