A diversion of attention? Immigration courts and the adjudication of fourth and fifth amendment rights

Duke Law Journal

Volumn 59, Issue 8, 2010, Pages 1563-1633

  Chacón, Jennifer M ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 77954739236     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (439)

1. INS v. Lopez-Mendoza, 468 U.S. 1032, 1048 (1984) (quoting In re Sandoval, 17 I. & N. Dec. 70, 79-80 (B.I.A. 1979)).
2. The government removed 358,886 noncitizens in 2008, 319,382 in 2007, 280,974 in 2006, 246,431 in 2005, 240,665 in 2004, and 211,098 in 2003. OFFICE OF IMMIGRATION STATISTICS, U.S. DEP'T OF HOMELAND SEC., 2008 YEARBOOK OF IMMIGRATION STATISTICS 95 (2008), available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/ois_yb_2008.pdf. The first year in which annual removals exceeded 200,000 was 2003. Removals exceeded 100,000 for the first time in 1997.
3. Until 1996, immigration proceedings to prevent noncitizens from entering the country were termed "exclusion" proceedings, whereas proceedings to remove a noncitizen that had already entered the country were termed "deportation" proceedings. See STEPHEN H. LEGOMSKY & CRISTINA M. RODRĺGUEZ, IMMIGRATION AND REFUGEE LAW AND POLICY 420-21 (5th ed. 2009).
4. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 U.S.C. and 18 U.S.C.), consolidated exclusion and deportation, and labeled the resulting proceedings "removal" proceedings. Now, 8 U.S.C. § 1229a(3) indicates that the removal proceedings defined in that section are for determining "whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States." 8 U.S.C. § 1229a(3) (2006). This Article will therefore use the term "removal" to refer to deportation and exclusion.
5. In 2008, 811,263 noncitizens voluntarily departed, 891,390 noncitizens voluntarily departed in 2007, 1,043,381 noncitizens voluntarily departed in 2006, 1,096,920 noncitizens voluntarily departed in 2005, 1,166,576 noncitizens voluntarily departed in 2004, and 945,294 noncitizens voluntarily departed in 2003. OFFICE OF IMMIGRATION STATISTICS,. Unlike formal removal statistics, voluntary departure statistics have been fairly constant over the past thirty years.
6. John Schwartz, Immigration Enforcement Fuels Spike in U.S. Cases, N.Y. TIMES, Dec. 22, 2009, at A16.
7. Customs and Border Patrol, This Is CBP, http://www.cbp.gov/xp/cgov/about/mission/cbp_is.xml (last visited Mar. 28, 2010) (discussing typical daily apprehensions).
8. See, e.g., U.S. Immigration & Customs Enforcement, Border Enforcement Security Task Forces (BEST), http://www.ice.gov/pi/news/factsheets/080226best_fact_sheet.htm (last visited Mar. 28, 2010) [hereinafter BEST] (describing collaboration with "Customs and Border Protection (CBP); Drug Enforcement Administration (DEA); Bureau of Alcohol, Tobacco, Firearms and Explosives; Federal Bureau of Investigation; U.S. Coast Guard; and the U.S. Attorney's Office along with other key federal, state, local and foreign law enforcement agencies").
9. U.S. Immigration & Customs Enforcement, ICE ACCESS, http://www.ice.gov/partners/dro/iceaccess.htm (last visited Mar. 28, 2010) [hereinafter ICE ACCESS] (describing its collaboration with state and local law enforcement).
10. The focus of this Article is on civil removal proceedings, but it is worth bearing in mind that the rise in criminal prosecutions also creates stresses on federal prosecutors and magistrate judges. For a discussion of the rising caseload and the most affected areas of the country, see TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, IMMIGRATION PROSECUTIONS AT RECORD LEVELS IN FY 2009 (2009), http://trac.syr.edu/immigration/reports/218/. Moreover, the procedures designed to facilitate these convictions raise fundamental questions of fairness and due process.
11. See Jennifer M. Chacón, Managing Migration Through Crime, 109 COLUM. L. REV. SIDEBAR 135, 147 (2009), http://www.columbialawreview.org/assets/sidebar/volume/109/135_Chacon.pdf. The prosecution of immigration crimes also is facilitated by synergies with the civil enforcement mechanisms used to effectuate removal.
12. See Ingrid V. Eagly, Prosecuting Immigration, 104 NW. U. L. REV. (forthcoming 2010) (manuscript at 68-75, on file with the Duke Law Journal) (describing the relationships between criminal prosecution and immigration enforcement).
13. see also Teresa A. Miller, Citizenship and Severity: Recent Immigration Reforms and the New Penology, 17 GEO. IMMIGR. L.J. 611, 618 (2003) (describing this trend by noting that "the [term] 'criminalization' of immigration law fails to capture the dynamic process by which both systems converge at points to create a new system of social control that draws from both immigration and criminal justice, but it is purely neither").
14. 8 C.F.R. § 239.1 (2009).
15. see also LEGOMSKY & RODRÍGUEZ, (noting that NTAs are often served by ICE, but can be served by "a range of other DHS agencies and officials").
16. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (EOIR), U.S. DEP'T OF JUSTICE, FY 2008 STATISTICAL YEAR BOOK C4 tbl.4 (2009), available at http://www.justice.gov/eoir/statspub/fy08syb.pdf. The figure shown above for removal proceedings includes a small numbers of "exclusion" and "deportation" proceedings.
17. See Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 DUKE L.J. 1635, 1651-52 (2010).
18. In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Court recorded that "[t]he average immigration judge handles about six deportation hearings per day.".
19. The Executive Office for Immigration Review (EOIR) figures also note that in 2008, IJs decided 13,294 motions to reopen and other motions.
20. Providing more examples of the strain on IJs.
21. Bond proceedings are not part of a removal proceeding; they are separate proceedings. See 8 C.F.R. § 1003.19(d) (2009) ("Consideration by the Immigration Judge of an application or request of a respondent regarding custody or bond under this section shall be separate and apart from, and shall form no part of, any deportation or removal hearing or proceeding.").
22. Unless a noncitizen is subject to mandatory detention under the criminal or terrorism grounds of section 236©(1) of the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101-1537 (2006), the INA provides for the release of noncitizens arrested for immigration violations on bond or on their own recognizance pending resolution of their removal matter, INA § 236(a)(2), 8 U.S.C. § 1226(a)(2).
23. An ICE official makes the initial custody and bond determination, INA § 236.1(d), 8 U.S.C. § 1236.1(d).
24. 8 C.F.R. § 236.1(d), but at any time prior to the final removal order, a noncitizen may apply for bond redetermination by an immigration judge, 8 C.F.R. §§ 236.1(d), 1003.19(a), 1236.1(d).
25. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).
26. As discussed below, many of the assumptions about immigration enforcement underlying the Lopez-Mendoza decision are no longer valid in light of evolving enforcement practices.
27. U.S. DEP'T OF HOMELAND SEC., BUDGET-IN-BRIEF: FISCAL YEAR 2008, at 19 (2008), available at http://www.dhs.gov/xlibrary/assets/budget_bib-fy2008.pdf.
28. This number does not include interdiction activities carried out by the Coast Guard, which carries out interdictions of noncitizens at sea. The Coast Guard accounted for an additional 18.9 percent of the DHS budget.
29. Office of Nat'l Drug Control Policy, An Overview of Federal Drug Control Programs on the Southwest Border: Immigration and Naturalization Service, http://www.ncjrs.gov/ondcppubs/publications/enforce/border/ins_3.html (last visited Mar. 28, 2010).
30. JUSTICE MGMT. DIV., U.S. DEP'T OF JUSTICE, BUDGET TREND DATA: FROM 1975 THROUGH THE PRESIDENT'S 2003 REQUEST TO THE CONGRESS 104-08 (2002), available at http://www.justice.gov/archive/jmd/1975_2002/2002/pdf/BudgetTrand.pdf (showing budget trends for INS from 1975 to 2003 and recording an INS budget of $1.01 billion in 1988).
31. See, e.g., Immigration and Naturalization Service's (INS) Interior Enforcement Strategy: Challenges to Implementing the INS Interior Enforcement Strategy: Hearings Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 107th Cong. 13 (2002) (statement of Richard M. Stana, Director of Justice Issues, U.S. General Accounting Office) (noting that up through the 1990s, five times as many resources were devoted to border enforcement as to interior enforcement).
32. U.S. DEP'T OF HOMELAND SEC., (noting an unprecedented number of workplace enforcement actions in 2008).
33. LISA M. SEGHETTI, STEPHEN R. VIñA & KARMA ESTER, CONG. RESEARCH SERV., ENFORCING IMMIGRATION LAW: THE ROLE OF STATE AND LOCAL ENFORCEMENT 6 (2005), available at http://www.ilw.com/immigdaily/news/2005,1026-crs.pdf.
34. See, e.g., TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, (noting the rapid expansion of the Border Patrol in the period from the mid-1970s through 2001).
35. INS: Enforcement, Detention, MIGRATION NEWS, Apr. 1998, http://migration.ucdavis.edu/MN/more.php?id=1489_0_2_0 (noting that the number of Border Patrol agents doubled between 1993 and 1998).
36. U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, U.S. DEP'T OF HOMELAND SEC., ICE FISCAL YEAR 2010 ENACTED BUDGET 1 (2009), available at http://www.ice.gov/doclib/pi/news/factsheets/2010budgetfactsheet.doc.
37. Julia Preston, No Need for a Warrant, You're an Immigrant, N.Y. TIMES, Oct. 14, 2007, § 4 (Week in Review), at 3.
38. see also BESS CHIU ET AL., CONSTITUTION ON ICE: A REPORT ON IMMIGRATION HOME RAID OPERATIONS (2009), available at http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/immigrationlaw-741/IJC_ICE-Home-Raid-Report%20Updated.pdf (noting the constitutional problems associated with ICE home raids in New York and New Jersey).
39. NAT'L COMM'N ON ICE MISCONDUCT & VIOLATIONS OF 4TH AMENDMENT RIGHTS, RAIDS ON WORKERS: DESTROYING OUR RIGHTS 13-41 (2009), available at http://www.icemisconduct.org/docUploads/UFCW%20ICE%20rpt%20FINAL%20 150B_061809_130632.pdf (reporting on aggressive tactics and rights violations by ICE in the course of several large-scale workplace raids across the country).
40. Anil Kalhan, The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement, 41 U.C. DAVIS L. REV. 1137, 1161-65 (2008). For details concerning this cooperation, see discussion infra Part II.
41. DANIEL KANSTROOM, DEPORTATION NATION 122-24 (2007).
42. see also, e.g., Wong Wing v. United States, 163 U.S. 228, 233 (1896) (stating that Chinese laborers did not require the full range of protections under the criminal justice system).
43. See Daniel Kanstroom, Criminalizing the Undocumented: Ironic Boundaries of the Post-September 11th "Pale of Law," 29 N.C.J. INT'L L. & COM. REG. 639, 652 (2004) ("Deportation is now often a virtually automatic consequence of a non-citizen's criminal conviction for even a minor state misdemeanor.").
44. Stephen Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 WASH. & LEE L. REV. 469, 482 (2007) ("Just as more and more immigration violations are culminating in criminal convictions, so too are more and more criminal convictions culminating in deportation or other adverse immigration consequences.").
45. Referring to this trend as the "immigrationization of criminal law".
46. Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367, 376 (2006).
