Good reason to believe: Widespread constitutional violations in the course of immigration enforcement and the case for revisiting Lopez-Mendoza

Wisconsin Law Review

Volumn 2008, Issue 6, 2008, Pages 1109-1158

  Elias, Stella Burch ^a  

^a YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 62449317926     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (421)

1. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984).
2. 705 F.2d 1059 (9th Cir. 1983).
3. Id. at 1061.
4. In criminal proceedings in both state and federal courts, the exclusionary rule prohibits the introduction of evidence obtained in violation of the Fourth Amendment for the purpose of proving a defendant's guilt. See Mapp v. Ohio, 367 U.S. 643, 654-55 (1961);
5. Weeks v. United States, 232 U.S. 383, 398 (1914) (ruling that illegal evidence gathered by state officers cannot be used against defendants in federal court). The exclusionary rule similarly applies to Fifth Amendment violations in state and federal courts. See Bram v. United States, 168 U.S. 532, 548 (1897).
6. It also applies to Sixth Amendment violations. See Massiah v. United States, 377 U.S. 201, 206-07 (1964) (excluding statements because they were deliberately elicited in violation of the defendant's Sixth Amendment right to counsel). Should such illegally obtained evidence be improperly admitted at trial, the trial court's finding of guilt must be reversed on appeal, unless the prosecution can prove that the error was harmless.
7. See Chapman v. California, 386 U.S. 18, 23-24 (1967).
8. 17 I. & N. Dec. 70 (BIA 1979).
9. See id.
10. See Lopez-Mendoza, 468 U.S. at 1059 (White, J., dissenting) ("The simple fact is that prior to 1979 the exclusionary rule was available in civil deportation proceedings, and there is no indication that it significantly interfered with the ability of the INS to function.").
11. Justice Harry Blackmun, Conference Notes, at 9 (handwritten) Jan. 6, 1984, 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C.
12. See id.;
13. see also Lopez-Mendoza, 705 F.2d at 1071 (describing how, prior to the decision of the BIA in In re Sandoval, neither the BIA nor any court had held that the exclusionary rule did not apply in civil deportation proceedings, and observing that the Board in In re Sandoval noted that there were "fewer than fifty" BIA proceedings since 1952 in which motions had been made to suppress evidence on Fourth Amendment grounds). In re Sandoval was one of the two BIA cases that were consolidated into INS v. Lopez-Mendoza. In re Sandoval, 17 I. & N. Dec. 70 (BIA 1979).
14. Lopez-Mendoza v. INS, 464 U.S. 1037 (1984).
15. See Lopez-Mendoza, 468 U.S. at 1034.
16. See infra note 59.
17. Lopez-Mendoza, 468 U.S. at 1034-50.
18. Chief Justice Burger did not join Part V of the opinion, see id. at 1033, but it can still arguably be considered a "majority" opinion as, effectively, an 8-1 majority of members on the Court supported the idea of applying the exclusionary rule under these circumstances - the four out of five who joined that part of Justice O'Connor's opinion, and the four dissenters who already thought that use of the exclusionary rule was justified.
19. See id.
20. Id. at 1050.
21. Id. at 1050-51.
22. Id.
23. The EOIR is the administrative court in which immigration respondents are tried. There are fifty-six immigration courthouses in the United States. See USDOJ.gov, United States Department of Justice Executive Office of Immigration Review, http://www.usdoj.gov/eoir (last visited Dec. 2, 2008). EOIR decisions, which are typically unpublished, are appealable to the BIA. Id.
24. See, e.g., In re Velasquez, 19 I. & N. Dec. 377, 380 (BIA 1986);
25. In re Benitez, 19 I. & N. Dec. 173, 175 (BIA 1984).
26. See, e.g., Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006);
27. Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002);
28. Orhorhaghe v. INS, 38 F.3d 488, 503-04 (9th Cir. 1994).
29. In immigration proceedings, motions to suppress evidence and terminate proceedings may be filed by respondents who allege that immigration officials have committed constitutional and/or regulatory violations. Motions to suppress evidence may be filed in cases of alleged constitutional violations. Once such a motion has been granted, evidence obtained pursuant to the constitutional violation is excluded from the proceeding, and in the absence of further independently obtained evidence, a motion to terminate proceedings may be granted. Motions to terminate proceedings also may be brought by respondents alleging regulatory violations by immigration officials. Once such a motion is granted, proceedings are terminated. Termination of proceedings does not alter an individual's immigration status, but rather restores that individual to the situation that he or she was in prior to the arrest by immigration authorities. For a detailed account of the use of suppression and termination motions in immigration proceedings see IRA J. KURZBAN, KURZBAN'S IMMIGRATION LAW SOURCEBOOK (11th ed. 2008).
30. See U.S. DEP'T OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, FY 2007 STATISTICAL YEAR BOOK REVIEW, at D2 (2008) [hereinafter EOIR FY 2007 STATISTICAL YEAR BOOK], available at http://www.usdoj.gov/eoir/statspub/fy07syb.pdf (showing the disposition of immigration cases for the years 2003-07 and the availability of different forms of relief).
31. See, e.g., United States v. Oscar-Torres, 507 F.3d 224, 228-30 (4th Cir. 2007);
32. Almeida-Amaral, 461 F.3d at 234-35;
33. United States v. Bowley, 435 F.3d 426, 430-31 (3d Cir. 2006);
34. United States v. Olivares-Rangel, 458 F.3d 1104, 1111-12 (10th Cir. 2006);
35. Navarro-Chalan v. Ashcroft, 359 F.3d 19, 22-23 (1st Cir. 2004);
36. Miguel v. INS, 359 F.3d 408, 411 & n.3 (6th Cir. 2004);
37. Martinez-Camargo, 282 F.3d at 492-93;
38. United States v. Guevara-Martinez, 262 F.3d 751, 753-55 (8th Cir. 2001);
39. Velasquez-Tabir v. INS, 127 F.3d 456, 459, 460 (5th Cir. 1997);
40. Orhorhaghe, 38 F.3d at 501-03.
41. An exception to this general rule is a recent United States Court of Appeals for the Second Circuit case. See Melnitsenko v. Mukasey, 517 F.3d 42, 46-47 & n.6 (2d Cir. 2008).
42. See, e.g., Daniel P. Blank, Suppressing Defendant's Identity and Other Strategies for Defending Against a Charge of Illegal Reentry After Deportation, 50 STAN. L. REV. 139, 161-62 (1997) (arguing that there is a firm distinction between conduct which is merely unlawful and that which reaches the "egregious" threshold);
43. see also Jonathan L. Hafetz, The Rule of Egregiousness: INS v. Lopez-Mendoza Reconsidered, 19 WHITTIER L. REV. 843, 860-61 (1998) (arguing that, based on Ninth Circuit precedent, any arrest based on "racial appearance or [a] foreign sounding name is egregious").
44. See, e.g., Judy C. Wong, Note, Egregious Fourth Amendment Violations and the Use of the Exclusionary Rule in Deportation Hearings: The Need for Substantive Equal Protection Rights for Undocumented Immigrants, 28 COLUM. HUM. RTS. L. REV. 431, 455-60 (1997) (summarizing lower court decisions finding that an immigration stop based exclusively on race was an egregious Fourth Amendment violation justifying the application of exclusionary rule).
45. See, e.g., Stephen C Covell, Comment, Gonzalez-Rivera v. INS: Possible New Conditions for the Exclusionary Rule in Civil Deportation Proceedings, 9 GEO. IMMIGR. L.J. 855, 860 (1995) (discussing Ninth Circuit jurisprudence redefining what evidence may be of probative value).
46. Deportation proceedings are now frequently referred to as removal proceedings. See 8 U.S.C. §§ 1226, 1229 (2006) (using the term removal to include the deportation of noncitizens from the interior).
47. See, e.g., In re Rabani, Decision and Order of the Immigration Judge, at 17-19 (U.S. Dep't of Justice Executive Office for Immigration Review Oct. 3, 2007) (on file with author);
48. In re Herrera-Priego, Decision and Order of the Immigration Judge (U.S. Dep't of Justice Executive Office for Immigration Review July 10, 2003) (on file with author).
49. See, e.g., United States v. Navarro-Diaz, 420 F.3d 581, 584-87 (6th Cir. 2005);
50. Velasquez-Tabir v. INS, 127 F.3d 456, 459 (5th Cir. 1997);
51. Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448-52 (9th Cir. 1994).
52. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).
53. Id. at 1044-45.
54. Id. at 1045.
55. Part II of the Article also introduces recent case law from the Second Circuit that recognizes the potential validity of a widespread-violations claim. See Melnitsenko v. Mukasey, 517 F.3d 42, 46-47 & n.6 (2d Cir. 2008);
56. Pinto-Montoya v. Mukasey, 540 F.3d 126, 130 & n.2 (2d Cir. 2008).
57. See Lopez-Mendoza, 468 U.S. at 1042 ("The exclusionary rule provides no remedy for completed wrongs; those lawfully in this country can be interested in its application only insofar as it may serve as an effective deterrent to future INS misconduct.");
58. see also U.S. v. Leon, 468 U.S. 897, 906 (1984).
59. This test was developed by the Court in United States v. Janis, 428 U.S. 433, 453-54 (1976).
60. Lopez-Mendoza, 468 U. S. at 1042.
61. The first of these principle is that "[a] deportation proceeding is a purely civil action ..." Id. at 1038.
62. The second is that "[t]he 'body' or identity of ... [the] respondent ... is never itself suppressible," and even if an arrest is illegal, "evidence not derived directly from the arrest is sufficient" to uphold deportation. Id. at 1039, 1043.
