join dissenting:
I respectfully dissent.
Today the majority has extended the exclusionary rule to the suppression of oral statements in civil deportation proceedings. None of the cases relied upon by the majority support this radical departure from existing law.
It is equally remarkable that the majority has chosen this drastic example of judicial law making at a time when the United States Supreme Court has raised questions as to whether:
the rule requiring the exclusion at a criminal trial of evidence obtained in violation of the Fourth Amendment, Mapp v. Ohio, 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961); Weeks v. United States, 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652] (1914), should to any extent be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment.
Illinois v. Gates, - U.S.-, 103 S.Ct. 436, 74 L.Ed.2d 595 (1982) (emphasis added).
In 1886, the United States Supreme Court first applied the exclusionary rule in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Since that date our highest Court has never applied the exclusionary rule in a civil proceeding. The *1076Court has limited application of the rule to criminal or quasi-criminal proceedings.1
Six years after Boyd, the Supreme Court noted the clear differences between a criminal trial and a civil deportation proceeding in the following language:
The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty or property, without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.
The question whether, and upon what conditions, these aliens shall be permitted to remain within the United States being one to be determined by the political departments of the government, the judicial department cannot properly express an opinion upon the wisdom, the policy or the justice of the measures enacted by Congress in the exercise of the powers confided to it by the Constitution over this subject.
Fong Yue Ting v. United States, 149 U.S. 698, 730-31, 13 S.Ct. 1016, 1028-29, 37 L.Ed. 905 (1893) (emphasis added); accord Li Sing v. United States, 180 U.S. 486, 495, 21 S.Ct. 449, 453, 45 L.Ed. 634 (1901).
The majority has neither cited nor discussed this clear pronouncement from our highest Court that the provisions of the constitution prohibiting unreasonable searches and seizures have no application to civil deportation proceedings.
We are told that in the last thirty-two years fewer than fifty challenges have been made on fourth amendment grounds, and that “one possible explanation is that immigration officers have not committed many fourth amendment transgressions.... ” (Maj.Op. at 1069). I agree.
There is no evidence before us of widespread governmental misconduct that must be deterred by granting certain aliens immunity from our immigration laws. Yet, the majority justifies its new rule of evidence in part by pointing out that “the number of aliens likely to escape deportation by invoking the rule is inconsequential.” (Maj.Op. at 1070). This mode of analysis is in clear conflict with that taken in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), wherein the Supreme Court refused to extend the exclusionary rule in the face of “the experience of States which deem the incidence of such conduct by the police too slight to call for a *1077deterrent remedy not by way of disciplinary measures but by overriding the relevant rules of evidence.” Id. at 31-32, 69 S.Ct. at 1363-64.
The majority informs us that those courts that have addressed the issue have each held that evidence in civil deportation proceedings obtained in violation of the fourth amendment is not admissible. (Maj.Op. at 1063). The authority relied upon by my prevailing colleagues consists of two district court decisions, which are of dubious precedential value in light of contrary statements in the decisions of higher courts, and a more recent decision of the First Circuit which, when reviewing civil deportation proceedings, would not require suppression of oral statements obtained after an illegal arrest. Wong Chung Che, 565 F.2d 166,168 (1st Cir.1977).
To justify its extension of the exclusionary rule to civil deportation proceedings, the majority relies most heavily on United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). Yet, in Janis, the Supreme Court refused to extend the exclusionary rule to a civil proceeding in spite of the fact that the same evidence had been excluded on search and seizure grounds in a prior state criminal proceeding.
The majority has failed to respect the admonition of the Supreme Court in Janis that: “[tjhere comes a point at which courts, consistent with their duty to administer the law, cannot continue to create barriers to law enforcement in the pursuit of a supervisory role that is properly the duty of the Executive and Legislative branches.” 428 U.S. at 459, 96 S.Ct. at 3034.
I.
A.
In its enthusiasm to create an exclusionary rule applicable to civil deportation proceedings, the majority has reversed the order of deportation in the Sandoval-Sanchez matter notwithstanding the fact that Sandoval-Sanchez failed to object to the admissibility of his oral statements on search and seizure grounds. Instead, his counsel sought termination of the proceedings on fourth amendment grounds.2 Lopez also sought termination of the deportation proceedings — not suppression of evidence3 *1078—apparently under the mistaken notion that proof of a fourth amendment violation somehow deprived the immigration court of jurisdiction. A person charged with a crime who has been the victim of an illegal arrest is not entitled to termination of the proceedings. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865-66, 43 L.Ed.2d 54 (1975); accord Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511-12, 96 L.Ed. 541 (1952). Clearly, appellants were not entitled to a termination of these civil deportation proceedings because of alleged fourth amendment violations.
Since neither appellant timely moved to suppress evidence on fourth amendment grounds, the exclusionary rule issue is not properly before us. In a criminal proceeding, the failure to move for the suppression of evidence at trial constitutes a waiver of the right to raise the issue on appeal. See, e.g., Fed.R.Crim.P. 12(b)(3), (f); see also United States v. Wood, 550 F.2d 435, 439 (9th Cir.1976).4 The same rule applies in civil matters. To preserve the issue for appeal, a party must set forth the specific grounds for objecting to the admissibility of evidence. See, e.g., Fed.R.Evid. 403.
We are not told by the majority why it has determined that an alien in a civil deportation proceeding should enjoy the right to raise evidentiary matters for the first time on appeal while a person facing the loss of life, liberty, or property may not do so. The majority has chosen to reach out beyond the record to fashion a new rule in complete derogation of traditional appellate practice and procedure.
B.
We are informed by the majority that it followed the Janis test of balancing “the deterrent benefit to be gained against the social cost of invoking the rule.” (Maj.Op. at 1067). Notwithstanding this assurance, we are not referred to any facts in this record from which it can be reasonably inferred that immigration officers routinely conduct unreasonable searches and seizures. The record is also barren of any facts that would support an inference that extending the exclusionary rule to civil deportation proceedings would act as a significant deterrent to present INS practices. Instead, the majority, relying on materials outside the record in these proceedings, is forced to speculate as to the reasons why “immigration officers have not committed many fourth amendment transgressions.” (Maj.Op. at 1071). Thus, the majority has created a remedy for which there is no demonstrated need.
The majority is also unable to point to any facts in this record from which one can assess the societal costs that will result from the application of the exclusionary rule to civil deportation hearings within the Ninth Circuit. The majority’s fancied assumptions about deterrence and societal costs do not comport with the requirement set forth in United States v. Janis, 428 U.S. 433, 446-47, 96 S.Ct. 3021, 3028-29, 49 L.Ed.2d 1046 (1976) that we should restrict the application of the rule to those situations that most serve its deterrent purpose. *1079Accord United States v. Calandra, 414 U.S. 338, 347-48, 94 S.Ct. 613, 619-20, 38 L.Ed.2d 561 (1974); cf. United States v. Vandemark, 522 F.2d 1019, 1021 (9th Cir.1975) (exclusionary rule ought not to be applied in a vacuum).
The exclusionary rule is a “drastic measure”, Janis, 428 U.S. at 459, 96 S.Ct. at 3034, and the Supreme Court’s decisions caution that drastic remedies should be limited to cases where the record sufficiently demonstrates a need. See Janis at 453 & n. 26, 454, 459, 96 S.Ct. at 3034. Compare Wolf v. Colorado, 338 U.S. 25, 31-32, 69 S.Ct. 1359, 1362-64, 93 L.Ed. 1782 (1948) (the Court initially refused to extend exclusionary rule to State proceedings because it could not “brush aside the experience of States which deem the incidence of [unlawful] conduct by the police too slight to call for a deterrent remedy not by way of disciplinary measures but by overriding the relevant rules of evidence”) and Irvine v. California, 347 U.S. 128, 136, 74 S.Ct. 381, 385, 98 L.Ed. 561 (1954) (“There is no reliable evidence known to us that inhabitants of those states which exclude the evidence suffer less from lawless searches and seizures than those of states that admit it”) with Mapp v. Ohio, 367 U.S. 643, 651-52, 81 S.Ct. 1684, 1689-90, 6 L.Ed.2d 1081 (1961) (the Court extended the rule to state proceedings in part because it determined that state police misconduct was in fact occurring and other remedies were not deterring it). Cf. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (the Court was able to evaluate the case on its facts to determine impact of separate but equal education; record demonstrated need for judicial remedy); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (court created rule requiring constitutional admonitions after considering a history of widespread coercive police conduct).
C.
In extending the exclusionary rule to civil deportation cases, the majority has also failed to give adequate consideration to the consequences of this decision on the future status of the alien who gains dismissal of deportation proceedings after a suppression hearing.