47. Discussing the consequences of the overlap of the immigration and criminal law systems.
48. Discussing five related trends.
49. TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, PROSECUTION OF IMMIGRATION CASES SURGE IN U.S. WHILE SENTENCES SLUMP (2005), available at http://trac.syr.edu/tracins/latest/131/ ("Fueled by the jump in DHS-immigration referrals in FY 2004, immigration matters now represent the single largest group of all federal prosecutions, about one-third (32%) of the total. By comparison, narcotics and drugs, for many years the government's dominant enforcement interest, dropped to about a quarter of the total (27%) and weapons matters to slightly less than one out of ten (9%).").
50. TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE.
51. One example is Arizona's identity-theft law. Arizona law creates criminal culpability for the use of an alternate identity whether or not the defendant knows that he is using the identity of an actual person and whether or not another person with such an identity actually exists. See ARIZ. REV. STAT. ANN. § 13-2008 (2010).
52. This offense is deployed as a means of prosecuting noncitizens who have used false identities to obtain employment. For more examples of state legislation allowing prosecution for migration-related offenses, see Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, 86 N.C.L. REV. 1557, 1599 n.224 (2008).
53. See Valerie Fernández, Profiling Persists Despite Revamped Guidelines, INTER PRESS SERVICE, July 30, 2009, http://www.ipsnews.org/news.asp?idnews=47894 (relaying the argument of Aarti Shahani, Researcher, Justice Strategies, that Arizona officials do not need federal government contracts to enforce immigration law because the Arizona code provides such broad tools to law enforcement).
54. Documenting a simultaneous increase in immigration prosecutions and an erosion of criminal protections for immigration defendants.
55. See Jennifer M. Chacón, Unsecured Borders: Immigration Restrictions, Crime Control and National Security, 39 CONN. L. REV. 1827, 1844 (2007) (noting a number of increasingly punitive penalties relating to immigration).
56. Hiroshi Motomura, Immigration Outside the Law, 108 COLUM. L. REV. 2037, 2087-88 (2008) (explaining the severity of the proposed Development, Relief, and Education for Alien Minors (DREAM) Act).
57. "[W]e live in a time of extreme 'vigor, efficiency, and strictness' as to deportation of non-citizens convicted of crimes, due to nearly two decades of sustained attention to this issue." (footnote omitted).
58. Discussing the increasingly severe immigration consequences that follow from noncitizens' criminal convictions.
59. Discussing the increasingly common imposition of deportation on noncitizens who commit certain kinds of criminal offenses.
60. INA § 236, 8 U.S.C. § 1226.1 (2006).
61. IIRIRA, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 U.S.C. and 18 U.S.C.).
62. AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S.C.).
63. For the complete definition of "aggravated felony,".
64. see INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).
65. see also BILL ONG HING, DEPORTING OUR SOULS: VALUES, MORALITY, AND IMMIGRATION POLICY 54-58 (2006) (discussing the severity of immigration law and associated punishments).
66. See generally Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936 (2000) (discussing the changes to the law and critiquing reform proposals).
67. INA § 212(h), 8 U.S.C. § 1182(h).
68. see also Nancy Morawetz, Rethinking Drug Inadmissibility, 50 WM. & MARY L. REV. 163, 166-67 (2008) (discussing the broad scope of the drug inadmissibility provision and the limited nature of waiver).
69. Jeff Yates, Todd A. Collins & Gabriel J. Chin, A War on Drugs or a War on Immigrants? Expanding the Definition of "Drug Trafficking" in Determining Aggravated Felon Status for Noncitizens, 64 MD. L. REV. 875, 878-79 (2005) (highlighting certain inequities of the sentencing system as it currently stands).
70. Suggesting a strong causality between the war on drugs and the severity of immigration law on drug offenses.
71. Commenting on the "zero tolerance" policy on inadmissibility over even the most minor of offenses.
72. "[ICE] home raids generally involve teams of heavily armed ICE agents making predawn tactical entries into homes, purportedly to apprehend some high priority target believed to be residing therein. ICE has admitted that these are warrantless raids and, therefore, that any entries into homes require the informed consent of residents. However, frequent accounts in the media and in legal filings have told a similar story of constitutional violations occurring during ICE home raids-a story that includes ICE agents breaking into homes and seizing all occupants without legal basis.".
73. NAT'L COMM'N ON ICE MISCONDUCT & VIOLATIONS OF 4TH AMENDMENT RIGHTS.
74. See, e.g., Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 FORDHAM L. REV. 541, 551-52 (2009) (providing a case study about the barriers to litigating immigration claims from an immigration detention facility).
75. Nina Bernstein, For a Mentally Ill Immigrant, a Path Clears Out of the Dark Maze of Detention, N.Y. TIMES, Sept. 11, 2009, at A20 (detailing the harsh conditions in immigration detention for a mentally ill detainee).
76. Nina Bernstein, Officials Obscured Truth of Migrant Deaths in Jail, N.Y. TIMES, Jan. 10, 2010, at A1 (discussing numerous immigrant deaths in detention and the agency cover-up of the details of these deaths).
77. DORA SCHRIRO, U.S. DEP'T OF HOMELAND SEC., IMMIGRATION DETENTION OVERVIEW AND RECOMMENDATIONS 2 (2009), available at http://documents.nytimes.com/immigration-detention-overview-and-recommendations.
78. see also Nina Bernstein, Report Critical of Scope and Cost of Immigration Detention, N.Y. TIMES, Oct. 7, 2009, at A17 (highlighting the significant and potentially wasteful costs associated with current detention facilities).
79. Compare U.S. DEP'T. OF JUSTICE, FY2002 BUDGET SUMMARY 114 (2001), available at http://www.justice.gov/archive/jmd/2002summary/pdf/ins_breached_bond.pdf (providing 1996 data), with U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, U.S. DEP'T OF HOMELAND SEC., OFFICE OF DETENTION AND REMOVAL: KEY ACCOMPLISHMENTS IN FISCAL YEAR 2006 (2006), http://www.ice.gov/pi/news/factsheets/dro110206.htm (providing 2006 data).
80. Jared Polis, The Case for Detention Reform, HUFFINGTON POST, Sept. 15, 2009, http://www.huffingtonpost.com/jared-polis/case-for-detention-reform_b_287260.html. This is also double the number that the American Bar Association reported to be detained in 2004.
81. COMM'N ON IMMIGRATION, ABA, IMMIGRATION DETAINEE PRO BONO OPPORTUNITIES GUIDE 1 (2004), available at http://www.abanet.org/publicserv/immigration/probonoguidefinal.pdf.
82. DONALD KERWIN & SERENA YI-YING LIN, IMMIGRANT DETENTION: CAN ICE MEET ITS LEGAL IMPERATIVES AND CASE MANAGEMENT RESPONSIBILITIES 1 (2009), available at http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf (noting that on a given day, more than half of the noncitizens in immigration detention had not received final orders of removal).
83. Noting that 58 percent of the detainees had no criminal record, and that of those who did, the "most serious" convictions for 6 percent of them were immigration offenses, whereas the most serious convictions for another 13 percent were traffic violations.
84. Huyen Pham, When Immigration Borders Move, 61 FLA. L. REV. 1115, 1118-19 (2009).
85. Describing and theorizing the trend.
86. NAT'L IMMIGRATION FORUM, BACKGROUNDER: IMMIGRATION LAW ENFORCEMENT BY STATE AND LOCAL POLICE 1 (2004), available at http://www.immigrationforum.org/images/uploads/Backgrounder-StateLocalEnforcement.pdf.
87. Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26, 32 (1996) ("[S]tate and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to criminal violations of the immigration laws or other laws.").
88. See MICHAEL JOHN GARCIA, CONG. RESEARCH SERV., CRIMINALIZING UNLAWFUL PRESENCE: SELECTED ISSUES 2 (2006), available at http://trac.syr.edu/immigration/library/P585.pdf ("Although an alien who unlawfully enters the United States is potentially subject to removal and criminal prosecution, an alien found unlawfully present in the U.S. is typically subject only to removal.").
89. See Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel at 27 ("Subject to the provisions of state law, state and local police may constitutionally detain or arrest aliens who have violated the criminal provisions of the Immigration and Nationality Act...." (footnote omitted)).
90. NAT'L IMMIGRATION FORUM.
91. AEDPA, 8 U.S.C. §1252c (2006).
92. see also NAT'L IMMIGRATION FORUM, (describing the changes in the law).
93. 8 U.S.C. § 1103(a)(10).
94. see also NAT'L IMMIGRATION FORUM, 4 (describing the changes in the law).
95. NAT'L IMMIGRATION LAW CTR., SAMPLE LANGUAGE FOR POLICIES LIMITING THE ENFORCEMENT OF IMMIGRATION LAW BY LOCAL AUTHORITIES 2-3 (2004) (same).
96. INA § 287(g), 8 U.S.C. § 1357(g).
97. NAT'L IMMIGRATION FORUM.
98. NAT'L IMMIGRATION FORUM.
99. Memorandum from Jay S. Bybee, Assistant Att'y Gen., Office of Legal Counsel, U.S. Dep't of Justice, to the U.S. Att'y Gen., Regarding Non-Preemption of the Authority of State and Local Law Enforcement Officials to Arrest Aliens for Immigration Violations (Apr. 3, 2002), available at http://www.aclu.org/FilesPDFs/ACF27DA.pdf.
100. see also NAT'L IMMIGRATION FORUM, (discussing the Justice Department's 2002 policy change regarding civil violations).
101. Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 VAND. L. REV. 787, 801-02 (2008) (discussing the OLC memo and the varied responses taken by states and localities in asserting their "inherent authority").
102. Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965, 966 (2004) (same).
103. Letter from Alberto R. Gonzales, Counsel to the President, to Demetrios G. Papademetriou, Migration Policy Institute (June 24, 2002), available at http://www.migrationpolicy.org/files/whitehouse.pdf.
104. Discussing and contesting the reasoning of the letter.
105. Letter from Alberto R. Gonzales, Counsel to the President, to Demetrios G. Papademetriou, Migration Policy Institute.
106. see also NAT'L IMMIGRATION FORUM, (discussing the Justice Department's 2002 inclusion of civil offenders in the database).
107. Discussing the letter.
108. Critiquing this development.
109. Michael J. Wishnie, State and Local Police Enforcement of Immigration Law, 6 U. PA. J. CONST. L. 1084, 1086 (2004) (same).
110. At the same time that states and localities are increasing their participation in the enforcement of federal immigration law, they are also increasing the roles of their law enforcement officials in policing migration by enacting immigration-related legislation at the state and local level. For additional discussions of this development, see Jennifer M. Chacón, Tensions and Tradeoffs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. PA. L. REV. (forthcoming 2010) (manuscript at 81-87, on file with the Duke Law Journal).
111. Karla Mari McKanders, The Constitutionality of State and Local Laws Targeting Immigrants, 31 U. ARK. LITTLE ROCK L. REV. 579, 580-81 (2009).
112. Cristina M. Rodríguez, The Significance of the Local in Federal Immigration Regulation, 106 MICH. L. REV. 567, 582-90 (2008).
113. Rick Su, A Localist Reading of Local Immigration Regulations, 86 N.C.L. REV. 1619, 1622-24 (2008).
114. See generally Michael A. Olivas, Immigration-Related State and Local Ordinances: Preemption, Prejudice and the Proper Role for Enforcement, 2007 U. CHI. LEGAL F. 23 (disagreeing with Professor Spiro and arguing that preemption of state involvement in immigration enforcement is not an abrogation of state rights).
115. See INA § 287(g), 8 U.S.C. § 1357(g) (2006).
116. See IIRIRA, Pub. L. No. 104-208, div. C, § 133, 110 Stat. 3009-546, 3009-563 to-564 (codified as amended at 8 U.S.C. § 1357(g)).
