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A diversion of attention? Immigration courts and the adjudication of Fourth and Fifth Amendment rights.


Because of fundamental changes in the nature of immigration enforcement over the past decade, an increasing number of interactions between law enforcement agents' and noncitizens in the United States are ultimately adjudicated not in criminal courts, but in immigration courts. Unfortunately, unlike the state and federal courts that have long performed an oversight function with regard to police activity, immigration courts were not designed to police the police. As a result, there are inadequate mechanisms in place to address many of the rights violations that are occurring in the context of immigration enforcement. This Article explores the procedural deficiencies of the current system and offers some proposals to address this growing problem.


I. The Rise and Reformulation of Immigration Enforcement
     A. The Rising Tide of Immigration Enforcement
     B. Blurring Boundaries: Immigration Enforcement as
      Crime Control

II. Decentralizing Enforcement: The Rise of State and Local
     Participation in Migration Control
     A. Section 287(g) Agreements
     B. ICE ACCESS and State and Local Law Enforcement
        1. From Operation Absconder and NSEERS to LESC
        2. Fugitive Operations Teams
        3. Criminal Alien Program
        4. Operation Community Shield and Operation
     C. Secure Communities Initiative

III. The Procedural Implications of a Decentralized, CrimeControl
     Approach to Migration
     A. The Rights Gap: Differential Procedural Protections
        in Civil Removal Proceedings
     B. The Remedy Gap: The Absence of the Suppression
        Remedy in Removal Proceedings
     C. Assessing the Impact of the Rights and Remedies
     D. More Rights Gaps Ahead? Lower Protections for
        Noncitizens in Criminal Proceedings
     E. Why Worry Now?

IV. Solutions
     A. Applying the Exclusionary Rule in Immigration
     B. Immigration Court Reform
     C. Reforms Outside of the Immigration Court


   Absent the applicability of the exclusionary rule, questions
   relating to deportability routinely involve simple factual
   allegations and matters of proof. When Fourth Amendment issues are
   raised at deportation hearings, the result is a diversion of
   attention from the main issues which those proceedings were created
   to resolve, both in terms of the expertise of the administrative
   decision makers and of the structure of the forum to accommodate
   inquiries into search and seizure questions. The result frequently
   seems to be a long, confused record in which the issues are not
   clearly defined and in which there is voluminous testimony. (1)

This is an era of unprecedented immigration enforcement. Never before in the history of the United States has the government removed so many noncitizens in so short a time frame. Between 2003 and 2008, the U.S. government removed 1,446,338 noncitizens from the United States. (2) And not all noncitizens placed in removal proceedings were ultimately removed. Removals are merely the tip of the iceberg with regard to enforcement actions. For every noncitizen who receives a formal order of removal, another four depart "voluntarily" as a result of their encounters with the immigration enforcement bureaucracy. (3) At the same time, federal prosecutions of immigration crimes in criminal courts have reached an all-time high. Over the past five years, immigration crimes have risen to the top of the list of federal prosecutions, and now make up more than half of the federal criminal docket. (4)

Numerous agencies and adjudicators participate in the enforcement actions that have yielded this unprecedented wave of removals and convictions. Customs and Border Protection (CBP), a branch of the Department of Homeland Security (DHS), is responsible for many of the apprehensions that take place on or near the border. (5) Immigration and Customs Enforcement (ICE), another branch of DHS, is responsible for a great deal of the enforcement that takes place in the interior of the country, although they perform functions at the border as well. (6) In recent years, ICE and CBP have increasingly collaborated with law enforcement agents outside of the immigration enforcement bureaucracy--including the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), and numerous state and local law enforcement agencies--to facilitate interior enforcement efforts. (7) Whether an individual is detained at the border or in the interior, many noncitizens remain in detention pending the resolution of their claims, and ICE is responsible for managing this detention. (8)

Immigration officers and other cooperating law enforcement officers in the field engage in forms of policing that are entirely familiar in the realm of criminal investigations, including conducting brief stops of individuals suspected of immigration violations; full arrest upon probable cause of these violations; consensual questioning; and, with cause, interrogations concerning immigration status. (9) But what happens when these agents run afoul of constitutional protections in the process of investigating immigration violations or in the course of detaining noncitizens? For a noncitizen facing a criminal trial, the answer would be clear. The noncitizen could raise allegations of constitutional rights violations, and if a violation was established, he might well be able to argue that evidence illegally obtained in contravention of these constitutional protections ought to be suppressed for purposes of adjudicating the case against him.