The majority has ignored a fundamental distinction between a criminal prosecution and a civil deportation proceeding. When a district court conducting a criminal trial excludes evidence obtained unconstitutionally, it does not thereby immunize the accused from prosecution for future criminal activity. An accused can only be prosecuted for specific past criminal activity. No one can be prosecuted solely because he is a person who has chosen to sustain himself by criminal behavior. Criminal sanctions cannot be imposed merely on the basis of the status of the individual. Robinson v. California, 370 U.S. 660, 665-68, 82 S.Ct. 1417, 1419-21, 8 L.Ed.2d 758 (1962).
By contrast, being an alien who has entered this country illegally is a status which is a continuing offense under the laws of the United States. A person who wins dismissal of criminal charges because evidence has been suppressed can be arrested and prosecuted if he or she commits a new crime leaving the courthouse. An alien who has entered this country illegally and who thereafter wins dismissal of deportation proceedings under the rule created by the majority is still illegally in this country. Will an alien now be forever immune from deportation, in spite of his or her continuing violation of the immigration laws? Stated differently, does the majority’s new rule permit an alien to escape deportation notwithstanding such person’s continued and future defiance of our laws under the “fruit of the poisonous tree” concept? Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) has never been so applied in the past in the context of a criminal prosecution. If the majority believes Wong Sun is not applicable, then immigration officers will be free to arrest the alien immediately after the suppression motion is granted because the alien is in continuous violation of our immigration laws. If Wong Sun applies then such a person is free to remain in this country as long as the alien wishes to do so unless *1080untainted evidence of illegal status is later discovered. The majority has not addressed these hard questions. A thoughtful analysis of the distinction between a criminal prosecution, which concerns past behavior, and deportation proceedings, which deal with continuing violations of the law, should have compelled the majority to reach a conclusion contrary to that adopted today.
D.
The majority, citing United States v. Wong Quong Wong, 94 F. 832 (D.Vt.1899), Ex Parte Jackson, 263 F. 110, 112-13 (D.Mont.), appeal dismissed, 267 F. 1022 (9th Cir.1920), and Wong Chung Che v. Immigration and Naturalization Service, 565 F.2d 166 (1st Cir.1977), states that “[t]he few federal courts which have squarely confronted the question have all held that evidence illegally obtained by federal agents is inadmissible in subsequent deportation proceedings.” (Maj.Op. at 1064). Before adopting a new rule, based at least in part on precedent from other jurisdictions, we should examine this authority and determine independently if these decisions are well reasoned, consistent with relevant decisions of the United States Supreme Court and applicable to the facts before us. Unfortunately, the majority has failed to provide us a critical analysis of the precedent it invokes.
Our attention is first directed to United States v. Wong Quong Wong, 94 F. 832 (D.Vt.1899). In Wong Quong Wong, a district judge in 1899 excluded letters seized from the appellant in a civil deportation proceeding. The trial judge, citing Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) and People v. Sharp, 107 N.Y. 427, 14 N.E. 319 (1887), held that the seizure of the envelopes was unreasonable and “[could] not be used in evidence ... without violating the protection afforded by the amendments to all persons in this country.” Wong Quong Wong, 94 F. at 833. Although the district court judge in Wong Quong Wong purported to rely on Boyd, he neither analyzed, as did the Boyd court, whether the civil proceeding was quasi-criminal in nature, nor discussed the distinction between civil and criminal proceedings set forth in Fong Yue Ting. Had he done so he may have reached a contrary result.
As noted previously, six years prior to the decision reached in Wong Quong Wong, the Supreme Court, in Fong Yue Ting, discussed the nature of civil deportation proceedings. The Court characterized these proceedings as civil, and not penal or criminal, in nature. The Court concluded that since civil deportation proceedings are not criminal, the fourth amendment’s prohibition against unreasonable searches and seizures have no application. 149 U.S. 698, 730-31, 13 S.Ct. 1016,1028-29, 37 L.Ed. 905 (1893).
In light of this precedent, the Wong Quong Wong Court’s reliance on Boyd is misplaced. Boyd involved an action brought by the government to forfeit property for a fraud against the revenue laws. The penalties imposed by the law included monetary fines, imprisonment, and forfeiture of goods. In deciding the applicability of the fourth and fifth amendments to such a proceeding, the Court held that:
[Because] suits for penalties and forfeitures incurred by the commission of of-fences against the law, are of this quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the Constitution and of that portion of the fifth amendment which declares that no person shall be compelled in any criminal case to be a witness against himself....
116 U.S. at 634, 6 S.Ct. at 534. The Court reasoned that a civil forfeiture action, “though technically a civil proceeding, is in substance and effect a criminal one.” Id. To require production of private papers to prove a violation of the law, and thus the forfeiture of his property, would “[compel one] to be a witness against himself, within the meaning of the Fifth Amendment.... ” Id. at 634-35, 6 S.Ct. at 534-35.
Fong Yue Ting clearly states that civil deportation proceedings are not penal or criminal, but rather, civil in nature. Conse*1081quently, Boyd does not support the decision rendered in Wong Quong Wong. In light of the Supreme Court’s clear statement in Fong Yue Ting, it is quite obvious that Wong Quong Wong was wrongly decided— perhaps because the author simply was unaware that the Supreme Court had earlier commented that the fourth amendment’s prohibitions against unreasonable searches and seizures have no application to civil deportation proceedings.
Ex Parte Jackson, 263 F. 110 (D.Mont.), appeal dismissed sub nom. Andrews v. Jackson, 267 F. 1022 (9th Cir.1920), also suffers from this analytical oversight. There, a Montana federal district judge in 1920 granted habeas corpus relief on the ground that the physical evidence used against the petitioner in deportation proceedings, consisting of personal papers and pamphlets, was unlawfully seized. No case authority was cited in support of the trial judge’s conclusion that such evidence was inadmissible. No reference was made to Fong Yue Ting or to the fact that a deportation proceeding is neither a criminal nor a quasi-criminal proceeding. The district court also failed to consider the deterrent impact, if any, that extension of the exclusionary rule to deportation matters might have, or the costs to society if such a rule were adopted, nor the necessity for such a radical change — considerations now required by the Supreme Court after Calandra and Janis.
The district judge in Jackson appears to have assumed that the law of this circuit entitles an alien in a civil deportation proceeding to the same constitutional protections that are available to an accused in a criminal proceeding. The present law of this circuit is to the contrary. In Lavoie v. INS, 418 F.2d 732, 734 (9th Cir.1969), cert. denied, 400 U.S. 854, 91 S.Ct. 72, 27 L.Ed.2d 92 (1970), we held that since deportation proceedings are civil and not criminal in nature “the [exclusionary] rules laid down in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) requiring the presence of counsel during interrogation, and other Sixth Amendment safeguards, are not applicable to such proceedings.”
Thus, as a result of the majority’s decision in the Sandoval-Sanchez matter, an alien in the Ninth Circuit does not have the same fifth and sixth amendment rights of a person facing federal criminal prosecution, but does have the same criminal safeguards available under the fourth amendment. This paradoxical state of the law can only lead to confusion amongst those persons required to follow, enforce, or apply the law as we see it or make it.
The majority also briefly directs our attention to United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155, 44 S.Ct. 54, 56, 68 L.Ed. 221 (1923) wherein the Supreme Court stated: “It may be assumed that evidence obtained by the Department through an illegal search and seizure cannot be made the basis of a finding in deportation proceedings.” In Bilokumsky, however, the Court concluded that appellant’s claim that evidence used against him was obtained by an illegal seizure was unfounded. Id. at 155, 44 S.Ct. at 56. Thus, the passage from Bilokumsky relied upon by the majority is, at best, dictum. . The statement, moreover, appears to have been made for the purposes of disposing of other issues." Indeed, other language in Bilokumsky casts doubt as to whether the Court would have invalidated the deportation proceedings had the evidence been seized illegally. The Court, in discussing the admissibility of an alien’s statements, made the following observation:
[S]ince deportation proceedings are in ' their nature civil, the rule excluding involuntary confessions could have no application. Newhall v. Jenkins, 2 Gray, 562, 563. Moreover, a hearing granted does not cease to be fair, merely because rules of evidence and procedure applicable in judicial proceedings have not been strictly followed by the executive; or because some evidence has been improperly rejected or received. Tang Tun v. Edsell, 223 U.S. 673, 681 [32 S.Ct. 359, 363, 56 L.Ed. 606]. To render a hearing unfair the defect, or the practice complained of, must have been such as might have led to a denial of justice, or there must have *1082been absent one of the elements deemed essential to due process.
Id. at 157, 44 S.Ct. at 57 (footnotes omitted) (emphasis added).