117. U.S. Immigration & Customs Enforcement, Partners, http://www.ice.gov/partners/287g/Section287_g.htm (last visited Mar. 28, 2010).
118. see also Senate Judiciary Committee Holds Hearing on Oversight of DHS, 85 INTERPRETER RELEASES 1209, 1210 (2008) (citing to the testimony of Secretary Chertoff that there were over forty such agreements in March 2008). The number of 287(g) agreements actually peaked at seventy-seven, but after Secretary Napolitano of the Department of Homeland Security announced reforms to the program in July 2009, the number of participating jurisdictions declined. Press Release, U.S. Dep't of Homeland Sec., Secretary Napolitano Announces New Agreements for State and Local Immigration Enforcement Partnerships & Adds 11 New Agreements (July 10, 2009), available at http:/www.dhs.gov/ynews/releases/pr_1247246453625.shtm.
119. U.S. Immigration & Customs Enforcement, This number is significantly larger than the one provided to the Senate Judiciary Committee by DHS Secretary Michael Chertoff in March 2008, when he told the committee that more than 28,000 unauthorized migrants had been identified for potential removal through joint efforts under section 287(g) as of the spring of 2008. Senate Judiciary Committee Holds Hearing on Oversight of DHS.
120. Letter from Reba A. McGiniss, Chief, Information Disclosure Unit, U.S. Immigration & Customs Enforcement, to Professor Michael Wishnie (Jan. 17, 2008) (on file with the Duke Law Journal).
121. See U.S. Immigration & Customs Enforcement.
122. These are the agreements designated as "Task Force Officers" agreements by ICE.
123. see also U.S. GOV'T ACCOUNTABILITY OFFICE, No. GAO-09-109, IMMIGRATION ENFORCEMENT: BETTER CONTROLS NEEDED OVER PROGRAM AUTHORIZING STATE AND LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS 8 (2009), available at http://www.gao.gov/new.items/d09109.pdf.
124. INA § 287, 8 U.S.C. § 1357(g)(1) (2006).
125. U.S. Immigration & Customs Enforcement.
126. see also U.S. GOV'T ACCOUNTABILITY OFFICE, (describing the "jail model" of state and local participation).
127. U.S. Immigration & Customs Enforcement.
128. See, e.g., Memorandum of Understanding Between U.S. Dep't of Homeland Sec. and the State of Ala. (Sept. 10, 2003) (on file with the Duke Law Journal). Some participating agencies are designated as both JEOs and TFOs. U.S. GOV'T ACCOUNTABILITY OFFICE.
129. U.S. GOV'T ACCOUNTABILITY OFFICE.
130. See, e.g., Memorandum of Understanding Between U.S. Dep't of Homeland Sec. and the State of Ala.
131. Press Release, U.S. Dep't of Homeland Sec.
132. See, e.g., Sherry Greenfield, Federal Authorities Announce Changes to Controversial 287g Program, GAZETTE.NET, July 21, 2009, http://www.gazette.net/stories/07212009/frednew74048_32538.shtml (outlining local law enforcement's understanding of 287(g) priorities). For a hyperlink to a side-by-side comparison of a typical MOA before and after the changes.
133. Daphne Eviatar, Immigration Program Expands, Despite Abuse Record: Many of Arpaio's Tactics Sanctioned by Federally Granted Authority, WASH. INDEP., July 23, 2009, http://washingtonindependent.com/52197/immigration-program-expands-despite-abuse-record.
134. see also Daphne Eviatar, New DHS Rules Disappoint Immigrants' Advocates, WASH. INDEP., July 17, 2009 http://washingtonindependent.com/51662/new-dhs-rules-disappoint-immigrants-advocates (noting the dissatisfaction of the National Immigration Law Center, the Detention Watch Network, and the ACLU, and reporting that "a group of 25 civil rights and community groups issued a statement denouncing" the expansion of the program).
135. See, e.g., JENA BAKER MCNEILL & MATT A. MAYER, SECTION 287(G) REVISIONS: TEARING DOWN STATE AND LOCAL IMMIGRATION ENFORCEMENT ONE CHANGE AT A TIME (2009), www.heritage.org/Research/HomelandSecurity/wm2543.cfm (writing that by requiring law enforcement to process noncitizens for crime, the revisions "gut the force-multiplier purpose of 287(g)").
136. U.S. Immigration & Customs Enforcement.
137. U.S. Immigration & Customs Enforcement, Section 287g, http://www.ice.gov/pi/news/factsheets/section287_g.htm (last visited Mar. 28, 2010) (noting that each MOA "prescribes the agreed upon complaint process governing officer conduct during the life of the MOA"). Given the Government Accountability Office's concerns regarding the inconsistencies of oversight generally, it is not clear how effective such procedures have been.
138. See U.S. GOV'T ACCOUNTABILITY OFFICE.
139. U.S. Immigration & Customs Enforcment, 287(g) Complaint Process, http://www.ice.gov/pi/news/factsheets/section287_g-complaints.htm (last visited Mar. 28, 2010).
140. For a discussion of the cancellation of the Maricopa County contract.
141. ACCESS stands for Agreements of Cooperation in Communities to Enhance Safety and Security. At the moment, it encompasses fourteen programs, although the umbrella is loose enough to accommodate frequent changes in enforcement efforts. See U.S. Immigration & Customs Enforcement, Office of State and Local Coordination: Access - Agreements of Cooperation in Communities to Enhance Safety and Security, http://www.ice.gov/oslc/iceaccess.htm (last visited Mar. 28, 2010) (listing ACCESS programs). This Article does not address all fourteen programs, but instead focuses on those most directly related to interior immigration enforcement.
142. HANNAH GLADSTEIN ET AL., BLURRING THE LINES: A PROFILE OF STATE AND LOCAL POLICE ENFORCEMENT OF IMMIGRATION LAW USING THE NATIONAL CRIME INFORMATION CENTER DATABASE, 2002-2004, at 7 (2005), available at http://www.migrationpolicy.org/pubs/MPI_report_Blurring_the_Lines_120805.pdf.
143. Susan M. Akram & Maritza Karmely, Immigration And Constitutional Consequences Of Post-9/11 Policy Involving Arabs And Muslims In The United States: Is Alienage A Distinction Without A Difference?, 38 U.C. Davis. L. Rev. 609, 630 (2005).
144. Discussing the NSEERS program's targeting of those originating from Arabian or Muslim countries, regardless of what passport they held.
145. See, e.g., IMMIGRATION COMM., MAJOR CITIES CHIEFS, M.C.C. IMMIGRATION COMMITTEE RECOMMENDATIONS FOR ENFORCEMENT OF IMMIGRATION LAWS BY LOCAL POLICE AGENCIES 10 (2006), available at http://majorcitieschiefs.org/pdfpublic/mcc_position_statement_revised_cef.pdf ("The inclusion of civil detainers on the system has created confusion for local police agencies and subjected them to possible liability for exceeding their authority by arresting a person upon the basis of a mere civil detainer.").
146. see also APPLESEED, FORCING OUR BLUES INTO GRAY AREAS: LOCAL POLICE AND FEDERAL IMMIGRATION ENFORCEMENT 28-29 (2008), available at http://www.neappleseed.org/docs/local_police_and_immigration_enforcement.pdf (discussing this criticism).
147. U.S. Immigration & Customs Enforcement, Law Enforcement Support Center, http://www.ice.gov/pi/news/factsheets/lesc.htm (last visited Mar. 28, 2010).
148. U.S. Immigration & Customs Enforcement, National Fugitive Operations Program, http://www.ice.gov/pi/dro/nfop.htm (last visited Mar. 28, 2010).
149. Jessica Schau, Amidst Critical Reports, Obama Administration to Review Home Raids Program, 23 GEO. IMMIGR. L.J. 251, 252 (2008) (citing Michael Chertoff, Sec'y, U.S. Dep't of Homeland Sec., Remarks on the State of Immigration and the No Match Rule (Oct. 23, 2008), available at http://www.dhs.gov/xnews/speeches/sp_1224803933474.shtm).
150. Citing OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF HOMELAND SEC., AN ASSESSMENT OF UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT'S FUGITIVE OPERATIONS TEAMS 6 (2007), available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_07-34_Mar07.pdf.
151. U.S. Immigration & Customs Enforcement.
152. see also OFFICE OF THE INSPECTOR GEN., (describing state and local participation in these efforts).
153. See, e.g., Comm. for Immigrant Rights of Sonoma County v. County of Sonoma, 644 F. Supp. 2d 1177, 1185-89, 1203-04 (N.D. Cal. 2009) (describing, inter alia, local police involvement in immigration enforcement and ruling on civil rights violations by local and federal officials).
154. Nina Bernstein, Raids Were a Shambles, Nassau Complains to U.S., N.Y. TIMES, Oct. 3, 2007, at B1 (noting the participation of the Nassau County Police in area ICE raids and recording a local officer's dissatisfaction with the way the raid was conducted).
155. Interview with Carolyn Hsu, Pub. Relations Office, U.S. Immigration & Customs Enforcement, in Dallas, Tex. (Sept. 16, 2008) (stating that no additional training is required for local law enforcement to participate on Fugitive Operations Teams, while noting the limited role of local police in enforcement actions).
156. Interview with Marshals from the Joint E. Tex. Fugitive Apprehension Task Force, Sherman, Tex., and the Gulf Coast Violent Offenders Task Force, S. Dist. of Tex. (Sept. 16, 2008) (same). These interviews have been memorialized in a document on file with the Duke Law Journal. Indeed, not all federal agent participants received special training prior to their involvement in these programs.
157. See OFFICE OF THE INSPECTOR GEN.
158. See OFFICE OF THE INSPECTOR GEN., Police engage in activities such as securing the perimeter of homes during ICE raids. Presumably, this implies that they are authorized to use force against civil immigration violators as necessary to "secure" the area, although there is no available information about whether or how often this has actually happened. Interestingly, DHS's Office of the Inspector General report suggests that the role of state and local law enforcement officers at the scene of enforcement activities is to "ease[] the[] concerns" of the subjects of the enforcement action who would otherwise be "afraid of the [immigration] officers in plainclothes," although it is a bit hard to fathom how adding armed police officers into the raid equation would do anything other than escalate the concerns of the targets.
159. Nina Bernstein, Despite Vow, Target of Immigrant Raids Shifted, N.Y. TIMES, Feb. 4, 2009, at A1.
160. Spencer S. Hsu, Immigration Priorities Questioned: Report Says Focus on Deporting Criminals Apparently Shifted, WASH. POST, Feb. 5, 2009, at A2.
161. "[T]he high percentage of collateral arrests is consistent with allegations that ICE agents are using home raids for purported targets as a pretext to enter homes and illegally seize mere civil immigration violators.... who ICE happens to encounter during home raid operations.".
162. MARGOT MENDELSON, SHAYNA STROM & MICHAEL WISHNIE, MIGRATION POLICY INST., COLLATERAL DAMAGE: AN EXAMINATION OF ICE'S FUGITIVE OPERATIONS PROGRAM 1-2 (2009), available at http://www.migrationpolicy.org/pubs/NFOP_Feb09.pdf ("Despite NFOP's mandate to arrest dangerous fugitives, almost three-quarters (73 percent) of the individuals apprehended by FOTs from 2003 through February 2008 had no criminal conviction.").
163. Noting that between 2003 and 2008, 73 percent of individuals detained by the Fugitive Operations Teams had no criminal records and in 2007, 40 percent of detainees were non-fugitive, "collateral catches").
