In the United States, legislative changes to immigration law

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					Regulating Migration Through Crime
Jennifer M. Chacón

This draft is a work in progress. Please do not cite or share.

Sovereign states have long deployed a vast array of approaches to manage migration. 1 In
the United States, such approaches have traditionally combined civil enforcement,
criminal enforcement and, occasionally, military intervention. In recent years, however,
the role of criminal enforcement has assumed a new prominence in the management of
migration. Legislatures at all levels of government have passed laws either subjecting
acts associated with migration to criminal penalties for the first time or increasing the
severity of criminal sanctions imposed for the commission of those acts. Moreover,
police at the federal, state and local level have stepped up investigations and prosecutions
of migration-related offenses. Finally, the ―civil‖ components of immigration
enforcement have become increasingly intertwined with the criminal justice system.

Interestingly, the increasing role of the criminal justice system in the management of
migration comes at a time when a critical mass of officials at both the state and the
federal level are, for the first time in forty years, beginning reassess the United States‘
protracted ―war on crime.‖2 Some scholars have proclaimed the end – or at least the
beginning of the end - of the ―war on crime.‖3 But while many government agencies at
all levels and branches of government are now performing cost-benefit analyses of the
war on crime4 and the resulting system of mass imprisonment,5 the increasing reliance on
the criminal justice system as a means of managing migration largely has escaped this
cost-benefit reassessment. In fact, while expenditures on the ―war on drugs‖ and other
aspects of criminal law enforcement are in decline, the enforcement of migration-related
offenses in the criminal justice system is at an all-time high, and on the rise.6

This article explores and critiques the increasing reliance on the criminal justice system
to manage migration.7 Section 1 of this article elaborates on the various trends that have

1
  FN: origins of and justifications for the proposition that sovereign states have the right to control their
borders [walzer, etc.]
2
  AFTER THE WAR ON CRIME 2 (MARY-LOUIS FRAMPTON, IAN HANEY LÓPEZ & JONATHAN SIMON, eds.
2008) (hereinafter AFTER THE WAR ON CRIME ).
3
  Id. at __.
4
  Id. at __.
5
  David Garland, Introduction: The Meaning of Mass Imprisonment in MASS IMPRISONMENT: SOCIAL
CAUSES AND CONSEQUENCES 1-2 (David Garland, ed. 2001) (applying the term ―mass imprisonment‖ to
the massive institutions(s) of incarceration that have developed in the United States over the past two
decades, and defining the key features as ―a rate of imprisonment and a size of prison population that is
markedly above the historical and comparative norm for societies of this type‖ and ―the social
concentration of imprisonment‘s effects.‖)
6
  TRAC data.
7
  Many scholars have also noted that civil removal proceedings have become increasingly criminal in
nature, with the harsh civil penalty of removal being deployed as a substitute for – and not merely a
collateral consequence of – criminal punishment. [Kanstroom, Miller, Stumpf.] As a result, civil removal
proceedings have effectively incorporated criminal law norms without symmetrically incorporating the
rights-protective features of the criminal law systems. See [Legomsky in Stanford]. In this paper, I do not
increased the government‘s reliance on the criminal justice system to manage migration
over the past decade and then describes how all levels of government now use the
criminal justice system as a tool to manage migration.

Section II of this article discusses the ways in which police at all levels of government –
but particularly the state and local level, have increasingly entered the realm of
immigration enforcement. The criminal law often serves as a point of entry for police
officers to engage in enforcement activities that regulate migration, including the
enforcement of civil immigration laws.

Section III of this article traces out the procedural implications of the growing reliance on
the criminal justice system as a way to manage migration. There is little dispute that the
engagement of state and local police in immigration control under the rubric of their
traditional crime-fighting functions has engaged a host of new actors in the task of
immigration enforcement. Less obviously, their involvement has also resulted in a
fundamental readjustment of certain procedural norms in the sphere of criminal law
enforcement.

Section I: Criminalizing migration: the use of the criminal justice system to manage
migration

The past two decades have witnessed the evolution of what Juliet Stumpf has termed
―crimmigration‖ law, which she defines as parallel systems ―in which immigration law
and the criminal justice system are only nominally separated.‖8 The overlap between the
two systems has several distinct manifestations, including the a dramatic rise in the
prosecution of migration-related criminal offenses within the criminal justice system;
increasing reliance on removal as a collateral (or alternative) form of punishing crime or
suspected criminality; and the use of quasi-criminal institutions, such as immigration
detention and militarized investigatory raids, in what are nominally purely civil
immigration investigations and proceedings. Each of these trends will be explored
below.

         Prosecuting Immigration Crimes

The spike in migration-related criminal convictions is perhaps one of the most notable
features of the past decade of law enforcement in the United States. Simply stated,
immigration enforcement has moved to the top of the federal crime control agenda.
In 2004, U.S. magistrates convicted 15,662 noncitizens of immigration crimes, and U.S.
district court judges handed down another 15,546.9 After remaining relatively flat in the

focus extensively on the use of civil removal proceedings as a form of criminal punishment, but there is no
doubt that in many cases, this is exactly what they have become.
8
  Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM.
U. L. REV. 367, 376 (2006).
9
  TRAC DHS Report 2005 (available at http://trac.syr.edu/tracins/highlights/v04/dhsoffcourtG.html) The
bulk of these prosecutions are for illegal entry and illegal re-entry, although a small percentage include
more serious immigration offenses, such as human smuggling. Id. The rapid rise in prosecutions in the
period between 2003 and 2004 was largely the result of ahuge increase in criminal prosecutions in the
period from 1986-1996, the number of immigration prosecutions almost quadrupled over
the next 10 years. 10 Immigration prosecutions are now the most common federal criminal
prosecutions, outstripping federal drug and weapons prosecutions, and dwarfing many
other forms of federal criminal prosecutions. 11

An upward trend of immigration prosecutions has continued since that time, and has
achieved record-breaking levels in every year since. In its final year, the Bush
Administration began an aggressive policy of prosecute illegal entry cases along the
Southern border rather than simply returning immigration violators to their country of
origin. 12 Because there are hundreds of thousands of unauthorized border crossings each
year, 13 the policy had a significant impact on the overall number of prosecutions for
immigration crimes. Department of Justice staffing reflected the new priorities: the
Department added __ Assistant United States Attorney to the southern border region to
handle increasing immigration prosecutions in 2008.14 In spite of vocal commitment to
immigration reform, the Obama Administration has continued to engage in record-setting
levels of immigration prosecutions. 15 [Add updated numbers – they are currently at
record high levels.]

Illegal entry cases are not the only cases that are fueling the upward spiral in
immigration-related prosecution. Individuals previously removed can be charged with
felony re-entry – a crime that now carries a sentence of up to 20 years. 16 Felony re-entry
charges are already rapidly on the rise throughout the United States. 17 Undoubtedly, as
prosecutions for illegal entry mount along the southern border, more and more people
will be subject to the felony reentry prohibition. This will contribute to the growing
population of noncitizens who have reentered in violation of the law, 18 and fueling the
upward spiral of prosecutions of the crime of felony reentry.

Although misdemeanor entry without inspection and felony reentry constitute the bulk of
criminal prosecutions related to migration, other immigration-related prosecutions are

Southern District of Texas. TRAC DHS Report at
http://trac.syr.edu/tracins/highlights/v04/distTopFiveG.html; also compare
http://trac.syr.edu/tracins/highlights/v04/dhscrimactG.html with
http://trac.syr.edu/tracins/highlights/v04/dhs_usref_fil_guiG.html
10
   TRAC DHS Report 2005 (available at http://trac.syr.edu/tracins/highlights/v04/dhstrendsG.html)
(graphic demonstrating the rapid rise in prosecutions since 1997).
11
   TRAC DHS Report 2005 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%)‖).
12
   Cite White House and DHS 2007 announcements re: catch & release.
13
   Cite statistics, Cornelius, Pew.
14
   Reuters News Service, United States Deputy Attorney General Announces New Resources for Southwest
Border, April 24, 2008 (available at http://www.reuters.com/article/pressRelease/idUS279082+24-Apr-
2008+PRN20080424).
15
16
   8 U.S.C. 1326.
17
   CITE DHS Stats; TRAC stats.
18
   James Smith, El Clandestino.
also on the rise. This increase has been facilitated by Congress‘ criminalization of
numerous other migration-related acts since the early 1980s. Examples of immigration
crimes codified during this period include federal criminalization of the hiring of
unauthorized migrants,19 and marriage fraud.20 Congress has also increased the severity
of punishment for many migration related offenses in recent years, including lengthier
criminal sentences for illegal reentry, 21 alien smuggling22 and trafficking in persons.23
For the past five years, the executive branch has made particularly pointed statements
about the peculiar evil of trafficking.

But the most significant increases in prosecution have not been in the areas of trafficking
or even smuggling. Nor, in spite of a great deal of rhetoric to the contrary, have they
been in the prosecution of employers who violate prohibitions on the hiring of
unauthorized workers. Instead, the most notable growth in prosecutions has been the
prosecution of workers alleged to have violated prohibitions on identity theft.24

The best known recent example of the use of identity theft laws to criminally charge
immigrant workers occurred in Postville, Iowa after a raid which took place on May 12,
2008.25 More than three hundred workers were detained in the Postville raids, and over
the course of the next few days, hundreds of them pled guilty to aggravated identity theft
based on their use of false documents to obtain employment.26 Even at the time these
prosecutions were generating hundreds of boilerplate plea agreements, the applicability
of the law to workers who did not know they were using someone else‘s identity was
uncertain. Indeed, several months after the Postville raids, the Supreme Court held that
the government was required to prove that the individual had knowledge that they were
using the identity of another in order to successfully prosecute an individual under the
identity theft provision. 27

In light of the mens rea requirement of the identity theft statute, had the Postville workers
gone to trial on the identity theft charges, all but a very few would have been acquitted.
But most of these individuals were the primary breadwinners for their families, and could
not afford to sit in immigration detention for months or years while their case went to
trial. The plea, with its four month sentence, was an appealing alternative. 28 Many may
not have understood that the plea will render them forever inadmissible to the United
States.29 Indeed, by some accounts, many did not understand that they were in criminal


19
     INA & Federal criminal statutes
20
21
   INA & Federal criminal statutes
22
   INA & Federal criminal statutes
23
   INA & Federal criminal statutes
24
   I need to find the data here from DHS, DOJ.
25
   Nigel Duara, William Petrosky & Grant Schulte, Claims of ID fraud lead to largest raid in state history,
Des Moines Register, May 12, 2008 (available at
http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20080512/NEWS/80512012/1001).
26
   Id.
27
   Flores-Figaroa.
28
   Account of Dr. Erik Camayd-Freixas (translator).
29
   INA 212.
court at all, even when they did understand the Spanish language translations that were
provided for them.30

Most of these workers had entered in violation of the law, but this offense is a
misdemeanor. There is no law criminalizing the act of working without authorization –
in that regard, the law takes aim at the employers rather than the workers. Thus, the
aggressive use of the identity theft statute to bring felony charges against workers greatly
enhanced their criminal culpability and triggered more severe collateral immigration
consequences for these workers. It also changed the optics of the Postville raid. As a
matter of optics, it was helpful for the government to be able to point to the hundreds of
―criminal aliens‖ – or aliens made criminal through the plea –netted in the Postville raids.
By placing the Postville workers into the column of criminal aliens, DHS was essentially
able to point to the Postville raid as an answer to repeated criticisms that large workplace
raids took the focus off real criminals and ―criminal aliens‖ in favor of focusing on
hardworking immigrants.

Long after the dust of the Postville raids had settled, the Supreme Court heard the appeal
of an individual in Illinois who had been convicted of the same aggravated identity theft
offense to which so hundreds of migrants had pled guilty in the Postville raids. 31 A
unanimous court decided in Flores-Figueroa that the aggravated identity theft statute
required the government to prove that the person charged knew that they were using
someone else‘s identity – it was not enough to establish that they used a false social
security number.32 In light of the decision, it is less likely that the government will
repeat the aggressive tactics of the Postville raid in future workplace raids. But criminal
prosecution of at least some workers – and certainly of immigrants in supervisory
positions – will continue to occur in the workplace raid setting. 33

Prosecutions for immigration-related offenses are also unfolding with increasing
regularity at the sub-federal level. While the federal government bears sole responsibility
for the regulation of immigration as a historical matter, states and localities are
increasingly enacting provisions that, like the federal identity theft statute, can be used to
target conduct associated with migrant communities. In some jurisdictions, these laws
have become a means for state and local governments to focus on immigrant populations
for prosecution.

States have moved to criminalize work without authorization. Notably, at the federal
level, it is the employer, not the worker who is criminalized. 34 Not so at the state level,
where working in violation of the immigration laws is now the basis for state criminal
sanctions. 35 States like Arizona have now made it illegal to work without authorization. 36


30
   Dr. Erik Camayd-Freixas, supra note 75.
31
   Flores-Figueroa vs. United States, [cite] (May 5, 2009).
32
   Id.
33
   Insert recent examples, e.g., immigrant supervisors at Postville.
34
   INA
35
   CITE AZ provision, etc.
36
   Cite AZ statute
States and localities are also adding a host of anti-loitering laws and other similar
ordinances that are clearly aimed to, and have been used to facilitate the criminal
prosecution of noncitizens at the state level. 37

Interestingly, even anti-trafficking legislation, which has been presented as a vehicle to
assist noncitizens who are the victims of exploitation,38 is being deployed by the states to
bring criminal charges against noncitizens, thereby serving as another means of
criminalizing migration. 39

Although this recent rise in prosecutions of immigration-related offenses is the focus of
this article, two other trends in immigration enforcement compound the overall
criminalization of migration that is occurring in the realm of the criminal justice system:
the increased use of removal as a collateral sanction to criminal punishment and the
importation of criminal law mechanisms into the purportedly civil realm of immigration
removal. Each of these issues are explored briefly in the remainder of this Section.