But in hundreds of thousands of cases each year, noncitizens are processed not in criminal courts, but in civil courts. Indeed, because of fundamental changes in the nature of immigration enforcement over the past decade, many of the interactions between law enforcement officials and noncitizens in the United States lead to matters that are ultimately adjudicated not in criminal courts, but in immigration courts. (10)

Once an individual has been served with a notice to appear (NTA) in a civil removal proceeding, (11) his case is adjudicated by an immigration judge (IJ) who sits within the Executive Office of Immigration Appeals, which is in turn under the jurisdiction of the Department of Justice. (12) The steep rise in immigration enforcement has had a substantial impact on the workload of IJs. In fiscal year 2008, the immigration judges completed 274,469 removal proceedings. (13) Just over 200 IJs perform all of this work. (14) Unlike federal judges, these IJs do not have a cadre of law clerks to assist them; there are currently only fifty-six law clerks available to the nation's IJs. (15) And these IJs face additional constraints--such as a very high number of unrepresented and non-English-speaking litigants and a lack of administrative support staff--that further complicate their dockets and increase the burden of their workload. (16)

Immigration judges have long faced fairly heavy dockets. (17) In recent years, however, the complexity of the docket has also increased. For example, because an increasing number of noncitizens in removal proceedings are detained, IJs must now adjudicate a number of legal claims related to matters of detention. One sign of this is the significant number of bond-related matters that IJs now hear. In 2008, they adjudicated 44,736 bond redetermination hearings. (18) IJs must often decide these matters in isolation from determinations of the merits of the noncitizen's removal case. (19)

But another important shift in the immigration docket in recent years is the rise in the number of cases in which noncitizens raise allegations of government misconduct in the course of investigating immigration violations. Unfortunately, unlike state and federal courts, which have long overseen police activity, immigration courts were not designed to police the police. As the Supreme Court noted in its 1984 decision in INS v. Lopez-Mendoza, (20) "a deportation hearing is intended to provide a streamlined determination of eligibility to remain in this country, nothing more." (21)

The executive branch--in cooperation with law enforcement agents at all levels of government--has fundamentally transformed the nature of immigration enforcement over the past decade, but immigration adjudication has not evolved to meet the growing challenge of overseeing ongoing and widespread interagency immigration policing in the interior of the United States. Not only do IJs face the tremendous resource constraints previously described, but the remedies that they can provide in cases in which an individual's rights have been violated in the investigation stage are also heavily constrained by a body of law that formed at a time when immigration enforcement looked very different than it does today. (22) This Article explores the procedural deficiencies of the current system and offers some proposals to address the growing problems created by the mismatch between enforcement realities and the adjudicative capacity and competence of the immigration courts.

Part I of this Article discusses two trends in immigration enforcement that have created a situation in which many interactions between noncitizens and the state lead to matters that are ultimately adjudicated not in criminal courts, but in immigration courts. The first trend, discussed in Section I.A, is the rapid expansion of immigration enforcement efforts, particularly outside of border areas. The second trend, discussed in Section I.B, is the increasing permeability of the border between immigration enforcement and crime-control measures. As a consequence of these two developments, immigration enforcement actions now number over 300,000 each year in the civil realm, in addition to the tens of thousands of cases that are handled in the criminal sphere. The law enforcement officials participating in these actions include not only ICE and CBP but also a wide range of federal, state, and local law enforcement agencies whose primary functions are outside of the realm of immigration enforcement.

Part II of this Article discusses the specific ways in which state and local police have become involved in a wide variety of immigration enforcement efforts. This Part analyzes evolving models of federal-local cooperation and also offers a preliminary discussion of some of the legal issues that have arisen as a result of local-state-federal law enforcement cooperation, including increasingly widespread allegations of racial profiling and other constitutional violations.

Drawing upon these examples of local-federal cooperation, Part III of the Article seeks to provide a procedural explanation for the increasing allegations of rights violations that have occurred in the context of immigration enforcement efforts. This Part traces out the legal incentive structures that produce some of the negative consequences of the cooperative enforcement described in Part II. Not only do constitutional violations lack remedies in removal proceedings comparable to those available in the criminal sphere, but immigration enforcement agents also have broader authority to conduct investigative stops because they are empowered to enforce civil immigration law as well as criminal law. As state and local law enforcement become more engaged in immigration policing, the lack of alignment between immigration policing powers and criminal policing powers and the asymmetrical nature of remedies raise new concerns. Nonfederal actors who are using immigration enforcement powers to achieve their criminal law objectives are able to circumvent some of the constitutional baselines that apply to criminal policing without confronting the sanctions that would be available in the criminal system.

The final Part of the Article proposes policy reforms to address the procedural problems previously identified. Part IV.A suggests the application of the exclusionary rule to removal proceedings. Ultimately, however, many of the rights claims arising out of local-federal cooperation in immigration enforcement exceed the core competencies and capacities of the immigration courts that handle the bulk of these claims. There is a need for comprehensive reform of the immigration adjudication structure. Part IV.B urges a reform of the administrative structure of immigration adjudication and discusses the need to guarantee counsel in at least some subset of removal proceedings. (23) Part IV also proposes mechanisms for increasing the oversight of immigration policing outside of the immigration court system. Part IV.C explores two options: expanded availability of class-action remedies in federal district court and improved agency oversight procedures for federal immigration enforcement agents. (24) Ultimately, the task of bringing immigration adjudication into alignment with the modern realities of immigration policing will require a comprehensive approach.