164. Katherine Evans, The Ice Storm in U.S. Homes: An Urgent Call for Policy Change, 33 N.Y.U. REV. L. & SOC. CHANGE 561, 574 n.92 (2009) ("Note that of the arrests that do fall within one of the five priority categories, the vast majority falls within the lowest category-those individuals who have received an order of deportation but have no criminal history. This category, in addition to the collateral arrests, accounts for seventy-three percent of the nearly 97,000 arrests by Fugitive Operations Teams from fiscal year 2003 to fiscal year 2008.").
165. see also Lee Rood, Register Exclusive: Many ICE Arrests Are Not of Criminals, Data Show, DES MOINES REG., Sept. 16, 2009, at A1 (noting that in 2009 in a five-state region including Iowa, 42 percent of the arrestees of the Fugitive Operations Team were actually "non-fugitives" with no outstanding removal orders against them, and only 36 percent of arrestees actually had criminal convictions).
166. Press Release, U.S. Dep't of Homeland Sec., Secretary Napolitano Issues Immigration and Border Security Action Directive (Jan. 30, 2009), available at http://www.dhs.gov/ynews/releases/pr_1233353528835.shtm.
167. Discussing the political and social developments leading up to the issuance of the Immigration and Border Security Action Directive.
168. Memorandum from John Morton, Assistant Sec'y, U.S. Dep't of Homeland Sec., to Field Office Directors and Fugitive Operation Team Members, U.S. Immigration & Customs Enforcement (Dec. 8, 2009), available at http://www.ice.gov/doclib/partners/opp/final_fug_ops_priorities12-08-09.pdf.
169. For a discussion of successful suppression motions brought in response to unconstitutional searches and seizures by ICE Fugitive Operations Teams.
170. Memorandum from John Morton to Field Office Directors and Fugitive Operation Team Members.
171. See Julia Preston, Firm Stance on Illegal Immigrants Remains Policy, N.Y. TIMES, Aug. 3, 2009, at A14 ("After early pledges by President Obama that he would moderate the Bush administration's tough policy on immigration enforcement, his administration is pursuing an aggressive strategy for an illegal-immigration crackdown that relies significantly on programs started by his predecessor.").
172. See Memorandum from John Morton to Field Office Directors and Fugitive Operation Team Members, (not specifying training or guidelines for state and local law enforcement officers).
173. U.S. Immigration & Customs Enforcement, Criminal Alien Program, http://www.ice.gov/pi/news/factsheets/criminal_alien_program.htm (last visited Mar. 30, 2010).
174. TREVOR GARDNER II & AARTI KOHLI, THE C.A.P. EFFECT: RACIAL PROFILING IN THE ICE CRIMINAL ALIEN PROGRAM 1 (2009), available at http://www.law.berkeley.edu/files/policybrief_irving_FINAL.pdf.
175. For additional discussion of the Secure Communities initiative.
176. U.S. Immigration & Customs Enforcement, Operation Community Shield: Targeting Violent Transnational Street Gangs, http://www.ice.gov/pi/investigations/comshield/index.htm (last visited Mar. 28, 2010).
177. Jennifer M. Chacón, Whose Community Shield? Examining the Removal of the "Criminal Street Gang Member," 2007 U. CHI. LEGAL F. 317, 321-24.
178. U.S. Immigration & Customs Enforcement.
179. Questions have also been raised regarding the efficacy of using removal as an antigang strategy. There is no doubt that the policy is tremendously burdensome for receiving countries.
180. see also GEOFF THALE & ELSA FALKENBURGER, YOUTH GANGS IN CENTRAL AMERICA: ISSUES IN HUMAN RIGHTS, EFFECTIVE POLICING AND PREVENTION, A WASHINGTON OFFICE ON LATIN AMERICA SPECIAL REPORT 1-2 (2006), available at http://www.wola.org/gangs/gangs_report_final_nov_06.pdf. Moreover, there is some evidence suggesting that U.S.removal policy has actually strengthened the transnational ties of gang members and has fueled rather than diminished the gang problem.
181. See, e.g., Rocky Delgadillo, Going Global to Fight Gangs, L.A. TIMES, Aug. 18, 2008, at A15 (noting that "[t]he two fastest-growing and most powerful gangs in the world are home grown products of Los Angeles," and explaining how past U.S. deportation policy helped make them into powerful transnational criminal elements).
182. Matthew Quirk, How to Grow a Gang, ATLANTIC, May 2008, http://www.theatlantic.com/doc/200805/world-in-numbers ("For hard-core gang members, quickie deportations on immigration charges are often no more than short-term fixes; lengthy American prison sentences would be more effective.").
183. Press Release, U.S. Dep't of Homeland Sec., Fact Sheet: Operation Predator (July 9, 2003), available at http://www.dhs.gov/xnews/releases/press_release_0210.shtm.
184. U.S. Immigration & Customs Enforcement, ICE Fact Sheet - Operation Predator, http://www.ice.gov/pi/news/factsheets/070607operationpredator.htm (last visited Mar. 28, 2010).
185. Press Release, U.S. Dep't of Homeland Sec.,
186. See Nora V. Demleitner, Misguided Prevention: The War on Terrorism as a War on Immigrant Offenders and Immigration Violators, 40 CRIM. L. BULL. 550, 573 (2004) ("Even though the sex offenders have been styled as 'the worst of the worst,' as a consequence of their convictions for a sex offense, many of them were not sentenced to prison but rather to probation, presumably an indicator of the lesser seriousness of their offense. Those sentenced to prison are often moved directly from prison to immigration custody. This explains why most of those caught through Operation Predator either had relatively old convictions or had not been sentenced to imprisonment.") For example, Operation Predator targeted a 25-year-old Mexican national due to a statutory rape charge "that stemmed from his relationship with a 14-year-old girlfriend that began when he was 17 and in high school.".
187. Frank James, Immigrant Sex Offenders Targeted, CHI. TRIB., Feb. 24, 2005, at 1. He was convicted, served his time in prison, and fulfilled his probation requirements, but was still targeted by Operation Predator.
188. Press Release, U.S. Dep't of Homeland Sec.,
189. U.S. Immigration & Customs Enforcement, Secure Communities, http://www.ice.gov/secure_communities/mission.htm (last visited Mar. 28, 2010).
190. see also U.S. Immigration & Customs Enforcement, Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens, http://www.ice.gov/pi/news/factsheets/secure_communities.htm (last visited Mar. 28, 2010) (describing the general mission of the Secure Communities initiative).
191. Press Release, U.S. Immigration & Customs Enforcement, ICE Unveils Sweeping New Plan to Target Criminal Aliens in Jails Nationwide (Mar. 28, 2008), http://www.ice.gov/pi/news/newsreleases/articles/080414washington.htm (last visited Mar. 28, 2010).
192. Department of Homeland Security Appropriations for 2010: Priorities Enforcing Immigration Law: Hearing Before the Subcomm. on Homeland Sec. of the H. Appropriations Comm., 111th Cong. 946 (2009) (statement of David Venturella, Executive Director, Secure Communities, U.S. Immigration and Customs Enforcement).
193. U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, U.S. DEP'T OF HOMELAND SEC., SECURE COMMUNITIES FACT SHEET (2009), available at http://www.ice.gov/doclib/pi/news/factsheets/secure_communities.pdf.
194. NAT'L IMMIGRATION LAW CTR., MORE QUESTIONS THAN ANSWERS ABOUT THE SECURE COMMUNITIES PROGRAM 1-2 (2009), available at http://www.nilc.org/immlawpolicy/LocalLaw/secure-communities-2009-03-23.pdf.
195. Editorial, Immigrants, Criminalized, N.Y. TIMES, Nov. 26, 2009, at A38.
196. Susan Carroll, ICE Program Is Casting a Wide Net, HOUSTON CHRON., July 13, 2009, at A1.
197. On the other hand, the system also misses individuals who entered without inspection and are therefore not included in DHS's records.
198. see also NAT'L IMMIGRATION LAW CTR., (citing studies finding that ICE "has done a bad job of focusing enforcement on the 'worst of the worst,'" and that the "programs largely target those accused of immigration status violations and traffic offenses").
199. Muzaffar Chishti & Claire Bergeron, ICE to Expand New Immigration Enforcement Program in Local Jails, MIGRATION INFO. SOURCE, June 15, 2009, http://www.migrationinformation.org/usfocus/display.cfm?ID=732 (noting that the ICE guidelines fail to prioritize removal of those offenders who pose the greatest risks of harm to society).
200. Worksite enforcement was relatively lax in the twenty-year period that followed the prohibition on hiring unauthorized noncitizens. See Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. CHI. LEGAL F. 193, 209-11 (noting that enforcement declined throughout the 1990s and explaining reasons for the decline). Over the past few years, as the staffing and budget of ICE has grown, the Department of Homeland Security has increased the focus on worksite enforcement.
201. See Impacts of Border Security and Immigration on Ways and Means Programs: Hearing Before the H. Comm. on Ways & Means, 109th Cong. 12 (2006) (statement of Julie L. Myers, Assistant Sec'y, U.S. Immigration and Customs Enforcement) (noting that worksite enforcement is now a "top priority" for the Department and the administration).
202. Michael Chertoff, Myth vs. Fact: Worksite Enforcement, U.S. DEPARTMENT HOMELAND SECURITY LEADERSHIP J., July 9, 2008, http://www.dhs.gov/journal/leadership/2008/07/myth-vs-fact-worksite-enforcement.html (noting the increasing numbers of worksite raids and arrests since 2004). ICE maintains that coordination with state and local law enforcement is a central component of its worksite enforcement strategy.
203. "When ICE conducts an enforcement action, it coordinates with state and local law enforcement and those responsible for public safety in a manner that will not compromise the operation.". State and local officials are credited with participation in a number of such raids in dozens of jurisdictions over the past year.
204. See, e.g., ICE Conducts Raids on Pilgrim's Pride Plants in Five States; Arrests 311 Foreign Nationals, 85 INTERPRETER RELEASES 1292, 1292 (2008) (noting that investigations were a product of multi-agency, state-federal cooperation and that ninety-one of those individuals faced criminal charges for identity theft and fraud).
205. Such cooperation has also occurred in antismuggling and antitrafficking enforcement efforts. See, e.g., Noteworthy: ICE Arrests More than 600 Illegal Aliens in Phoenix, 85 INTERPRETER RELEASES 883, 883-84 (2008).
206. Noteworthy: More than 300 Immigrants and Suspected Smugglers Arrested in Mississippi, 85 INTERPRETER RELEASES 278, 278 (2008).
207. Press Release, U.S. Census Bureau, Census Bureau Releases 2008 American Community Survey Data (Sept. 21, 2009), available at http://www.census.gov/Press-Release/www/releases/archives/american_community_survey_acs/014237.html.
208. Indeed, changes in the law over the past two decades have rendered lawful permanent residents much more vulnerable to removal than in the past. (2006) (discussing the removal of lawful permanent residents after the 1996 elimination of INA § 212© relief).
209. Discussing the increasing legal vulnerability of LPRs.
210. HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006) (describing the shift and advocating a return to treating lawful permanent residents as "citizens in waiting").
211. providing examples of lawful permanent residents removed despite substantial family ties.
212. Discussing the harsh immigration consequences for drug crimes committed by lawful permanent residents.
213. JEFFREY S. PASSEL, PEW HISPANIC CENTER, THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S. 2 (2006), available at http://pewhispanic.org/files/reports/61.pdf.