                  Removal as collateral consequence

Over the past two decades, Congress has passed substantial amounts of legislation that
requires or permits deportation as an adjunct to criminal prosecution. 40 In other words,
once an individual has been convicted of certain types of criminal offenses, those
criminal convictions become the basis for their expulsion from the country in civil
removal proceedings. Historically, noncitizens were not removed until they had served
their criminal sentence. The civil removal proceedings that followed are therefore treated
as a collateral civil sanction, not as punishment, no matter how ―punitive‖ these
proceedings appeared in any given case. Interestingly, the legal fiction that removal is
not punishment persists even as some states enact provisions to cut the costs of
incarceration by removing convicted noncitizens in lieu of having them serve their
criminal sentences.

The collateral sanction of removal applies in a broad array of criminal cases, and the
ability of an immigration judge to exercise discretion to prevent removal on criminal
grounds is heavily constrained. For example, the law currently requires that any
noncitizen convicted of an aggravated felony be deported, regardless of the equities of
their case. 41 For over two decades, the Immigration and Nationality Act (INA) had
specified that noncitizens convicted of aggravated felonies were deportable. 42 But over
the years, the definition of ―aggravated felony‖ was continually expanded. 43



37
   Aldana, Johnson, the new sundown towns.
38
   Chacón, Misery and Myopia at __.
39
   Id. Cite other examples. This parallels what has happened in terms of criminalization at the federal
level. Chacon.
40
   Kanstroom
41
   INA § 236.
42
   INA § 236 (annotated).
43
   Id.
Two laws passed in 1996 – the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA) and the Anti-terrorism and Effective Death Penalty Act (AEDPA) –
changed the operation of this provision in draconian ways. Not only did these laws
greatly expand the definition of ―aggravated felonies,‖44 but IIRIRA also eliminated the
ability of an immigration judge to provide relief from deportation in cases where the
equities favored relief. 45 Congress also added to the list of offenses other than
―aggravated felonies‖ that will render a noncitizen deportable or excludable. For
example, Congress mandated that even very minor drug crimes are grounds for
exclusion46 and deportation,47 and has provided almost no relief for lawful permanent
residents or unauthorized migrants charged under these provisions. 48 The expansion of
immigration consequences for drug crimes coincided with the ―war on drugs,‖49 and the
harshness of the resulting legal regime has been the subject of sustained scholarly
criticism. 50
                Criminalizing the Civil Realm

Even when the government is not pursuing criminal charges against noncitizens, the
administrative measures employed by the government to achieve civil immigration goals
increasingly resemble criminal punishment. ICE agents conduct militarized raids that
resemble those used in criminal investigations even when they are operating with
administrative warrants.51 ICE also imposes protracted detentions, sometimes under very
harsh conditions, 52 upon many migrants (including refugees) who are either attempting to
establish their admissibility53 or contesting their deportability. 54 As the Postville raids
demonstrated, the ability of ICE to deploy detention in a highly punitive manner
increases the leverage of the government in plea bargaining, furthering the conversion of
administrative violators into criminals.

Immigration detention facilities now constitute the fastest-growing segment of the prison
industry.55 Hundreds of thousands of noncitizens are detained in such facilities each
year. 56 Over the past decade, bed space in immigration detention facilities has risen from
just over 8,000 beds in 1996 to 27,500 in 2006.57 ―By the end of 2009, the U.S.
44
   INA § 101(a)(43).
45
   Discuss former 212c relief and the elimination of such relief under IIRIRA. Cite INA § 236; see also
Morawetz, Hing.
46
   INA
47
   INA
48
   CITE to the sad little waiver provision in INA; see also Chin et al.
49
   Chin et al.
50
   Morawetz, etc.
51
   Cite examples from ―raids‖ file and from ―fugitive operations‖ file.
52
   See, e.g., [insert studies re: detention conditions]; Nina Bernstein, Immigrant Finds Path Out of Maze of
Detention, N.Y. TIMES, September 11, 2009 at A__ (detailing the harsh conditions in immigration detention
for a mentally ill detainee).
53
   INA 212, 236
54
   INA 236, 237
55
   TRAC, etc.
56
   See supra (intro).
57
   Compare Department of Justice Fiscal Year 2002 Budget Summary (available at
http://www.usdoj.gov/jmd/2002summary/html/ins_breached_bond.htm) (providing 1996 data) with ICE,
Executive Summary ICE Accomplishments in Fiscal Year 2006 (available at ___) (providing 2006 data.
government will have more than 440,000 people in immigration custody‖ – three times
the number of a decade ago.58 Even has politicians are rethinking the war on drugs
because of the costs of incarceration, a whole new segment of detention is on the rise. 59
Critically, many immigrants who are awaiting the completion – and in some cases, the
initiation60 – of their civil removal proceedings are often are housed in the same facilities
as criminal offenders and are treated much like criminal detainees. This is true even
though most lack any criminal record whatsoever, and a significant number of those who
do have criminal records are guilty of the migration-related offenses of entry without
inspection or felony reentry. 61

The explosion in immigration detention has been driven by at least three factors. First,
the mandatory detention provisions passed by Congress in 1996 have greatly increased
the categories of noncitizens subject to detention pending the resolution of removal
proceedings, whether they are seeking admission or in the process of deportation
proceedings.62 Congress mandated detention for aggravated felons even as they
expanded that class of offenses to include a host of minor crimes.63 They have also
mandated detention in most cases for asylum seekers, in apparent violation of
international laws protecting refugees. 64 And many other categories of noncitizens in
removal proceedings are now subject to mandatory detention.65

Because immigration detention is construed by the courts as a form of civil, not criminal
detention, it is not subject to the same limitations as criminal detention. Many stays in
immigration detention are extremely prolonged. 66 But civil immigration detention looks
and feels like criminal detention. Inmates, including children, wear state regulated
clothing, are subject to rigid schedules with little allowance for outdoor recreation, they
have little access to friends, family or counsel. 67 Although they are sometimes placed in
separate immigration detention facilities, in many cases, they are housed with the general
inmate population. 68 Many immigration detainees are subject to frequent transfers
without notice, which makes it difficult for them to stay in contact with family and


58
   Jared Polis, The Case for Detention Reform, Huffington Post, September 15, 2009 (available
athttp://www.huffingtonpost.com/jared-polis/case-for-detention-reform_b_287260.html).
59
    Such inmates are often extremely vulnerable to rights violations – cite examples of Schwarznegger‘s
transfer orders for noncitizens.
60
   Donald Kerwin & Serena Yi-Ying Lin, Immigrant Detention: Can ICE Meet its Legal Imperatives and
Case Management Responsibilities, Migration Policy Institute Report, September 2009 at 1 (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 .
61
   Id. (noting that 58% of the detainees had no criminal record, and that of those who did, the ―most
serious‖ convictions for 6% of them were immigration offenses, while the most serious convictions for
another 13% were traffic violations).
62
   INA § 236(c); Margaret Taylor.
63
   INA § 236(c);
64
   Id.
65
   Id. (Elaborate with examples).
66
   Taylor, detention watch, briefs in Zadvydas, Demore v. Kim.
67
   Hutto report, and press accounts from ―detention‖ file.
68
   press accounts from ―detention‖ file.
lawyers. 69 Recently, numerous reports have focused on the fact that ICE does not always
provide adequate health care to its detainees, and as a result, a startling number of
noncitizens are dying in immigration detention. 70 In short, immigration detention can be
more harsh, more punitive, and more indefinite than criminal detention, but the inmates
in immigration detention centers lack many of the procedural protections that exist for
criminal detainees. 71

         The Perfect Storm?

The three trends discussed above – the increasing prosecution of immigration crimes, the
use of the civil removal system as an adjunct for criminal punishment and the
criminalization of the means and mechanisms of civil removal – have all contributed to
the criminalization of migration in the United States. One of the most interesting cultural
repercussions of this transformation in the landscape of immigration enforcement is that
it has substantially changed the discourse around unauthorized migration. Entry without
inspection – a misdemeanor – is a clear example of conduct that is malum prohibitum.
Yet the increasingly vitriolic discourse around undocumented migration relies on a
construction of unauthorized migration as malum in se. At least one commentator has
called the act of unauthorized entry an ―original sin,‖ in that it is presented as rendering
the migrant unfit for any future exculpation or benefit. While the law continues to
contain avenues by which noncitizens can seek to normalize their status after a violation
of civil immigration laws,72 those avenues have narrowed substantially in recent years. 73
Resistance to reopening those avenues or granting widespread legalization to
unauthorized migrants is high.74 As the next Section illustrates, the shift has also had a
practical impact on policing, because it has greatly expanded the number of players
involved in immigration enforcement.

Section II: Decentralizing enforcement: The Rise of State and Local Participation in
Migration Control

There can be little doubt that the policing of migration has experienced a fundamental
transformation over the past decade. During this time, enforcement has morphed from a
small and border-centered endeavor into a huge network of law enforcement agencies
operating throughout the nation‘s borders. This evolution is marked by two related
developments: the growth of the federal immigration bureaucracy focused on interior
enforcement and the rise of sub-federal law enforcement agency participation in
immigration enforcement.

A Changing Federal Approach


69
   press accounts from ―detention‖ file; ―interviews file‖ – conversation with lawyers with clients subject to
transfer.
70
   WaPo, NYT, House Hearings.
71
   Legomsky – asymmetric incorporation of criminal justice norms.
72
   Cancellation of removal provisions; waivers of inadmissibility.
73
   Discuss the lapse of 245(i) and the end of legalization provisions.
74
   CITES.
In fiscal year 2007, the U.S. government spent billions of dollars on immigration
enforcement activities. Immigrations and Customs Enforcement, the agency responsible
for immigration enforcement activities in the interior of the country, received nine
percent of the Department of Homeland Security‘s $79.6 billion budget. 75 Customs and
Border Protection, which includes the Border Patrol as well as other enforcement
agencies focusing on the flow of goods and people across the U.S. borders, accounted for
another nineteen percent.76 The two agencies combined therefore had operating budgets
of about $22 billion in fiscal year 2007.77 By way of comparison, in 1998, the budget for
the Immigration and Naturalization Service (INS) was just under $3.6 billion. 78 This
figure included the Border Patrol and other immigration enforcement, as well as
immigration services, which are now provided by Citizenship and Immigration Services
(CIS), and not included in the $22 billion figure above. The represents a budget increase
of over 600% in the past decade, and a 2200% increase since 1988. 79 The department of
Homeland Security now dominates national law enforcement efforts. 80 And these budget
figures reflect DHS spending on investigations, prosecutions, detention and removal, they
do not reflect all of the federal costs of immigration enforcement given the costs of
prosecuting and punishing immigration crimes. 81

Even as federal immigration enforcement is expanding, the nature of that enforcement is
changing. Internal enforcement measures have seen a significant increase in budget and
prominence in the U.S. government‘s immigration control strategy, particularly over the
past five years.82 Prior to September 11, 2001, the INS had fewer than 2000 immigration
agents to enforce immigration laws within the United States. 83 That number has almost
tripled since then. Now there are nearly 6000 ICE agents many of whom are dedicated to
internal enforcement.84 [These numbers need to be updated.] Congress consistently
has been increasing the budget for internal enforcement over the past few years. 85
Although the number of person-hours dedicated to internal enforcement has not risen as
quickly as the spending and hiring, 86 there is every reason to believe that internal

75
   DHS Annual Financial Report, Fiscal Year 2007 at 27, 28 (available at
http://www.dhs.gov/xabout/budget/).
76
   Id.
77
   This number does not include interdiction activities carried out by the Coast Guard, which received an
additional 23% of the DHS budget, nor does it include the costs of the Transportation Safety Agency,
which received another ten percent of that budget. Id.
78
   Office of National Drug Control Policy, An Overview of Federal Drug Control Programs on the
Southwest Border: Immigration and Naturalization Service (available at
http://www.ncjrs.gov/ondcppubs/publications/enforce/border/ins_3.html).
79
   Department of Justice, Budget Trend Data: Immigration and Naturalization Service, 1957-2003
(available at http://www.usdoj.gov/jmd/budgetsummary/btd/1975_2002/2002/html/page104-108.htm)
(recording an INS budget of $1.01 billion in 1988).
80
   TRAC DHS Report, http://trac.syr.edu/tracins/latest/131/ (―Measured by the number of criminal
convictions, DHS is now number one, the Drug Enforcement Agency second and the FBI a surprising
third.‖)
81
   See discussion supra notes _-_.
82
   CITE DHS source.
83
   Id.
84
   Id.
85
   Id.
86
   Id.
immigration enforcement has become and will continue to be a more prominent feature
of the U.S. immigration control strategy than has been the case in recent history.

The results of the buildup of interior immigration enforcement agents are evinced in the
rising number of enforcement actions undertaken in the interior. As Julia Preston wrote
for the New York Times in late 2007, ―[o]ver the last two years, ICE has grown more
aggressive, entering factories and communities, hunting down foreign fugitives ranging
from convicted criminals to workers whose visas have expired.‖ 87 The result is record
setting year after record setting year of formal removals. 88

In short, there has been an explosion of federal law enforcement aimed at enforcing
immigration laws – both civil and criminal. And although border enforcement has been
on the rise since the mid-1990s, 89 a much greater effort is being made to enforce laws
immigration laws not at the border, but in the interior.90

Growing State and Local Involvement

Nor is the explosion of immigration enforcement been limited to the federal government.
States and localities have also increased efforts to achieve immigration law goals through
criminal laws and law enforcement. These efforts have taken two forms. The first is a
proliferation of criminal laws aimed at achieving immigration-related goals. The second
is the involvement of state and local law enforcement in enforcing federal immigration
law – both civil and criminal.