63. The third is that few aliens arrested request deportation hearings, and even "few[er] challenge the circumstances of their arrests," so an "arresting officer is most unlikely to shape his conduct in anticipation of the exclusion of evidence at a formal deportation hearing." Id. at 1044.
64. The fourth is that the INS has its own rules and regulations that "require that no one be detained without reasonable suspicion of illegal alienage, and that no one be arrested unless there is an admission of illegal alienage or other strong evidence thereof." Id. at 1044-45.
65. The final principle is that the immigration enforcement is the provenance of a single agency under central federal control and engaged in repetitive operations, and thus declaratory relief is a possible remedy for respondents whose Fourth Amendment rights have been violated. Id. at 1045 ("The possibility of declaratory relief against the agency thus offers a means for challenging the validity of INS practices, when standing requirements for bringing such an action can be met).
66. The first cost is that an undocumented alien's continuing presence in the United States constitutes a crime. Id. at 1047 & n.3 (noting that the exclusion rule does not sanction continuing violations of the law, and the release of undocumented respondents from detention as a result of the application of the exclusionary rule "would clearly frustrate the express public policy against an alien's unregistered presence in this country").
67. The second is that applying the exclusionary rule would slow down the currently streamlined immigration system because neither immigration judges nor immigration attorneys "are likely to be well versed in the intricacies of Fourth Amendment law." Id. at 1048.
68. The third is that the vast number of aliens arrested each year, requiring immigration officers "to compile elaborate, contemporaneous, written reports detailing the circumstances of every arrest" would be unduly burdensome. Id. at 1049.
69. The fourth is that the "crowded and confused circumstances" in which immigration officers apprehend a large number of aliens could result in the suppression of large amounts of information that had been obtained entirely lawfully. Id. at 1049-50 ("Though the INS agents are instructed to follow procedures that adequately protect Fourth Amendment interests, agents will usually be able to testify only to the fact that they followed INS rules. The demand for a precise account of exactly what happened in each particular arrest would plainly preclude mass arrests, even when the INS is confronted, as it often is, with massed numbers of ascertainably illegal aliens, and even when the arrests can be and are conducted in full compliance with all Fourth Amendment requirements.").
70. Id. at 1050.
71. Id. at 1050-51.
72. See, e.g., William C. Heffernan, The Fourth Amendment Exclusionary Rule as a Constitutional Remedy, 88 GEO. L.J. 799 (2000).
73. See, e.g., Nicolas J. Watkins & Joel Stewart, Employer Sanctions Update and the Employer's Response, 66 FLA. B.J. 60, 64-65 (1992).
74. See, e.g., id.
75. Lopez-Mendoza, 468 U.S. at 1038;
76. id. at 1051 (Brennan, J., dissenting) ("[T]he exclusionary rule must apply in civil deportation proceedings."). This conception of immigration law is, as will be discussed later, profoundly rooted in the circumstances and practices of the mid-1980s, rather than those that prevail currently.
77. See infra text accompanying notes 205-232.
78. Lopez-Mendoza, 468 U.S. at 1044.
79. Id. at 1044-45.
80. The Court suggests a number of reasons why the Justice Department's internal enforcement mechanisms are likely to be the most effective means of censuring unconstitutional behavior by immigration officers and protecting immigration respondents' constitutional rights: (1) policies requiring that evidence seized through intentionally unlawful conduct be excluded from use in proceedings, id. at 1045;
81. (2) the "instruction and examination" of new immigration officers in Fourth Amendment law and provision of "periodic refresher courses in law" to experienced officers, id.;
82. and (3) rules and regulations requiring "that no one be detained without reasonable suspicion of illegal alienage, and that no one be arrested unless there is an admission of illegal alienage or other strong evidence thereof." Id. Even at the time the Court was writing, this last assertion was far from clear cut. See, e.g., In re Toro, 17 I. & N. Dec. 340, 342, 344 (BIA 1980) (finding that a vehicle stop based solely on the driver's Latin appearance did not contravene fundamental fairness because the stop was made in good faith).
83. See Lopez-Mendoza, 468 U.S. at 1045.
84. Id. ("The possibility of declaratory relief against the agency thus offers a means for challenging the validity of INS practices, when standing requirements for bringing such an action can be met.").
85. 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C.
86. See Justice Harry Blackmun, Conference Notes (handwritten) April 20, 1984, 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C. [hereinafter Blackmun April 20 Conference Notes].
87. Id.
88. Id.
89. Compare Justice O'Connor, 1st Draft INS v. Lopez-Mendoza (circulated June 1, 1984), 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C., with Justice O'Connor, 6th Draft INS v. Lopez-Mendoza (circulated June 22, 1984), 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C.
90. Blackmun April 20 Conference Notes, supra note 50. Justice Rehnquist apparently also argued during the conference that the Court should not "let the exclusionary rule spread" - but nonetheless joined in all of Justice O'Connor's opinion. Id.
91. Letter from Chief Justice Warren Burger to Justice Sandra Day O'Connor, June 25, 1984, 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C.
92. See Preliminary Memorandum on INS v. Lopez-Mendoza from Kerri Bartlett, law clerk, to Justice Blackmun, Dec. 13, 1983, 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C. ("[S]ince 1952 there has been a total of fewer than fifty Fourth Amendment challenges to the admissibility of evidence in deportation proceedings.").
93. Blackmun April 20 Conference Notes, supra note 50.
94. Id.
95. Upon receipt of Justice O'Connor's first draft of the Lopez-Mendoza opinion, one of Justice Blackmun's law clerks noted that "[o]bviously, SOC has circulated this draft to you because you are the fifth vote and she wants to nail down her Court." Memorandum from Anna Durand, law clerk, to Justice Blackmun, May 23, 1984, 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C.
96. Justice Harry Blackmun, Conference Notes (handwritten) April 18, 1984, 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C. According to Justice Blackmun's conference notes for April 20, 1984, Justice Marshall was the only Justice to argue that a deportation hearing was "not a civil proceeding." Blackmun April 20 Conference Notes, supra note 50.
97. Compare Justice O'Connor, 1st Draft INS v. Lopez-Mendoza, at 6 (circulated June 1, 1984), 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C., with Justice O'Connor, 6th Draft INS v. Lopez-Meodoza, at 6 (circulated June 22, 1984), 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C.
98. The opinion notes that an immigration judge's "sole power is to order deportation; the judge cannot adjudicate guilt or punish the respondent for any crime related to unlawful entry into or presence in this country." INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).
99. Id. ("Past conduct is relevant only insofar as it may shed light on the respondent's right to remain.").
100. Blackmun April 20 Conference Notes, supra note 50.
101. Id.
102. The first draft of the opinion stated, "In addition, actions for constitutional torts remain open to those subject to unlawful searches and seizures." Justice O'Connor, 1st Draft INS v. Lopez-Mendoza at 6 (circulated June 1, 1984), 407/83-491, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C.
103. See Blackmun April 20 Conference Notes, supra note 50.
104. INS v. Lopez-Mendoza, 468 U.S. 1032, 1055 (1984) (White, J., dissenting).
105. 745 F.2d 541 (9th Cir. 1984).
106. Id. at 545.
107. See also Judge Pregerson's dissent in Cervantes-Cuevas v. INS, 797 F.2d 707, 712 (9th Cir. 1985), in which he notes that the Court suggested bad faith would be found if a reasonably competent officer would have believed the search to be illegal.
108. Navarro-Chalan v. Ashcroft, 359 F.3d 19, 22-23 (1st Cir. 2004).
109. Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006).
110. United States v. Bowley, 435 F.3d 426, 430 (3d Cir. 2006).
111. United States v. Oscar-Torres, 507 F.3d 224, 230 (4th Cir. 2007).
112. Velasquez-Tabir v. INS, 127 F.3d 456, 459 (5th Cir. 1997).
113. Miguel v. INS, 359 F.3d 408, 411 (6th Cir. 2004).
114. Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002).
115. United States v. Guevara-Martinez, 262 F.3d 751, 754 (8th Cir. 2001).
116. Orhorhaghe v. INS, 38 F.3d 488, 504 (9th Cir. 1994).
117. United States v. Olivares-Rangel, 458 F.3d 1104, 1106 (10th Cir. 2006).
118. See, e.g., Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006) (holding that any arrest predicated on race is an arrest for "no reason at all" and is per se egregious);
119. Orhorhaghe, 38 F.3d at 504 (holding that arresting an individual based on his "foreign sounding name" was egregious).
120. See, e.g., United States v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007) (holding that illegally obtained fingerprints are admissible because they are identity related);
121. Olivares-Rangel, 458 F.3d at 1106 (holding that under Lopez-Mendoza an individual may not challenge a court's jurisdiction over him because of an illegal arrest).
122. Restrictions on law-enforcement actions have lessened markedly in recent years. See Henry G. Watkins, The Fourth Amendment and the INS: An Update on Locating the Undocumented and a Discussion on Judicial Avoidance of Race-Based Investigative Targeting in Constitutional Analysis, 28 SAN DIEGO L. REV. 499, 500 (1991);
123. Michael J. Wishnie, Emerging Issues for Undocumented Workers, 6 U. PA. J. LAB. & EMP. L. 497, 519 (2004).
124. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984) (citing Rochin v. California, 342 U.S. 165 (1952)).
125. See, e.g., In re Garcia, 17 I. & N. Dec. 319, 321 (BIA 1980) (barring admission of involuntary statements);
126. In re Toro, 17 I. & N. Dec. 340, 343 (BIA 1980) ("[T]he manner of seizing evidence [may be] so egregious that to rely on it would offend the fifth amendment's due process requirement of fundamental fairness.").
