The Supreme Court has held that when compliance with the regulation is mandated by the constitution, which is the case with INA §287(a)(2) which mirrors the requirements of the fourth amendment, then prejudice is presumed. US v. Caceres, 440 US 741 (1979); Bridges v. Wixon, 326 US 135 (1945). The Department bears the burden of proof in this regard. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
This regulation mirrors the US Constitution and the protections requiring reasonable suspicion for a detention or search. Therefore, violation of such a regulation would be prejudicial per se. US v. Caceres, 440 US 741 (1979); Bridges v. Wixon, 326 US 135 (1945). This regulation mirrors the requirements of the Fourth Amendment’s reasonable suspicion and seizure. Thus prejudice should be presumed. US v. Mendenhall, 446 US 544.