         States and Localities Governing Migration Through Crime


For the past 150 years,91 the federal government has occupied the field of immigration
regulation enforcement, to the exclusion of state governments and state and local law
enforcement agencies. 92 Courts have frequently struck down state efforts to regulate
immigration law,93 and have subjected states‘ efforts to distinguish among state residents
on the basis of alienage to heightened scrutiny, 94 as opposed to the rational basis review
applied to federal alienage distinctions. 95 Nevertheless, states‘ efforts to develop
immigration regulations have sometimes withstood court scrutiny in cases where courts
have found that a state‘s efforts to regulate immigration complement the federal statutory
scheme.96


87
   Julia Preston, NYTimes, October 14, 2007. [might want to include statistics on raids.]
88
   See infra.
89
   Cornelius, Hing, brief discussion re: Hold the Line, Gatekeeper.
90
   Cf. Kanstroom (Harvard) re: the constitutional significance of the interior enforcement model.
91
   Neuman, Zolberg ( role of states in the early days of immigration reg.)
92
93
94
   Graham v. Richardson, 403 US 365 (1971).
95
   Matthews v. Diaz, 426 U.S. 67 (1976).
96
   CA regulation of employment of undocumented.
In recent years, state and local governments have developed a cottage industry in direct
and indirect immigration law enforcement. 97 In the past five years, state and local
initiatives aimed at regulating immigration have proliferated throughout the United
States.98 These initiatives have included, among other things, criminal and civil penalties
for those who employ unauthorized migrant workers; 99 penalties upon landlords who rent
housing to unauthorized migrants;100 English-only ordinances;101 and efforts to strip
unauthorized migrants of public benefits. 102

Courts have reached divergent conclusions on the constitutionality of these ordinances.
Some courts have concluded that these ordinances impermissibly encroach upon the field
of immigration, which is to be solely occupied by the federal government.103 Other
courts have struck down ordinances on the more limited grounds that they are
inconsistent with existing federal statutes regulating immigration. 104 Still other courts
have upheld state and local ordinances, finding these schemes in harmony with federal
efforts to regulate immigration.105 Scholars likewise have split on the question of the
constitutionality, 106 not to mention the desirability, 107 of state and local immigration
regulation.

One significant subset of these ordinances are those that seek to criminalize conduct that
state and local legislators associated –whether correctly or incorrectly –with unauthorized
migration. Such ordinances include the laws that prohibit congregating in certain areas
and soliciting employment. These laws take aim at ―day laborers,‖ and rest on the
problematic assumption that all day laborers are unauthorized workers. 108 Because states
and localities, rather than the federal government, has have historically served as a the
locus of criminal regulation,109 federal courts have been more willing to defer to sub-
federal regulation of crime. 110

        State and Local Law Enforcement as Immigration Enforcers

At the same time that some states and localities have been moving to implement and
enforce their own immigration regulations, many state and local law enforcement

97
   See supra at __.
98
   Olivas, Stumpf, Rodriguez, Huntington, McCandless, Pham, Wishnie, list of cites in imm. bibiliography.
NYT mag.
99
   CITES – materials in ―state and local legislation‖ file
100
    materials in ―state and local legislation‖ file
101
    materials in ―state and local legislation‖ file
102
    materials in ―state and local legislation‖ file
103
    materials in ―state and local legislation‖ file, include Prop 187.
104
    Cite Hazelton and Farmer‘s Branch cases
105
    Cite AZ decision.
106
    Wishnie, Pham (unconstitutional); Huntington (constitutional).
107
    Wishnie, Pham (undesirable); Rodriguez (potentially desirable); Kobach (desirable).
108
    Insert Wisc fn re: day laborers.
109
    Lawrence M. Friedman, Crime and Punishment in American History [71, ___] (1994) [more cites?]
110
    Juliet Stumpf, States of Confusion, 86 N. C. LAW REV. 1557, 1587 (2008) (noting the phenomenon and
arguing that such deference is undesirable when the goal of the criminal statute is to enforce immigration
law indirectly)
officials have been stepping up efforts to enforce federal immigration laws. Pressure for
increased federal-state-local cooperation in immigration enforcement has come from both
the federal and sub-federal levels. Federal immigration officials overtly have sought the
cooperation of state and local law enforcement officials in their efforts to enforce
immigration law.111 Sometimes, state and local officials respond with enthusiasm. 112
Indeed, at times, state and local zeal to enforce immigration law outstrips the ability (or
willingness) of federal agencies to coordinate with such efforts.113 At other times, these
entities view immigration enforcement measures as in tension with their own missions of
public safety.114 But the impetus for cooperation does not stem solely from federal
immigration officials. Many state and local law enforcement officials are also changing
their practices to facilitate synergies between their own crime fighting strategies and
immigration enforcement.115 While some of these efforts are subsumed in the federal
dollar count,116 states and localities are also laying out their own resources, which are not
included in federal budget figures.117 As the line between crime control and immigration
control has blurred, the impetus for cooperation between federal immigration
enforcement officials and state and local law enforcement officials has grown. This
cooperation is changing the face of immigration enforcement. The remainder of this
Section seeks to provide a sense of the scope and nature of this cooperation.

Historically, state and local law enforcement played a very limited role in enforcing
immigration law. In 1996, the Department of Justice issued a memorandum that outlined
the limits of state and local authority to enforce immigration laws. 118 The memorandum
made it clear that state and local officials did not have the authority to enforce civil
immigration laws. 119 Thus, a state or local police officer could not detain a noncitizen on
the basis of the fact that a noncitizen was present without current authorization, because
that is a mere civil violation, not a criminal offense.120 On the other hand, if the officers
had probable cause to make an arrest for a criminal violation of the immigration law,
such as illegal reentry or alien smuggling, they were authorized to do so under their
inherent lawmaking authority. 121

111
    ICE website, etc.
112
    Maricopa county, NC examples..
113
    Note that states and locals often report to ICE more undocs than ICE picks up, that DOJ has expressed
caution over Arpaio‘s zeal.
114
    Conference of mayors‘ report, LA special order 40, SF, Chicago sanctuary city policy, etc.
115
    esp. Arpaio; infra cite to op comm shield discussion, etc.; see also 287(g) debate. Cf. Rick Su (noting
the anomalous nature of local participation in enforcement efforts in circumvention of state authority).
116
    See supra notes __-__ and accompanying text (discussing expenditures on immigration enforcement).
117
    again, arpaio is a good example, but also North Carolina, GA.
118
    National Immigration Forum, State and Local Police Enforcement Backgrounder: Immigration Law
Enforcement by State and Local Police, May 2004 available at
http://www.immigrationforum.org/DesktopDefault.aspx?tabid=572 [hereinafter NILC Backgrounder on
State and Local Police.]
119
    DOJ OLC legal opinion of February 5, 1996. ―State 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.‖
120
    CITE
121
    DOJ OLC legal opinion of February 5, 1996. ―Subject to the provisions of state law, state and local
police may constitutionally detain or arrest aliens for violating the provisions of the Immigration and
Nationality Act.‖
In 1996, Congress expanded the power of state and local law enforcement to enforce
federal immigration law. 122 First, AEDPA authorized such officers to arrest and detain
noncitizens unlawfully present who had ―previously been convicted of a felony in the
United States.‖123 Second, IIRIRA authorized them to enforce civil immigration laws
―when there is a ‗mass influx‘ of foreign nationals, the situations requires an immediate
response from the federal officials obtain the consent of the state or local supervising
department.‖124 Finally, IIRIRA added section 287(g) to the Immigration and Nationality
Act, to allow the attorney general to delegate immigration enforcement authority to state
and local police pursuant to a formal agreement between the state or local agency and the
Department of Justice, provided the state or local officers underwent adequate training to
enforce the immigration laws. 125 Such agreements, now increasingly common, are often
referred to as ―287(g) agreements.‖126

After September 11, 2001, the role of state and local law enforcement in enforcing
immigration laws, particularly civil immigration laws, became increasingly murky. 127
The Office of Legal Counsel in the Justice Department under Attorney General John
Ashcroft revised the 1996 memorandum regarding the role of state and local police in
immigration enforcement, instead determining that state and local law enforcement had
―inherent authority‖ to arrest and detain immigration violators, including civil
violators.128 But the OLC memo was not immediately released. Instead, then-White
House Counsel Alberto Gonzales issued a 2002 letter to the Migration Policy Institute
suggesting a more moderate position than the unconstrained ―inherent authority‖ position
taken by OLC. 129 Gonzales‘ memo that state and local police had authority ―to arrest and
detain persons who are in violation of immigration laws and whose names have been
placed in the National Crime Information Center (NCIC) database.‖ 130 But even this
more limited authority signaled a definite broadening of state and local police power,
since the NCIC does include civil violators of the immigration law. 131

In the waked of this confusion, state and local police officers began to participate in
immigration enforcement in a variety of forms. The remainder of this section discusses
three different forms of state and local involvement in federal immigration

122
    NILC Backgrounder on State and Local Police.
123
    AEDPA § __, see also NILC Backgrounder on State and Local Police.
124
    NILC Backgrounder on State and Local Police. IIRIRA § __; INA § __.
125
    NILC Backgrounder on State and Local Police; CITE relevant IIRIRA provision and 287(g)
126
    See infra.
127
    NILC Backgrounder on State and Local Police at 2.
128
    Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, to the Attorney
General, Non-preemption of the Authority of State and Local Law Enforcement Officials to Arrest Aliens
for Immigration Violations (April 3, 2002), http://www.aclu.org/FilesPDFs/ACF27DA.pdf; NILC
Backgrounder on State and Local Police at 4. See also Clare Huntington, The Constitutional Dimension of
Immigration Federalism, 61 Vanderbilt L. Rev. 787, 801-802 (2008) (discussing the OLC memo, and the
varied responses taken by states and localities in asserting their ―inherent authority.‖)
129
    NILC Backgrounder on State and Local Police at 4. Cite to contesting views on ―inherent authority‖
pro: Kovatch (Huntington?); con: Wishnie, Olivas, etc.
130
    Cite Letter; NILC Backgrounder on State and Local Police at 4.
131
    Conference of Mayors‘ Report; Wishnie, Kalhan.
enforcement.132 The first form of cooperation is direct state and local participation in
immigration enforcement pursuant to agreements signed with the Department of
Homeland Security as permitted by Immigration and Nationality Act Section 287(g).
The second form of cooperation is the collaboration of state and local law enforcement
officers with ICE in ICE‘s ongoing military-styled operations geared toward noncitizens
with removable criminal offenses or immigration violations, such as ―Operation
Community Shield,‖ ―Operation Absconder,‖ and the ―Fugitive Operations Teams.‖
Finally, this section examines the role that state and local law enforcement officers are
playing in workplace and neighborhood raids even in the absence of formal training or
agreements regarding the enforcement of immigration law.

                           i.       INA section 287(g)

One of the most oft-discussed examples of state-local collaboration in immigration
enforcement is partnerships between the Department of Homeland Security and state and
local law enforcement agencies known as ―287(g) agreements.‖ 133 Section 287(g) of the
Immigration and Nationality Act (―INA), which became law in 1996, allows for the
cross-designation of certain trained state or local law enforcement officers to enforce
federal immigration law. 134 As of June 25, 2008, ICE has signed 55 memoranda of
agreement (MOAs) with state and local law enforcement agencies. 135 [update – the
numbers are now at 77]. According to ICE accounts, ―[t]he program is credited for
identifying more than 60,000 (since January 2006) individuals, mostly in jails, who are
suspected of being in the country illegally.‖ 136 In 2006, ICE budgeted $6,340,000 for
training expenditures related to agreements it entered into under Section 287(g).137

These agreements embody the most transparent form of state-local involvement in
immigration enforcement. Memoranda of agreement govern the scope of the
cooperation, and state and/or local officers receive training in immigration law. 138 At
their most expansive, these agreements allow designated state and local officers act in the


132
    I will not be discussing the ways in which state and local authorities have been deployed to enforce state
and local immigration ordinances, although that is obviously yet another way that state and local officers
have become involved in regulating migration. [if anyone else talks about/mentions this, give a cite.]
133
    Pub.L. 104-208, Div. C, 110 Stat. 3009-546 (adding 8 U.S.C. § 1387(g)).
134
    Id.
135
    U.S. Immigration and Customs Enforcement, Partners, available at
http://wwww.ice.gov/partners/287_g.htm (last visited July 9, 2008); see also Senate Judiciary Committee
Holds Hearing on Oversight of DHS, Interpreter Releases, April 14, 2008 at 1210 (citing to testimony of
Secretary Chertoff that there were over 40 such agreements in March).
136
    U.S. Immigration and Customs Enforcement, Partners, available at
http://wwww.ice.gov/partners/287_g.htm. This numer 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, Interpreter Releases, April 14, 2008 at 1210.
137
    January 17, 2008 letter from Reba A. McGiniss, Chief of the Information Disclosure Unit of the Office
of Investigations of Immigration and Customs Enforcement to Professor Michael Wishnie at 3, available at
http://islandia.law.yale.edu/wirc/287g_foia.html.
138
    INA § 287(g); also cite to specific MOUs in 287(g) MOU file.
same capacity as immigration officers in enforcing immigration law. 139 Under section
287, state and local agents are empowered to act ―in relation to the investigation,
apprehension or detention of [noncitizens] in the United States .‖140

The powers of state and local agents to enforce immigration laws vary, depending on the
scope and content of the agreement. The most common form of 287(g) agreement is also
the most limited form of agreement. These agreements exist between state or county
prison and jail officials, or ―Jail Enforcement Officers‖ (JEOs) and ICE. 141 These JEOs
are trained to make determinations of the immigration status of inmates in state and
county prisons and jails, and to report immigration violators to ICE. 142 Such agreements
exist in various cities and counties in Arkansas, Arizona, California, Florida, Georgia,
Massachusetts, Maryland, Missouri, North Carolina, New Mexico, Ohio, Oklahoma,
South Carolina, Tennessee and Virginia. 143

Other MOUs between ICE and local law enforcement are much broader. These
agreements allow local law enforcement officers, after a specified training period, to
enforce immigration laws directly, with the full immigration authority granted to ICE in
the Immigration and Nationality Act. 144 There are some limitations on this power.145
Only officers who have received training are eligible to perform immigration
enforcement duties,146 and those officers are subject to ICE supervision during the course
of their performance of immigration enforcement duties. 147 Generally, ICE requires that
immigration arrests be reported to ICE within 24 hours.148 In return, state and local
officials are ensured federal immunity when performing immigration enforcement duties
pursuant to the terms of the agreement. 149

State and local participation in immigration enforcement pursuant to section 287(g)
agreements has generated some criticisms. In particular, the practices of certain law
enforcement officers have raised serious concerns that local law enforcement officers
empowered to enforce immigration laws have engaged in widespread racial profiling