Bilokumsky was decided in 1923. Thirty-seven years later in Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) the Supreme Court, with reference to the scope of valid warrantless searches, stated: “According to the uniform decisions of this Court deportation proceedings are not subject to the constitutional safeguards for criminal prosecutions.” Id. at 237, 80 S.Ct. at 696. No reference was made to the contrary assumption posited in Bilokumsky. Whatever meagre precedential value could be found in the assumption made by the Supreme Court in Bilokumsky has surely been totally depreciated by the more recent comments of the Court in Abel concerning the nonapplicability of certain constitutional safeguards in civil deportation proceedings. See Abel, 362 U.S. at 237, 80 S.Ct. at 696.
The only recent case cited by the majority that has expressly held that the exclusionary rule should apply to civil deportation proceedings is Wong Chung Che v. INS, 565 F.2d 166 (1st Cir.1977). Wong Chung Che in turn relied on the dictum or assumption contained in Bilokumsky. 565 F.2d at 169. The decision in Wong Chung Che is also not persuasive.
First, as noted above, the assumption, made by the Supreme Court in Bilokumsky concerning the admissibility of illegally seized evidence in deportation proceedings is entitled to little weight. Whatever persuasive effect it might have once had has been erased by Abel.
Second, the court in Wong Chung Che totally ignored recent decisions of the Supreme Court in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) and United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). Thus, the Court in Wong Chung Che did not attempt to balance the potential benefits and costs of the rule as applied in the context of civil deportation proceedings as required by Janis and Calandra. We are bound to follow the decisions of the Supreme Court and free to reject cases from other circuits that fail to do so.
Third, the Court in Wong Chong Che failed to discuss, or at least attempt to distinguish, those cases such as Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) and One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), in which the United States Supreme Court appears to limit the application of the exclusionary rule to criminal trials or quasi-criminal proceedings.5
Finally, Wong Chong Che relies on a statement from an immigration treatise that the exclusionary rule applies in civil deportation proceedings.6 The cases cited by the treatise do not support this proposition.7
In each of the cases relied upon by the majority in support of its extension of the exclusionary rule to civil deportation cases, *1083papers had been seized in a warrantless search. No court has extended the exclusionary rule to oral statements made following an illegal arrest. Wong Chung Che has interpreted Bilokumsky as suggesting that it ought not be extended to oral statements. 565 F.2d at 168-69.8
Thus, it should be noted that the majority erroneously states that the First Circuit held in Wong Chung Che “that evidence obtained in an illegal search by INS agents is inadmissible in a deportation proceeding.” (Maj.Op. at 1063). In fact, the court held that physical evidence so seized would be inadmissible. Oral statements, such as those obtained from Sandoval-Sanchez and Lopez-Mendoza apparently would be admissible in the first circuit, contrary to the holding of the majority in the instant matters.
II.
A.
I begin my substantive analysis of the wisdom of extending the exclusionary rule to civil deportation proceedings with the Supreme Court’s observation that “[djespite [the] broad deterrent purpose” of the rule, the Court has never interpreted it “to proscribe the use of illegally seized evidence in all proceedings or against all persons.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). Accordingly, “[i]n the complex and turbulent history of the rule, the [Supreme] Court has never applied it to exclude evidence from a civil proceeding, federal or state.” Janis, 428 U.S. at 447, 96 S.Ct. at 3029 (footnote omitted).9
The exclusionary rule is a “remedial device,” and its application “has been restricted to those areas where its remedial objectives are thought most efficaciously served.” Janis, 428 U.S. at 447, 96 S.Ct. at 3028 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974)). • Consequently, the Court has confined standing to invoke the rule to “situations where the Government seeks to use such evidence to incriminate *1084the victim of the unlawful search.” United States v. Calandra, 414 U.S. at 348, 94 S.Ct. at 620 (citing Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (I960)); accord Stone v. Powell, 428 U.S. 465, 488, 96 S.Ct. 3037, 3049, 49 L.Ed.2d 1067 (1976). This standing requirement “is premised on a recognition that the need for deterrence and hence the rationale for excluding the evidence are strongest where the government’s unlawful conduct would result in imposition of a criminal sanction on the victim of a search.” 414 U.S. at 348, 94 S.Ct. at 620.10
To determine whether to extend the exclusionary rule to civil deportation proceedings, a balancing approach must be applied. *1085Calandra, 414 U.S. at 350, 94 S.Ct. at 621; accord United States v. Janis, 428 U.S. 433, 446-47, 96 S.Ct. 3021, 3028-29, 49 L.Ed.2d 1046 (1976). The Supreme Court has explained that the balancing process to be applied “is expressed in the contours of the standing requirement.” Calandra, 414 U.S. at 348, 94 S.Ct. at 620; accord Stone v. Powell, 428 U.S. at 488, 96 S.Ct. at 3049. Thus, the Court has applied the exclusionary rule to proceedings that would result in the possibility of criminal sanctions upon the victim of the illegal search and seizure. See Calandra, 414 U.S. at 351, 94 S.Ct. at 621.11 In such situations, the need for the rule’s deterrent value is greater than its attendant social costs.
Our task then is to examine the function and purpose of civil deportation proceedings to determine whether the use of evidence unlawfully seized is likely to result in the imposition of a criminal sanction upon the victim of an illegal search. See Calandra, 414 U.S. at 348, 94 S.Ct. at 620. See also Stone v. Powell, 428 U.S. 465, 488, 96 S.Ct. 3037, 3049, 49 L.Ed.2d 1067 (1976) (standing to invoke the exclusionary rule has been found to exist only when government attempts to use illegally obtained evidence to incriminate the victim of the illegal search). If so, the need for the deterrent value of the exclusionary rule will be strongest, and concomitantly, the potential deterrent effect of the rule will be substantial. If the civil proceedings will not result in a criminal sanction there will be less necessity for the rule’s deterrent effect. Thus, in such circumstances, it is not likely that that rule’s remedial objectives will be most effectively served. Consequently, the social costs of extending the rule, including the impact of the rule on the role and function of the proceeding, will take on far greater significance in the balancing process.
Calandra amply illustrates that courts seeking to apply the exclusionary rule in non-criminal contexts must consider the nature of the proceeding in balancing the exclusionary rule’s deterrent effect against its cost to society. There, the Court discussed, at length, the role and historic function of the grand jury. 414 U.S. at 343-47, 94 S.Ct. at 617-20. In determining whether to extend the rule to grand jury proceedings, the Court asserted that “we must weigh the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context.” Id. at 349, 94 S.Ct. at 620. The Court emphasized that the grand jury traditionally has been allowed to function unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial because the grand jury does not finally adjudicate guilt or innocence. Id. Because adopting the exclusionary rule in this context would disrupt and delay grand jury proceedings, the court declined to extend the rule. Id. at 349-50, 94 S.Ct. at 620-21.12
In spite of the majority’s suggestion to the contrary, (Maj.Op. at 1065 n. 9) Janis does not displace an analysis that considers the purpose of the proceedings in attempt*1086ing to balance the rule’s deterrent effect and cost to society. In Jams, the question was whether the petitioner, who had successfully suppressed illegally seized evidence in a state criminal trial, should be allowed to have the same evidence suppressed in a subsequent civil federal tax proceeding. The Janis Court simply was not asked to determine whether the rule should be extended to all federal civil tax proceedings. The Court, therefore, was not required to consider the nature of civil tax proceedings. The only question in Janis was whether any additional deterrent effect could be gained from extending the rule to a subsequent civil federal tax proceeding.
I disagree with the majority’s assertion that the Janis court “employed an analysis that does not foreclose application of the exclusionary rule in all civil proceedings.” (Maj.Op. at 1066). (footnote omitted) (emphasis added). The question the Court left open in Janis is whether the exclusionary rule should be extended to a subsequent civil proceeding where the officers who conducted an unreasonable search and seizure are the agents of the same sovereign that unsuccessfully sought to use the evidence in a prior criminal proceeding. See Janis, 428 U.S. at 455 n. 31, 96 S.Ct. at 3033 n. 31. That issue is not presented by these appeals.
On the other hand, the similarities between the instant case and Calandra present helpful analogies in considering the appropriateness of applying the exclusionary rule to civil deportation proceedings.13 Accordingly, I next examine the historic role and function of civil deportation proceedings.
B.
Historically, the Supreme Court has long recognized that the responsibility for regulating the relationship between the United States and aliens has been committed to the political branches of the federal government. Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976) (footnote omitted). See also Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 742-43, 98 L.Ed. 911 (1954) (“that the formulation of policies [pertaining to the entry of aliens and their right to remain here are] entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government”); Turner v. Williams, 194 U.S. 279, 289-90, 24 S.Ct. 719, 722, 48 L.Ed. 979 (1904) (“Repeated decisions of this Court have determined that Congress has the power ... to establish regulations for [excluding] such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers.... ”); Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892) (the constitution confers upon the political department of government the power to exclude and expel aliens).