127. See, e.g., Almeida-Amaral, 461 F.3d at 235 (holding that if an individual is subjected to a seizure "for no reason at all" and the "seizure is sufficiently severe," then it constitutes an egregious violation and the evidence resulting from the seizure should be suppressed);
128. Martinez-Camargo v. INS, 282 F.3d 487, 492-93 (7th Cir. 2002) (recognizing the Lopez-Mendoza suppression rule but declining to exclude evidence on the facts of the case);
129. Ruckbi v. INS, 285 F.3d 120, 125 (1st Cir. 2002) (same);
130. Westover v. Reno, 202 F.3d 475, 479 (1st Cir. 2000) (same);
131. Orhorhaghe, 38 F.3d at 503-04 (excluding evidence where an INS search and seizure was based solely on the person's Nigerian sounding name);
132. Gonzalez-Rivera v. INS, 22 F.3d 1441, 1452 (9th Cir. 1994) (excluding evidence where an INS search and seizure was based solely on the person's Hispanic appearance);
133. Arguelles-Vasquez v. INS, 786 F.2d 1433, 1435 (9th Cir. 1986) (same).
134. See, e.g., Martinez-Camargo, 282 F.3d at 492;
135. Orhorhaghe, 38 F.3d at 503-04.
136. See Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. CONST. L. 1084, 1114 (2004) (presenting evidence of widespread racial discrimination in immigration enforcement such that "[u]nder the logic of Lopez-Mendoza itself, the exclusionary rule may now be appropriate in immigration proceedings").
137. Stephanie Francis Ward, Illegal Aliens on I.C.E.: Tougher Immigration Enforcement Tactics Spur Challenges, ABA JOURNAL, June 2008, at 44, 45, available at http://www.abajournal.com/magazine/illegal-aliens-on- ice ("Immigration lawyers say the searches have become both - widespread and egregious - and that it is time for the court to revisit Lopez-Mendoza.").
138. Askoxford.com, Definition of Widespread, http://www.askoxford.com/ concise-oed/widespread?view=uk (last visited Nov. 21, 2008).
139. Each year the Executive Office of Immigration Review (EOIR) publishes a statistical yearbook providing a full report on all of its activities during the previous financial year. Data is available for the past twelve years, showing the number of individuals in immigration proceedings and the outcome of those proceedings; that is, the number of individuals removed, the number of individuals granted a form of relief (such as cancellation of removal), and the number of individuals whose termination proceedings were granted. See USDOJ.gov, Statistical Year Book, http://www.uddog.gov/eoir/statspub/ syb2000main.htm (last visited Nov. 21, 2008) (displaying links to the Statistical Year Books from 2000-07).
140. For example, it is impossible to measure the number of motions to suppress and terminate brought by immigration respondents that have prevailed, not least because the vast majority of motions to terminate proceedings are not granted in response to respondents' motions to suppress, but rather in response to motions by ICE trial attorneys.
141. INS v. Lopez-Meadoza, 468 U.S. 1032, 1071 (1984) (describing how, prior to the decision of the BIA in In re Sandoval, 17 I. & N. Dec. 70 (BIA 1979), neither the BIA nor any court had held that the exclusionary rule did not apply in civil deportation proceedings, and observing that the Board in Sandoval noted that there were "fewer than fifty BIA proceedings since 1952" in which motions had been made to suppress evidence on Fourth Amendment grounds).
142. EOIR FY 2007 STATISTICAL YEAR BOOK, supra note 21, at D2 (showing the disposition of immigration cases for the years 2003-07 and the availability of different forms of relief).
143. U.S. DEP'T OF JUSTICE, INS, 1999 STATISTICAL YEARBOOK OF THE IMMIGRATION AND NATURALIZATION SERVICE 215 (2002), available at http://www.dhs.gov/xlibrary/ assets/statistics/yearbook/1999/FY99Yearbook.pdf. In 2007, there were 167,999 formal removals, compared to only 26,825 in 1979. Compare id. with EOIR FY 2007 STATISTICAL YEAR BOOK, supra note 21, at D2.
144. In 1979 the agency responsible for immigration enforcement was the INS, while today it is ICE.
145. The terrorist attacks of September 11, 2001 (9/11) have had a profound effect on immigration enforcement.
146. ICE's Fugitive Operations Teams have undertaken a number of high-profile nationwide "enforcement operations," such as Operation "Return To Sender," see Press Release, U.S. Immigration and Customs Enforcement, More than 300 Arrested in ICE Operation Targeting Illegal Alien Fugitives and Immigration Violators in San Diego and Imperial Counties (Apr. 3, 2007), available at http: //www.ice.gov/pi/news/newsreleases/articles/ 070403sandiego.htm;
147. Operation "Cross-Check," see Press Release, U.S. Immigration and Customs Enforcement, ICE Arrests 148 Immigration Violators, Criminals and Fugitives in Dallas (Apr. 27, 2007), available at http://www.ice.gov/pi/news/newsreleases/articles/070427dallas.htm (targeting individuals with any kind of criminal record);
148. Operation "Community Shield," see Press Release, U.S. Immigration and Customs Enforcement, 11 Arrested in Kenosha During ICE-led Operation Targeting Gang Members (Nov. 20, 2008), available at http://www.ice.gov/pi/nr/0811/081120kenosha.htm (targeting foreign-born alleged gang members).
149. There are also workplace Enforcement Initiatives, such as Operation "Wagon-Train," which targeted workers at six Swift plants located in Greeley, Colorado; Grand Island, Nebraska; Cactus, Texas; Hyrum, Utah; Marshalltown, Iowa; and Worthington, Minnesota, see Press Release, U.S. Immigration and Customs Enforcement, Worksite Enforcement: Operation Wagon Train (Mar. 1, 2007), available at http://www.ice.gov/pi/nr/0811/ 081120kenosha.htm.
150. See infra Appendix (showing the various locations of alleged constitutional violations).
151. See Katharine Auchincloss Lorr, Employer Sanctions and the Fourth Amendment: Lessons from OSHA for the Immigration Bar, 4 GEO. IMMIGR. L.J. 1, 57 (1990) (quoting the court in Int. Molders' & Allied Workers' Local Union v. Nelson, 799 F.2d 547, 551 (9th Cir. 1986) that they had found an "evident systematic policy and practice of fourth amendment violations" by the INS, including extensive evidence of INS agents "exceeding official policy").
152. See Wishnie, supra note 88, at 1106-07 (citing Letter from Janis A. Sposato, Acting Assistant Att'y Gen., to Rep. Wolf, Chair, Subcomm. on the Dep'ts of Commerce, Justice and State, the Judiciary, and Related Agencies, of the House Comm. on Appropriations (Sept. 21, 2001) (noting disproportionately higher rates of referrals of Asians, African-Americans, and Hispanics for secondary inspection based on a review of over five million primary inspections at JFK Airport)).
153. U.N. Human Rights Council, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development 16, U.N. Doc A/HRC/7/12/Add.2 (Mar. 5, 2008) (prepared by Jorge Bustamante) (noting increased workplace and household raids by ICE agents who have "frequent disregard of due process");
154. id. at 17 ("The Special Rapporteur heard accounts from victims that ICE officials entered their homes without a warrant, denied them access to lawyers or a phone to call family members and coerced them to sign 'voluntary departure' agreements.").
155. See N.C. Aizenman, Immigration Agency Accused of Illegal Searches, WASH. POST, Feb. 26, 2008, at A4 (reporting that members of a private commission accused ICE of routinely violating Fourth Amendment rights during workplace raids, such as by misusing a warrant to arrest a limited number of workers in the hope of catching other undocumented people in the area).
156. On February 13, 2008, the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held a hearing on "Problems with ICE Interrogation, Detention, and Removal." Problems with ICE Interrogation, Detention, and Removal Procedures: Hearing Before the H Subcomm. on Immigration, Citizenship, Refugees, Border Security, and Int'l Law of the H. Comm. on the Judiciary, 110th Cong., (Feb. 13, 2008), available at http://judiciary.house.gov/hearings/hear-021308.html.
157. See Press Release, U.S. Immigration and Customs Enforcement, supra note 98.
158. See Jesse McKinley, San Francisco Bay Area Reacts Angrily to Series of Immigration Raids, N.Y. TIMES, Apr. 28, 2007, at A14.
159. See, e.g., Tom Lochner, Civil Rights Advocates Question Actions of Immigration Agents, OAKLAND TRIB., Mar. 10, 2007 ("In Contra Costa County from Jan. 8 to 19, Return to Sender resulted in 119 arrests, including 20 people on the deportation list, a ratio of about five collateral arrests for every 'target' according to figures supplied by ICE.");
160. Elliot Spagat, Immigrants Are 'Collateral Arrests', S. FLA. SUN-SENTINEL, Apr. 6, 2007, at 3A. (reporting that "collateral arrests" made up 59 percent of all arrests in Dallas and El Paso, Texas, 54 percent in New York City, and 57 percent in San Diego).
161. Many of the civil complaints and notarized affidavits referenced in this Section were collated by Rachel Bengston of Centro Legal, Inc. in St. Paul, Minnesota. The author is extremely grateful to Ms. Bengtson for sharing her research.
162. Id.
163. See Florence Immigrant & Refugee Rights Project: Hearings Before Subcomm. on Immigration, Citizenship, Refugees, Border Security, and Int'l Law of the H. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) [hereinafter Hartzler Testimony] (written testimony of Kara Hartzler, Esq.), available at http://judiciary.house.gov/hearings/pdf/Hartzler080213.pdf.
164. See Complaint for Violations of the Fourth and Fifth Amendments to the United States Constitution, Reyes v. Alcantor, No. 07-cv-02271 (N.D. Cal. filed Feb.