139
    INA § 287(g); also cite to specific MOUs in 287(g) MOU file.
140
    287(g)(1). And the state or local actor is entitled to federal immunity when acting under this section.
See 287(g) & MOUs.
141
    U.S. Immigration and Customs Enforcement, Partners, available at
http://wwww.ice.gov/partners/287_g.htm (last visited July 9, 2008).
142
    U.S. Immigration and Customs Enforcement, Partners, available at
http://wwww.ice.gov/partners/287_g.htm (last visited July 9, 2008).
143
    U.S. Immigration and Customs Enforcement, Partners, available at
http://wwww.ice.gov/partners/287_g.htm (last visited July 9, 2008).
144
    See, e.g., MOU between DHS and the State of Alabama, September 10, 2003 (available at
http://islandia.law.yale.edu/wirc/287g_foia.html) (list examples from other MOUs in file).
145
    CITE
146
    See, e.g., MOU between DHS and the State of Alabama, September 10, 2003 at 2, 5 (available at
http://islandia.law.yale.edu/wirc/287g_foia.html) (list examples from other MOUs in file).
147
    See, e.g., MOU between DHS and the State of Alabama, September 10, 2003 at 2,5 (available at
http://islandia.law.yale.edu/wirc/287g_foia.html) (list examples from other MOUs in file).
148
    See, e.g., MOU between DHS and the State of Alabama, September 10, 2003 at 2, 5 (available at
http://islandia.law.yale.edu/wirc/287g_foia.html) (list examples from other MOUs in file).
149
    See, e.g., MOU between DHS and the State of Alabama, September 10, 2003 at 6 (available at
http://islandia.law.yale.edu/wirc/287g_foia.html) (list examples from other MOUs in file).
targeting Latinos. The most egregious case may be that of the police department of
Maricopa County, Arizona, headed by Sheriff Joe Arpaio, whose agency has stopped so
many Latinos since the signing of the 287(g) agreement that the mayor of Phoenix has
called for a federal investigation of his practices, and the governor of Arizona has called
for the end of the contract.150 Although Maricopa County may be an extreme case, it may
not be an isolated example. Similar profiling concerns have been raised in other counties
with 287(g) agreements.151 Thus, the training programs that are being provided by ICE
may be insufficient to curb racial profiling, which has a long history of surfacing when
local law enforcement becomes engaged in immigration enforcement. 152

Another concern raised by 287(g) agreement is that the agreements drain off law
enforcement resources, which in turn impacts the ability of participating local police
departments to focus on more pressing issues, including violent crime. 153 When local law
enforcement officers are engaged in immigration enforcement, they are not available to
conduct investigations and detentions in cases involving serious crime. At the same time,
many of the immigration violators that are detained are not engaged in criminal activity,
raising questions about whether immigration enforcement constitutes the most effective
use of local resources.154 Finally, 287(g) agreements open up a host of potential
procedural loopholes for local law enforcement in the context of their crime-control
function – a problem that is explored in greater detail in the next section. 155
In spite of significant criticisms of the 287(g) program, on July 10, 2009, Secretary Janet
Napolitano of the Department of Homeland Security (DHS) announced that her
Department planned to expand the 287(g) program, adding 11 new law enforcement
agencies to the list of signatories of 287(g) agreements. 156 In order to address some of
the concerns outlined above, DHS revised the MOAs to clarify the scope of immigration
enforcement powers granted by the agreements and provided additional guidelines for
ICE supervision of the program. 157 To combat the concerns that 287(g) agreements were
serving as the basis for pretextual (and illegitimate) criminal arrests as a means of
initiating removal proceedings, the revised MOAs also made clear that law enforcement
agencies are required to pursue all criminal charges that originally caused the offender to

150
     See Phoenix Mayor Seeks DOJ Investigation of Maricopa County Sheriff Joe Arpaio, INTERPRETER
RELEASES, 1292-1293, April 21, 2008 (noting the mayor‘s concern that Sheriff Arpaio was engaged in
racial profiling); Chris Kahn, Governor pushes for crackdown on felons, ARIZONA STAR, May 14, 2008
(―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.‖)
151
    Cites to specific examples from ―287(g) media‖ folder will be included, ACLU NC report, MPI report.
The reason that 287(g) agreements may result in an upsurge in racial profiling as a police tactic are
explored in Section 2.
152
    article re: Chandler AZ, Wishnie, Johnson.
153
    Phoenix newspaper series of stories re: arpaio, Sheriff‘s report, etc.
154
    Id.
155
    See infra at __-__.
156
    Department of Homeland Security Press Release: Secretary Napolitano Announces New Agreements for
State and Local Immigration Enforcement Partnerships and Adds 11 New Agreements, July 10, 2009,
available at http:/www.dhs.gov/ynews/releases/pr_1247246453625.shtm.
157
    Id.
be taken into custody. 158 For reasons discussed in greater detail below, the proposed
reforms are unlikely to address all of the problems generated by the 287(g) agreements. 159

If 287(g) agreements raise concerns, they also have certain virtues. First, they are
relatively transparent. A list of existing agreements is publicized, 160 and the agreements
themselves are accessible. The agreements also contain complaint procedures to ensure
that members of the public have a mechanism for reporting abuses. 161 Second, they are
limited in scope. Only trained law enforcement officials take place in immigration
enforcement, and then, only when certain conditions are met.

While there is no doubt that 287(g) authority can be, and has been, subject to abuses, 162
the simple fact is that the agreements, entered into pursuant to a statutory provision, are
constrained to a certain degree by law. The same cannot be said for other forms of state
and local involvement in immigration control efforts.

                            ii. ICE “Operations” and State and Local Law Enforcement

    The ―war on crime‖ involved a militaristic metaphor, but has also involved the
deployment of high-intensity, military-style operations aimed at busting up drug and
weapons rings. 163 Such militaristic metaphors have also been common in immigration
enforcement, but historically, metaphors have been used to describe border enforcement
programs, such as Operation Hold the Line, Operation Blockade and Operation
Gatekeeper.164 As previously noted, however, border control measures are now only one
part of a more pervasive immigration control strategy, and the post-September 11
immigration control landscape has been characterized by rapid growth in both internal
and external enforcement measures. 165 In its effort to enforce immigration laws in the
interior, ICE has engaged in similar tactics. With its ever-larger budget and payroll, ICE
has engaged in a number of military-style ―operations‖ aimed at removing unauthorized
noncitizens from the interior of the United States. Examples have included ―Operation
Absconder,‖ the ―Fugitive Operations Teams‖ deployed throughout the country,
―Operation Predator‖ and ―Operation Community Shield.‖ In each of these efforts, state
and local law enforcement officers have played a role – one which has not been confined
to the four corners of 287(g) agreements.

                            (a) From Operation Absconder and NSEERS to LESC

In late 2001, the Department of Justice announced that it would enter into NCIC the
names of foreign nationals who had ignored outstanding deportation orders – a category


158
    Id.
159
    See infra at __.
160
    ICE website
161
    Alabama agreement and others.
162
    arpaio examples, etc.
163
164
      Cornelius, Andreus, Hing, Chacon (misery and myopia).
165
      Supra (intro).
of people that they labeled ―absconders.‖ 166 In reality, the ―absconder‖ category was
problematic. Studies have shown that as many as a third of the individuals categorized
by ICE as ―absconders‖ never actually received notice that they were subject to
removal. 167 Nevertheless, these names were entered into the database, which meant that
when state and local law enforcement ran checks through NCIC during routine traffic
stops or other law enforcement activities, these names would appear. Many law
enforcement officials would detain individuals with an NCIC record, and contact ICE. 168

In June 2002, the Attorney General expanded this use of NCIC to include individuals
who violated the terms of the National Security Entry-Exit Registration System
(NSEERS).169 NSEERS required certain noncitizens deemed to be ―high risk‖ to submit
to fingerprinting, photographs, and registration of their location on a periodic basis. 170
Notably, ―risk‖ was largely a function of one‘s nationality and religion. 171 Individuals
who violated the terms of the program included violators of civil immigration laws, such
as those who failed to depart upon the expiration of their visa. 172 Because civil violators
were entered into the NCIC database, state and local law enforcement were, in some
cases, enforcing civil immigration law, sometimes without their knowledge. 173 The
practice of including civil violators in NCIC has thus resulted in a sort of de facto (and
sometimes unwitting) cooperation of state and local law enforcement with DHS in
enforcing civil immigration laws – a fact that incited criticisms by some local
government officials. 174

Regardless of potential criticism, the entry of immigration violators, including civil
violators, into the NCIC has by now become a routine practice. Currently, ICE agents
train state and local law enforcement officers to use ICE‘s law enforcement support
center (LESC), which provides officers the ability to inquire about a person‘s criminal
history and immigration history. 175 Upon a call from a state or local law enforcement
officer, an ICE officer run the individual‘s identification data through various DHS
databases and the National Crime Information Center (NCIC) database to ascertain
immigration status.176 Increasingly, localities are taking advantage of this training so that
individuals detained during routine traffic stops or other minor violations must be cleared



166
    NILC Backgrounder on State and Local Police at 2.
167
    CITE. Even those who did receive notice might be forgiven for having disregarded it. These notices,
known as ―bag and baggage‖ letters by the INS throughout the 1990s, were so commonly disregarded that
they became commonly known as ―run letters.‖ CITE. For a sympathetic depiction of a noncitizen
―absconder‖ unaware of an outstanding order of deportation against him, yet trapped in ICE custody and
ultimately deported, see The Visitor.
168
    Cite examples from ―interviews‖ file.
169
    NILC Backgrounder on State and Local Police at 3.
170
    Id.
171
    Akram & Johnson, Cole, Sunaima.
172
    Id.
173
    If.
174
    Conference of Mayors‘ statement & Wishnie 2004.
175
    ICE website; ―interviews‖ memo.
176
    ICE website; ―interviews‖ memo.
through LESC.177 Thus, despite concerns over the accuracy of these databases, the
number of calls to the LESC database is was close to 700,000 in the year 2005, and is
likely increasing.178 From somewhat narrow beginnings, the practice of entering
absconders into the NCIC database has resulted in what effectively amounts to a full-on
cooperation between ICE and state and local law enforcement officers in enforcing not
only the criminal law, but also civil immigration law. 179

                          (b)      Fugitive Operations Teams

The other development arising out of Operation Absconder was ICE‘s formation of
Fugitive Operations Teams throughout the country. ICE initiated the National Fugitive
Operations Program on February 25, 2002, within the Office of Detention and
Removal. 180 The stated purpose of these teams is to ―identify, locate, apprehend, process
and remove fugitive aliens from the United States, with the highest priority placed on
those fugitives who have been convicted of crimes.‖181 ICE has grouped its Fugitive
Operations Team efforts, along with the 287(g) agreements and eleven other programs,
under the rubric of its Agreements of Cooperation in Communities to Enhance Safety and
Security (ACCESS) programs.182

Even with a significant increase in staffing, ICE‘s Fugitive Operations Teams still rely on
other law enforcement agencies to help them achieve these goals. Indeed, ICE actively
solicits cooperation from state and local law enforcement for participation in ―Joint
Fugitive Task Forces.‖183 These Joint Fugitive Task Forces have conducted activities in
many different parts of the country. 184 State and local officials who participate in these
operations – unlike those who enforce immigration laws pursuant to 287(g) agreements –
are not required to undergo lengthy training processes. Interviews with various law
enforcement agencies has revealed that, as a general rule, no training is required for such
participation.185



177
    Example: Mecklenberg county – turning over those individuals flagged in DHS databases for civil
removal proceedings.
178
    ICE website; ―interviews‖ memo..
179
    Arrests premised on NCIC database entry have a host of unintended and unexamined consequences. For
example, individuals who have been detained because of the presence of their name in the NCIC database
180
    U.S. Immigration and Customs Enforcement, National Fugitive Operations Program available at
http://www.ice.gov/pi/dro/nfop.htm (last visited August 14, 2008).
181
    U.S. Immigration and Customs Enforcement, National Fugitive Operations Program available at
http://www.ice.gov/pi/dro/nfop.htm (last visited August 14, 2008).
182
    U.S. Immigration and Customs Enforcement. State/Local Coordination, available at
http://www.ice.gov/partners/dro/iceaccess.htm (last viewed September 16, 2009). This Article does not
seem to address every aspect of intergovernmental cooperation, so it does not cover all ACCESS programs.
Those programs that are centered on immigration and customs enforcement at the border, for example, are
not included in this Section. Nevertheless, it is likely that such programs also have an impact on policing
norms, particularly in border communities. [CITE EXAMPLES – or cut?]
183
    U.S. Immigration and Customs Enforcement, National Fugitive Operations Program available at
http://www.ice.gov/pi/dro/nfop.htm (last visited August 14, 2008).
184
    Cite to numerous examples in ―media - JFTF‖ file.
185
    Include cites from Carolyn‘s memo re: interviews w/ Texas DPS, etc.
The logic behind the decision to use untrained state and local officials may stem from the
fact that the Joint Fugitive Task Forces have targeted ―fugitives who have been convicted
of crimes.‖ However, the search for ―fugitives‖ often yields arrests of many noncitizens
who were not the subject of the initial search. When ICE has an administrative warrant
to search for a fugitive, this warrant is often used to secure entry into homes or other
private areas where it is possible to sweep up ―collateral catches.‖ 186 In fact, the majority
of the people detained by Fugitive Operations Teams have no criminal record.187 A
substantial number of those detained to date were not fugitives, as the government has
not issued an outstanding order of removal against them – they are merely collateral
catches of the Joint Fugitive Task Forces. 188 This means that state and local law
enforcement officers are frequently assisting in the enforcement of civil immigration laws
through their participation in these Joint Fugitive Task forces. Although they generally
provide this assistance in coordination with ICE, some observers have still been
concerned that the conduct of state and local law enforcement may not be appropriate for
the enforcement of civil immigration law. 189

In some cases, rather than including state and local law enforcement in raid activities,
ICE simply turns over evidence gathered in ―fugitive operation‖ raids to state and local
law enforcement for further criminal investigations.190 In this situation, although state
and local law enforcement do not directly participate in the law enforcement action, they
rely upon the fruits of ICE action.191


                          (c)      Criminal Alien Program

Like the Joint Fugitive Task Forces, the Criminal Alien Program (CAP) involves
intergovernmental cooperation aimed at a particular subset of immigration violators.
While the Joint Fugitive Task Forces take aim at individuals with outstanding orders of
removal, CAP focuses on a different subset of immigration violators: the ―criminal
alien.‖ ―Criminal aliens‖ are noncitizens whose criminal conduct renders them
removable under one of the many provisions of the Immigration and Nationality Act that
prescribe removal as a consequence of an immigration violation. ICE‘s stated goal for
such programs is to identify ―criminal aliens who are incarcerated within federal, state
and local facilities, thereby ensuring that they are not released into the community by



186
    ―media - JFTF‖ file.
187
    ―media - JFTF‖ file. See, e.g., Lee Rood, What the Record Shows About ICE Arrests, DES MOINES
REGISTER, September 16, 2009 at __ (available at
http://www.desmoinesregister.com/article/20090916/NEWS/909160364/0/NEWS13/Register-exclusive--
Many-ICE-arrests-are-not-of-criminals--data-show) (last visited September 17, 2009) (noting that in central
and eastern Iowa, only 42% of the arrestees of the Fugitive Operations Team were actually ―fugitives‖ with
outstanding removal orders, and only 36% actually had criminal convictions).
188
    ―media - JFTF‖ file, ICE website.
189
190
    See, e.g., Minnesota v. Iris Janeth Maldonado-Arreaga (Kandiyohi County District Court
File No. 34-CR-07-1920),September 15, 2009. [cite other examples here.]
191
    The procedural implications of this practice are discussed in Section III.
securing a final order of removal prior to the termination of their sentence.192 Under the
CAP program, ICE screens local arrestees in detention and issues detainers against
individuals who are unable to establish lawful status.