214. MICHAEL FIX, WENDY ZIMMERMAN & JEFFREY S. PASSEL, THE INTEGRATION OF IMMIGRANT FAMILIES IN THE UNITED STATES 15 (2001) (noting that one in every ten children in the United States lives in a family in which at least one family member is undocumented).
215. see also Molly Hazel Sutter, Note, Mixed-Status Families and Broken Homes: The Clash Between the U.S. Hardship Standard in Cancellation of Removal Proceedings and International Law, 15 TRANSNAT'L L. & CONTEMP. PROBS. 783, 806-08 (2006) (discussing the heavy restrictions on relief from removal for the undocumented relatives of U.S. citizens).
216. See generally David B. Thronson, Choiceless Choices: Deportation and the Parent-Child Relationship, 6 NEV. L.J. 1165 (2006) (discussing the plight of these mixed-status families).
217. See, e.g., NAT'L COMM'N ON ICE MISCONDUCT & VIOLATIONS OF 4TH AMENDMENT RIGHTS, (reporting on protracted detention and interrogation of U.S. citizens in several workplace raids).
218. Nina Bernstein, Citizens Caught Up in Immigration Raid, N.Y. TIMES, Oct. 4, 2007, at B5.
219. Kristin Collins, N.C. Native Wrongly Deported to Mexico, CHARLOTTE OBSERVER, Aug. 30, 2009, http://www.charlotteobserver.com/local/story/917007.html (discussing ICE's removal of an American citizen).
220. Jacqueline Stevens, Deporting American Citizens: ICE's Mexican-izing of Mark Lyttle, HUFFINGTON POST, Aug. 21, 2009, http://www.huffingtonpost.com/jacqueline-stevens-phd/deporting-american-citize_b_265187.html ("A systematic examination of thousands of individual case files for detainees in southern Arizona between 2006 and 2008 revealed that just over one percent were deemed U.S.citizens by an immigration judge. Almost all were held for more than two months.").
221. Jacqueline Stevens, Thin ICE, NATION, June 23, 2008, at 20, 20.
222. Stephanie Francis Ward, Illegal Aliens on I.C.E., A.B.A.J., June 1, 2008, at 44, 47 (noting several incidents involving the wrongful deportation of U.S. citizens, many of whom had cognitive disabilities).
223. See, e.g., Erik Luna, Drug Exceptionalism, 47 VILL. L. REV. 753, 755-56 (2002).
224. Thomas Regnier, The "Loyal Foot Soldier": Can the Fourth Amendment Survive the Supreme Court's War on Drugs?, 72 UMKC L. REV. 631, 649 (2004).
225. Omar Saleem, The Age of Unreason: The Impact of Reasonableness, Increased Police Force, and Colorblindness on Terry "Stop and Frisk," 50 OKLA. L. REV. 451, 471-75 (1997).
226. William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2160 (2002) ("Like the war on drugs before it, the war on terrorism is likely to leave us with a different law of criminal procedure than we had before.").
227. William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881, 938-41 (1991).
228. See generally David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271 (describing Fourth Amendment jurisprudence and its application to drug cases).
229. Margaret Raymond, Commentary on "The Drug War," 6 J. GENDER RACE & JUST. 447, 448-49 (2002) (footnotes omitted).
230. See, e.g., Florida v. Bostick, 501 U.S. 429, 434-37 (1991) (finding "consensual," and therefore exempt from the warrant requirement, police officers' searches of a passenger's bags on a bus detained by police).
231. California v. Acevedo, 500 U.S. 565, 572-76 (1991) (upholding the warrantless search of a container within a car during which there was probable cause to search only the container).
232. Illinois v. Rodriguez, 497 U.S. 177, 186-89 (1990) (upholding a warrantless entry based upon the consent of a third party when police incorrectly but "reasonably" believed that the third party possessed common authority over the premises).
233. California v. Greenwood, 486 U.S. 35, 39-41 (1988) (holding that a warrantless search of garbage bags for items indicative of narcotics use did not violate the defendant's reasonable expectation of privacy).
234. United States v. Leon, 468 U.S. 897, 922-25 (1984) (establishing a "good faith" exception to the exclusionary rule for warrants issued on less than probable cause).
235. United States v. Place, 462 U.S. 696, 705-07 (1983) (upholding the use of drug-detecting dogs to conduct a sniff examination of luggage without probable cause).
236. United States v. Knotts, 460 U.S. 276, 281-85 (1983) (approving the use of transmitters or beepers to conduct surveillance of suspects).
237. United States v. Ross, 456 U.S. 798, 823-24 (1982) (approving a warrantless search of closed containers inside an automobile, if officers have probable cause to search the vehicle).
238. See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 542-44 (1985) (allowing the sixteen-hour detention on the basis of reasonable suspicion at an international airport).
239. United States v. Sharpe, 470 U.S. 675, 682, 686-88 (1985) (allowing a protracted roadside stop on the basis of "reasonable suspicion" alone).
240. New Jersey v. T.L.O., 469 U.S. 325, 330-33 (1985) (allowing a full search of a student's purse on reasonable suspicion that she had violated school rules).
241. Michigan v. Long, 463 U.S. 1032, 1049-51 (1983) (allowing a brief "protective" search of a car on the basis of reasonable suspicion).
242. See, e.g., United States v. Flores-Montano, 541 U.S. 149, 155-56 (2004) (finding that no reasonable suspicion was needed to detain a driver and vehicle and disassemble the gas tank of the vehicle at the international border).
243. Bd. of Educ. v. Earls, 536 U.S. 822, 825 (2002) (holding that no individualized suspicion was necessary to conduct drug tests on students engaged in extracurricular activities).
244. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 449-55 (1990) (requiring no individualized suspicion for stops at DUI checkpoints).
245. United States v. Martinez-Fuerte, 428 U.S. 543, 547, 566-67 (1976) (finding that no individualized suspicion was necessary for referral to a secondary inspection at a border checkpoint).
246. cf. Illinois v. Caballes, 543 U.S. 405, 408 (2005) (finding that the use of a drug-detecting dog did not constitute a "search" requiring individualized suspicion).
247. Illinois v. Wardlow, 528 U.S. 119, 124-26 (2000) (finding that flight from officers in a high-crime area generated the reasonable suspicion necessary to justify a stop).
248. Illinois v. Gates, 462 U.S. 213, 237-38 (1983) (adopting a "totality of the circumstances" test for determining whether an informant's tip is reliable for purposes of a search warrant).
249. See, e.g., Flores-Montano, 541 U.S. at 155-56.
250. Montoya de Hernandez, 473 U.S. at 542-44.
251. Martinez-Fuerte, 428 U.S. at 566-67.
252. See, e.g., Tracey Maclin, Race and the Fourth Amendment, 51 VAND. L. REV. 333, 342-54 (1998) (describing racial targeting of minority motorists for stops and searches).
253. Describing the modern dilution of criminal procedural protections.
254. See MARC MAUER, RACE TO INCARCERATE 202-05 (2d ed. 2006).
255. BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 35-51(2006).
256. PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 3 (2008), available at http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf.
257. See Loic Wacquant, The Place of the Prison in the New Government of Poverty, in AFTER THE WAR ON CRIME 23, 23-25, 27-28 (Mary Louise Frampton, Ian Haney López & Jonathan Simon eds., 2008).
258. Jonathan Simon, Ian Haney López & Mary Louise Frampton, Introduction to AFTER THE WAR ON CRIME.
259. In theorizing the parallels, Ian Haney-LÓPez has posited that both the war on crime that gave rise to mass incarceration and the current criminalization of immigration can be seen as different forms of "governing through the fear of minority crime." See Ian F. Haney-López, Post-Racial Racism: Policing Race in the Age of Obama, 98 CAL. L. REV. (forthcoming 2010) (manuscript at 109, 113), available at http://ssrn.com/abstract=1418212 ("[R]acialized mass incarceration finds its origins... in racial politics.... [but] [o]nce institutionalized and available as a form of social ordering, crime control and the carceral state more generally achieved ever-greater autonomy from race, and indeed from traditional areas of criminal justice." (footnotes omitted)).
260. MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA 58 (2004) ("Europeans and Canadians tended to be disassociated from the real and imagined category of illegal alien, which facilitated their national and racial assimilation as white American citizens. In contrast, Mexicans emerged as the iconic illegal aliens. Illegal status became constitutive of a racialized Mexican identity and of Mexicans' exclusion from the national community and polity."). Modern policing practices evince exclusionary policing practices aimed at Latinos.
261. See, e.g., Rights Working Group, ACLU, The Persistence of Racial and Ethnic Profiling in the United States 42 (2009), available at http://www.aclu.org/files/pdfs/humanrights/cerd_finalreport.pdf ("In April 2008, in the most controversial of the neighborhood sweeps, Sheriff Arpaio saturated a small town of approximately 6,000 Yaqui Indians and Latinos outside of Phoenix with more than one hundred deputies, a volunteer posse, and a helicopter for two days, stopping residents and chasing them into their homes. In the end, nine undocumented immigrants were arrested. The community was so scarred by the event that families are still terrified to leave their homes when they see the Sheriff's patrol cars." (footnotes omitted)).
262. Noting "roadblocks and concentrations of police outside Latino-owned businesses and churches and predominately Latino areas" of Arkansas.
263. Noting "serious allegations of racial profiling in [three Georgia] counties, especially in the context of traffic stops".
264. BORDER ACTION NETWORK, JUSTICE ON THE LINE: THE UNEQUAL IMPACTS OF BORDER PATROL ACTIVITIES IN ARIZONA BORDER COMMUNITIES 3 (2004), http://www.borderaction.org/PDFs/justice_on_the_line.pdf (noting that DHS agents routinely stop many Latinos and question them about their citizenship, causing them to feel like outsiders in their communities).
265. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV.
266. "No person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...." U.S. CONST. amend. V. The right against self-incrimination is triggered upon arrest or "custodial interrogation." See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).
267. "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. This requires the government to provide counsel for indigent defendants in criminal cases. See Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).
268. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII.
269. See, e.g., Wong Wing v. United States, 163 U.S. 228, 237-38 (1896) (finding noncitizens in criminal proceedings entitled to full constitutional criminal procedural protections and distinguishing the situation of noncitizens in removal proceedings).
270. WAYNE LAFAVE ET AL., PRINCIPLES OF CRIMINAL PROCEDURE: INVESTIGATIONS 14 (2d ed. 2009) ("[T]he Supreme Court has held that the Fourteenth Amendment makes applicable to the states the various Fourth, Fifth and Sixth Amendment provisions that apply to criminal investigation practices.").
271. See Wong Wing, 163 U.S. at 236 ("The order of deportation is not a punishment for crime.").
272. Noting that Wong Wing was central to the genesis of a dichotomy between civil and criminal proceedings.
273. The right is limited to the criminally accused. See U.S. CONST. amend. V. Thus, the constitutional requirements of Miranda v. Arizona, 384 U.S. 436 (1966), whereby an individual subject to a custodial interrogation must be advised of her right to silence and to counsel-at the government expense if necessary-do not apply in the civil context.
274. See 8 C.F.R. § 287.8©(2)(v) (2009) (requiring that at the time of arrest, an "arresting officer shall advise the person of the appropriate rights as required by law at the time of the arrest, or as soon thereafter as practicable"). Of course, not every situation involving a "custodial interrogation" that triggers Miranda need be preceded by an official arrest.
275. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (explaining that "custody" for purposes of Miranda involves situations in which a reasonable person in the suspect's position believes that he has been constrained in a manner akin to a formal arrest). Thus, it is not clear that this regulation fully captures the requirements of Miranda.