This recognition is premised on the view that: [A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference. [citations].
Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 518-19, 96 L.Ed. 586 (1952); accord Kleindienst v. Mandel, 408 U.S. 753, 765-67, 92 S.Ct. 2576, 2583-84, 33 L.Ed.2d 683 (1972).
*1087The breadth of this power is reflected in numerous Supreme Court decisions. As we noted in Adams v. Howerton, 673 F.2d 1036, 1041-42 (9th Cir.), cert. denied, - U.S. -, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982), the Supreme Court has upheld the broad power of Congress to determine immigration policy in the face of challenges based on the first amendment, Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (statutory exclusion of individuals advocating world communism); the due process clause, Boutilier v. INS, 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967) (vague statutory language excluding homosexuals); as well as the equal protection component of the fifth amendment due process clause and constitutionally implied fundamental rights, Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (discrimination based on sex and illegitimacy and denial of fundamental constitutional interest in family relationships).
This court also quoted with approval the principle set forth in Fiallo v. Bell, that in the exercise of its broad power over immigration and naturalization, “[CJongress regularly makes rules that would be unacceptable if applied to citizens.” 430 U.S. at 792, 97 S.Ct. at 1478 (quoting Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976)). See also Harisiades v. Shaughnessy, 342 U.S. 580, 586, 72 S.Ct. 512, 517, 96 L.Ed. 586 (1952) (footnote omitted) (“Under our law, the alien in several respects stands on equal footing with citizens, but in others has never been conceded legal parity with the citizen”).
The Supreme Court has recently noted that undocumented aliens may be treated differently in terms of their entitlement to state benefits. See, e.g., Plyler v. Doe, -U.S.-, 102 S.Ct. 2382, 2396, 72 L.Ed.2d 786 (1982) (“Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct”). The Court rejected the notion that undocumented aliens are a suspect class because “[w]ith respect to the actions of the federal government, alienage classifications may be intimately related to the conduct of foreign policy, and to the prerogative power to control access to the United States, and to the plenary Federal power to determine ... who ... [may] become a citizen of the Nation.” Id. at n. 19.
The law is equally well established that deportation, however severe its consequences, is not punishment for a crime, and that deportation proceedings are not penal in nature. E.g., Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549 (1924) (“[i]t is well settled that deportation, while it may be burdensome and severe for the alien, is not punishment”) (citing Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905 (1893)). Rather, deportation has been characterized by the Court as a regulatory proceeding for the purpose of terminating residence. Mrvica v. Esperdy, 376 U.S. 560, 568, 84 S.Ct. 833, 838, 11 L.Ed.2d 911 (1964). See also Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978 (1913) (deportation is “simply a refusal by the government to harbor persons whom it does not want”; it is not punishment; even though the determination by facts might constitute a crime under local law, it is not a conviction of a crime); Li Sing v. United States, 180 U.S. 486, 494-95, 21 S.Ct. 449, 452-53, 45 L.Ed. 634 (1901) (“[t]he order of deportation is not punishment for a crime[;] it is not banishment .. . [the alien is not] deprived of life, liberty or property, without due process”). Cf. Helvering v. Mitchell, 303 U.S. 391, 399 & n. 2, 58 S.Ct. 630, 633 & n. 2, 82 L.Ed. 917 (1938) (an example of a remedial sanction that is free from the characteristic of “the punitive criminal element” is the deportation of aliens).
This Circuit has also recognized that deportation proceedings are not penal but, rather, regulatory in nature. See, e.g., Ramirez v. INS, 550 F.2d 560, 563 (9th Cir.1977) (deportation hearing is civil, not criminal in nature); Trias-Hemandez v. INS, 528 F.2d 366, 368 (9th Cir.1975) (although the consequences of deportation may be severe, the civil nature of the proceeding has been consistently upheld) (citing United *1088States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir.1975) and Chavez-Raya v. INS, 519 F.2d 397, 400-01 (7th Cir.1975)); Lavoie v. INS, 418 F.2d 732, 734 (9th Cir.1969) (the presence of counsel during interrogation and other sixth amendment safeguards are not applicable to deportation proceedings because these cases are civil rather than criminal in nature and the rules for the latter are inapplicable to deportation proceedings), cert. denied, 400 U.S. 854, 91 S.Ct. 72, 27 L.Ed.2d 92 (1970).
Thus, because deportation proceedings are not viewed as imposing a criminal sanction, uniform decisions of the Supreme Court hold that “deportation proceedings are not subject to the constitutional safeguards for criminal prosecutions.” Abel v. United States, 362 U.S. 217, 237, 80 S.Ct. 683, 696, 4 L.Ed.2d 668 (1960).14 See also Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 743, 98 L.Ed. 911 (1954) (ex post facto clause has no application to deportation); Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952) (in rejecting an ex post facto challenge to a provision of the immigration law, the Supreme Court responded that the ex post facto provision forbids penal legislation which imposes or increases criminal punishment for conduct lawful previous to its enactment but that deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal proceeding); Helvering v. Mitchell, 303 U.S. 391, 399 & n. 2, 402, 58 S.Ct. 630, 633 & n. 2, 634, 82 L.Ed. 917 (1938) (where a remedial sanction imposed, such as deportation of aliens, the accepted rules and the constitutional guaranties governing the trial of criminal prosecutions do not apply to the civil proceeding); Carlson v. Landon, 342 U.S. 524, 546, 72 S.Ct. 525, 537, 96 L.Ed. 547 (1952) (the eighth amendment does not require bail in deportation proceedings); Bilokumsky v. Tod, 263 U.S. 149, 157, 44 S.Ct. 54, 57, 68 L.Ed. 221 (1923) (since deportation proceedings are in their nature civil, the rule excluding involuntary confessions may have no application); United States ex rel Turner v. Williams, 194 U.S. 279, 290, 24 S.Ct. 719, 722, 48 L.Ed. 979 (1904) (an alien who is found to be here in violation of the law and deported is not deprived of liberty without due process of law and the provisions of the Constitution securing the right to trial by jury have no application) (citing Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889)); Li Sing v. United States, 180 U.S. 486, 494-95, 21 S.Ct. 449, 452-53, 45 L.Ed. 634 (1901) (deportation is not punishment and provisions of the Constitution securing trial by jury and prohibiting unreasonable searches and seizures have no application).
Our Circuit has followed this view until today. See, e.g., Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir.1974) (the sixth amendment’s guarantee of the right to counsel is not applicable to deportation proceedings), cert. denied, 419 U.S. 1113, 95 S.Ct. 789, 42 L.Ed.2d 810 (1975); Lavoie v. INS, 418 F.2d 732, 734 (9th Cir.1969) (deportation proceedings are civil in nature, therefore presence of counsel during interrogation and other sixth amendment rights are inapplicable), cert. denied, 400 U.S. 854, 91 S.Ct. 72, 27 L.Ed.2d 92 (1970). Other circuits, too, follow this rule. Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382, 1386 *1089(10th Cir.1981) (a deportation proceeding is not penal in nature and normal criminal rights are inapplicable; thus aliens may be arrested by administrative warrant issued without an order of the magistrate and may thereafter be held without bail) (citing Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952)); United States ex rel. Circella v. Sahli, 216 F.2d 33 (7th Cir.1954) (deportation proceedings are not criminal, therefore petitioners could not challenge the act on eighth amendment grounds or on grounds that the act complained of constituted an ex post facto law).
Were we writing on a clean slate, perhaps we would debate as an original proposition the doctrine that deportation proceedings are not penal in nature, and therefore criminal safeguards are inapplicable, “but [it] [has] been considered [a] closed [subject] for many years and a body of statute [sic] and decisional law has been built upon [it].” Harisiades v. Shaughnessy, 342 U.S. at 594, 72 S.Ct. at 521. The majority’s ruling contravenes this historical precedent.
III.
A.
As noted earlier, in determining whether to extend the exclusionary rule to a civil proceeding, Calandra requires us to weigh the potential injury to the historic role and functions of the proceeding in question against the potential benefits of the rule if applied in this context. Calandra, 414 U.S. at 349, 94 S.Ct. at 620. See also Stone v. Powell, 428 U.S. 465, 488, 96 S.Ct. 3037, 3049, 49 L.Ed.2d 1067 (1976) (policies behind exclusionary rule are not absolute but must be evaluated in light of competing policies).