In theory, the CAP programs should have no impact on policing. ICE performs a
screening function for individuals who have already been arrested in order to determine
their immigration status. The commission of a criminal offense is a necessary predicate
to the ICE screening. In practice, however, it is clear that the CAP program has the
potential to impact policing. To the extent that local police officers view immigration
enforcement as a legitimate law enforcement priority, they can use their discretion to
target those whom they believe –whether correctly or incorrectly – to be unlawfully
present. Indeed, a recent study of one CAP program in Irving, Texas, concluded that this
is exactly what was happening in that town. 193 The Obama administration has announced
plans to expand the CAP programs and a new initiative called ―Secure Communities‖ that
is also premised on intergovernmental cooperation to target immigration offenders with
criminal records.194

                          (d)      Operation Community Shield

Operation Community Shield provides another example of a program of state-local
cooperation with ICE. In this case, the operation has actually been designed with a goal
that is not primarily an immigration enforcement goal, but rather, is a criminal law
enforcement goal: namely, addressing the problem of criminal street gangs. 195 The stated
goal of Operation Community Shield is to target ―criminal street gang members and their
associates‖ for deportation. 196 The goals behind Operation Community Shield are
difficult to fault. The program is designed to promote coordination between state and
local law enforcement officers and ICE in efforts to decrease gang-related crime and
remove noncitizens who are involved in criminal gang activity. 197 However, the
implementation of Operation Community Shield has been less clear-cut than the stated
goals.

One of the biggest ambiguities about the operation is that the targets of the operation –
criminal street gang members – are not legally defined. ICE has no statutory or
regulatory standards to follow when making a determination as to who constitutes a
criminal street gang member, because the term is not defined by either immigration
statute or regulation.198 The identification of ―criminal street gang members‖ thus often

192
    U.S. Immigration and Customs Enforcement. State/Local Coordination, available at
http://www.ice.gov/partners/dro/iceaccess.htm (last viewed September 16, 2009).
193
    Trevor Gardner II & Aarti Kohli, The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien
Program, Policy Brief for The Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity, UC
Berkeley, Berkeley Law School, September 2009 (available at
http://www.law.berkeley.edu/files/policybrief_irving_FINAL.pdf).
194
    Rood, supra note __.
195
    Chacon – Whose Community Shield.
196
    Id.
197
    ICE; see also id.
198
    Chacon.
begins with state and local law enforcement officers.199 While state law sometimes
provides definitions for gang membership, officials presumably would not be constrained
by those definitions in determining which individuals to target for purposes of Operation
Community Shield. 200

Once state and local law enforcement officers identify an individual as a gang member,
that individual and any ―associate‖ rounded up in a police action are placed in deportation
proceedings on the basis of their violation of immigration law. 201 Associates are not
defined by law, either. One ICE official recently commented that it would include
―anyone who eats with a gang member,‖202 which would presumably include family
members and friends unconnected to gang activity. Interestingly, a significant number
of the individuals who have been detained and removed as part of Operation Community
Shield have been the ―associates‖ of gang members. 203 Even when the individuals
targeted are themselves members of gangs, they may not necessarily have a criminal
record.204 The lack of legal standards governing the identification of gang members
poses a serious overbreadth problem – one which may be constitutional in its
dimensions.205 At a minimum, it ensures that state and local law enforcement are
responsible for leading efforts to enforce civil immigration laws against identified gang
members with no criminal records and the ―associates‖ of gang members with no gang
affiliation and no criminal record.206

                          (e) Operation Predator

Operation Predator takes aim at one of the most reviled categories of criminals: sex
offenders.207 Generally, the targets of Operation Predator are identified through the use
of the FBI‘s NCIC database of sex offenders from all 50 states. 208 ICE can determine
which of these individuals may be subject to removal, and can target those individuals for

199
    Id.
200
    Id.
201
    Id.
202
    Id.
203
    Id. [might also want to discuss recent CIS report.]
204
    Discuss the issue of kids who hang out with gangs.
205
    City of Chicago v. Morales and compare.
206
    Questions have also been raised regarding the efficacy of using removal as an anti-gang strategy. There
is no doubt that the policy is tremendously burdensome for receiving countries. Chacon, WOLA reports,
Quirk story in the Atlantic, May 2008. Moreover, there is growing evidence to suggest that U.S. removal
policy has actually strengthened the transnational ties of gang members and has fueled rather than
diminished the gang problem. [cite LAT Article.]
207
    http://www.dhs.gov/xnews/releases/press_release_0210.shtm (last visited August 14, 2008); ICE page
re: Predator: http://www.ice.gov/pi/predator/newsreleases.htm. Also cite spat of recent literature
discussing the extreme stigma for sex offenses. Because Operation Predator also includes efforts to
identify and assist children worldwide who are subject to exploitation by the child pornography industry,
DHS makes the understandable claim that the initiate ―protects children worldwide.‖
http://www.dhs.gov/xnews/releases/press_release_0210.shtm. There is apparently no irony in this claim,
despite the fact that the initiative also results in the removal of persons identified as ―sexual predators
 - a strategy that does not seem like the best way to protect children abroad, particularly when receiving
countries are not informed of the purportedly dangerous individual‘s return. CITE.
208
    http://www.dhs.gov/xnews/releases/press_release_0210.shtm.
apprehension.209 Because of the nature of the sex offender database, Operation Predator
can result in the targeting of individuals whose circumstances to not seem to align with
DHS‘ and ICE‘s stated goal of ―protecting children.‖ 210 On the other hand, the form of
state-federal cooperation involved in Operation Predator, whereby ICE access state
criminal law records, is less likely to raise the concerns that come to the fore when state
and local law enforcement take a direct hand in enforcing immigration law. 211

                           (f) State and Local Cooperation in Workplace Raids

Although Congress amended the law to make the hiring of unauthorized workers illegal
in 1986, 212 worksite enforcement was relatively lax in the 30 year period that followed. 213
However, over the past few years, as the staffing and budget of ICE has grown, 214 the
Department of Homeland Security has increased the focus on worksite enforcement. 215
While the overall number of arrests and removals achieved through worksite enforcement
remains relatively small when compared to the tremendous size of the unauthorized
migrant population in the United States,216 worksite enforcement is undoubtedly
becoming a larger and more visible component of interior immigration enforcement.
Coordination with state and local law enforcement is a central component of ICE‘s
worksite enforcement strategy. 217 State and local officials are credited with participation
in a number of such raids in dozens of jurisdictions over the past year. 218 Media accounts
of raids have recorded the participation of state and local police forces at large workplace
raids. 219 This is true even though these workplace raids primarily involve administrative
detentions for immigration violations, with only a minority of arrests categorized as
criminal arrests.220

The role of state and local officials in conducting these raids is less transparent than the
fact of their participation. For example, as of March 31, 2008, worksite enforcement had

209
    http://www.dhs.gov/xnews/releases/press_release_0210.shtm
210
    story re: recent statutory rape removal, etc. (guy who lived with his young girlfriend and her parents).
211
    See discussion Section 2 infra.
212
    IRCA.
213
    CITE sources and note patterns.
214
    See supra.
215
    See, e.g., http://www.dhs.gov/journal/leadership/2008/07/myth-vs-fact-worksite-enforcement.html (last
visited August 14, 2008) (noting increasing numbers of worksite raids and arrests since 2004); see also
Statement of Julie L. Myers, Assistant Secretary U.S. Immigration and Customs Enforcement, U.S.
Department of Homeland Security before the U.S. House Of Representatives Committee on Ways and
Means, July 26, 2006 available at http://www.dhs.gov/xnews/testimony/testimony_0052.shtm (noting that
worksite enforcement is now a ―top priority‖ for the Department and the Administration).
216
    Compare stats (Pew numbers of undocumented v. DHS workplace enforcement stats).
217
    http://www.dhs.gov/journal/leadership/2008/07/myth-vs-fact-worksite-enforcement.html. (―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.‖)
218
    See, e.g., ICE Conducts Raids on Pilgrim‟s Pride Plants in Five States; Arrests 311 Foreign Nationals,
INTERPRETER RELEASES, April 21, 2008 at 1292 (noting investigations were product of multi-agency, state-
federal cooperation and that 91 of those individuals faced criminal charges for identity theft and
fraud)….MORE EXAMPLES.
219
    Provide numerous examples from ―media-raids‖ file.
220
    http://www.dhs.gov/journal/leadership/2008/07/myth-vs-fact-worksite-enforcement.html.
yielded 3000 administrative arrests, in comparison to only 875 criminal arrests.221 By
definition, this means that state and local law enforcement are engaging in the
enforcement of civil immigration laws through their cooperation with ICE and other
federal agencies. In many cases, state and local law enforcement have characterized their
role as a ―backup‖ role – providing security to the perimeter when these operations are
underway, but not actually taking part in either the detention or interrogation of
noncitizens.222 In some cases, these officials have revealed that they remained unaware of
the operation until after it was well underway, and they played an informal security role
upon learning about the operations. 223 But in other cases, law enforcement has been
informed about the raids well in advance and local officials have participated in the raids
in more active ways. 224


The workplace is not the only place where DHS has secured state and local assistance has
for immigration enforcement. Such cooperation has also occurred in anti-smuggling and
anti-trafficking enforcement efforts.225 Such efforts involve criminal law enforcement,
and resemble more traditional forms of state-federal cooperation,226 although it is difficult
to gauge what percentage of the arrests in these cases are actually criminal arrests.

                           (g) Other ICE Efforts Involving State and Local Officials

There are other instances where ICE enforcement actions rely on state or local law
enforcement cooperation, either formally or informally. For example, in the spring of
2008, the Probation Department in one California county (San Joaquin) was remanding
juveniles on probation into custody when they suspected those children might be
undocumented.227 Even when no formal ICE hold exists, and no hold has been noticed
to the children by ICE, some children were detained in excess of 48 hours, on the basis of
―unofficial‖ detainers ―called in‖ by ICE officers. 228 With or without the existence of

221
    Moreover, the number of criminal arrests includes the identity theft crimes that have become quite
questionable in the wake of Flores-Figueroa. See discussion supra at notes _-_.
222
    Interview with Carolyn Hsu, memo on file with the author.
223
    Id.
224
    Id. and media accounts.
225
    ICE arrests more than 600 illegal aliens in Phoenix, INTERPRETER RELEASES, March 17, 2008 at 883
((―On March 10, 2008, the Avondale Police Department discovered 55 illegal aliens at a drop house in
Avondale. On March 9, the Yavapai County Sheriff‘s Office uncovered a drop house in Black Canyon
City, turning 40 illegal aliens over to ICE for removal. On March 8, the Avondale Police Department
found 82 illegal aliens in a drop house. On March 7, 43 illegal aliens were found in a drop house in
Phoenix. On March 6, YCSO deputies found 34 illegal aliens in two traffic stops north of the valley and
the Phoenix police department discovered a drop house containing 38 illegal aliens.‖ Note that the YCSO
has entered into a 287(g) agreement, but that does not appear to be the case for the Avondale Police.); More
than 300 immigrants and suspected smugglers arrested in Mississippi, INTERPRETER RELEASES, January
28, 2008 (Operation Uniforce: ―About 40 Border Patrol and… ICE agents who normally work at or close
to the border have been temporarily assigned to the crackdown. They and local officials have spread out
along several miles of Interstate 20, which has become a major corridor for smugglers, and some of its
connecting highway.‖)
226
    CITE to examples of state/fed coop – BATF, FBI, etc.
227
    Email from area PD on file with author.
228
    Id.
287(g) agreements – and in this case, there is none – ICE is not empowered to enable
state and local officials to detain individuals under arrest on anything less than probable
cause (and certainly not ―informally‖). Such ―informal‖ and unofficial modes of
cooperation are increasingly common throughout the United States.229 Most troubling is
when individuals have been detained by local law enforcement even in the absence of
either a valid ICE hold or probable cause for continued criminal detention. 230

                           (h) Cooperation: summing it up

As the forgoing discussion demonstrate, federal-state-local cooperation in immigration
enforcement runs the gamut from ICE‘s formal training of state and local officers to
enforce immigration laws, whether criminal or civil; to state and local law enforcement
participation in ICE arrests of purported street gang members for removal on civil or
criminal grounds; to state and local participation in workplace raids or other ICE
enforcement actions; to reliance on federal databases to refer noncitizens to ICE; to
―informal‖ modes of cooperation. Concerns can be raised about all of these methods of
cooperation.231 Nevertheless, once the various forms of cooperation are laid out in detail,
it is evident that they present different kinds of risks. Sharing information regarding
possible civil immigration violations with local law enforcement through the NCIC
database, for example, increases the possibility of erroneous arrest.232

Less obviously, however, the modes of cooperation that directly engage state and local
officers in civil immigration enforcement – everything from 287(g) agreements to CAPS
to the anti-crime ―Operations‖ organized by ICE – fundamentally alter the procedural
baselines governing the conduct of state and local law enforcement. The legal standards
governing the conduct of immigration enforcement officials are not in alignment with the
standards that govern the conduct of law enforcement officials – whether federal, state or
local – in criminal investigations and prosecution. These differential standards were not
of huge moment when internal immigration enforcement was a relatively small and
discrete endeavor, but the growth of internal immigration enforcement and the
coordination of immigration enforcement and crime control efforts have changed the
stakes. As the next section illustrates, however, the transformation of immigration law
from a largely civil, border-centered enforcement mechanism to a nationwide system that
has assumed the punitive features of the criminal justice system has widespread
implications for policing, particularly in jurisdictions with heavy concentrations of
immigrants.