276. Compare Chavez v. Martinez, 538 U.S. 760, 766-67 (2003) (holding that the Fifth Amendment's self-incrimination provisions attach only when there is a "'criminal case' [which] at the very least requires the initiation of legal proceedings"), with Bong Youn Choy v. Barber, 279 F.2d 642, 647 (9th Cir. 1960) (suppressing a coerced confession in a deportation proceeding on due process grounds).
277. Establishing a due process violation generally requires a defendant to establish that some form of government coercion came into play in bringing about the confession. Sleep deprivation, physical abuse, and certain forms of official threats can meet the test, but a defendant must demonstrate that the governmental conduct amounted to some form of impermissible coercion. See, e.g., Brown v. Mississippi, 297 U.S. 278, 287 (1936) (holding that physical torture constituted a due process violation). In contrast, a Miranda violation is established when an interrogating officer fails to offer the requisite warnings or respect an individual's right to remain silent and right to counsel when those rights have been invoked.
278. See Miranda, 384 U.S. at 442.
279. See Zakonaite v. Wolf, 226 U.S. 272, 275 (1912) (holding that proceedings to enforce immigration regulations do not involve Sixth Amendment protections).
280. The statutory right is provided in the Immigration and Nationality Act at section 292. 8 U.S.C. § 1362 (2006) ("In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.").
281. Fong Yue Ting V. United States, 149 U.S. 698, 730 (1893).
282. see also Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir. 1999) (holding that Eighth Amendment protection against cruel and unusual punishment is inapplicable in removal proceedings because they are civil).
283. INA § 287, 8 U.S.C. § 1357(a)(1).
284. see also 8 C.F.R. § 287.7 (2009) (authorizing DHS employees to issue detainer orders for persons already in the custody of other government agencies).
285. See, e.g., Terry v. Ohio, 392 U.S. 1, 30 (1968) ("We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous... he is entitled for the protection of himself and others in the area to conduct a carefully limited search.").
286. Discussing the contemporary parameters of a Terry stop.
287. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004).
288. Compare Brown v. Texas, 443 U.S. 47, 50-53 (1979) (holding unconstitutional a Texas law requiring an individual, in the absence of any suspicion of wrongdoing, to provide a name and address to police upon request), with Hiibel, 542 U.S. at 185 (affirming the requirement to identify oneself on reasonable criminal suspicion).
289. See, e.g., ACLU RACIAL JUSTICE PROGRAM ET AL., KNOW YOUR RIGHTS WHEN ENCOUNTERING LAW ENFORCEMENT 4 (2004), available at http://www.aclu.org/files/kyr/kyr_english.pdf (noting that the requirement to identify oneself exists in "some states").
290. NAT'L IMMIGRATION LAW CTR., IMMIGRATION ENFORCEMENT: KNOW YOUR RIGHTS AT HOME AND AT WORK 3 (2008), available at http://www.nilc.org/ce/nilc/imm_enfrcmt_homework_rts_2008-05.pdf (noting that most states do not require persons to give their name to law enforcement).
291. Noting that in many ICE home raids, following unlawful home entries, "agents immediately seize and interrogate all occupants, often in excess of their legal authority".
292. NAT'L COMM'N ON ICE MISCONDUCT & VIOLATIONS OF 4TH AMENDMENT RIGHTS, (discussing immigration status requests that exceed due process bounds).
293. INA § 287, 8 U.S.C. § 1357(a)(2) (2006).
294. United States v. Varkonyi, 645 F.2d 453, 458 (5th Cir. 1981).
295. Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th Cir. 1980).
296. Lee v. INS, 590 F.2d 497, 500 (3d Cir. 1979).
297. United States v. Cantu, 519 F.2d 494, 496 (7th Cir. 1975).
298. Accord Contreras v. United States, 672 F.2d 307, 308 (2d Cir. 1982) ("[P]laintiffs do not contest that the officers had probable cause to believe that plaintiffs were in the country illegally." (emphasis added)).
299. INA § 287, 8 U.S.C. § 1357(a)(2) (allowing warrantless arrests only if the noncitizen "is likely to escape before a warrant can be obtained for his arrest").
300. With respect to administrative warrants for immigration enforcement, at least one court has held that "[p]robable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that 'reasonable legislative or administrative standards for conducting an... inspection are satisfied with respect to a particular (establishment).'" Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1223 (D.C. Cir. 1981) (quoting Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978)). But another court has expressly rejected this conclusion, finding that warrants of inspection used by the then-Immigration and Naturalization Service required traditional probable cause analysis to determine whether issuance of a search warrant was constitutional. Int'l Molders' & Allied Workers' Local Union No. 164 v. Nelson, 643 F. Supp. 884, 890-91 (N.D. Cal. 1986). Presumably, the same standard would apply to warrantless arrests in situations in which warrantless arrests are authorized under the statute. Moreover, even when the initial arrest is illegal, that illegality does not void a subsequent deportation order based on the alien's admission of his status at the hearing. Avila-Gallegos v. INS, 525 F.2d 666, 667 (2d Cir. 1975).
301. La Franca v. INS, 413 F.2d 686, 689 (2d Cir. 1969).
302. Vlissidis v. Anadell, 262 F.2d 398, 400 (7th Cir. 1959).
303. Medeiros v. Brownell, 240 F.2d 634, 635 (D.C. Cir. 1957) (per curiam).
304. Quoting an ICE official, "We don't need warrants to make the arrests".
305. Quoting an arresting agent in Minnesota after a warrantless raid, who said in response to a question about warrants, "We don't need one".
306. 8 C.F.R. § 287.8(f)(2) (2009).
307. Abel v. United States, 362 U.S. 217, 230 (1960) (cautioning that the use of the administrative process in criminal matters "to circumvent the latter's legal restrictions" would violate the Fourth and Fifth Amendments).
308. Noting that raids without warrants were carried out in efforts to round up 1,300 "gang members" and associates.
309. See, e.g., In re [redacted], No. [redacted] (Immigration Ct. Hartford, Conn. June 2, 2009) (order granting the respondent's motion to suppress and motion to terminate removal proceedings), available at http://www.legalactioncenter.org/sites/default/files/docs/lac/Hartford-Grant-1-6.2.09.pdf (suppressing the respondent's I-213 because the information therein was obtained in violation of the Fourth Amendment in a warrantless home raid by ICE Fugitive Operations Team agents).
310. In re P., No. [redacted] (Immigration Ct. N.Y., N.Y June 25, 2008) (order granting the respondent's motion to suppress and motion to terminate removal proceedings), available at http://www.legalactioncenter.org/sites/default/files/docs/lac/NY-6-30-08.pdf (suppressing evidence obtained in a warrantless home raid and in unlawful interrogations conducted by a Fugitive Operations Unit).
311. In re Pineda Morales, No. [redacted] (Immigration Ct. N.Y., N.Y May 13, 2008) (order granting the respondent's motion to suppress), available at http://www.legalactioncenter.org/sites/default/files/docs/lac/NY-5-13-08.pdf (suppressing evidence obtained in a warrantless home raid by an ICE Fugitive Operations Team).
312. Noting that at least four lawsuits had been filed in the previous year alleging illegal home entries by ICE. State and local law enforcement sometimes participate in these home raids.
313. Describing home raids in which local sheriffs teamed up with immigration officers to raid a Tennessee trailer park.
314. Opinion, Raids Promise to Make Bad Immigration Situation Worse, TENNESSEAN, Aug. 21, 2007 (online ed., on file with the Duke Law Journal) (describing local police participation in Maury County raids).
315. Rene Romo, Suits Fault Immigration "Raid": Groups Allege Rights Violated, ALBUQUERQUE J., Oct. 18, 2007, at A1 (noting state and local participation in widespread immigration home raids in Otero, New Mexico, as part of Operation Stone Garden).
316. See, e.g., United States v. Abdi, 463 F.3d 547, 557 (6th Cir. 2006) ("[N]othing in the text of 8 U.S.C. § 1357 provides an independent statutory remedy of suppression for failing to obtain an administrative [arrest] warrant. Accordingly, we find that the district court erred in reading such a remedy into the statute. Because the statute authorizing ICE agents to arrest persons for immigration violations... does not require the application of the exclusionary rule to violations of the statute, we hold that the district court erred in suppressing Abdi's statements and the derivative evidence based on the Government's failure to comply with the statute." (citation omitted)). For reasons explored infra, noncitizens often also lack a remedy under the federal constitution as a result of the Lopez-Mendoza decision.
317. Unlawful presence is a civil, not a criminal, violation. See ALISON SISKIN ET AL., CONG. RESEARCH SERV., IMMIGRATION ENFORCEMENT WITHIN THE UNITED STATES 8 & n.33 (2006).
318. Miranda v. Arizona, 384 U.S. 436 (1966).
319. Courts have found, however, coerced confessions to be suppressible. Bong Youn Choy v. Barber, 279 F.2d 642, 647 (9th Cir. 1960).
320. INA § 292, 8 U.S.C. § 1362 (2006).
321. See, e.g., Sioban Albiol, R. Linus Chan & Sarah J. Diaz, Re-Interpreting Postville: A Legal Perspective, 2 DEPAUL J. SOC. JUST. 31, 70 (2008) (noting the limited access to counsel for Postville detainees).
322. Discussing the lawsuit in the Tennessee home raids case.
323. Katherine F. Riordan, Comment, Immigration Law: Enforcing Administrative Exhaustion Requirements for Pattern and Practice Claims Concerning Due Process Violations During Immigration Raids-Aguilar v. United States Immigration & Customs Enforcement, 42 SUFFOLK U. L. REV. 377, 385 & n.54 (2009).
324. Letter from Kathleen Campbell Walker, President, and Jeanne Butterfield, Executive Dir., AILA, to Linda R. Reade, C.J., U.S. Dist. Court for the N. Dist. of Iowa (May 19, 2008), available at http://www.aila.org/Content/default.aspx?docid= 25440.
325. Miranda, 384 U.S. at 444-45. Under Article 36 of the Vienna Convention on Consular Relations, they should also be informed of their right to contact their consular representative, but the Supreme Court has recently made this another right without a remedy in the United States.
326. See Medellín v. Texas, 128 S. Ct. 1346, 1356-57 (2008).
327. In Medellín v. Texas, 128 S. Ct. 1346 (2008).
328. Supreme Court acknowledged the International Court of Justice decision in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31), in which the ICJ found the United States had violated Article 36(1)(b) of the Convention by failing to inform criminal defendants of their right to contact their consulate when accused of a crime. The Court concluded, however, that the ICJ decision was not enforceable in a state court to preempt state limitations on filing successive habeas petitions, notwithstanding the president's Memorandum directing enforcement, because the decision was not "self-executing"; the remedy under the treaty is referral to the U.N. Security Council.
329. Medellín, 128 S.Ct. at 1356-57.
330. see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 337 (2006) (declining to suppress statements obtained without informing the noncitizen of his rights under Vienna Convention Article 36 to consular notification and communication).
331. See, e.g., Bustos-Torres v. INS, 898 F.2d 1053, 1056-57 (5th Cir. 1990) (concluding that Miranda warnings are not required in deportation proceedings).
332. INS v. Lopez-Mendoza, 468 U.S. 1032, 1034 (1984). Until 1996, immigration proceedings to prevent noncitizens from entering the country were termed "exclusion" proceedings, whereas proceedings to remove a noncitizen that had already entered the country were termed "deportation" proceedings.