In Calandra, the Court concluded that the exclusionary rule would seriously impede the grand jury. In declining to extend the rule, the Court reasoned that the grand jury traditionally has been allowed to pursue its investigative and accusatory functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial because the grand jury does not finally adjudicate guilt or innocence. 414 U.S. at 349-50, 94 S.Ct. at 620-21. “Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury’s primary objective.” Id. at 349, 94 S.Ct. at 621 (footnote omitted). The probable result, in the Court’s view, would be a protracted interruption of the proceedings, and, in some cases, the delay might be fatal to the enforcement of the criminal law. As an example, the Court pointed out that two and one-half years had elapsed since the respondent in Calandra had been summoned to appear, and noted the possibility that this delay could have completely frustrated the investigation. Id. at 349-50 & n. 7, 94 S.Ct. at 621 & n. 7.
After concluding that application of the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury’s duties, the Court weighed, as against this potential injury, the possible benefits to be derived from the proposed extension. The Court reasoned that, while in a criminal trial suppression of illegally seized evidence “is thought to be an important method of effectuating the Fourth Amendment, ... it does not follow that the Fourth Amendment requires adoption of every proposal that might deter police misconduct.” Id. at 350, 94 S.Ct. at 621.
The Court reasoned that any incremental deterrent effect that might be achieved by extending the rule to grand jury proceedings was “uncertain at best.” Id. at 351, 94 S.Ct. at 621. The Court therefore “decline[d] to embrace *a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the rae of the grand jury.” Id. at 351-52, 94 S.Ct. at 622 (footnote omitted).
The analysis employed in Calandra compels the same conclusion in the instant case. Civil deportation proceedings do not involve determinations of guilt or innocence of a criminal offense. For this reason, the evi*1090dentiary and procedural restrictions applicable to criminal trials have not been extended to civil deportation proceedings. Further, suppression hearings could result in protracted interruption of the proceedings, and may seriously impede enforcement of our nation’s immigration laws.
While the exact number is uncertain, it has been estimated that there are nearly five million illegal aliens in this country. See Note, The Exclusionary Rule in Deportation Proceedings: A Time For Alternatives, 14 J.Int’l L. & Econ. 349, 350 (1980).-In 1981, immigration officers apprehended 975,780 illegal aliens. U.S. Depart, of Justice, INS Report of Field Operations (1981) (Form G — 23.18). The vast majority had\ their cases disposed of without exercising their right to have their status determined at a formal hearing. Of those arrested, 773,681 voluntarily waived their right to a hearing and were returned to their own country. Id. at G-23.8. The balance exercised their right to have their status determined by an immigration judge at a deportation hearing.
The effect of the majority’s decision to extend the exclusionary rule to deportation hearings will be to encourage aliens to demand a formal deportation hearing — not to attempt to establish that they are lawfully in the United States — but to challenge the legality of the officer’s conduct. Currently, approximately forty immigration judges preside over deportation hearings. See Levinson, A Specialized Court for Immigration Hearings and Appeals, 56 Notre Dame Law, 644, 644 (1981). If each alien is entitled to a suppression hearing, the United States may have to increase the number of immigration judges drastically. Additional funding would then have to be found for hearing rooms and support personnel.
The majority has failed to consider the fact that in federal criminal proceedings, each accused person appears before a judicial officer. The federal criminal justice system is constructed so as to give defendants their day in court on any issue they may lawfully wish to raise. There is no procedure by which guilty defendants can be punished without appearing in court. The United States district courts returned 27,367 indictments in 1981. Annual Report of Director of Administrative Office, A-56 (1981). Every accused person who was apprehended in connection with these indictments appeared before a judge. If each defendant chose to make a suppression motion, judicial officers would have been available to consider its merits.
By contrast, immigration judges are not now required to give each alien his or her day in court, if the appearance or determination of status is voluntarily waived. Today’s decision creates a strong motivation for aliens now illegally in the United States to challenge the admissibility of evidence at a formal civil deportation proceeding, since aliens can remain in the United States until all legal remedies have been exhausted. The majority’s decision thus creates a substantial likelihood that immigration judges will be overwhelmed by hearing requests.
To illustrate the delay this new rule may create on deportation matters, consider the facts in the two matters before this court. Elias Sandoval-Sanchez was arrested June 23,1977. Adam Lopez-Mendoza was arrested August 1, 1976. If these appeals ultimately prove unsuccessful, Sandoval-Sanchez will have extended his illegal presence in this country by almost six years; Mendoza by almost seven years. In Calandra, the Court found that this kind of delay illustrated “the force of the argument” that extension of the exclusionary rule might completely frustrate the objective of the grand jury. 414 U.S. at 349 n. 7, 94 S.Ct. at 621 n. 7.
The majority believes that its holding “should result in no significant increase in the frequency with which the exclusionary rule is invoked in deportation proceedings.” (Maj.Op. at 1071). My colleagues then speculate that if the rule results in aborted deportation proceedings in one hundred cases a year, “the result would be an increase of less than one one thousandth of one percent in the illegal alien population.” Id. This, the majority concludes, would not be an exorbitant price to pay for effective deterrence of INS misconduct.
*1091The majority’s modest prognostications, however, mispereeive the problem they have created. The majority’s estimate of the impact of the exclusionary rule on deportation hearings is based on its assumption that up to 12 million aliens are here illegally. The number, of constitutional challenges that will occur under the majority’s new rule must be measured, however, against the number of deportable aliens located. In 1979, that number was 1,076,-418. The impact of the rule on deportation proceedings is not so much that the illegal alien population will increase — indeed it does so every year despite heightened enforcement policies. Rather, the impact of the rule on civil deportation proceedings must be measured against the number of motions to suppress that will be made — not the number of constitutional challenges that are meritorious. This is the potential injury to the deportation proceeding that must be weighed in the balancing process.
Moreover, it is an integral function of our federal district courts to resolve constitutional questions. In marked contrast, the responsibility of immigration judges in deportation proceedings has been to resolve factual questions concerning the status of an alien, not to resolve constitutional issues. Given the unsuitability of the immigration hearing to the resolution of complex constitutional controversies, the adverse impact that today’s decision may have on the civil deportation proceedings cannot be ignored.
In this regard, the BIA’s damage assessment should be compelling, as that court, more so than this one, is in a position to anticipate the cost to the system in which it functions. In my view, we should defer to the following judgment:
Absent the applicability of the exclusionary rule, questions relating to deportability routinely involve simple factual allegations and matters of proof. When Fourth Amendment issues are raised at deportation hearings, the result is a diversion of attention from the main issues ■which those proceedings were created to resolve, both in terms of the expertise of the administrative decision makers and of the structure of the forum to accommodate inquiries into search and seizure questions. The result frequently seems to be a long, confused record in which the issues are not clearly defined and in which there is voluminous testimony, but the underlying facts [are] not sufficiently developed. The ensuing delays and inordinate amount of time spent on such cases at all levels has an adverse impact on the effective administration of the immigration laws, which to date (in view of the virtual absence of cases in which evidence has been ultimately excluded) has in no way been counterbalanced by any apparent productive result.
Matter of Sandoval, 17 I & N Dec. 70, 80 (BIA 1979) (footnote omitted).
Although the majority apparently rejects this conclusion, it offers no principled reason for its action other than the observation that it “is not defensible in light of past experience.” (Maj.Op. at 1072 n. 19). Presumably, this past experience consists of its estimate that there have been approximately some fifty challenges on fourth amendment grounds since 1952. Certainly, the number of aliens and the number of deportation proceedings have dramatically increased each year since 1952. See 1979 Annual Report of the Immigration and Naturalization Service at 3 (more deportable aliens were apprehended in fiscal year 1979 than in any other fiscal year since 1954); see also A . Program for Effective and Humane Action on Illegal Immigrants (Jan. 15, 1973) at 6 (in fiscal year 1960, fewer than 30,000 aliens were apprehended, in 1965, the number nearly doubled; in the following five year period, the apprehension figure experienced a 400 percent jump, rising to nearly 280,000 in fiscal year 1970). Given these increases, past experience is not an accurate indicator of the potential injury the exclusionary rule would have on today’s deportation proceedings.
At least one study supports this’concern. E.g., A Program Annual Report of the Immigration and Naturalization Service for Effective and Humane Action on Illegal Immigrants (January 15, 1973) at 16. *1092There, it is stated that “The Immigration Service’s costs for detaining deportable aliens have risen by 74 percent in the past two years, and any policy change which would result in longer periods of detention for greater numbers of aliens could be a serious burden on the Service’s resources.” Id. (footnote omitted) (citing Hearings on Illegal Aliens Before the Subcomm. of the House Comm, on the Judiciary, 92d Cong., 2nd Sess., pt. 5, 1335 (1972)). The majority has not considered the enormous and immediate fiscal impact that its decision may have nor the chaos that may be visited upon our immigration courts. For example, if we were to use 1981 statistics, immigration courts’ case loads could rise by over 700,000 matters. The majority has not suggested how this nation in the midst of a recession and faced with a staggering federal budget deficit, will pay the costs of implementing this court’s tinkering with the rules of evidence in deportation proceedings.
