dissenting:
With all due respect, I believe that INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), precludes the result reached by the majority in this case. Lopez-Mendoza, after an extensive cost-benefit analysis, held that the courts were not to impose an exclusionary rule upon deportation proceedings. The factors relied upon by the Supreme Court, including the attenuated deterrence value of the rule, its effect of sanctioning a continuing violation of the law, the need for simplicity in deportation proceedings, and the magnitude of the enforcement problem, are all present in this case. I therefore find Lopez-Mendoza controlling.
It is true that the Court in Lopez-Mendoza stated that it was not dealing with “egregious violations of the Fourth Amendment ... that might transgress notions of fundamental fairness and undermine the probative value of the evidence.” 104 S.Ct. at 3490. But the Court there had before it a case in which an INS officer without a warrant brushed by an objecting shop owner and interviewed and arrested an employee in the shop. That officer should have known that he was violating the Fourth Amendment, but the evidence he obtained was not excluded. In our case, an officer allegedly stopped petitioner because of his Hispanic appearance which, while insufficient of itself to support a stop, may be a “relevant factor” along with other evidence. United States v. Brignoni-Ponce, 422 U.S. 873, 887, 95 S.Ct. 2574, 2583, 45 L.Ed.2d 607 (1975). The comparison is such that I have difficulty concluding that Lopez-Mendoza created an “egregious violation” exception that encompasses our case. Nor do I read the Supreme Court’s footnote reference to Matter of Toro, 17 I. & N.Dec. 340, 343 (BIA 1980), as authorizing us to impose an exclusionary rule; the reference merely observes that the BIA itself will exclude evidence in appropriate cases. Lopez-Mendoza, 104 S.Ct. at 3490 n. 5.
I concede that dictum in Adamson v. Commissioner, 745 F.2d 541, 545-46 (9th Cir.1984), supports the majority here. But our decisions in Benitez-Mendez v. INS, 760 F.2d 907 (9th Cir.1985) (amended opinion), and Garrett v. Lehman, 751 F.2d 997 (9th Cir.1985), applied the Lopez-Mendoza rationale and rejected application of the exclusionary rule in, respectively, a deportation proceeding and a military administrative proceeding.
I am most sympathetic with the majority’s goal of deterring the INS from stopping persons solely because of their Hispanic appearance. Indeed, our court has upheld injunctive relief aimed at that very abuse, noting that such alternative methods of control were encouraged by the Supreme Court when it rejected the application of the exclusionary rule in Lopez-Mendoza. Nicacio v. INS, 768 F.2d 1133, 1140 (9th Cir.1985). In my view, Nicacio, rather than the majority’s opinion today, *1437represents the path we are free to follow after Lopez-Mendoza. I therefore dissent.