165. 2008) (on file with author);
166. Complaint for Declaratory and Injunctive Relief, National Lawyers Guild et al. v. Chertoff et al., No. 08-01000 (CD. Cal. filed Feb. 14, 2008) (on file with author);
167. Paloma Esquivel, Civil Rights Groups Allege Immigrant Workers Were Denied Rights, L.A. TIMES, Feb. 15, 2008, at B5.
168. See Petition for Writ of Habeus Corpus, Yarrito v. Meyers, No. 06-CV-2494 (D. Colo, filed Dec. 13, 2006) (on file with author).
169. See Complaint, Barrera v. Boughton, No. 3:07-cv-01436 (D. Conn. filed Nov. 26, 2007) (on file with author);
170. Complaint, El Badrawi v. DHS, No. 3:07-cv-01074, ¶ 5 (D. Conn. filed July 13, 2007) (on file with author);
171. Complaint, Danbury Area Coal. for the Rights of Immigrants v. DHS, No. 3:06-cv-01992 (D. Conn. filed Dec. 14, 2006) (on file with author).
172. See Damien Cave, States Take New Tack on Illegal Immigration, N.Y. TIMES, June 9, 2008, at A1 ("At Red Barn Barbecue, witnesses said that skin color clearly influenced police procedure. When several officers visited and saw no one who was Hispanic in the kitchen, they moved on. 'We offered to give them records, and they said, 'No, it's not necessary," said Randy Brochu, whose family owns the business.").
173. See Problems with ICE Interrogation, Detention, and Removal Procedures: Hearings Before the H. Subcomm. on Immigration, Citizenship, Refugees, Border Security and Int'l Law of the H. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008), available at http://judiciary.house.gov/ hearings/pdf/Mancha 080213.pdf [hereinafter Mancha Testimony] (statement of Marie Justeen Mancha);
174. Complaint, Mancha v. ICE, No. 06-cv-12650 (N.D. Ga. filed Nov. 1, 2006) (on file with author).
175. See Kari Lydersen, Abuses Alleged During Immigration Raids, IN THESE TIMES, May 2007, at 11.
176. See Problems with ICE Interrogation, Detention, and Removal Procedures: Hearings Before the H Subcomm. on Immigration, Citizenship, Refugees, Border Security and Int'l Law of the H. Comm. on the Judiciary, 110th Cong. (Feb. 13th, 2008), available at http://judiciary.house.gov/ hearings/pdf/ Graves080213.pdf, [hereinafter Graves Testimony] (statement of Michael Graves, Member of UFCW, Local 1149).
177. See Justin Fenton & Kelly Brewington, 46 Held in Immigration Sweep, BALT. SUN, July 1, 2008, at 1B.
178. See Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007);
179. Motion for Temporary Restraining Order and Preliminary Injunction and Emergency Motion for Expedited Hearing, Sandoval v. ICE, No. 07-cv-10471
180. See Plaintiffs' Complaint for Declaratory and Injunctive Relief and Damages, Barrera v. DHS, No. 07-cv-03879, ¶ 1 (D. Minn filed Sept. 4, 2007) (on file with author).
181. See Complaint, Asamoah-Boadu v. Missouri, No. 07AC-CC00983 (Mo. Cir. Ct. filed Oct. 25,2007).
182. See Complaint, Class Action Request for injunctive Relief and Damages, Jury Demand on Damage Claims, United Food & Commercial Workers Int'l Union v. DHS, No. 07-cv-00188, ¶ 22 (N.D. Tex. filed Sept. 12, 2007) (on file with author).
183. See Affidavit of Gonzalo Juarez, ¶¶ 7-8, 10, 20 (June 27, 2007) (on file with author).
184. See Plaintiffs' Complaint for Damages to Remedy Civil Rights Violations and Common Law Torts, Border Network for Human Rights v. County of Otero, No. 07-CV-01045, ¶¶ 1-4 (D.N.M. filed Oct. 17, 2007) (on file with author);
185. Complaint, Daniel T. ex rel. Robinson v. Border Network for Human Rights v. County of Otero, No. 07-cv-01044 (D.N.M. filed Oct. 17, 2007) (on file with author).
186. See In re Rabani, Decision and Order of the Immigration Judge, supra note 28;
187. In re Herrera-Priego, Decision and Order of the Immigration Judge, supra note 28;
188. Class Action Complaint, Aguilar v. ICE, No. 07-cv-08224, ¶¶ 1-3 (S.D.N.Y. filed Sept. 20, 2007) (on file with author);
189. Motion to Suppress and/or Terminate Proceedings for Violations of the Fourth and Fifth Amendments and Agency Regulations and Memo of Points and Authorities, In re Chicas Moran (U.S. Dep't of Justice, Executive Office for Immigration Review July 20, 2007) (on file with the author);
190. Motion to Suppress and/or Terminate Proceedings for Violations of the Fourth and Fifth Amendments and Agency Regulations and Memo of Points and Authorities, In re Lopez Ramos (U.S. Dep't of Justice Executive Office for Immigration Review July 20, 2007) (on file with author);
191. Nina Bernstein, Raids Were a Shambles, Nassau Complains to U.S., N.Y. TIMES, Oct. 3, 2007, at B1.
192. See Steven Greenhouse, U.S. Officials Defend Ploys to Catch Immigrants, N.Y. TIMES, Feb. 11, 2006, at A8 (describing ICE agents' impersonation of federal health and safety officials as a ruse to detain and arrest undocumented workers).
193. See Plaintiff-Intervenor's Motion for a Temporary Restraining Order and Preliminary Injunction, Martinez v. Chertoff, No. 07-cv-00722 (S.D. Ohio Sept. 10, 2007) (on file with author).
194. See Karen Lee Ziner, ACLU Sues State Police, PROVIDENCE J., Jan. 9, 2007, at B1 (describing the ACLU's claim that state troopers "knew or should have known that the search, seizure and detention of the plaintiffs were without reasonable or probable cause, and were therefore unlawful under the circumstances").
195. See Motion to Suppress Evidence and Terminate Proceeding with Supporting Memorandum of Law, In re Cervantes-Valerio (U.S. Dep't of Justice Executive Office for Immigration Review Oct. 23, 2007);
196. Jury Demand, Flores-Morales v. George, No. 07-cv-0050, ¶ 1 (M.D. filed Tenn. July 5, 2007) (on file with author).
197. See Complaint, Class Action Request for Injunctive Relief and Damages, Jury Demand on Damage Claims, United Food & Commercial Workers Int'l Union v. DHS, No. 07-cv-00188 (N.D. Tex. filed Sept. 12, 2007) (on file with author); Affidavit of Jose Ordonez-Salanec, ¶¶ 8, 10 (May 22, 2007) (on file with author).
198. See In re X, Order of the Immigration Judge (U.S. Dep't of Justice Executive Office for Immigration Review Feb. 8, 2008) (on file with author).
199. See Complaint, Barrera v. Boughton, supra note 113 ("One Plaintiff in this action was unlawfully arrested by DPD for a civil immigration violation after a pretextual and race-based traffic stop, transferred to ICE custody, and eventually deported.").
200. See Affidavit of Jose Ordonez-Salanec, supra note 130, ¶ 1 ("At the time of my arrest [by the Border Patrol], I had violated no traffic law, all of the inspection stickers on the vehicle that I was driving were current, and there were no warrants for my arrest that would have justified the stop and arrest.").
201. See In re X, Order of the Immigration Judge, supra note 131, at 2 ("[T]he respondent daughters were the subjects of a racially motivated traffic stop by a deputy sheriff ....").
202. See Plaintiffs' Amended Complaint for Declaratory and Injunctive Relief and Damages, Arias v. ICE, 07-cv-001959, ¶ 1 (D. Minn, filed July 27, 2007) (on file with author).
203. See Affidavit of Gonzalo Juarez, supra note 123, ¶ 7 ("The officer told me to 'come inside.' He did not ask me for permission to enter. I never gave permission for him to enter.").
204. See Plaintiffs' Complaint for Damages to Remedy Civil Rights Violations and Common Law Torts, Border Network for Human Rights v. County of Otero, supra note 124, ¶ 12 ("Defendants began targeting Hispanic families in their own homes by initiating random sweeps of trailers in the area ....").
205. See Esquivel, supra note 111.
206. See Plaintiffs' Complaint for Declaratory and Injunctive Relief and Damages, Barrera v. DHS, supra note 120, ¶ 24.
207. See Greenhouse, supra note 126 (describing ICE agents' impersonation of federal health and safety officials as a ruse to detain and arrest undocumented workers).
208. See Hartzler Testimony, supra note 110.
209. See In re Rabani, Decision and Order of the Immigration Judge, supra note 28 ("[Respondent] did not see them question a single person other than himself .... He believes they approached him because of his Middle Eastern appearance.").
210. See Motion to Suppress Evidence and Terminate Proceeding with Supporting Memorandum of Law, In re Cervantes- Valerio, supra note 129, at 2, 6-7.
211. See Lyderson, supra note 116, at 11 (describing how one woman "was invasively strip-searched, and told the process was a search for hidden drugs. She was handcuffed so tightly that it left marks on her wrists, she says, and she was unable to get pain medication for severe tendonitis in her ankle").
212. See Fenton & Brewington, supra note 118 (describing a pregnant woman being shoved roughly).
213. See Motion to Suppress and/or Terminate Proceedings for Violations of the Fourth and Fifth Amendments and Agency Regulations and Memo of Points and Authorities, In re Chicas Moran, supra note 125, at 3 ("[A]s I was about to leave for my job ... I was stopped inside my apartment by about five armed men. These men threw me and my roommates down on the floor and handcuffed us.").