B.
As noted earlier, Calandra instructs us that the need for the exclusionary rule’s deterrent effect is strongest in situations where the government’s unlawful conduct will result in the imposition of a criminal penalty upon the victim of the unlawful conduct. 414 U.S. at 348, 94 S.Ct. at 620. Civil deportation proceedings do not result in the imposition of a criminal sanction, and the government does not seek to use the illegally seized evidence to incriminate the victim of an unreasonable search. Consequently, the need for the exclusionary rule remedy is not strongest in civil deportation proceedings. Indeed, the majority concedes that a plausible explanation for the “paucity” of challenges to the legality of searches in deportation proceedings is that immigration officers commit few unreasonable searches. (Maj.Op. at 1071).
Another explanation is that the Immigration and Naturalization Service has instituted a comprehensive procedure for the investigation and prosecution of disciplinary actions against immigration officers who are accused of conducting an illegal search and seizure. An immigration officer who is found to have conducted an unconstitutional search is subject to various penalties and disabilities including “removal from his job[,] which may bar him from future federal employment.” U.S. Department of Justice, Immigration and Naturalization Service, The Law of Search and Seizure for Immigration Officers, 35 (1979) (footnote omitted). Each employee of the INS is required to report any allegation of a violation by an immigration officer of an alien’s constitutional rights. See Immigration and Naturalization Service Operations Instructions, 287.10, 4721, 4723.
An employee who fails to report any allegation of a unreasonable search and seizure by an immigration officer is subject to disciplinary action. See id. at 4730. The employee is required to report such allegations to his supervisor, district director, chief, patrol agent or officer in charge. Id. Deportation proceedings must be suspended upon the filing of such an allegation against an immigration officer. “Whenever an allegation is made by, on behalf of, or involves an alien, no action will be taken to enforce the departure from the United States of either the alien or of any witnesses involved until a preliminary inquiry or an investigation of the matter has been completed.” Id. at 4730. Depending on the category of the alleged misconduct and the job level of the accused individual a report is then made to the Office of Professional Responsibility or to the Regional Commissioners (or their designee). Id. at 4728.
These disciplinary procedures come under the Service Professional Responsibility Program. This program is headed by the Office of Professional Responsibility, which plans, directs and manages “the Service’s investigative program concerning allegations or information of criminal, or other misconduct by Service employees.” Id. at 4721. The program requires that the Office of Professional Responsibility or the regional office immediately upon receiving the report determine “whether or not the alleged offense is prima facie misconduct and whether or not a Service employee is or *1093may be involved.” Id. at 4731. If it is determined that the allegation did involve misconduct by an INS employee then a preliminary inquiry is to be conducted. Id. at 4732. The preliminary hearing is directed by an employee selected by the Director of the Office of Professional Responsibility or a regional commissioner. Id. at 4733. “The employee selected to conduct the preliminary inquiry if not a supervisory employee must not be from the same district or sector as the involved employee. Supervisory employees shall not be from the same operating branch as the accused employee.” Id. The inquiry must be completed and a memorandum report submitted to the Director of the Office of Professional Responsibility or the regional commissioner within ten working days from the date assigned. Id. at 4733-34. If the preliminary inquiry supports the allegation of misconduct an investigative hearing is then commenced. Id. at 4735-36.
Depending on the degree of the offense or the job level of the accused the investigation will be conducted by a staff officer from the Office of Professional Responsibility or an officer selected by the Regional Commissioners or their designees. Id. at 4735-36. The officer selected by the Regional Commissioners, “if not a supervisory employee, must not be from the same District or Sector as the involved employee. Supervisory employees selected shall not be from the same operating branch as the accused employee.” Id. at 4736. These investigations must be completed and reports submitted within sixty days of the date the case is assigned. Id. at 4737. An extension of time to complete an investigation is only granted for a compelling reason. Id. at 4737-38. All investigative reports are reviewed for “sufficiency of the investigation and approved by the Director ... [of the Office of Professional Responsibility] or by Regional Commissioners. ... Id. at 4738. If the allegations are sustained then depending on the seriousness of the offense, the matter may be forwarded to the U.S. Attorney having jurisdiction over the matter or “to the Associate Commissioner, Management, or the Associate Regional Commissioner, Management to assure appropriate corrective action as warranted by designated officials.” Id. at 4739.
It is readily apparent from reviewing the Immigration and Naturalization Service’s disciplinary procedure that a sincere effort is being made to deter and to punish search and seizure violations. A police officer who conducts an unreasonable search and seizure may suffer anguish when a criminal defendant goes free because of his blunder. He does not, however, face the immediate prospect of unemployment as a result of the exclusion of illegally seized evidence. An immigration officer on the other hand, faces loss of his job and denial of future federal employment if he conducts an illegal search and seizure. These stern consequences should serve as a far greater deterrent to improper conduct than the possibility that deportation proceedings against an alien may be dismissed. No evidence has been cited to this court that these harsh disciplinary measures proved ineffective.
To paraphrase the Supreme Court’s cogent statement in United States v. Caceres, 440 U.S. 741, 755-57, 99 S.Ct. 1465,1473-74, 59 L.Ed.2d 733 (1979), where the Court refused to apply exclusionary rule to evidence obtained in violation of an Internal Revenue Service regulation, we should not “ignore the possibility that a rigid application of the exclusionary rule ... could have a serious deterrent impact on the formulation of additional standards to govern ... procedures.” (footnote omitted). Just as in Caceres, “the Executivé itself has provided for internal sanctions.” Id. at 756, 99 S.Ct. at 1473. To go beyond that, and require the application of the exclusionary rule in deportation proceedings, “would take away from the Executive department the primary responsibility for fashioning the appropriate remedy ...” to curb unreasonable conduct on the part of its officers. Id.
Conceding that self policing should be the most effective deterrent because it offers direct and immediate feedback to the officer, the majority nevertheless concludes that the INS regulations will not be an effective deterrent. (Maj.Op. at 1071).
*1094Again, the majority cannot, in the face of a silent record, point to any evidence that INS officers are not obeying the internal regulations which condemn and punish unreasonable searches and seizures. To mask this lack of factual support for its premise, our attention is diverted to the claims of certain legal writers that “the practical experience of other law enforcement agencies indicates that internal review is rarely effective in deterring fourth amendment violations.” (Maj.Op. at 1074). In the absence of evidence to the contrary, we are required to presume that immigration officers have lawfully performed their duties. See FCC v. Schreiber, 381 U.S. 279, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965) (administrative agencies are entitled to a presumption that they act properly and according to law); In re Hergenroeder, 555 F.2d 686 (9th Cir.1977) (the government is presumed to obey the law). The majority, without citation to any authority, apparently would reverse this ancient presumption, in the absence of affirmative evidence “that the guidelines are being consistently and effectively enforced.” (Maj.Op. at 1071). I can find no justification in the record — -nor in the majority’s opinion — for its refusal to apply the rules concerning the legal effect of presumptions to aliens who have entered this country illegally.
As noted previously, the majority has failed to identify any facts which demonstrate that the exclusionary rule is necessary in civil deportation proceedings or that it will serve as a deterrent to INS officers in conducting arrests, searches, and seizures. Rather, the majority relies solely on the assumption made in the criminal context that the exclusionary rule effectively deters police from violating a defendant’s fourth amendment rights. While the Supreme Court continues to apply this assumption in criminal cases, it does not follow that it will do so in non-criminal matters. Indeed, the Janis court refused to apply the assumption to justify extending the rule to a tax proceeding. The extension of the rule to a federal civil tax proceeding would have been “an unjustifiably drastic action by the courts in the pursuit of what is an undesired and undesirable supervisory role over police officers.” 428 U.S. at 458, 96 S.Ct. at 3034 (citing Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (footnote omitted). The Court further stated that:
In the past this Court has opted for exclusion in the anticipation that law enforcement officers would be deterred from violating Fourth Amendment rights. Then, as now, the Court acted in the absence of convincing empirical evidence and relied, instead, on its own assumptions of human nature and the interrelationship of the various components of the law enforcement system. In the situation before us, we do not find sufficient justification for the drastic measure of an exclusionary rule.
Id., 428 U.S. at 459, 96 S.Ct. at 3034.
In my view, Janis’message is simply this: those seeking the extension of the rule must demonstrate that there is sufficient justification for the “drastic measure” of the exclusionary rule. See id. at 453 n. 26, 96 S.Ct. at 3031 n. 26 (“we do not mean to imply that more accurate studies could never be developed, or .... provide us with firmer conclusions. We just do not find that the studies now available provide us with reliable conclusions”). It seems clear to me that since Janis the Supreme Court will no longer rely on human assumptions as the basis for applying the exclusionary rule to civil proceedings.