229
    Cite to examples like NJ, NC, AZ, where local law enforcement uses traffic stops pretextually, detains
people on ICE holds.
230
    Elaborate on theNC example, where people are detained beyond official ICE holds in the absence of PC.
231
    Some scholars, for example, have cited to the inaccuracies of immigration status information in
databases as a reason that state and local law enforcement should not be able to detain someone on the basis
of immigration violations. Wishnie, etc.
232
    See, e.g., Wishnie (discussing problems arising from inaccuracies in the databases). And, as previously
mentioned, ICE has sometimes used warrants issued on the basis of these databases to conduct more
expansive fishing expeditions for immigration violators. Supra cite.
Section 3: The Procedural Implications of a Decentralize, Crime Control Approach
to Migration

The decision on the part of governmental officials at all levels of government to more
actively enforce immigration law in the interior of the country is having a transformative
effect on the nature of law enforcement throughout the United States. As previously
noted, there has been an exponential expansion in the resources expended by the United
States government on interior enforcement. 233 If the noncitizen population against whom
these measures are aimed were relatively small, such measures would be unlikely to have
a widespread impact on national law enforcement. But these numbers are not small. 234
The absolute numbers of noncitizens living and working within the United States, and
therefore potentially subject to removal for violation of the immigration laws, is
substantial and growing. According to census figures, there are now 37.1 million non-
native born persons living in the United States.235 Of those, more than 22 million are not
naturalized citizens and remain subject to removal. 236 According to the Pew Hispanic
Center, this number includes 10 million legal residents and 12 million unauthorized
migrants.237

Moreover, it is important to stress that it is not just noncitizens who are affected by
immigration enforcement. Increasingly, immigrants live in mixed-status families that
include lawful immigrants and unauthorized migrants as well as citizens. 238 The large
and growing number of mixed-status families increases the chances that citizens and
lawful immigrants will be subjected to enforcement actions as a collateral consequence of
internal immigration enforcement measures taken against noncitizen relatives. Indeed,
examples of this phenomenon abound. 239 Nor is the problem limited to mixed-status
households. In neighborhoods and workplaces with noncitizens, citizens and lawfully
present noncitizens have been subject to immigration enforcement actions, including
prolonged stops,240 searches, 241 interrogations,242 arrest and detention243 and (in rare
cases) even removal. 244

Given the growth in interior enforcement, and the increasing number of people – both
citizens and noncitizens – whose lives are affected by this enforcement, it is worth asking
whether the transformation in the enforcement landscape is also transforming the nature

233
    supra
234
    footnote re: debate over whether this is historically different. NOTE that it is not in terms of immigrants
(Aristede Zolberg, etc.) but also note that the number of nonimmigrants needs to be taken into account in
this discussion making the comparison an apples to oranges situation. Krestedemas.
235
    Census data
236
    Id. Include brief discussion re: declining protection for LPRs and also note that naturalized citizens are
also potentially subject to denatz, but that the affected numbers here are small. w/ cites.
237
    Pew data.
238
    Thronson, etc. Thronson has stats on number of kids in mixed-status homes.
239
    NYT Nina Bernstein story re: raids of house where only citizens and LPRs live.
240
    Cite examples from ―media - raids‖ file.
241
    WaPo article re: hundreds of citizens detained in raids.
242
    Cite examples from ―media - raids‖ file.
243
    Cite examples from ―media - raids‖ file.
244
    Cite examples from ―media - raids‖ file.
of individual rights and procedural protections in the face of these enforcement actions.
There is precedent for asking this question. As the ―war on drugs‖ expanded in the 1980s
and 1990s, scholars increasingly considered the question of whether enforcement actions
undertaken as part of the ―war on drugs‖ were impacting criminal procedural
protections. 245 Most (even those who supported the transformation) answered the
question in the affirmative.246 The new focus on immigration enforcement – which
appears to the most recent iteration of the war on crime, deserves the same sort of
analysis. Yet, to date, there have been few sustained efforts to analyze this issue.

Therefore, in this section, I explore the costs of continuing to wage a crime war on
migration, using the war on drugs as a comparative template. First, I review the
monetary and procedural costs of the war on drugs. After reviewing this literature, I
theorize that the conversion of migration into a crime-control problem is likely to mirror
some of these costs. The monetary price tag will be high. But more importantly, the
management of migration through the criminal justice system is likely to prove even
more damaging to criminal procedural protections. As with the war on drugs, a narrative
of urgency can be (and has been) used to justify the curtailment of procedural protections.
In the immigration context, that narrative has frequently involved appeals to national
security concerns. Perhaps more importantly, however, once immigration enforcement is
implicated in crime control, the procedural lines between foreign intelligence gathering
and domestic law enforcement norms, and between civil and criminal proceedings,
become less clear, and this has procedural costs of its own.

        a. Assessing the monetary cost of the war on drugs

Scholars have struggled over the question of the price tag for America‘s war on drugs.
Some estimates place the current figure at about $40 billion per year.247 Another estimate
pegged the costs at more than $75 billion a year in public spending and another $70
billion a year from consumers.248 Governments have spent much of that money to build
up a massive penal system at both the federal and the state level to house the numerous
prisoners of the war on drug.249 Money has also been poured into various forms of
policing.250 Comparatively little money has been spent on treating addiction and
rehabilitating prisoners. 251

These monetary costs have been accompanied by a host of social costs. The mass
incarceration of large segments of the population has had a devastating impact on the

245
246
247
    Jonathan Caulkins & Robert MacCoun, Analyzing Illicit Drug Markets When Dealers Act With Limited
Rationality, in The Law and Economics of Irrational Behavior 315, 315 (Francesco Parisi & Vernon L.
Smith eds., 2005).
248
    Charles H. Whitebread, ―Us‖ and ―Them‖ and the Nature of Moral Regulation, 74 S. Cal. L. Rev. 361,
368 (2000) (citing William F. Buckley, Statement to the New York Bar Association (Summer 1995), in
Nat'l Rev., The War on Drugs Is Lost, Feb. 12, 1996, at 34, 35).
249
    Simon, et al (supra note 41).
250
    Id.
251
    Id.
families, neighborhoods and communities of the incarcerated.252 The costs have not been
spread evenly. Numerous scholars have noted that the ―war on drugs‖ was aimed
predominantly at minority populations, particularly African Americans. 253 As a result,
post-Civil Rights era race relations have largely been cast in the language of the war on
crime, which, in turn, has resulted in a continued pattern of racial discrimination,
segregation and disenfranchisement. 254 ―[T]he war on crime transformed the social
meaning of race in ways that make it more difficult than ever to resolve America‘s
constitutive flaw, it‘s legacy of slavery and racial domination and the structural
deformation of democracy that these legacies produced.‖255

Nor have the negative social costs been contained within the borders of the United States.
The ―war on drugs‖ has an international component as well. Scholars have faulted
United States attempts to eradicate drug production abroad for the negative toll such
efforts have taken on the health and environment of people living abroad. 256 Anti-drug
initiatives abroad have frequently taken a toll on human rights.257 U.S. efforts have also
undermined sovereignty in other nations. To avoid U.S. sanctions, several Latin
American countries have maintained high penalties for drug coca production or minor
drug offenses even when the leaders of those countries do not view such efforts as in the
national interest.258 And as the United States has revised its immigration laws to allow for
the deportation more and more drug users, including minor offenders, 259 the primary
receiving countries for deportees have confronted a wave of addiction that is firmly
rooted in U.S. drug culture.260

        b. The war on drugs and criminal procedure

252
    BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 85-198 (2006); [additional cites? CITE to
studies on social impact of mass incarceration – e.g. David Garland, The Culture of Control: Crime and
Social Order in Contemporary Society (2001)?; Simon‘s Governing through Crime.]
253
    See, e.g., [new Haney Lopez article], Christina Jacqueline Johns, Power, Ideology, and the War on
Drugs 73 (1992); Floyd Weatherspoon, The Devastating Impact of the Justice System on the Status of
African American Males, 23 Cap. L. Rev. 23, 30-31 (1994); Ira Glasser, American Drug Laws: The New
Jim Crow, 63 Alb. L. Rev. 703 (2000); compare William J. Stuntz, Unequal Justice, 121 Harvard L. Rev.
1970, 1971-74 (noting sentencing disparaties, but rejecting an explanation of ―official racism‖ in favor of
an account of declining local control over crime and punishment.)
254
    Loic Wacquant, The Place of the Prison in the New Government of Poverty, AFTER THE WAR ON CRIME,
supra note __ at 27 (2008).
255
    Simon, Haney-Lopez, Frampton at 3.
256
    See, .e.g, Zachary P. Mugge, Notes & Comments, Plan Colombia: The Environmental Effects and
Social Costs of the United States' Failing War on Drugs, 15 Colo. J. Int'l Envtl. L. & Pol'y 309, 311, 319-
333 (2004) (describing ―the coca crop fumigations in Colombia, including their human health effects and
environmental impact.‖); see also Solimar Santos, Unintended Consequences of United States‟ Foreign
Drug Policy in Bolivia, 33 U. MIAMI INTER-AM. L. REV. 127 (arguing that the U.S. war on drugs has ―left
Bolivia, the poorest country in South America, in the grips of economic devastation and in the wake of
social upheaval.‖)
257
258
    Angelina Snodgrass Godoy, American Doesn‟t Stop at the Rio Grande in AFTER THE WAR ON CRIME,
supra note __ at 38 (2008) (―To avoid such sanctions, countries such as Bolivia has penalized coca
production over the objection of their population.‖); CITE ALSO TO MATERIALS RE: MEXICO
MARIJUANA LAWS.
259
    Yates, Chin, et al., article re: drug deportations
260
    Cite examples re: Mexico, central America, Asia(?).
Domestically, the ―war on drugs‖ has also had a transformative effect on criminal
procedure.261 ―The warrant requirement, the need for particularized suspicion before
stopping individuals on the highway, and the requirement that police knock and announce
themselves before entering a private home, have all been proposed recently as necessary
casualties of the war on drugs.‖262 Numerous cases handed down by the Supreme Court
in the 1980s and 1990s invoked the needs of the drug war to justify the circumscription of
the rights of citizens subject to governmental investigation. During this time, the
Supreme Court has expanded the scope of government searches permissible without a
warrant,263 greatly increased the scope of stops permissible without probable cause 264 or
even reasonable suspicion,265 watered down the ―probable cause‖ standard,266 and
stripped away procedural protections at the border or its ―functional equivalent.‖267

Scholars and jurists differ on whether these changes to constitutional criminal procedure
have been necessary or desirable. 268 But a byproduct of the loosening of checks on police
investigations was that the nature of policing, particularly in low-income minority
neighborhoods, was transformed.269 Police had more free reign to stop, aggressively
question, search and detain individuals in low income, minority neighborhoods. This –


261
    See, e.g., Haney López, supra note __; Stuntz, supra note __ at 2160 (noting that the war on crime
transformed criminal procedure and speculating that the ―war on terror‖ will do the same). Erik Luna, Drug
Exceptionalism, 47 Vill. L. Rev. 753 (2002); Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L.
Rev. 333 (1998); Thomas Regnier, The ―Loyal Foot Soldier‖: Can the Fourth Amendment Survive the
Supreme Court's War on Drugs?, 72 UMKC L. Rev. 631 (2004); 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 (1997); David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth
Amendment, 1997 Sup. Ct. Rev. 271; William J. Stuntz, Warrants and Fourth Amendment Remedies, 77
Va. L. Rev. 881, 938-41 (1991). [update cites]
262
    Margaret Raymond, Commentary on “The Drug War,” 6 J. GENDER RACE & JUST. 447, 448-49 (2002)
(citations omitted).
263
     See, e.g., Florida v. Bostick, 111 S.Ct. 2382, 2385-88 (1991) (finding ―consensual‖ and therefore
exempt from the warrant requirement police officers searches of passenger‘s bags on a bus detained by
police); California v. Acevedo, 111 S.Ct. 1982, 1985-91 (1991) (upholding warrantless search of container
within a car where there is probable cause to search only the container); Illinois v. Rodriguez, 497 U.S.
177, 182-89 (1990) (upholding a warrantless entry based upon the consent of a third party whom police
incorrectly but ―reasonably‖ believed to possess common authority over premises); California v.
Greenwood, 486 U.S. 35, 39-44 (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); United States
v. Leon, 468 U.S. 897, 922-25 (1984) (establishing a ―good faith‖ exception to exclusionary rule for
warrants issued on less than probable cause); United States v. Place, 462 U.S. 696, 706-07 (1983)
(upholding the use of drug-detecting dogs to conduct a sniff examination of luggage without probable
cause); United States v. Knotts, 460 U.S. 276, 280-85 (1983) (approving the use of transmitters or beepers
to conduct surveillance of suspects); United States v. Ross, 456 U.S. 798, 817-24 (1982) (approving
warrantless search of automobiles, as well as closed containers inside the vehicle). Additional CITES?
264
    Cite stop cases.
265
    Martinez-Fuerte, border checkpoints, Sitz.
266
    Illinois v. Gates, 462 U.S. 213, 241-46 (1983) (adopting ―totality of circumstances‖ test for determining
whether informant‘s tip is reliable for purposes of search warrant).
267
    Brignoni-Ponce, Martinez Fuerte,
268
    Cole (1999 Geogetown); Meares Kahan; Marshall, J. Rehnquist, J.
269
    INSERT CITES.
along with disparate sentencing regimes 270 – helped to fuel the rising tide of minority
youth imprisoned in America‘s prisons and jails. More than 1 in every 100 adults in the
United States are in prison or jail. 271 African Americans are substantially
overrepresented. One in nine African American males between the ages of 20 and 34 is
behind bars.272