214. See Jury Demand, Flores-Morales v. George, supra note 129.
215. See Complaint for Violations of the Fourth and Fifth Amendments to the United States Constitution, Reyes v. Alcantor, supra note 111, ¶¶ 4, 11 ("fKebin Reyes] ... is seven years old ... . Defendants told Kebin that he would only need to stay at the ICE office for an hour or two. Instead, they held him in a locked room all day against his will. Kebin thought he was in jail. Defendants refused to give Kebin any food, other than bread and water. Kebin was hungry and crying. He did not know when he would be free to leave.").
216. See Nina Bernstein, Promise of ID Cards Is Followed by Peril of Arrest for Illegal Immigrants, N.Y. TIMES, July 23, 2007.
217. See Complaint, Mancha v. ICE, supra note 115, ¶¶ 24-29;
218. Mancha Testimony, supra note 110, at 35.
219. See Petition for Writ of Habeus Corpus, Yarrito v. Meyers, supra note 112, ¶¶11,13.
220. See Petition for Writ of Habeas Corpus and Complaint for Declaratory & Injunctive Relief, Sandoval v. ICE, No. 07-cv-10471 (D. Mass. Filed Mar. 8, 2007) (on file with author).
221. See Complaint, Class Action Request for Injunctive Relief and Damages, Jury Demand on Damage Claims, United Food & Commercial Workers Int'l Union v. DHS, supra note 130, ¶¶ 22, 24, 27.
222. See Ward, supra note 89, at 47. ("In Twin Falls, Idaho, for example, immigration lawyers allege that [Customs and Border Protection] officers in 2007 approached shoppers at a warehouse grocery store, asking to see documentation. The business, WinCo Foods, is popular with the area's Latino residents, and some say that individuals were stopped without probable cause.").
223. See In re Herrera-Priego, Decision and Order of the Immigration Judge, supra note 125.
224. See Ziner, supra note 128 (describing the ACLU's claim that state troopers "knew or should have known that the search, seizure and detention of the plaintiffs were without reasonable or probable cause, and were therefore unlawful under the circumstances").
225. See Graves Testimony, supra note 117, at 38 ("There was no legitimate reason. There was no probable cause. Our plant - our workplace - had been transformed into a prison or detention center.").
226. See Plaintiff-Intervenor's Motion for a Temporary Restraining Order and Preliminary Injunction, Martinez v. Chertoff, supra note 127, ¶¶ 23, 25.
227. See Nina Bernstein, Immigration Raids Single Out Hispanics, Lawsuit Says, N.Y. TIMES, Sep. 21, 2007, at B3.
228. See infra Appendix.
229. Language Barriers May Lead Immigrants to Waive Right to Hearing Before Deportation, IMMIGRANTJUSTICE.ORG, June 3, 2008, http://www.immigrant justice.org/news/detention/stiporders.
230. Hartzler Testimony, supra note 110, at 17;
231. Elizabeth Amon, INS Fails to See the Light, NATIONAL L.J., Mar. 5, 2001, at A1.
232. U.S. Dep't of Homeland Security Oversight Hearing Before the H. Comm. on the Judiciary, 110th Cong., at 8 (Mar. 5, 2008), available at www.dhs.gov/xnews/testimony/testimony-l204746985090.shtm [hereinafter Chertoff Testimony] (statement of Michael Chertoff, Secretary, U.S. Dep't of Homeland Security). ICE claims that slightly fewer individuals (276,912) were removed during the same period. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, FY07 ACCOMPLISHMENTS, available at http://www.ice.gov/doclib/pi/news/factsheets/ fy07accmplshmntsweb.pdf.
233. Hartzler Testimony, supra note 110, at 17.
234. Id.
235. INS v. Lopez-Mendoza, 468 U.S. 1032, 1055 (1984) (White, J., dissenting).
236. Ward, supra note 89, at 50.
237. See, e.g., Wishnie, supra note 88, at 1085-88.
238. Paradoxically, state and local police officers well versed in Fourth Amendment rights in a criminal context do not appear to apply the same standards when engaged in immigration enforcement activities. Id. at 1102-03.
239. See Marcus Stern & Mark Arner, Police May Gam Power to Enforce Immigration: Plan Has Local Officers, Rights Groups on Edge, SAN DIEGO UNION-TRIB., Apr. 3, 2002, at A1 (reporting on the U.S. Department of Justice's Office of Legal Counsel's reversal of long-standing legal tradition);
240. Cheryl W. Thompson, Some Envision Police Role in Immigration Issues, ORLANDO SENTINEL, APR. 4, 2002, at A7 (same).
241. See Teresa Wynn Roseborough, Assistance by State and Local Police in Apprehending Illegal Aliens, 19 Op. Off. Legal Counsel 26, 26-27 (1996), available at www.usdoj.gov/olc/immstopola.htm (describing the role previously played by state and local police with respect to immigration enforcement).
242. See Attorney General John Ashcroft, Prepared Remarks on the National Security Entry-Exit Registration System (June 6, 2002), available at http://www.us doj.gov/archive/ag/speeches/2002/060502agpreparedremarks. htm (revealing that, in the wake of 9/11, the Office of Legal Counsel had concluded state and local police possess "inherent authority" to enforce immigration laws).
243. See Wishnie, supra note 88, at 1086 ("In the AAI [Absconder Apprehension Initiative], the Service has begun reviewing the files of absconders to enter appropriate records into the National Crime Information Center (NCIC) database ....").
244. See Nina Bernstein, Challenge in Connecticut Over Immigrants' Arrest, N.Y. TIMES, Sept. 26, 2007, at B1;
245. see also Nina Bernstein, Crime Database Misused for Civil Issues, Suit Says, N.Y. TIMES, Dec. 17, 2003, at A34 (reporting on arrests in New York, Los Angeles, Boston, and other cities);
246. Cam Simpson et al., Immigration Crackdown Shatters Muslims' Lives, CHI. TRIB., NOV. 16, 2003, at C1 (reporting on the arrest of Amir Shah, a car wash supervisor found sleeping in a car waiting for business to open, by Schaumburg, Illinois, police officers, on the basis of Shah's old deportation order).
247. See Complaint, El Badrawi v. DHS, supra note 113, ¶¶ 139-40.
248. See OR. REV. STAT. § 181.850 (2001);
249. H.R.J. 22, 23rd Leg., 1st Sess. (Alaska 2001), available at http://www.legis.state.ak.us/pdf/23/Bills/HJR022C.pdf);
250. Detroit, Michigan, Local Res. (Dec. 2002), available at http://www.aclu.org/ safefree/resources/17086res20021206.html;
251. New Haven, Connecticut, Police Dep't Gen. Order No. 06-2 (Dec. 2006), available at http://www.newhavenindependent.org/ archives/upload/2006/12/ NHPDGeneralOrder.doc;
252. City and County of San Francisco, Bd. of Supervisors Res. No. 389-02 (June 2002), available at http://www.democracy inaction.org/dia/ organizationsORG/NILC/images/SanFranciscopdf.pdf; Philadelphia City Solicitor Memorandum to All City Commissioners and Department Heads (Oct. 2003);
253. National Immigration Law Center, Laws, Resolutions and Policies Instituted Across the U.S. Limiting Enforcement of Immigration Laws by State and Local Authorities, NILC.ORG, April 2008, http://www.nilc.org/ immlawpolicy/LocalLaw/ locallaw-limiting-tbl-2008-04-15.pdf;
254. For more information about different local initiatives to combat the encroachment of federal immigration enforcement, see generally http://www.aclu.org/safefree/resources.
255. See, e.g., Ted Robbins, 'America's Toughest Sheriff' Takes on Immigration, NPR.ORG, Mar. 10, 2008, http://www.npr.org/templates/ story/ story/php?storyId=88002493 ("Though the Phoenix Police Department has a policy of not asking citizenship on arrest, down at the county jail, which houses prisoners from a number of jurisdictions, it's a different matter. Every single person who is booked-regardless of the charge - is asked their citizenship and social security number. Officials then look them up in the federal Immigration and Customs Enforcement, or ICE, database.").
256. See Kareem Fahim, Immigration Referrals by Police Draw Scrutiny, N. Y. TIMES, Mar. 23, 2008, at A21 (describing New Jersey State Attorney General Milgram's aggressive immigration referral policy).
257. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 133, 110 Stat. 3009-562, 3009-563 (codified at 8 U.S.C. § 1357(g)) (adding section 287(g) to the Immigration and Nationality Act). Section 287(g) authorizes the Attorney General to enter into agreements with state and local law-enforcement agencies, permitting designated officers to perform immigration lawenforcement functions, pursuant to a Memorandum of Agreement, provided that these officers receive appropriate training and function under the supervision of ICE officers. Id.
258. Chertoff Testimony, supra note 163;
259. see also Jennifer V. Hughes, Police Seek Help in Criminal Deportation, N.Y. TIMES, Feb. 24, 2008, at WE2.
260. Chertoff Testimony, supra note 163.
261. Id.
262. See ICE.gov, ICE Factsheet, ICE Agreements of Cooperation in Communities to Enhance Safety and Security (ACCESS), http://www.ice.gov/pi/ news/factsheets/access.htm (last visited Dec. 2, 2008);
263. see also ICE.gov, ICE Factsheet, Law Enforcement Support Center, http://www.ice.gov/pi/news/ factsheets/lesc.htm?searchstring=NCIC (last visited Dec. 2, 2008).
264. See Hartzler Testimony, supra note 110, at 4 ("When local law enforcement untrained in immigration issues attempt to enforce complex immigration laws, errors often result. Sometimes these errors can lead to the detention of persons who are not deportable; other times, these mistakes can cause grave, long-term harm to the person involved. ").