Unlike the field of criminal law, the supervisory role over deportation is committed to the political branches of our government. The power of Congress over the admission of aliens and their right to remain “is necessarily very broad, touching as it does basic aspects of national sovereignty, more particularly our foreign relations and the national security.” Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 742, 98 L.Ed. 911 (1954). The formulation of policies pertaining to the alien’s right to remain here are entrusted exclusively to Congress, and in the enforcement of these policies the Executive Branch must respect the safeguards of due process. Id. at 531, 74 S.Ct. at 743 *1095(citing Wong Yang Sung v. McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 453-54, 94 L.Ed. 616 (1950); the Japanese Immigrant case, 189 U.S. 86, 91, 23 S.Ct. 611, 612, 47 L.Ed. 721 (1903)). Policy questions concerning the appropriate punishment to be applied for the commission of unreasonable searches and seizures do not come within the safeguards of the due process clause. Thus, these matters should be left to the political branches of government.
CONCLUSION
I would affirm the orders of the BIA on each of these matters. Each appellant failed to make a motion to suppress evidence of his oral statements at his hearing before the immigration judge. The failure to so object constituted a waiver of the right to seek appellate review.
Further, appellants failed to present any evidence which would support an inference that the drastic remedy of excluding relevant evidence of illegal status is required to curb widespread lawless enforcement of our immigration laws. In fact, the majority has forthrightly conceded that there is a “paucity” of widespread, fourth amendment violations in the arrests of aliens who have illegally entered this nation. The Supreme Court has refused to extend the exclusionary rule where there is insufficient evidence that it is required to curb repeated lawless enforcement of the law.
A strong internal deterrent to unreasonable searches and seizures has been devised by the Immigration and Naturalization Service. There is no sound reason for us to undertake the supervision of the conduct of arrests and searches and seizures by immigration officers. This nation cannot afford the added cost to the enforcement of our immigration laws that will surely follow implementation of the majority’s new rule of evidence. We should demand a showing of strong justification for the erection of new barriers to effective enforcement of our immigration laws. As the Supreme Court recently observed:
at the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including but not limited to, deportation.
Plyler v. Doe, 457 U.S. 202, 220, 102 S.Ct. 2382, 2396, 72 L.Ed.2d 786 (1982).
As members of the judicial branch of government whose constitutional role is limited to the application of existing law to real cases or controversies, shouldn’t we restrain ourselves from the temptation to legislate extreme remedies to correct non-existent problems?
. See United States v. Janis, 428 U.S. 433, 447 & n. 17, 96 S.Ct. 3021, 3029 & n. 17, 49 L.Ed.2d 1046 (1976). In Janis, the Court noted that it had never applied the rule “to exclude evidence from a civil proceeding, federal or stated7” Id. at 447, 96 S.Ct. at 3029. In footnote 17, the Court explained that the rule has been applied in civil proceedings involving forfeiture of an article used in violation of the criminal law because “forfeiture is clearly a penalty for the criminal offense....” Id. at n. 17, 96 S.Ct. at n. 17 (quoting Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 701, 85 S.Ct. 1246, 1251, 14 L.Ed.2d 170 (1965)). Although the forfeiture proceeding is deemed civil, it is “ ‘quasi-criminal’ ” in nature. See Janis, 428 U.S. at 447 n. 17, 96 S.Ct. at 3029 n. 17 (quoting Boyd v. United States, 116 U.S. 616, 634, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886)).
In NLRB v. South Bay Breeze, 415 F.2d 360, 364 (9th Cir.1969), cert. denied, 397 U.S. 915, 90 S.Ct. 919, 25 L.Ed.2d 96 (1970), wherein this court declined to extend the exclusionary rule to labor proceedings, we found it significant that the Court had limited application of the rule to a criminal or quasi-criminal proceedings. Again, in 1978, we stated “that the Supreme Court has never applied the exclusionary rule in a civil proceeding suggests that the rule should not be applied to OSHA proceedings.” Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683, 689 (9th Cir.1978) (citing United States v. Janis, 428 U.S. 433, 447, 96 S.Ct. 3021, 3029, 49 L.Ed.2d 1046 (1976); NLRB v. South Bay Daily Breeze, 415 F.2d 360, 364 (9th Cir.1969), cert. denied, 397 U.S. 915, 90 S.Ct. 919, 25 L.Ed.2d 96 (1970)).
. Counsel objected to the admission of Form 1-213 on grounds of hearsay, lack of jurisdiction, and Miranda violations. [SS 37] Subsequently, counsel moved “to suppress 1-213 and to terminate the proceedings” because “INS regulations require that the officer who makes the initial arrest is not to be the officer who examines the arrested person for their 1-213 purposes but rather some other officer...” [SS 61] He further objected on the grounds that another form, 1-214, was not executed and there was no showing that Sandoval-Sanchez knowingly waived his Miranda rights. [SS 62]
Thus, the motion to terminate the proceedings was not even made on fourth amendment search and seizure grounds. In fact, at the close of the hearing, counsel requested that the immigration judge reconsider his motions and counsel stated, in response to the judge’s denial, “well, I’m not sure that I have covered all of the grounds that I wish to adduce in support of those motions.” [SS 76] The immigration judge indicated that he considered the matter closed. Id.
On appeal, counsel renewed objections to Form 1-213 on the grounds that “ ‘no proper foundation was laid’ for the admission of the document, and the information reflected on the form ‘was obtained involuntarily’ ” and in violation of his Miranda rights. [SS 16-17]
He also claimed for the first time on appeal that his client’s initial detention and arrest deprived him of due process. The arrest also:
“was ultra vires the Service’s lawful authority and was based upon illegal search and was lacking in prpbable cause but was invidiously racially discriminatory [sic] and therefore suspect. Respondent was arrested without a warrant although there was no likelihood he would flee. The Judge erred in not granting Respondent’s Motion to Terminate proceedings because of lack of jurisdiction based on an invalid Order to Show Cause and illegal procedure violative of the fourth amendment tainting the proceedings. [SS 22]
The record demonstrates, however, that counsel for Sandoval-Sanchez did not base his motion to terminate on the grounds of illegal arrest or seizure. Thus, counsel moved to suppress and to terminate the proceedings, but not on the ground that his arrest and seizure violated the fourth amendment.
. Lopez-Mendoza’s fourth amendment contention was “[t]hat the entry of immigration onto the premises ... where respondent was employed, and his subsequent arrest ... was invalid, illegal, and that, therefore, this court has *1078no jurisdiction to hear the deportation proceeding at this time.” [L-M 101]. The immigration judge denied Lopez-Mendoza’s motion to terminate the proceedings based on lack of jurisdiction. [L-M 107] The immigration judge stated that the facts surrounding the arrest were irrelevant because “even if an arrest were improper, it does not affect the issue of deportability, the propriety of deportation proceedings, which is considered civil in nature.” [L-M 114]
The record demonstrates that the BIA correctly determined [L-M 002], that Lopez-Mendoza never objected to the admission of form 1-213 [L-M 115] or his affidavit. [L-M 116] The immigration judge based his finding of deportation on this evidence.
On appeal to the BIA, Lopez-Mendoza did not argue that this evidence should have been excluded. Rather, he contended that his arrest was illegal and that the exclusionary rule should be expanded so that deportation proceedings may be terminated [L-M 002]. Such expansion, Lopez-Mendoza argued, “would provide an effective remedy to deportable aliens illegally arrested and [would] deter service officers from making illegal arrests. [L-M 002]
. If good cause for delay is demonstrated, the trial court, in its discretion, may consider the motion. United States v. Woods, 550 F.2d 435, 439 (9th Cir.1976).
. See also n. 1 supra, and n. 9-10, infra.
. Wong Chung Che, 565 F.2d 166, 169 (1st Cir.1977) (citing 1A C. Gordon and H. Rosenfield, Immigration Law and Procedure § 5.2.C at 5-31 (1976)).
. No case cited in support of this principle includes a holding in this regard or resulted in any exclusion of evidence from a deportation proceeding. See Roa-Rodriquez v. United States, 410 F.2d 1206 (10th Cir.1969); Klissas v. INS, 361 F.2d 529 (D.C.Cir.1966); United States v. Montez-Hernandez, 291 F.Supp. 712 (E.D.Cal.1968).