Over the past few years, the zeal for the war on drugs has lessened. Perhaps one of the
most significant reasons for this declining enthusiasm is the high cost of incarceration. 273
Whatever the reason, for the first time in over three decades, it is once again politically
acceptable for politicians to conduct cost-benefit analyses in evaluating criminal justice
policies, 274 rather than blindly adopt the most intuitively ―tough on crime‖ stance. 275


        c. Immigration enforcement as the latest phase of the “war on crime”

Unfortunately, even as policy makers, commentators and the public begin to question the
war on drugs and the mass incarceration left in the wake of the war, the use of similar
tactics to manage migration is on the rise. So far, these developments have avoided much
of the cost-benefit reassessment that has been applied to the ―war on drugs.‖ There are
several reasons for this. First, as previously mentioned, the focus on immigration crimes
has been justified using the rhetoric of national security. 276 Second, the concerns over the
cost of prolonged incarceration that have arisen in the drug context are less pressing in
the context of immigration crimes, since removal277 can be used as an adjunct to, or even
a substitute for, incarceration. 278 Third, concerns about rehabilitation and reentry are
averted in the immigration context, since there is a presumption that noncitizens will not
return to the community in most cases, but will be removed. 279 Finally, just as with the
―war on drugs,‖ the racially discriminatory impact of the new phase of the war on crime
is normalized, this time by the use of alienage classifications and a rhetorical emphasis on
the ―illegal alien‖ as the target of the law‘s aim. 280 Unfortunately, however, this new
criminal justice focus is likely to encourage continued erosion of criminal procedural

270
    Explain with citation.
271
    One in 100: Behind Bars in America 2008, Report from the Pew Center on the States, February 2008
(available at http://www.pewcenteronthestates.org/report_detail.aspx?id=35904) [hereinafter ONE IN 100].
272
    ONE IN 100, supra note __ at 3.
273
    Simon, et al, supra note 41.
274
    Simon et al., Wade Goodwyn, Texas Courts Aim to „DIVERT‟ First Time Offenders, National Public
Radio‘s All Things Considered, August 15, 2008 (available at
http://www.npr.org/templates/story/story.php?storyId=93614135) (discussing Texas‘ increasing use of drug
diversion courts, which emphasize treatment over prison, and noting that ―[s]tate officials estimate that
unless changes are made, Texas will need 17,000 more prison beds just four years from now. Releasing
prisoners on parole is politically untenable — which makes "diversion" an increasingly appealing way to
avoid what's looking like a $2 billion invoice.‖); ONE IN 100, supra note __ at 3.
275
    For a discussion of the ―tough on crime‖ politics of the 1980s and 1990s see (Simon et al?)
276
    JMC – UCONN, TRAC data.
277
    Define and explain.
278
    Provide examples of states like GA who are shortening prison terms to deport people.
279
    demleitner re: no rehab programs for immigrants, etc.
280
    Provide examples from clips file.
protections in ways that will be felt most keenly by racial minorities – in this case,
communities such as low income Mexican American neighborhoods that are associated
in the public mind with unauthorized migration. 281 This Section analyzes the procedural
implications of the expanded and decentered use of criminal law enforcement to achieve
migration control, with attention to the particular structures of cooperation that are
currently in play.

                 i.       Informal Cooperation: Reaping the Benefits of Lower Procedural
                          Protections in Immigration Enforcement

As previously noted, much of the role played by state and local law enforcement in
enforcing the nation‘s civil immigration laws is informal, and does not take place
pursuant to any agreement, nor is it contingent upon these agents receiving training in
federal immigration law. 282 This raises important questions concerning the body of law
that governs their actions when they become agents in enforcing civil immigration law.
The gap between the remedies available in criminal proceedings and those available in
civil removal cases raise the genuine possibility that immigrants whose constitutional
rights are violated will be served to ICE for removal on a silver platter.283

As a general rule, the federal constitution serves as a floor for procedural protections for
individuals subject to government investigation, prosecution and punishment.284 These
protections include the Fourth Amendment‘s protections against unreasonable searches
and seizures,285 the Fifth Amendment right against self-incrimination;286 the Sixth
Amendment right to counsel; 287 and the Eighth Amendment‘s protection against cruel
and unusual punishment.288 States are able to set heightened standards of protection
through their constitutions, statutes and regulations,289 and many have.290

Because state action is involved in the enforcement of immigration law – even civil
immigration law – the protections of the Fourth and Fifth Amendment do apply. 291
However, the Supreme Court long ago decided that deportation was a civil, not a criminal
punishment.292 Thus, while the Fourth Amendment protection against unreasonable
searches and seizures applies to state officials enforcing immigration law, the remedies

281
    MAE NGIA, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA _(2004)
282
    Supra.
283
    Discuss the silver platter doctrine of yore.
284
    LaFave, Kamisar, etc.
285 th
    4 A (and discussion).
286 th
    5 A and discuss
287 th
    6 A and discuss
288 th
    8 A and discuss
289
    LaFave, Kamisar, etc.
290
    Provide examples, such as NYC rejection of ―plain feel‖ rule in frisk cases, statutory examples.
291
    The 6th Amendment right to counsel does not apply in civil immigration proceedings because it is
guaranteed only in criminal trials, although noncitizens are provided with a statutory right to counsel at
their own expense. INA __ . The Eighth amendment prohibition on ―cruel and unusual punishment‖ does
not apply, either, since removal is a civil proceeding that is not ―punishment,‖ but rather, a civil
proceeding. Wong Wing, etc.
292
    Fong Yu Ting, Wong Wing; see also Kanstroom discussion in Harvard L. J.
for violations of those rights is much different in the civil immigration context than in the
criminal context. 293

In 1984, in a 5-4 decision in the case of INS v. Lopez-Mendoza, the Court applied a cost-
benefit analysis to determine whether the exclusionary rule should be applied in civil
deportation proceedings. The court concluded that internal INS training, supervision,
regulations, and disciplinary procedures for immigration officers were together sufficient
to guard against 4th Amendment violations. 294 Thus, suppression was not required in the
civil context of immigration enforcement, except perhaps in cases involving ―egregious‖
violations of the Fourth Amendment. 295

Noncitizens have occasionally been able to argue successfully for the suppression of
evidence in immigration proceedings based on egregious violations. Examples of
violations that courts have found to be ―egregious‖ have included stops made solely on
the basis of race296 or of name. 297 But while some courts have found these situations to
be egregious, others have declined to so find. 298 A more universal use of the suppression
remedy in cases involving Fourth Amendment violations would be needed to truly deter
illegal conduct, whether egregious or not. Thus, the holding of Lopez-Mendoza is now
being used to justify the admission of evidence obtained in circumstances where the
reasoning of Lopez-Mendoza is plainly inapplicable: situations where state and local law
enforcement violate the Fourth Amendment during the course of investigations
undertaken in their capacity as criminal law enforcement officers. 299

The court in Lopez-Mendoza considered the possibility that the legal landscape could
change in ways that would require revisiting the decision, writing that its ―conclusions
concerning the exclusionary rule's value might change, if there developed good reason to
believe that Fourth Amendment violations by INS officers were widespread.‖ 300 Scholars
like Michael Wishnie reviewed the conduct of the INS in the period after the Lopez-
Mendoza decision and reached the conclusion that the need for the suppression remedy in
removal proceedings had become clear in light of widespread abuses. 301 More recently,
Stella Burch has persuasively argued that the Supreme Court‘s ―widespread violation‖
language in Lopez-Mendoza has been met, requiring the reinstatement of the exclusionary
rule in immigration proceedings at the present time.302 While widespread abuses do
appear to be taking place,303 the current Supreme Court is unlikely to champion the
expansion of the exclusionary rule in immigration cases, since they have continued the
293
    Lopez-Mendoza et al.
294
    Lopez-Mendoza.
295
    Lopez-Mendoza.
296
    CITE 9th Circuit case.
297
    CITE 9th Circuit case.
298
    Cite counterexamples from other circuits.
299
    Cite examples including danberry, CT raid.
300
    Lopez-Mendoza
301
    Wishnie, Hafetz.
302
    Burch.
303
    Id. [I also have a file of the workplace and home raids across the country where allegations of violations
have been made. They are geographically dispersed and numerous. That information will be detailed here
or in text above.]
work of the Rehnquist court304 in reducing the availability of the suppression remedy in
criminal cases,305 rather than expanding its reach.

Historically, differences in procedural protections afforded in criminal investigations and
in immigration investigations have been justified on the grounds that deportation is a civil
proceeding, not criminal punishment.306 U.S. legal doctrines historically have framed
deportation as a ―civil‖ punishment that does not require the panoply of criminal
procedural protections afforded in criminal trials. 307 At the time that the Supreme Court
handed down such edicts, deportation looked very different than it does today. As
Professor Dan Kanstroom has noted, at that time, strict statutes of limitations on
deportation were ensconced in the statute.308 Indeed, after a year in the United States, a
person was no longer subject to deportation.309 Additionally, there was almost no interior
enforcement, so deportation was primarily aimed at patrolling the borders. 310

Obviously, much has changed in the past century. Statutes of limitations for unlawful
presence were first truncated, and then eliminated completely. 311 Perhaps more
importantly, deportation has increasingly come to be used as an adjunct to criminal
punishment.312 Now, when a noncitizen, even a lawful permanent resident commits a
whole host of offenses, deportation is often mandated in addition to whatever criminal
punishment they are required to serve. 313 It is hard to understand how deportation is not
punishment at a time when immigration enforcement is increasingly pervasive in the
interior, and is enforced as an adjunct to law enforcement goals. Moreover, given the
extremely lengthy and punitive nature of immigration detention, it is also hard to view
such detention as mere civil detention pending removal – it has taken on a punitive nature
in and of itself.

The very rise of state and local participation in immigration enforcement illustrates the
shallowness of the fiction of deportation as a civil offense distinct from criminal
punishment. The involvement of state and local law enforcement officers in immigration
control illustrates both that these officials understand immigration enforcement as an
indirect means of achieving some of their own crime control goals and that these officials
see immigration violations as a crime problem in and of themselves. Nevertheless, the
courts persist in maintaining that the remedies available in criminal proceedings are not
needed in civil removal proceedings. The result is that state and local officials have
leeway to conduct investigative and detentions that would result in suppression in the
criminal context, knowing that evidence will not be lost in removal proceedings. Perhaps
the relative impunity with which they operate in the sphere of immigration enforcement

304
    Supra – footnote above with Leon, etc.
305
    Hudson case & Sharon Davies article, etc.
306
    Supra
307
    Supra
308
    Kanstroom - Harvard
309
    Kanstroom - Harvard
310
    Id.
311
    Kantroom, Ngai
312
    Supra
313
    Supra
also helps to explain the use of plainly illegal maneuvers like excessively long detentions
in the absence of probable cause or valid ICE detainers. 314

                  ii.      Formal Cooperation: Lowering the Bar for Criminal Law
                           Enforcement Officers

State and local officials who are informally enforcing immigration laws have, in at least
some cases, come to rely on the lower level of procedural protections available in the
context of civil removal proceedings. The problem may be even more systemic in cases
where formal cooperation agreements exist between state or local officials and ICE.
Under section 287(g), state and local officials are empowered to enforce civil
immigration laws. If they violate the Fourth Amendment in the course of doing so, the
evidence illegally searched or seized will not be suppressed in immigration proceedings.
Thus, in the context of 287(g) operations, the Lopez-Mendoza rationale is expanded to
some state and local law enforcement officials, enabling agents to violate constitutional
restrictions on searches, seizures and interrogations without fear of losing evidence for
purposes of removal proceedings.

While the absence of the suppression remedy in immigration enforcement matters is the
primary gap between immigration enforcement norms and criminal enforcement norms,
there are other areas where norms of enforcement appear to diverge.
Under section 287(g) agreements, the INA‘ statutory and regulatory guidelines govern
the conduct of the officials enforcing the immigration law. 315 Therefore, it is worth
examining the ways in which the immigration enforcement duties of deputized state and
local law enforcement officers may vary from the standards that govern their conduct in
criminal law enforcement, and to consider the ways in which this might impact policing
norms more generally.

The standards applicable in the investigation and prosecution of civil immigration
violations have been established by Congress, and laid out in the Immigration and
Nationality Act. First, INA section 287 gives any authorized officer or employee of DHS
the general power, without a warrant, to interrogate noncitizens, make arrests, conduct
searches and board vessels. 316 The INA makes no distinction in this regard between
internal immigration enforcement and enforcement at points of entry in this regard. 317
The statute indicates that interrogation can be conducted whenever the agent ―believes‖
the person to be an alien within the meaning of the act.318 In other words, the statute
allows for brief detentions and interrogation as to status without probable cause, upon
reasonable suspicion that the individual is committing an immigration violation. 319 This
authority appears slightly broader than the parameters of a stop justified by reasonable
suspicion under Fourth Amendment law as it has developed in the criminal context,

314
    See discussion supra at notes __-__.
315
    INA 287.
316
    INA 287.
317
    INA 287.
318
    INA 287.
319
    Cite cases interpreting requirement.
where such stops are (technically) limited to cases where there is reasonable suspicion of
a crime or a threat to officer safety. 320 In immigration enforcement, reasonable suspicion
of a civil violation is sufficient to justify the stop.

This is not to say that ICE or state and local 287(g) officers have limitless authority.
Reasonable suspicion is still required for the stop. Still, the INA allows DHS officers to
stop and interrogate a person on the basis of reasonable suspicion regarding immigration
status even where there is no reasonable suspicion of a crime or threat to officer safety. 321

Whether an individual is obliged to answer these questions is a different question, and the
answer may vary from state to state. In Hiibel v. Sixth Judicial Circuit of Nevada, 322 the
Supreme Court concluded that a state could pass a law that required individuals to
identify themselves at the request of law enforcement upon reasonable suspicion. 323
After Hiibel, if a state passes a ―stop and identify‖ law, an individual is required to
answer an officer‘s request for identification, and that requirement does not run afoul of
the Fourth Amendment.324 Many states do not have ―stop and identify‖ laws, however. 325
In such cases, it is not clear that an individual is obligated to answer questions about their
identity, and many immigrants‘ rights organizations have concluded that there is no
obligation to do so.326 On the other hand, it is possible that the INA allows authorized
authorities to request identification, consistent with Hiibel. If that is the case, then ICE
officers (and state and local officers acting under ICE authority) would have the power to
request identification, but state and local law enforcement officials acting in their general
crime control capacity would not.