265. See Hughes, supra note 179.
266. See, e.g., New Haven, Connecticut, Police Dep't Gen. Order No. 06-2 (Dec. 2006), available at http://www.newhavenindependent.org/ archives/upload/2006/12/NHPDGeneralOrder.doc.
267. See Hartzler Testimony, supra note 110, at 4.
268. Indeed, this exact turn of events was predicted by Professor Michael Wishnie, who, writing in 2003, suggested that "in a post-September 11 world in which the current administration has summoned state and local police untrained in the complexities of immigration law to the task of immigration enforcement, there is strong reason to expect that Fourth Amendment violations by police will become 'widespread.'" Wishnie, supra note 88, at 1114.
269. See supra text accompanying notes 175-183.
270. See supra text accompanying notes 105-159.
271. 517 F.3d 42 (2d Cir. 2008).
272. Id. at 46-47.
273. 540 F.3d 126 (2d Cir. 2008).
274. Id. at 130 n.2 ("In their submissions to the Court, petitioners argue for the first time that Fourth Amendment violations by immigration authorities are so widespread as to make exclusion appropriate in these circumstances. Because they did not raise the issue before the BIA, it has not been exhausted and is therefore not appropriately before us.").
275. 536 F.3d 1012 (9th Cir. 2008).
276. Id. at 1018-19.
277. Id.
278. Id. at 1019-20 (Bybee, J., concurring).
279. See id. at 1020 n.1 (Bybee, J., concurring) (describing the differences between the standard for egregiousness in the Ninth Circuit when contrasted to the First and Second Circuits).
280. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984).
281. A wider debate is also currently taking place about the applicability of the exclusionary rule in criminal proceedings. Recently there have been articles in the media suggesting that the Supreme Court should reconsider whether to continue to employ the exclusionary rule in criminal proceedings. See, e.g., Adam Liptak, U.S. Stands Alone in Rejecting All Evidence When Police Err, N.Y. TIMES, July 19, 2008, at A1.
282. Speculation about the Supreme Court's attitude toward the exclusionary rule has increased since certiorari was granted in United States v. Herring, 492 F.3d 1212 (11th Cir. 2007), a case which addresses whether the deterrent effect of excluding evidence obtained as a result of negligent error by law-enforcement personnel outweighs the costs of excluding such evidence, or whether the good-faith exception to the exclusionary rule should be extended. Id. Although this wider debate about the exclusionary rule raises a number of important questions, it is beyond the scope of this Article.
283. See Ward, supra note 89, at 50.
284. Michael Neifach, ICE's principal legal advisor, reiterated this stance in a recent article, claiming that "[a] deportation hearing is purely a civil action to determine a person's eligibility to remain in this country .... Therefore the purpose of the hearing is not to punish past crime but rather the continuing violation of immigration laws." Id.
285. Id.
286. See Matthew S. Mulqueen, Note, Rethinking the Role of the Exclusionary Rule in Removal Proceedings, 82 ST. JOHN'S L. REV. 1157, 1194-95 (2008) (arguing that, despite jurists and commentators' arguments to the contrary, alternative remedies are inadequate).
287. See Ward, supra note 89, at 50 ("When Lopez-Mendoza was decided, complaints about government immigration arrest practices were similar to those of today, according to Mary L. Heen, who argued the Supreme Court case on behalf of Lopez-Mendoza and the other detainees. Even then there was a concern, Heen says, that as immigration enforcement efforts increased, the sweeps became too broad, violating the rights of citizens and lawful residents. 'We knew that there was cause for skepticism about alternatives such as internal INS training and disciplinary processes being an effective deterrent against Fourth Amendment violations,' says Heen, who is now a professor at the University of Richmond School of Law.").
288. See, e.g., In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring) ("[T]he reason for different standards of proof in civil as opposed to criminal litigation [is] apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor .... In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty."). Harlan's view has its roots in longstanding common-law traditions of procedural safeguards in criminal trials, for, as Blackstone wrote, "better that ten guilty persons escape, than that one innocent suffer." 4 WILLIAM BLACKSTONE, COMMENTARIES *352.
289. See, e.g., Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 GEO. IMMIGR. L.J. 611, 660 (2003);
290. Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367 (2006) (exposing a common link that has increasingly come to unite these two once discrete fields of law);
291. see also Maria Isabel Medina, The Criminalization of Immigration Law: Employer Sanctions and Marriage Fraud, 5 GEO. MASON L. REV. 669, 671 (1997) ("Increasingly, the United States has looked to the criminal law to address the problem of undocumented immigration."). Recent scholarship suggests that this line blurring is not just visible in immigration law and criminal law, but also apparent in the intersection of many other aspects of criminal and civil procedure. See Issachar Rosen-Zvi & Talia Fisher, Overcoming Procedural Boundaries, 94 VA. L. REV. 79 (2008).
292. See, e.g., Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8, 18 U.S.C.) (rendering individuals convicted of minor crimes with sentences of less than five years eligible for deportation); Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified as amended in scattered sections of 8, 18, 28, 42 U.S.C.) (making it a criminal offense for a noncitizen to attempt an unlawful reentry into the United States after having been convicted of three misdemeanors involving either drugs or crimes against the person); Immigration Act of 1990, Pub. L. No. 101-649, § 121(b)(3), 104 Stat. 4978, 4989 (codified as amended at 8 U.S.C. § 1325(d)) (imposing criminal penalties on those who establish commercial enterprises for the purpose of evading immigration laws).
293. See, e.g., Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 60024, 108 Stat. 1796, 1981 (codified as amended at 8 U.S.C. § 1324) (enhancing penalties for smuggling noncitizens);
294. id. § 130001(b), 108 Stat. at 2023 (codified as amended at 8 U.S.C. § 1326(b)(1)) (establishing criminal penalties for noncitizens who attempt to reenter the United States unlawfully after having been convicted of three misdemeanors involving either drugs or crimes against the person); Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7345, 102 Stat. 4181, 4471 (codified as amended at 1028 U.S.C. § 1326) (increasing the criminal sentences for the offenses of unlawful reentry after deportation, if deportation resulted from a felony (more if the underlying crime was an "aggravated felony")).
295. See, e.g., 8 U.S.C. §§ 1282, 1325-28 (2006) (increasing criminal fines for certain immigration-related crimes).
296. Justice Department statistics show an almost tripling of prosecutions for immigration felonies and class A misdemeanors from 1984-94. See Helen Morris, Zero Tolerance: The Increasing Criminalization of Immigration Law, 74 INTERPRETER RELEASES 1317, 1318 (1997) (showing an increase of immigration felonies and Class A misdemeanors prosecuted in federal court from 1,186 in 1984 to 3,477 in 1994);
297. th "Pale of Law, " 29 N.C. J. INT'L L. & COM. REG. 639, 655 (2004) ("The total number of prosecutions for immigration offenses has risen dramatically in the past decade from 14,854 in 1994 to 23,852 in 2002.").
298. See Julia Preston, More Illegal Crossings Are Criminal Cases, Group Says, N.Y. TIMES, June 18, 2008, at A14.
299. Damian Cave, Local Officials Adopt New, Harder Tactics on Illegal Immigrants, N.Y. TIMES, June 9, 2008, at A1 ("In 2007, 1,562 bills related to illegal immigration were introduced nationwide and 240 were enacted in 46 states, triple the number that passed in 2006, according to the National Conference of State Legislatures. A new law in Mississippi makes it a felony for an illegal immigrant to hold a job. In Oklahoma, sheltering or transporting illegal immigrants is also a felony.").
300. See Miller, supra note 206, at 617 (defining the criminalization of immigration law as "a general way of describing the closer relationship that has developed" between the criminal justice and immigration systems);
301. see also Morris, supra note 210, at 1317 ("One of the most striking aspects of immigration law in the past decade is its increased criminalization.").
302. Stumpf, supra note 206, at 368.
303. See, e.g., Teresa A. Miller, Blurring the Boundaries Between Immigration and Crime Control After September 11th, 25 B.C. THIRD WORLD L.J. 81, 83-95 (2005) (exploring post-9/11 changes in the interaction between criminal and immigration regulations).
304. Spencer S. Hsu, Immigration Prosecutions Hit New High: Critics Say Increased Use of Criminal Charges Strains System, WASH. POST, June 2, 2008, at A1.
305. This trend is a result of "Operation Streamline," a new initiative in which prosecutors file minor criminal charges against any individuals detained while attempting to cross the border, thereby criminalizing ostensibly civil deportation proceedings. Id.
306. Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 WASH. & LEE L. REV. 469, 523 (2007).
307. Id. at 471 ("There is an embryonic literature on the growing convergence of two critical regulatory regimes - criminal justice and immigration control.");
308. see also Kevin R. Johnson, The End of "Civil Rights" as We Know It?: Immigration and Civil Rights in the New Millennium, 49 UCLA L. REV. 1481, 1499-1505 (2002).
309. Legomsky, supra note 217, at 472.
310. Id. at 524.
311. 2008 OK CR 11, 181 P.3d 727.
312. See id.
313. Id. ¶¶ 1-4.
314. See id.
315. Id. ¶¶ 4-5.
316. Id. ¶¶ 5-7 (citing Oklahoma Taxpayer and Citizen Protection Act of 2007, 2007 Okla. Sess. Laws ch. 112, § 2, at 547).