The majority also refers to Fragomen, Procedural Aspects of Illegal Searches and Seizure in Deportation Cases, 14 San Diego L.Rev. 151, 163 (1976) (now well established that exclusionary rule applies despite universal characterization of deportation as civil proceedings). Except for the citation to Wong Chung Che v. INS, 565 F.2d 166 (1st Cir.1977), the author relies on dicta, e.g., Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221 (1923); Vlissidis v. Anadell, 262 F.2d 398 (7th Cir.1959) and cases that do not include a holding to this effect, e.g., Matter of Gonzalez, 16 I & N Dec. 44 (BIA 1976) (dicta; court noted even if arrest defective, subsequent deportation proceeding would not be unlawful); Matter of Davila, 15 I & N Dec. 781 (BIA 1976) (court did not suppress evidence); Matter of Tsang, 14 I & N *1083Dec. 294 (BIA 1973) (denied motion to suppress because petitioner did not meet burden of proof; court did not address whether exclusionary rule applied); Matter of Methure, 13 I & N Dec. 522 (BIA 1970) (arrest valid; therefore court did not address applicability of exclusionary rule); Matter ofAu, Yim & Lam, 13 I & N Dec. 294 (BIA 1969) (same); Matter of Chen, 12 I & N Dec. 603 (BIA 1968) (same). In the Matter of D- M-, 6 I & N Dec. 726 (BIA 1955) (motion denied).
. In Wong Chung Che, 565 F.2d at 166, one of the petitioners, Wong Pui Tong, alleged that he had been illegally arrested and searched and that his Crewman’s Landing Permit had been seized from his home without his consent or a search warrant. Wong Pui Tong sought inter alia “an evidentiary hearing to determine whether either the arrest or the search was illegal and whether evidence taken during either the arrest or search was improperly introduced into [his] ... deportation proceeding.” Id. at 167. The court concluded that an illegal arrest does not invalidate a deportation proceeding; however, evidence secured by an illegal search is inadmissible at a deportation proceeding. Id. at 168-69. In discussing the admissibility of incriminating statements the court in Wong Chung Che observed: “While wide latitude is permitted the government in introducing statements of arrested suspects whether or not they might be suppressed in a criminal proceeding, we can think of no justification by necessity for encouraging illegal searches of premises.” Id. at 169 (footnote omitted).
. In a footnote, the Court explained that the exclusionary rule had been applied in civil forfeiture proceedings because they are characterized as quasi-criminal in nature. United States v. Janis, 428 U.S. 433, 477 n. 17, 96 S.Ct. 3021, 3029 n. 17, 49 L.Ed.2d 1046 (1978). See also note 1 supra. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) illustrates the application of the rule to quasi-criminal proceedings. There, the Court relied on Boyd’s holding that evidence obtained in violation of the fourth amendment may not be utilized to sustain a forfeiture. The Court drew upon the Boyd Court’s observation that “a forfeiture proceeding is quasi-criminal in character.” 380 U.S. at 700, 85 S.Ct. at 1250. The forfeiture proceeding’s object, “like a criminal proceeding, is to penalize for the commission of an offense against the law.” Id. The Court, comparing the similarities between the penalties imposed as a result of both proceedings, concluded that “forfeiture is clearly a penalty for the criminal offense and can result in even greater punishment than the criminal prosecution....” Id. at 701, 85 S.Ct. at 1251.
. That the Supreme Court has confined application of the exclusionary rule to situations where the government is seeking to impose a criminal penalty, e.g., Calandra, 414 U.S. at 348, 94 S.Ct. at 620, is consistent with the court’s historical application of the rule. In Boyd, where the rule had its inception, the Court explained the “intimate relation” between the fourth and fifth amendments. 116 U.S. at 633, 6 S.Ct. at 534. In the Court’s view, the two amendments “throw great light on each other” because:
[t]he “unreasonable searches and seizures” condemned in the' Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man “in a criminal case to be a witness against himself,” which is condemned in the Fifth Amendment, throws light on the question as to what is an “unreasonable search and seizure” within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is different from compelling substantially him to be a witness against himself. We think it is within the clear intent and meaning of those terms.
* * * * * *
Id.
In Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), the Court again construed the fourth and fifth amendments together. Citing Boyd, the court answered affirmatively the questions: (1) whether a secret taking of paper violated the fourth amendment; and (2) whether introduction of this paper into evidence against the same person who has been indicted for a crime violates the fifth amendment. To permit the papers seized during an unconstitutional search to be used in evidence, in the Court’s view, would compel the defendant to be a witness against himself in a criminal case. Id. at 306-07, 41 S.Ct. at 264. See also Agnello v. United States, 269 U.S. 20, 33-34, 46 S.Ct. 4, 70 L.Ed. 145 (1925) (it is well settled that when properly invoked, the fifth amendment protects every person from being incriminated by the use of evidence obtained through a search or seizure made in violation of that person’s rights under the fourth amendment).
In 1914, the Court held that for the first time “the Fourth Amendment alone may be the basis for excluding from a federal criminal trial evidence seized by a federal officer in violation solely of that Amendment.” Janis, 428 U.S. at 443, 96 S.Ct. at 3027 (citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914)). Again, in Walder v. United States, 347 U.S. 62, 64-65, 74 S.Ct. 354, 355-56, 98 L.Ed. 503 (1954) the Court, citing Weeks, affirmed the notion that the government cannot violate the fourth amendment and use the fruits of such unlawful conduct to secure a conviction.
In 1969, the Court restricted application of the rule, and declined to extend it to one who was not the victim of the unlawful search. The Court stressed that “[t]he deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment.” Alderman v. United States, 394 U.S. 165, 174-75, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969) (emphasis added).
This principle was reaffirmed in 1974 in Calandra. There, the Court explained that standing to invoke the rule had been confined to situations where the government seeks to use evidence to incriminate the victim of the government’s unlawful conduct. 414 U.S. at 348, 94 S.Ct. at 620: The Court reasoned that under the exclusionary rule — “adopted to effectuate the Fourth Amendment right of all citizens ... to be secure ... against unreasonable searches and seizures, ... evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.” 414 U.S. at 347, 94 S.Ct. at 619 (citations omitted). See also Stone v. Powell, 428 U.S. 465, 488, 96 S.Ct. 3037, 3049, 49 L.Ed.2d 1067 (1976) (“[standing to invoke the exclusionary rule has been found to exist only when the Government attempts to use illegally obtained evidence to incriminate the victim of the illegal search.”) (citations omitted).
. In United States v. Calandra, 414 U.S. 338, 339, 94 S.Ct. 613, 615, 38 L.Ed.2d 561 (1974), the petitioner had been subpoenaed by a grand jury to answer questions concerning evidence seized during the search of his business at an earlier date. The petitioner moved for suppression and return of the seized evidence on the ground that the search exceeded the scope of the warrant. Id. at 340-41, 94 S.Ct. at 616. The district court granted the motion, and the Sixth Circuit affirmed, holding that the exclusionary rule may be invoked by a witness before the grand jury to bar questioning based on evidence obtained in an unlawful search and seizure. Id. at 341-42, 94 S.Ct. at 616-17. The Supreme Court reversed, holding that the exclusionary rule is not applicable in grand jury proceedings. Id. at 342, 94 S.Ct. at 617.
. The Calandra Court distinguished Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), which involved a petitioner who had successfully sought to exclude evidence before a grand jury proceeding, on the ground that he had previously been indicted and therefore had standing as a criminal defendant to invoke the exclusionary rule. United States v. Calandra, 414 U.S. 338, 352 n. 8, 94 S.Ct. 613, 622 n. 8, 38 L.Ed.2d 561 (1974). The Calandra Court also noted that in Silverthorne there had been an earlier judicial determination that the search and seizure was illegal. Id. Consequently, Silverthorne’s application of the exclusionary rule in the subsequent grand jury proceeding did not disrupt the grand jury function or interfere in its investigative functions. Id.
. Neither deportation proceedings nor grand jury hearings involve an adversarial determination of guilt or innocence. Further, we are asked by persons who lack the traditional standing of criminal defendants to apply the rule to all proceedings involving civil deportation, just as the Court in Calandra was asked to do with respect to grand jury proceedings. Given these similarities, we are bound to consider, in the balancing process mandated by Calandra, the “historic function and role” of the civil deportation proceedings. Accord Stone v. Powell, 428 U.S. 465, 488, 96 S.Ct. 3037, 3049, 49 L.Ed.2d 1067 (1976) (policies behind exclusionary rule are not absolute but must be evaluated in light of competing policies).
. This is not to say that aliens who claim to be citizens are not entitled to notice and an opportunity to be heard to determine their status. To be sure, “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law” Shaughnessy v. United States, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953). The question then is whether the manner in which Congress has exercised its right to exclude or expel aliens is consistent with the Constitution. Id.
-Where, however, a civil deportation statute exacts a penalty but does not provide for criminal safeguards, the act is unconstitutional. See, e.g., Wong Wing v. United States, 163 U.S. 228, 237, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896) (if in addition to deportation, aliens are subjected to infamous punishment at hard labor or confiscation of property, then legislation, to be valid, must provide for a jury trial to establish guilt of accused).