The uncertainty of the law in this area, and the procedural gap that potentially exists
between immigration enforcement and other types of enforcement are having a corrosive
effect on procedural norms concerning interrogation. As Professor Anil Kalhan has
noted, ―the Court has edged toward giving a green light to federal, state and local law
enforcement officials to interrogate individuals concerning their status in almost any
context.‖327

The plain language of the INA also allows for immigration agents to conduct arrests if
the agent ―has reason to believe that the alien so arrested is in the United States‖ in
violation of immigration law. 328 This language may appear to suggest a lesser standard
for arrest than the probable cause required to conduct an arrest under criminal law.
Helpfully, courts have construed this provision to require probable cause to conduct

320
    Compare 4th A law in the criminal context.
321
    CITE
322
    542 U.S. 177 (2004).
323
    Id. at __.
324
    Id. at __.
325
    CA, etc.
326
    Kalhan; ―know your rights‖ materials; See also Brown v. Texas, 443 U.S. 47, 50-51 (holding
unconstitutional a Texas law requiring an individual, in the absence of any suspicion of wrongdoing, from
having to provide a name and address to police upon request.)
327
    Kalhan, UCD at 1208,
328
    INA 287_.
arrests, finding that the ―reason to believe‖ language requires the equivalent of probable
cause. 329 However, it is less clear that the ―probable cause‖ standard is as exacting in
administrative arrests.330 Again, this means that DHS officials, or those state and local
officials acting at the direction of DHS, may have the authority to arrest on a lower,
administrative standard of probable cause than do state and local officials acting in their
general law enforcement capacity.

Distinctions can also be found between criminal procedural practices and immigration
enforcement practices outlined in the implementing regulations for INA section 287. The
regulations require warrants or consent before an agent can enter a private home or
worksite. While administrative warrants are acceptable in immigration enforcement
actions, criminal warrants are required for purposes of gathering criminal evidence. 331
Unfortunately, the line between immigration law and criminal law is sufficiently blurry
that ICE and 287(g) officers are sometimes relying on administrative warrants are being
used in situations where criminal law enforcement objectives are central. 332

Confusion on the warrant issue appears to have led to abuses by both ICE agents and
those law enforcement officials acting at their direction. These officials sometimes
incorrectly make public assertions that no warrants are necessary to conduct arrests on
private property.333 It is possible that criminal warrants are not necessary, but
administrative warrants (or consent) are, and criminal warrants would be required in raids

329
     See, e.g., United States v. Varkonyi, 645 F.2d 453, 458 (1981); Lee v. Immigration and Naturalization
Service, 590 F.2d 497, 500 (3d. Cir. 1979); United States v. Cantu, 519 F.2d 494, 496 (7th Cir.), cert.
denied, 423 U.S. 1035, 96 S.Ct. 569, 46 L.Ed.2d 409 (1975); Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th
Cir. 1980); Au Yi Lau v. INS, 445 F.2d 217, 222 (D.C.Cir. 1971), cert. denied, 404 U.S. 864, 92 S.Ct. 64,
30 L.Ed.2d 108 (1971); compare Contreras v. U.S., 672 F.2d 307, 308 (2d Cir. 1982) (citing the provision,
and noting that in challenging arrest, ―plaintiffs do not contest that the officers had probable cause to
believe that plaintiffs were in the country illegally‖) (emphasis added).
330
    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, 1222-23 (D.C. Cir. 1981). 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 search warrant was
constitutional. International Molders' and 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 where warrantless arrests are authorized under the statute. [cites]
Moreover, even where 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. Immigration and
Naturalization Service, 525 F.2d 666 (2d Cir. 1975); see also La Franca v. Immigration and Naturalization
Service, 413 F.2d 686, 689 (2d Cir. 1969); Vlissidis v. Anadell, 262 F.2d 398, 400 (7th Cir. 1959);
Medeiros v. Brownell, 99 U.S.App.D.C. 396, 397, 240 F.2d 634, 635 (D.C.Cir. 1957).
331
    Abel v. U.S. 362, U.S. 217, 226-29 (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
Amendment)
332
    [Provide examples of the use of admin warrants in, inter alia, anti-gang sweeps, workplace raids where
criminal identity theft prosecutions ensue from media files.]
333
    CITE NYT article where this assertion is made. Other examples from media file.
such as that at Agriprocessors in Postville, Iowa, since DOJ and DHS had clear plans to
engage in the criminal prosecution of large numbers of unauthorized workers.334 As in
general criminal investigations, absent cases involving consent or exigent
circumstances, 335 some sort of warrant is required, and for criminal cases it ought to be
criminal warrants. But numerous lawsuits have been filed against ICE in recent months
alleging that agents entered homes or worksites in the absence of warrants, exigent
circumstances or consent.336 And, of course, the Lopez-Mendoza decision mitigates the
costs to ICE for violations of the warrant requirement. Courts have declined to suppress
evidence seized when ICE officers conduct arrests in violation of the warrant
requirements imposed by the immigration statute.337

Once an arrest has been made, procedure diverges depending on whether the noncitizen
has been arrested for ―civil‖ immigration violations or for criminal violations. For civil
violators such as unlawful presence,338 Miranda warnings need not be given, as the Fifth
Amendment protections extended to individuals in situations involving ―custodial
interrogations‖ since Miranda v. Arizona339 do not attach in these ―civil‖ proceedings. 340
That said, the individual is to be informed that they have the right to be represented by
counsel at their own expense. 341 In spite of this purported right to counsel, numerous
immigration attorneys have expressed frustration at their inability to access clients,
particularly after large raids at workplaces or residential sites. 342

For criminal violators, Miranda warnings are required in situations involving custodial
interrogations, and an individual has the right to remain silent in response to questioning,
as well as the right to have an attorney present during questioning. 343 They should also
be informed of their right to contact their consulate.344 But here again, the incentive for
ICE and 287(g) officials to provide warnings are lower than in standard criminal cases
since any evidence obtained in violation of Miranda can still be used in civil deportation
proceedings.345 This provides another means of using the illegally obtained testimony of

334
    Information in ―media-raids‖ file.
335
    Include citations to crim pro cases covering exigence and consent exceptions.
336
    Cite lawsuits; see also Burch (providing examples).
337
    See, e.g., United States v. Abdi, 463 F.3d 547, 556-57 (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.‖) [will cite many more examples.]
338
    Unlawful presence is a civil, not a criminal, violation. INA section 237(a)(1)(B). Other examples of
civil violations include penalties for failures to voluntarily depart (274D) and penalties relating to vessels
and aircrafts (243(c)). See CRS report, Immigration Enforcement within the United States.
339
    384 U.S. 436 (1966)
340
    Courts have found coerced confessions to be suppressible. Navia-Duran v. INS, 568 F. 2d 803 (1st Cir.
1977); Bong Youn Choy v. Barber, 279 F.2d 642 (9th Cir. 1960).
341
    INA.
342
    Cite examples from interviews file & media-raids file.
343
    384 U.S. 436 (1966)
344
    ICJ opinion, Bush letter, Medellin.
345
a noncitizen as evidence against that noncitizen in a highly punitive, albeit civil,
proceeding. 346

Allegations of ICE practices in lawsuits filed in various courts in Minnesota, Nebraska,
Massachusetts, California, New York and Texas, among other states, speak to the need
for greater remedies to curb abusive practices by ICE in conducting searches, executing
warrants and making arrests. Yet section 287(g) instead enables ICE to extend these
practices to state and local government officials acting under the auspices of ICE. More
troublingly, the events of recent months suggest that state and local law enforcement
officers, whether trained under the 287(g) programs or not, are disregarding the
procedural protections due to noncitizens subject to their jurisdiction as law enforcement
officers. They are able to do so with assurances that even if a criminal prosecution is not
forthcoming, the evidence gathered will be usable in deportation proceedings, which,
while civil, are often far more subjectively punitive for the individuals involved.

                 iii.    Lower Protections for Noncitizens In Criminal Proceedings

There is also some indication that the slippage in procedural protections threatens to
spread from immigration cour to the criminal cour. Although the law has long provided
Fourth, Fifth, Sixth and Eighth Amendment protections to citizens and noncitizens
alike, 347 in recent years, some courts have begun to raise doubts about the applicability of
4th Amendment protections against unreasonable searches and seizures to certain
noncitizens. The most visible of these decisions have been handed down by Federal
District Court Judge Cassell of Utah. In United States v. Esparza-Mendoza,348 Judge
Cassell concluded that the ―persons‖ protected by the Fourth Amendment did not include
unauthorized migrants.349

In reaching this decision, Judge Cassell relied on the Supreme Court‘s earlier ruling in
United States v. Verdugo-Urquidez,350 in which the majority of the Court, in an opinion
authored by Justice Scalia, concluded that Fourth Amendment protections did not apply
to prevent the illegal seizure of a noncitizen not present on U.S. soil at the time of the
seizure.351 That case had involved a Mexican national who was kidnapped by United
States officials in Mexico and brought to trial in the United States.352 Judge Cassell
reasoned that the holding applied equally to noncitizens actually present on U.S. soil,
provided they were present without authorization. He concluded that a noncitizen who
had re-entered the United States in violation of a prior removal order lacked sufficient
connection to the political community to be a part of the ―people‖ that the Fourth
Amendment was designed to protect.353


346
347
    Provide examples.
348
    U.S. v. Esparza-Mendoza, 265 F.Supp.2d 1254 (D. Utah 2003).
349
    Id.
350
    494 U.S. 259 (1990).
351
    Id.
352
    Id.
353
    Id. at 1270.
Critics have contended that Judge Cassell‘s conclusion is supported neither by the text or
history of the Fourth Amendment. 354 Nevertheless, at least one other court has followed
the lead taken by Judge Cassell in reasoning that Fourth Amendment protections do not
apply to unauthorized noncitizens. 355 This is not yet a widespread phenomenon, 356 but it
is important, because as the number of criminal prosecutions for immigration crimes
rises, the possibility of a broad exception to the rules of criminal procedure in cases
involving unauthorized noncitizens could have an impact not only on ICE conduct, but
also on the conduct of state and local police. No longer deterred by the federal
exclusionary rule, which would require the suppression of evidence in cases involving
illegal searches, police at all levels of government might be more inclined to conduct
warrantless searches in cases where the target of the search is undocumented. 357 This
would be true whether the nature of the investigation was criminal or civil.

Even if most courts continue to apply exclusionary rule protections for certain
noncitizens in criminal proceedings, there are ways in which courts are rolling back
protections for noncitizens in criminal proceedings. The Supreme Court‘s ruling in
Hiibel v. Sixth Judicial Circuit of Nevada, 358 which affirmed the constitutionality of state
―stop-and-identify‖ statutes, ensure that police can gather basic identifying information in
many jurisdictions upon reasonable suspicion. The Court concluded that such statutes
did not run afoul of the 5th Amendment right against self-incrimination because the
disclosure of one‘s name and identity is unlikely to yield incriminating information. 359
Unfortunately, for someone who is undocumented, the process of providing identifying
documents requires the production of incriminating evidence. 360

The Court also recently endorsed the abrogation of the international treaty right of
noncitizen criminal defendants in its decision in Medellín v. Texas. 361 In that case, the
Court declined to require the State of Texas to alter its procedural rules to consider
Medellín‘s claim (confirmed by the International Criminal Court) that he had been
impermissibly denied right under Article 36 of the Vienna Convention to contact his
consulate upon the initiation of criminal proceedings. 362

354
    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)[more.]
355
    Judge Crow‘s May 2008 Oklahoma district court opinion concluding no suppression in illegal serach
case b/c the person searched was a ―fugitive alien.‖
356
    More widespread, but as of yet of uncertain impact, is the tendency of courts to refer in dicta to Fourth
Amendment rights as the rights of ―citizens.‖ See Isabel Medina‘s article in Harvard CR-CL. 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 th casual imposition of a citizenship standard into the doctrines concerning
Fourth Amendment protections is troublesome.
357
    The exclusionary rule has long been considered a critical factor in Fourth Amendment compliance. See
Mapp v. Ohio.
358
    542 U.S. 177 (2004).
359
    542 U.S. at __.
360
    Kalhan (include parenthetical w/ analysis).
361
    552 U.S. ___ (2008)
362
    Id.
               iv.    Why worry now?

Several legal and demographic trends are converging that create a renewed need to
examine the procedural protections that apply in the context of immigration law
enforcement. First, immigration enforcement in the interior of the U.S. (as opposed to at
the border) is on the rise. 363 Second, there is a substantial and growing number of
noncitizens present in the US potentially subject to ICE jurisdiction. 364 Finally, local,
state and federal law enforcement officers are increasingly using immigration law as a
means of achieving criminal law enforcement goals. The increasing participation of state
and local law enforcement officials in internal immigration law enforcement both reflects
and reifies this third trend. Immigration control has become not only an objective of law
enforcement, but also a tool for achieving crime control goals more generally.

The result has been a pattern of more aggressive policing of Latinos in states where there
has been a surge of state and local participation in immigration enforcement. [I will
elaborate in this section, but there are now studies coming out of numerous states and
localities – I have examples from MD, NC, NY, NJ, GA, AZ, TX & CA – that substantiate
this trend.] As the tools of the crime war are trained on unauthorized migrants, members
of poor, immigrant communities are increasingly being sent to prison or deported. Their
families are suffering the same devastating effects that occurred as a result of the mass
incarcerations of the war on drugs. Their neighborhoods are being subjected to
increasingly aggressive policing. This policing is not limited to the actions of
immigration enforcement officers, but increasingly includes state and local law
enforcement purportedly carrying out their general law enforcement function. And as
this continues, the relaxed procedural norms that have long applied to immigration
enforcement are making their way into the daily policing of immigrant neighborhoods,
threatening to continue the erosion of criminal procedural protections that began with the
aggressive war on drugs of the 1980s and 1990s.

Conclusions

[Here, I will briefly discuss the need to focus explicit policy discussion on the
increasingly heavy reliance on criminal law to manage migration. I may also sketch out
some alternatives. This is still in progress.]




363
      Supra
364
      Supra