317. A considerable number of jurisdictions have similar local reporting requirements. See NAT'L IMMIGRATION FORUM, IMMIGRATION LAW ENFORCEMENT BY STATE AND LOCAL POLICE (2007), available at http://www. immigrationforum.org/documents/TheDebate/EnforcementLocalPolice/Bac kgrounder-StateLocalEnforcement.pdf. Many more require local police officers to check on the immigration status of individuals in police custody. See, e.g., Jerry Markon, Judge Dismisses Suit on Illegal Immigration: Crackdown Could Still Face Challenge, WASH. POST, Dec. 1, 2007, at B3 (reporting about Prince William County's "crackdown on illegal immigration, which requires police to check the immigration status of people in custody").
318. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (codified in scattered sections of 8 U.S.C.);
319. Immigration Marriage Fraud Act Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537;
320. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, (as amended by the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359).
321. See Immigration and Nationality Act of 1952, § 240(a), Pub. L. No. 82-414, 66 Stat. 204 (as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009; the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272; and the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified at 8 U.S.C. § 1229));
322. see also Immigration and Nationality Act of 1952, § 245, Pub. L. No. 82-414, 66 Stat. 217 (as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009; the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272; and the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified at 8 U.S.C. § 1255)).
323. See, e.g., Navarro-Chalan v. Ashcroft, 359 F.3d 19, 22-23 (1st Cir. 2004) (holding that police actions were not egregious violations of Fourth Amendment, so the exclusionary rule did not apply in deportation proceedings);
324. U.S. v. Del Toro Gudino, 376 F.3d 997, 1001 (9th Cir. 2004) (holding that a defendant's identity was not suppressible);
325. U.S. v. Perez-Perez, 337 F.3d 990, 994 (8th Cir. 2003) (holding that information regarding a defendant's identity was not suppressible);
326. see generally The Exclusionary Rule, 36 GEO. L.J. ANN. REV. CRIM. PROC. 193 (2007).
327. See Email from Rachel Bengtson, Immigration Attorney, Centra Legal, Inc. in St. Paul, MN to National Immigration Project (Mar. 4, 2008, 14:28 CST) ("Our client ... described how, when he came to the door in his undergarments at 6:00 in the morning, opened the door less than a foot and looked out, he saw 5 men reaching for their guns as they pushed open the side door to his house and forced their way inside. He also described how ICE agents took him into an empty bedroom, turned off the lights and shut the door to interrogate him. One agent picked up a wooden bench and slammed it down on the floor inches away from his face and said, 'tell me the truth!' Although the testimony made clear numerous Constitutional violations committed by ICE officers during the raid, our clients were nevertheless arrested afterward. The Willmar police department, who we are also suing for participating in the home invasion raids, has charged both of our clients with forgery and identity theft, based on the evidence illegally obtained by ICE.").
328. See id.
329. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 1050-51 (1984).
330. See, e.g., Michael J. Wishnie, Introduction - The Border Crossed Us: Current Issues in Immigrant Labor, 28 N.Y.U. REV. L. & SOC. CHANGE. 389, 392-93 (2004) (presenting evidence that "INS regularly raids worksites engaged in a labor controversy" in violation of agency guidelines, contradicting "the Lopez-Mendoza majority's premise that agency rules alone adequately deter abusive INS raid practices").
331. See 8 C.F.R. §§ 287.1-.12 (2008).
332. Id. § 287.8(a)(iii) (obligating ICE agents to use "the minimum non-deadly force necessary to accomplish the officer's mission and shall escalate to a higher level of non-deadly force only when such higher level of force is warranted by the actions, apparent intentions, and apparent capabilities of the suspect, prisoner, or assailant").
333. See, e.g., Motion to Suppress and/or Terminate Proceedings for Violations of the Fourth and Fifth Amendments and Agency Regulations and Memo of Points and Authorities, In re Chicas Moran, supra note 125 ("[A]s I was about to leave for my job ... I was stopped inside my apartment by about five armed men. These men threw me and my roommates down on the floor and handcuffed us."). Other suits have been filed alleging that ICE agents and law-enforcement officers used force, or displays of force, to enter residential premises without consent. See Jury Demand, Flores-Morales v. George, supra note 129;
334. Plaintiff-Intervenor's Motion for a Temporary Restraining Order and Preliminary Injunction, Martinez v. Chertoff, supra note 127.
335. 8 C.F.R. § 287.8(b)(1) ("An immigration officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.");
336. id. § 287.8(b)(2) (stipulating that an immigration officer may briefly detain an individual only if the officer "has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States").
337. See, e.g., Motion to Suppress Evidence and Terminate Proceeding with Supporting Memorandum of Law, In re Cervantes-Valerio, supra note 129 ("[T]here was no reasonable basis for the initial decision to follow the Respondent, or continuing to follow the Respondent for ten (10) miles, or conducting a custodial interrogation of the Respondent.");
338. Affidavit of Jose Ordonez-Salanec, supra note 130, ¶ 1 ("At the time of my arrest [by the Border Patrol], I had violated no traffic law, all of the inspection stickers on the vehicle that I was driving were current, and there were no warrants for my arrest that would have justified the stop and arrest.");
339. Graves Testimony, supra note 117, at 2-3 ("There was no legitimate reason. There was no probable cause. Our plant - our workplace - had been transformed into a prison or detention center.").
340. 8 C.F.R. § 287.8(f)(2) ("An immigration officer may not enter into ... a residence including the curtilage of such residence ... for the purpose of questioning the occupants ... concerning their right to be or remain in the United States unless the officer has either a warrant or the consent of the owner or other person in control of the site to be inspected.").
341. See, e.g., Complaint, Mancha v. ICE, supra note 115, ¶¶ 24-34;
342. Mancha Testimony, supra note 115;
343. Affidavit of Gonzalo Juarez, supra note 123, ¶¶ 2-4, 7-9 ("The officer told me to 'come inside.' He did not ask me for permission to enter. I never gave permission for him to enter.");
344. Plaintiffs' Complaint for Damages to Remedy Civil Rights Violations and Common Law Torts, Border Network for Human Rights v. County of Otero, supra note 124, ¶ 10 ("Defendants began targeting Hispanic families in their own homes by initiating random sweeps of trailers in the area ....").
345. Ward, supra note 89, at 44 ("When federal immigration and local Minnesota law enforcement agents entered several homes in Willmar in which undocumented workers were thought to be living, they were asked to show a search warrant. 'We don't need one,' was one agent's response during last year's raid, according to a wrongful search action filed last April by 53 plaintiffs in federal court in Minneapolis.").
346. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1043 (1984) ("New immigration officers receive instruction and examination in Fourth Amendment law, and others receive periodic refresher courses in law.").
347. See Ward, supra note 89, at 47.
348. See Randal C. Archibold, Deported in Error, Missing and Months Later Home, N.Y. TIMES, Aug. 8, 2007, at A16.
349. See Jacqueline Stevens, Amid Anti-Immigrant Fervor, ICE Deporting More American Citizens, NATION, NOV. 5, 2008, available at http://www.alternet.org/immigration/87467.
350. See id.
351. Ward, supra note 89, at 47 (reporting that Kanstroom emphasized Guzman's case is far from unique in that "'[w]e're finding more cases of U.S. citizens who get swept up in these raids, and it indicates the basic lack of care the agency is taking .... If they're deporting U.S. citizens by mistake, it's not a stretch to assume they're making other mistakes as well'").
352. See Response to Motion to Suppress Evidence and Terminate, In re X, at 25-26 (U.S. Dep't of Justice Executive Office for Immigration Review Nov. 28, 2007) (on file with author) (claiming that ICE was not bound by rules mandating respect for immigration suspects' constitutional rights laid out in INS Manual M-69 because the manual was "an outdated publication ... belonging to an abolished agency ....").
353. The argument that ICE need not adhere to its predecessor agency's rules and regulations directly contravenes one of the guiding principles of administrative law, in accordance with which the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (which created the Department of Homeland Security) transferred all of INS's detention and removal functions to DHS. See id. § 441, 116 Stat. at 2192 (codified as amended in 6 U.S.C. § 251) ("[T]here shall be transferred from the Commissioner of Immigration and Naturalization to the Under Secretary for Border and Transportation Security all functions performed under the following programs .... The detention and removal program.").
354. See, e.g., Respondent's Reply to the Government's Brief Opposing the Suppression of Evidence and Opposing Termination of Removal Proceedings, In the Matter of X, at 43-44 (U.S. Dep't of Justice Executive Office for Immigration Review Feb. 25, 2008) (on file with author).
355. See Singh v. U.S. Dep't of Justice, 461 F.3d 290, 296-97 (2d Cir. 2006);
356. see also In re Herrera-Priego, Decision and Order of the Immigration Judge, supra note 125, at 21-24 (finding that ICE's violation of an internal operations instruction that was transferred to the Special Agent's Field Manual and that was designed to protect Respondent's fundamental rights is grounds for termination of proceedings).
357. See, e.g., In re Hernandez, Interim Decision #3265, 21 I. & N. Dec. 224, 228 (BIA 1996) (holding that an "Immigration Judge, where possible, can and should take corrective action short of termination of the proceedings" where there has been a violation of a DHS regulation).
358. INS v. Lopez-Mendoza, 468 U.S. 1032, 1055 (1984) (White, J., dissenting).
359. In a case brought just one year after Lopez-Mendoza was decided, in which an application was made for injunctive relief against repeated home invasions by immigration officers, the court granted the relief, noting that damage actions were especially unlikely to be brought because of the vulnerability of the population involved. See LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985) (dealing with a suit against INS officials by migrant farm workers, alleging that the INS regularly searched migrant housing without warrants or even articulable suspicion that illegal aliens were present).
360. See generally Michael J. Wishnie, Immigrants and the Right to Petition, 78 N.Y.U. L. REV. 667 (2003). Part III.C of this Article owes a considerable debt to Professor Wishnie's scholarship in this area.
361. 494 U.S. 259 (1990).