333. See LEGOMSKY & RODRÍGUEZ,. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated exclusion and deportation, and labeled the resulting proceedings "removal" proceedings. IIRIRA, Pub. L. No. 104-208, div. C, §§ 304, 308, 110 Stat. 3009-546, 3009-587 to -597, 3009-614 to -625 (codified as amended at 8 U.S.C. § 1324c(e) (2006), 18 U.S.C. § 1546(a) (2006), and 18 U.S.C. § 1015(e)-(f) (2006)). Now, 8 U.S.C. § 1229a(3) indicates that the removal proceedings defined in that section are for determining "whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States." This Article therefore uses the term "removal" to refer to deportation and exclusion.
334. Lopez-Mendoza, 468 U.S. at 1042.
335. Arguing that national and local data of INS racial profiling data may "compel reconsideration" of Lopez-Mendoza.
336. Jonathan L. Hafetz, Note, The Rule of Egregiousness: INS v. Lopez-Mendoza Reconsidered, 19 WHITTIER L. REV. 843, 861 (1998) (making a very broad claim that all INS violations are race based, and therefore egregious, so as to require suppression under Lopez-Mendoza).
337. Stella Burch Elias, Good Reason to Believe: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 WIS. L. REV. 1109, 1115.
338. See Pinto-Montoya v. Mukasey, 540 F.3d 126, 131 n.2 (2d Cir. 2008) (per curiam) ("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 [Board of Immigration Appeals (BIA)], it has not been exhausted and is therefore not appropriately before us.").
339. see also Melnitsenko v. Mukasey, 517 F.3d 42, 47 (2d Cir. 2008) (acknowledging the petitioner's argument regarding the widespread nature of Fourth Amendment violations but declining to review the claim due to Melnitsenko's failure to exhaust his administrative remedies by raising the argument before the BIA). The author was also asked to consult on a pending immigration matter involving multiple suppression motions in which counsel has raised an argument concerning the widespread nature of ICE Fourth Amendment violations.
340. Lopez-Mendoza, 468 U.S. at 1050.
341. Melnitsenko, 517 F.3d at 47.
342. Gonzalez-Rivera v. INS, 22 F.3d 1441, 1452 (9th Cir. 1994).
343. see also Almeida-Amaral v. Gonzales, 461 F.3d 231, 234-37 (2d Cir. 2006) (noting that a stop solely on the basis of race would constitute an "egregious violation," but finding that the petitioner's mere assertion was insufficient to establish that the stop was race based).
344. Orhorhaghe v. INS, 38 F.3d 488, 497 (9th Cir. 1994).
345. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1019 (9th Cir. 2008), reh'g en banc denied sub nom. Lopez-Rodriguez v. Holder, 560 F.3d 1098 (9th Cir. 2009).
346. Discussing suppression motions granted in five cases based on illegal home searches and seizures.
347. see also Peitrzak v. Mukasey, 260 F. App'x 334, 340 (2d Cir. 2008) (suggesting that a nighttime, warrantless home entry could constitute an "egregious" violation).
348. Almeida-Amaral, 461 F.3d at 235.
349. Singh v. Mukasey, 553 F.3d 207, 215 (2d Cir. 2009).
350. See, e.g., Martins v. Att'y Gen., 306 F. App'x 802, 804-05 (3d Cir. 2009).
351. Lucero v. Mukasey, 272 F. App'x 612, 613 (9th Cir. 2008) (mem.) (declining suppression when there was no evidence that the statements were involuntary).
352. INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984).
353. Complaint, Slaughter v. DHS, No. 2:09-cv-00433-SRB (D. Ariz. Mar. 4, 2009).
354. E.g., Complaint for Violations of the Fourth and Fifth Amendments to the United States Constitution and Demand for Jury Trial, Reyes v. Alcantar, No.4:07-cv-02271-SBA (N.D. Cal. Apr. 26, 2007) (alleging the unlawful detention of a seven-year-old citizen in the course of ICE raids).
355. see also Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1019 (9th Cir. 2008), reh'g en banc denied sub nom. Lopez-Rodriguez v. Holder, 560 F.3d 1098 (9th Cir. 2009) (holding that an INS violation of Fourth Amendment rights in Fresno, California, required suppression of evidence).
356. Comm. for Immigrants Rights of Sonoma County v. County of Sonoma, 644 F. Supp. 2d 1177, 1204 (N.D. Cal. 2009) (order granting in part and denying in part the defendants' motion to dismiss) (describing the plaintiffs' allegation that ICE agents unlawfully targeted individuals who appeared to be Latino).
357. Esther Zuckerman & Colin Ross, Immigrants Sue Feds over 2007 Raids, YALE DAILY NEWS, Oct. 28, 2009, http://www.yaledailynews.com/news/city-news/2009/10/28/immigrants-sue-feds-over-2007-raid/.
358. See Aquilar v. ICE, 490 F. Supp. 2d 42, 43 (D. Mass. 2007), aff'd, 510 F.3d 1 (1st Cir. 2007) (alleging rights violations during the New Bedford raid).
359. Plaintiffs' Complaint for Declaratory and Injunctive Relief and Damages, Barrera v. DHS, No. 0:07-cv-03879-JNE-SRN (D. Minn. Sept. 4, 2007) (alleging rights violations during the Swift plant raid).
360. Complaint for Declaratory and Injunctive Relief and Damages, Arias v. ICE, No. 0:07-cv-01959-ADM-JSM (D. Minn. Apr. 19, 2007) (raising allegations of violations of the Fourth Amendment rights of U.S. citizen children during ICE home raids).
361. Emergency Petition for a Writ of Habeas Corpus, Writ of Mandamus, Complaint for Declaratory and Injunctive Relief and Motion for a Stay of Removal, Martinez v. Chertoff, No. 1:07-cv-00722-SJD-TSH (S.D. Ohio Aug. 31, 2007) (alleging rights violations during a workplace raid).
362. Class Action Complaint and Jury Trial Demand, Aguilar v. ICE, No. 07-CIV-8224 (S.D.N.Y. Sept. 20, 2007) (alleging rights violations in the course of raids relating to "Operation Return to Sender").
363. Original Complaint, Valenzuela v. Swift Beef Co., No. 3:06-cv-02322 (N.D. Tex. Dec. 15, 2006).
364. Complaint, Swift & Co. v. ICE, No. 2:06-cv-00314-J (N.D. Tex. Nov. 28, 2006).
365. Original Complaint-Class Action Request for Injunctive and Declaratory Relief and Damages, United Food & Commercial Workers Int'l Union v. Chertoff, No. 2:07-cv-00188-J (N.D. Tex. Sept. 12, 2007) (alleging rights violations during the Swift plant raid).
366. Discussing lawsuits and media accounts of constitutional rights violations by ICE across the country.
367. "[W]ithin the last year, ICE has been sued at least four times-the latest in New Jersey-for allegedly entering homes without a warrant in violation of the Fourth Amendment.".
368. INA § 287(g)(1), 8 U.S.C. §1357(g)(1) (2006) (allowing the participating state agent to "perform a function of an immigration officer in relation to the investigation, apprehension or detention").
369. § 1357(g)(8) (extending federal tort liability standards to participating state agents). It is an oddity that section 287(g) effectively allows localities-which are not federally recognized constitutional entities-to contract around the constitutional investigative restrictions imposed upon their agents by their states, which are federally recognized constitutional entities.
370. "[T]he U.S. Constitution does not define the legal or political role of localities.".
371. See, e.g., GLADSTEIN ET AL., (identifying six concerns with agreements under the program, namely, that (1) they damage immigrants' safety and civil liberties; (2) they distract police from their primary crime-fighting responsibilities; (3) police lack the necessary training; (4) they encourage racial profiling; (5) the National Crime Information Center database upon which the program relies contains too much incorrect information; and (6) they will make immigrants reluctant to cooperate with the police and report information about crimes out of fear of removal).
372. But see Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57, 74-75 (arguing that these concerns do not justify "categorical opposition" to 287(g) agreements).
373. "[T]he possibility of racial profiling of Latinos and mistaken identity rises substantially with state and local involvement.".
374. Carrie L. Arnold, Note, Racial Profiling in Immigration Enforcement: State and Local Agreements to Federal Immigration Law, 49 ARIZ. L. REV. 113, 116 (2007) (concluding that federal training was unlikely to eradicate racial profiling in enforcement under 287(g) agreements).
375. Noting the increased likelihood of racial profiling when state and local police become involved in immigration enforcement.
376. See Chris Kahn, Governor Pushes for Bigger Effort to Crackdown on Felons, AZCENTRAL.COM, May 14, 2008, http://www.azcentral.com/news/articles/2008/05/13/20080513napolitano0513-ON.html ("Governor Janet Napolitano has ordered the state to end an anti-illegal immigration contract with the Maricopa County sheriff so she can pay for a larger effort to track down thousands of felons around Arizona. Sheriff Joe Arpaio on Tuesday criticized the governor's decision as a maneuver to thwart his efforts against illegal immigrants.").
377. Phoenix Mayor Seeks DOJ Investigation of Maricopa County Sheriff Joe Arpaio, 85 INTERPRETER RELEASES 1292, 1292-93 (2008) (noting the mayor's concern that Sheriff Arpaio was engaged in racial profiling).
378. see also Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1029 (D. Ariz. 2009) (denying motion to dismiss allegations of racial profiling in traffic stops to ask auto occupants about their immigration status).
379. Nicholas Riccardi, Arizona Sheriff Ups the Ante Against His Foes, L.A. TIMES, Dec. 12, 2009, http://www.latimes.com/news/nation-and-world/la-na-joe-arpaio12-2009dec12,0,2123666.story?page=2/ ("In October, the federal Department of Homeland Security revoked the 287(g) for Arpaio's street operations, though he could continue to question jail inmates about their immigration status.").
380. "The day after the federal government told Maricopa County Sheriff Joe Arpaio that he could no longer use his deputies to round up suspected illegal immigrants on the street, the combative Arizona sheriff did just that.".
381. See, e.g., Sherry Greenfield, Authorities Announce Changes to the Controversial 287(g) Program, The Policies and Politics of Local Immigration Enforcement Laws: 287(g) Program in North Carolina, AMER. C.L. UNION N.C., Feb. 18, 2009, http://acluofnc.org/?q=new-study-finds-dramatic-problems-287g-immigration-program.
382. Andrea Simmons, Is Sheriff a Hero or Racial Profiler?, ATLANTA J. & CONST., Oct. 12, 2009, at A1 ("The ACLU of Georgia has compiled into a report the accounts of 10 people who had experiences of racial profiling in Cobb County, along with interviews of five community activists or attorneys.").
383. U.S. GOV'T ACCOUNTABILITY OFFICE, (noting that the program lacked documented objectives, that ICE "has not described the nature and extent of its supervision... which has led to wide variation in the perception of the nature and extent of supervisory responsibility among ICE field officials and officials from the participating agencies," and that ICE "did not define what data should be tracked or how it should be collected and reported"). Another concern raised by 287(g) agreements is that law enforcement participation in immigration enforcement may strain the ability of participating local police departments to focus on crime control. When local law enforcement officers are engaged in immigration enforcement, they are not available to conduct investigations and detentions in cases involving violent crime. At the same time, many of the immigration violators whom they detain are not engaged in criminal activity, raising questions about whether immigration enforcement constitutes the most effective use of local resources. "Historically, police departments primarily concerned themselves with enforcement of criminal law, while the federal government had exclusive responsibility for addressing civil immigration violations.".