362. See generally Susan M. Akram & Maritza Karmely, Immigration and Constitutional Consequences of Post-9/11 Policies Involving Arabs and Muslims in the United States: Is Alienage a Distinction Without a Difference?, 38 U.C. DAVIS L. REV. 609 (2005);
363. Raquel Aldana & Sylvia R. Lazos Vargas, "Aliens" in Our Midst Post-9/11: Legislating Outsidemess Within the Borders, 38 U.C. DAVIS L. REV. 1683 (2005).
364. Verdugo-Urquidez, 494 U.S. at 259.
365. Id. at 265.
366. See, e.g., United States v. Guitterez, No. CR 96-40075 SBA, 1997 U.S. Dist. LEXIS 16446, at *16-18 (N.D. Cal. 1997) (citing Verdugo-Urquidez in denying motion to suppress on grounds that criminal defendant was an undocumented immigrant and not covered by the Fourth Amendment);
367. Torres v. State, 818 S.W.2d 141, 143 n.1 (Tex. App. 1991) (citing Verdugo-Urquidez and holding undocumented defendant may not raise a Fourth Amendment objection to search or seizure).
368. See, e.g., Matthew B. Kurek, United States v. Guitterez: A Functional Approach to a Vexing Issue, 30 U. TOL. L. REV. 359, 381 (1999) (criticizing the "significant voluntary connections" test of Verdugo-Urquidez as inconsistent);
369. Victor C. Romero, The Domestic Fourth Amendment Rights of Undocumented Immigrants: On Guitterez and the Tort Law/Immigration Law Parallel, 35 HARV. C.R.-C.L. L. REV. 57, 60-61 (2000) (suggesting that Verdugo-Urquidez affects the application of the Fourth Amendment to noncitizens facing prosecution in United States courts);
370. Michael Scaperlanda, The Domestic Fourth Amendment Rights of Aliens: To What Extent Do They Survive United States v. Verdugo-Urquidez?, 56 Mo. L. REV. 213, 228 (1991) (criticizing the textual exegesis of the Verdugo-Urquidez plurality as "strained" and in contradiction with earlier Supreme Court precedent);
371. René L. Valladares & James G. Connell, III, Search and Seizure Protections for Undocumented Aliens: The Territoriality and Voluntary Presence Principles in Fourth Amendment Law, 34 AM. CRIM. L. REV. 1293, 1295, 1333 (1997) (acknowledging that various commentators have "properly criticized" Verdugo-Urquidez and "[t]he existence of a Fourth Amendment violation must be determined from the circumstances of the search, and not from the immigration status of the person searched");
372. Joseph Ricchezza, Note, Are Undocumented Aliens "People" Persons Within the Context of the Fourth Amendment?, 5 GEO. IMMIGR. L.J. 475, 499 (1991) (describing the reasoning of Verdugo-Urquidez as a "morass").
373. At least one court has gone nearly this far. See United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254, 1255 (N.D. Utah 2003) ("The court concludes that as a previously-removed alien felon, Esparza-Mendoza cannot assert a violation of the Fourth Amendment because he is not one of 'the People' the Amendment protects.").
374. For a discussion of the implications of this decision, see M. Isabel Medina, Ruminations on the Fourth Amendment: Case Law, Commentary, and the Word "Citizen, " 11 HARV. LATINO L. REV. 189 (2008).
375. INS v. Lopez-Mendoza, 468 U.S. 1032, 1055 (1984) (White, J., dissenting).
376. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT), Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified as amended in scattered sections of U.S.C.);
377. National Security Entry-Exit Registration System, 8 C.F.R. § 264.1 (2008); Memorandum from the Deputy Attorney Gen. to Comm'r Immigration and Naturalization Serv. 1-2, (Jan. 25, 2002), available at http://news.findlaw.com/hdocs /docs/doj/abscndr012502mem.pdf.
378. 525 U.S. 471 (1999).
379. Id. at 471;
380. see also Maryam Kamali Miyamoto, The First Amendment After Reno v. American-Arab Anti-Discrimination Committee: A Different Bill of Rights for Aliens?, 35 HARV. C.R.-C.L. L. REV. 183, 205 (2000) ("[In Reno the Court] implied that aliens who were unlawfully present in the United States did not enjoy the protection of the First Amendment.").
381. Wishnie, supra note 254, at 682-83 (discussing the USA PATRIOT ACT).
382. Id. (citing Reno, which rejected a challenge to deportation of Palestinian activists based on speech and associational activities).
383. Id. at 683 (citing 8 U.S.C. § 1182(a)(3)(B)(i)(V) (establishing "membership" in certain organizations as grounds for inadmissibility);
384. id. § 1182(a)(3)(B)(iv)(IV)-(V) (defining to engage in terrorist activity as including solicitation of funds or recruitment of personnel)).
385. Id. ("[Any alien who] is the spouse or child of an alien who is inadmissible [as terrorist] ... is inadmissible." (quoting 8 U.S.C. § 1182(a)(3)(B)(i)(VII))). These modern antiterrorism immigration provisions follow a long, often shameful, history of singling out immigrants for deportation based on their disfavored speech or association. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580 (1952) (rejecting a First Amendment challenge to the deportation of alleged members of the Communist Party);
386. Bridges v. Wixon, 326 U.S. 135 (1945) (vacating a deportation order that had been based on a labor activist's alleged membership in and affiliation with Communist Party);
387. Schneiderman v. United States, 320 U.S. 118 (1943) (invalidating denaturalization proceeding brought on grounds that citizen was a Communist at the time of application for citizenship);
388. United States ex rel. Turner v. Williams, 194 U.S. 279 (1904) (rejecting a First Amendment challenge to an exclusion order against an anarchist).
389. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, § 381(a), 110 Stat 3009-546, 3009-650 (revising section 279 of the INA, which is codified at 8 U.S.C. § 1329 and which some courts had previously held was an independent cause of action against the INS);
390. id. § 306(b)(9) (amending INA § 242(b)(9));
391. see generally Lenni B. Benson, Back to the Future: Congress Attacks the Right to Judicial Review of Immigration Proceedings, 29 CONN. L. REV. 1411 (1997);
392. Lenni B. Benson, The "New World" of Judicial Review of Removal Orders, 12 GEO. IMMIGR. L.J. 233 (1998);
393. Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936 (2000);
394. Hiroshi Motomura, Judicial Review in Immigration Cases After AADC: Lessons from Civil Procedure, 14 GEO. IMMIGR. L.J. 385 (2000);
395. Gerald L. Neuman, Jurisdiction and the Rule of Law After the 1996 Immigration Act, 113 HARV. L. REV. 1963 (2000).
396. 525 U.S. 471, 471 (1999).
397. See Answer, Barrera v. Boughton, No. 3:07-cv-01436 (D. Conn. filed Nov. 26, 2007) (on file with author);
398. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
399. Arar v. Ashcroft, 532 F.3d 157, 162-64 (2d Cir. 2008).
400. Arar, a dual citizen of Syria and Canada, alleged that he was mistreated by U.S. officials in the United States and removed to Syria with the knowledge or intention that Syrian authorities would interrogate him under torture. Id. at 162-63.
401. He brought an action against the United States and various U.S. officials pursuant to the Torture Victim Protection Act and the Fifth Amendment to the U.S. Constitution. Id. at 163.
402. The Second Circuit held that the court lacked subject matter jurisdiction to reach Arar's other claims. Id. at 164.
403. Although there are incidences of individuals seeking redress, they appear to be limited to the wealthy few able to afford legal representation. Ward, supra note 89, at 49 ("Philip Kim Hwang, a San Francisco lawyer who practices with the Lawyers' Committee for Civil Rights, says over the last 10 years his organization has settled eight lawsuits alleging officer misconduct against the federal immigration authorities, resulting in plaintiffs being awarded a total of $642,500 in claims .... 'In most cases they don't formally acknowledge that there was wrongdoing but they pay out a significant amount, which is the government's de facto acknowledgment that there was a mess-up,' Hwang says.").
404. See supra text accompanying note 107.
405. See Preston, supra note 211.
406. See Carl Hulse & Sheryl Gay Stolberg, Senators to Reignite Debate on Immigration, N. Y. TIMES, Apr. 24, 2006, at A15.
407. Jonathan Weisman, Immigration Bill Dies in Senate, WASH. POST, June 29, 2007, at A1.
408. In the past three years four major comprehensive immigration-reform bills have failed. See Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong.; Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong.; Secure America and Orderly Immigration Act, S. 1033, 109th Cong. (2005); Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, H.R. 4437, 109th Cong. Three less-than-comprehensive immigration-reform bills have also failed. See STRIVE Act of 2007, H.R. 1645, 110th Cong; SKIL Act of 2006, S. 2691, 109th Cong.; DREAM Act, S. 1545, 108th Cong. (2003).
409. See Thousands March for Immigrant Rights, CNN.COM, May 1, 2006, http://www.cnn.com/2006/US/05/01/immigrant.day/index.html.
410. PETER SCHUCK, CITIZENS, STRANGERS, AND IN-BETWEENS 72 (1998).
411. Editorial, The Great Immigration Panic, N.Y. TIMES, June 3, 2008, at A22.
412. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984).
413. Id. at 1045 (commenting that INS rules plainly "require that no one be detained without reasonable suspicion of illegal alienage, and that no one be arrested unless there is an admission of illegal alienage or other strong evidence thereof").
414. Id. at 1032.
415. But see id. at 1055 (White, J., dissenting);
416. supra Part III.C.
417. See supra Part III. A.
418. See supra Part III. B.
419. See supra Part III. C.
420. See supra Part II.
421. See supra text accompanying notes 190-198.