384. In contrast, if immigration agents conduct illegal arrests and the matter winds up in criminal court rather than immigration court, judges in criminal cases are in a position to police the conduct of these officers through the imposition of the exclusionary rule in state court criminal proceedings. See, e.g., United States v. Rangel-Portillo, 586 F.3d 376, 381, 383 (5th Cir. 2009) (reversing the conviction based on evidence obtained by CBP in violation of the Fourth Amendment and subsequently introduced in federal criminal court).
385. State v. Maldonado-Arreaga, 772 N.W.2d 74, 78 (Minn. Ct. App. 2009) (suppressing biographical information provided by a noncitizen detainee after a warrantless raid by ICE Fugitive Operations Team agents).
386. Mapp v. Ohio, 367 U. S. 643 (1961).
387. See, e.g., In re Sanchez, No. A 98 300 503, slip op. at 5-6 (Immigration Ct. Hartford, Conn. Jan. 31, 2008) (order denying the respondent's motion to suppress and motion to terminate removal proceedings) (on file with the Duke Law Journal) (noting that even if the court accepted Sanchez's claim that he was illegally arrested by local law enforcement prior to being turned over to ICE for removal, "the exclusionary rule does not apply... because ICE merely relied in good faith on the evidence gathered by [the Danbury Police Department].... [E]ven if the DPD obtained information from the Respondent in violation of the Fourth Amendment, the exclusionary rule would not apply to bar said evidence from the current [removal] proceeding").
388. United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254 (D. Utah 2003).
389. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
390. See, e.g., M. Isabel Medina, Exploring the Use of the Word "Citizen" in Writings on the Fourth Amendment, 83 IND. L.J. 1557, 1581-83 (2008).
391. see also VICTOR C. ROMERO, ALIENATED: IMMIGRANT RIGHTS, THE CONSTITUTION, AND EQUALITY IN AMERICA 69-75 (2005) (criticizing the reasoning of Esparza-Mendoza).
392. Noting that the Esparza-Mendoza decision rests on an interpretation of Verdugo-Urquidez that is inconsistent with Justice Kennedy's outcome-decisive plurality opinion.
393. Kal Raustiala, The Geography of Justice, 73 FORDHAM L. REV. 2501, 2523 (2005) (critiquing the reasoning of this and other cases as relying on a conception of rights that "is not especially consistent with American practice").
394. See United States v. Gutierrez-Casada, 553 F. Supp. 2d 1259, 1265-67 (D. Kan. 2008).
395. see also Tenn. Op. Att'y Gen. No. 09-97, 2009 WL 1511176, at *2 (May 22, 2009) (relying on both Gutierrez-Casada and Esparza-Mendoza in outlining the applicable rights of noncitizens).
396. More widespread, but as yet of uncertain impact, is the tendency of courts to refer in dicta to Fourth Amendment rights as the rights of "citizens.". This reading, taken literally, would be even narrower than Judge Cassell's reading because it would exclude not only unauthorized noncitizens, but all noncitizens, including both lawful permanent residents and nonimmigrants present on temporary visas. To date, no one has argued that such a reading of the Fourth Amendment is correct, but the casual imposition of a citizenship requirement into the doctrines concerning Fourth Amendment protections is troubling.
397. The exclusionary rule has long been considered a critical factor in Fourth Amendment compliance. See, e.g., Mapp v. Ohio, 367 U.S. 643, 665 (1961).
398. United States v. Roblero-Solis, 588 F.3d 692, 700 (9th Cir. 2009).
399. Discussing this issue.
400. Matthew S. Mulqueen, Note, Rethinking the Role of the Exlcusionary Rule in Removal Proceedings, 82 ST. JOHN'S L. REV. 1157, 1160 (2008).
401. INS v. Lopez-Mendoza, 468 U.S. 1032, 1035-36 (1984) (noting that many facts in the I-213 will not be subject to suppression).
402. Discussing the fact that much evidence will be admissible even if illegally seized). It is important to note, however, that in at least some circuits, identity evidence seized illegally is suppressible. Compare United States v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007) (deciding that Lopez-Mendoza permits suppression of impermissibly obtained identity information), United States v. Olivares-Rangel, 458 F.3d 1104, 1106 (10th Cir. 2006) (interpreting Lopez-Mendoza as merely reiterating a long-standing jurisdictional rule), United States v. Garcia-Beltran, 389 F.3d 864, 868 (9th Cir. 2004) (same), and United States v. Guevara-Martinez, 262 F.3d 751, 754-55 (8th Cir. 2001) (same), with United States v. Bowley, 435 F.3d 426, 430-31 (3d Cir. 2006) (interpreting Lopez-Mendoza as barring suppression of evidence of identity, United States v. Navarro-Diaz, 420 F.3d 581, 588 (6th Cir. 2005) (same), and United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999) (same).
403. See, e.g., Hudson v. Michigan, 547 U.S. 586, 602 (2006) (declining to apply the exclusionary rule in a case involving a violation of the well-established "knock and announce" requirement of the Fourth Amendment).
404. United States v. Patane, 542 U.S. 630, 634 (2004) (declining to apply the exclusionary rule to physical evidence that was the fruit of an un-Mirandized statement).
405. See, e.g., In re Garcia-Flores, 17 I. & N. Dec. 325, 328 (B.I.A. 1980). At least one immigration court has noted, however, that "there is no clear holding sanctioning that a violation of a regulation could result in termination of proceedings, thereby allowing a respondent to continue his unlawful presence in the United States, absent egregious conduct." In re [redacted], No. [redacted], slip op. at 22 (Immigration Ct. Hartford, Conn. June 2, 2009) (order granting the respondent's motion to suppress and motion to terminate removal proceedings), available at http://www.legalactioncenter.org/sites/default/files/docs/lac/Hartford-Grant-1-6.2.09.pdf.
406. Hiroshi Motomura, Judicial Review in Immigration Cases After AADC: Lessons from Civil Procedure, 14 GEO. IMMIGR. L.J. 385, 388 (2000).
407. See, e.g., Pinto-Montoya v. Mukasey, 540 F.3d 126, 127 (2d Cir. 2008).
408. Almeida-Amaral v. Gonzales, 461 F.3d 231, 232 (2d Cir. 2006).
409. See, e.g., In re [redacted], No. [redacted], slip op. at 14 (Immigration Ct. L.A., Cal. Jan. 8, 2010) (order granting the respondent's motion to suppress and motion to terminate removal proceedings), available at http://www.legalactioncenter.org/sites/default/files/docs/lac/LA-1-8-10.pdf ("[T]he Court finds that Respondent experienced both actual and presumptive prejudice as a result of the Government's violations of the regulation under 8 C.F.R. §§ 287.8(b) and (c).").
410. INS v. Lopez-Mendoza, 468 U.S. 1032, 1048-49 (1984) (citations omitted).
411. See Jennifer Ludden, Immigration Crackdown Overwhelms Judges, NPR, Feb. 9, 2009, http://www.npr.org/templates/story/story.php?storyId=100420476 (quoting Dana Leigh Marks, Nat'l Ass'n of Immigration Judges).
412. Lopez-Mendoza, 468 U.S. at 1048.
413. "EOIR records show that between 1952 and 1979- the year that the Lopez-Mendoza respondents Adan Lopez-Mendoza and Elias Sandoval-Sanchez first appeared in immigration court-fewer than fifty motions to suppress evidence or terminate proceedings had ever been filed in immigration court. Twenty-eight years later, in 2007 alone, 21,144 motions to terminate were granted.".
414. Adam Liptak, Courts Criticize Judges' Handling of Asylum Cases, N.Y. TIMES, Dec. 26, 2005, at A1.
415. Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005).
416. Emma Schwartz & Jason McLure, DOJ Made Immigration Judgeships Political, LEGAL TIMES, May 28, 2007, at 12.
417. Calling for a restructuring of the immigration adjudication system.
418. Summarizing and critiquing such proposals.
419. Summarizing and critiquing such proposals.
420. Offering such a proposal.
421. EOIR, U.S. DEP'T OF JUSTICE, FY 2007 STATISTICAL YEAR BOOK G1 fig.9 (2008), available at http://www.usdoj.gov/eoir/statspub/fy07syb.pdf.
422. NINA SIULC ET AL., VERA INST. OF JUSTICE, IMPROVING EFFICIENCY AND PROMOTING JUSTICE IN THE IMMIGRATION SYSTEM: LESSONS FROM THE LEGAL ORIENTATION PROGRAM 1 (2008), available at http://www.vera.org/download?file=1780/LOP%2BEvaluation_May2008_final.pdf.
423. See, e.g., Peter L. Markowitz, Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings, 43 HARV. C.R.-C.L.L. REV. 289, 345-46 (2008) (arguing for a right to counsel in removal proceedings for individuals previously admitted to the United States as lawful permanent residents). This approach risks providing no counsel to a wide variety of individuals subject to removal who might have legitimate due process concerns. For example, this proposal would not apply to an H-1B visa holder, present in the U.S. for six years, with strong family and employment ties to the country. It would not apply to an unauthorized noncitizen who has been in the country for thirty years and has established extensive family ties or a noncitizen who entered the country unlawfully as a small child and has never known any other home. Nevertheless, this proposal provides a useful starting point for thinking about appropriate cases in which to guarantee the right to counsel, and it may be that a good case can be made for denying the right to very recent entrants who either lack legal status or whose legal entry is authorized only by short-term nonimmigrant visas.
424. See Michael Kaufman, Note, Detention, Due Process, and the Right to Counsel in Removal Proceedings, 4 STAN. J. C.R. & C.L. 113, 114 (2008) (arguing for a right to counsel for detained noncitizens in removal proceedings).
425. see also DONALD KERWIN, MIGRATION POLICY INST., INSIGHT NO. 4, REVISITING THE NEED FOR APPOINTED COUNSEL 1, 3 (2004), available at http://www.migrationpolicy.org/insight/Insight_Kerwin.pdf (critiquing the denial of counsel for its negative effect on the fairness and legitimacy of the removal process).
426. Quoting a former attorney advisor for the San Francisco Immigration Court for the proposition that immigration judges "often seek significant research" in deciding suppression motions.
427. See U.S. GOV'T ACCOUNTABILITY OFFICE.
428. See United States v. Lopez-Mendoza, 468 U.S. 1032, 1049 (1984).
429. INA § 242, 8 U.S.C. § 1252 (2006).
430. See generally Jill E. Family, Another Limit on Federal Court Jurisdiction? Immigrant Access to Class-Wide Injunctive Relief, 53 CLEV. ST. L. REV. 11, 23-27 (2006) (discussing IIRIRA's limitations on federal jurisdiction).
431. Nancy Morawetz, Back to Back to the Future? Lessons Learned from Litigation over the 1996 Restrictions on Judicial Review, 51 N.Y.L. SCH. L. REV. 113 (2007) (discussing the legal issues raised by the 2005 revisions to the INA's judicial review provisions).
432. Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007).
433. For a discussion of the case.
434. Citing Aguilar, 510 F.3d at 10.
435. See, e.g., Jill E. Family, Threats to the Future of the Immigration Class Action, 27 WASH. U. J.L. & POL'Y 71, 110-16 (2008) (discussing Supreme Court interpretations of these provisions).
436. Arguing for a narrow interpretation of jurisdiction-stripping provisions.
437. Discussing the use of class actions for these purposes). Immigration reform proposals to date have included provisions seeking to further restrict the class action in immigration-related matters.
438. See United States v. Lopez-Mendoza, 468 U.S. 1032, 1054 (1984) (discussing the importance of the INS's internal disciplinary scheme for remedying constitutional violations).
439. SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 40 (2001).