Immigration enforcement has waxed and waned throughout the past century in the United States, but it has exploded over the past decade. Enforcement has morphed from a small and border-centered endeavor into a huge effort involving a network of law enforcement agencies operating throughout the country. Perhaps more significantly, immigration enforcement has transformed into a crucial adjunct to, if not a substitute for, criminal law enforcement in matters involving noncitizens. This Part traces both of these trends and outlines their practical effects.

A. The Rising Tide of Immigration Enforcement

In fiscal year 2008, 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, had a budget of $5,014,500,000. (25) 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, had a budget of $10,174,114,000. (26) The two agencies combined therefore had operating budgets of over $15 billion in fiscal year 2008. (27) By way of comparison, in 1998, the budget for the Immigration and Naturalization Service (INS) was just over $3.6 billion. (28) This figure includes immigration services that are now provided by Citizenship and Immigration Services (CIS) and are not included in the $15 billion figure above. Additionally, although 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 in criminal courts. Even so, the $15 billion budget for ICE and CBP represents a budget increase of over 500 percent in the past decade, and more than a 1,500 percent increase since 1988. (29)

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. (30) Prior to September 11, 2001, the INS had fewer than two thousand agents to enforce immigration laws in the interior of the United States. (31) Although the agency had expanded significantly over the preceding two decades, that expansion was primarily in the realm of border enforcement. (32) As the contemporary CBP budget suggests, significant resources are still dedicated to border enforcement, but over the past decade, interior enforcement has become an increasingly important component of immigration enforcement. In 2010, ICE will have 20,000 employees, (33) many of whom are dedicated to internal enforcement efforts.

Not only has the size of U.S. interior enforcement rapidly increased, but the nature of that enforcement has also changed in fundamental ways. 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." (34) Moreover, the federal immigration enforcement strategy has come to rely heavily upon thousands of state and local law enforcement agents who assist in interior immigration enforcement. (35)

B. Blurring Boundaries: Immigration Enforcement as Crime Control

The rise of interior enforcement and the participation of a wide array of law enforcement agents in immigration enforcement raise fundamental questions about age-old legal doctrines that rely on clear-cut distinctions between immigration law and criminal law enforcement. U.S. legal doctrines have historically framed deportation as a "civil" punishment that does not require the full panoply of criminal procedural protections afforded in criminal trials. (36) As Professor Dan Kanstroom has noted, at the time that the Supreme Court handed down such edicts, deportation looked very different than it does today. Strict statutes of limitations on deportation were ensconced in the statute (37)--indeed, after a year in the United States, a person was no longer subject to deportation. (38) Additionally, there was almost no interior enforcement, so deportation primarily resulted from patrolling the borders. (39)

Much has changed in the past century. Statutes of limitations for unlawful presence were first truncated, and then eliminated completely. (40) Interior enforcement is now an important component of immigration enforcement. (41) Moreover, deportation has increasingly come to be used as an adjunct to criminal punishment, operating as a means of "post-entry social control." (42) Now, when a noncitizen--even a lawful permanent resident--commits any one of a host of offenses, he often faces deportation in addition to criminal punishment. (43) Since immigration enforcement is increasingly functioning in the interior as a means of achieving criminal law enforcement goals, the immigration consequences of detention and removal are of a punitive nature that belies their designation as civil. (44)

The past two decades have witnessed the evolution of "crimmigration" law: parallel systems "in which immigration law and the criminal justice system are merely nominally separate." (45) The overlap between the two systems has several distinct manifestations, including 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 investigatory raids by numerous, heavily armed agents--in what are nominally purely civil immigration investigations and proceedings. (46)

The spike in migration-related criminal convictions is perhaps one of the most notable features of the past decade of federal law enforcement in the United States. Immigration prosecutions are now the most common federal criminal prosecutions, outstripping federal drug and weapons prosecutions, and dwarfing many other forms of federal criminal prosecution. (47) Indeed, recent data indicate that immigration offenses now make up half of federal criminal cases. (48) Illegal reentry and felony reentry are by far the most commonly prosecuted immigration crimes, but other immigration-related prosecutions are also on the rise. In spite of vocal commitment to immigration reform, the Obama administration has continued to engage in record-setting levels of immigration prosecution. (49)

Prosecutions for immigration-related offenses are also unfolding with increasing regularity at the subfederal level. Although as a historical matter the federal government bears sole responsibility for the regulation of immigration, states and localities are increasingly enacting provisions that, like the federal identity-theft statute, can be used to target conduct associated with migrant communities. (50) In some jurisdictions, these laws have become a means for state and local governments to focus on immigrant populations for prosecution. (51)

Not only are immigration prosecutions on the rise, but, as previously noted, the collateral immigration consequences of noncitizens' criminal convictions have also become increasingly punitive. (52) Over the past two decades, Congress has passed a number of provisions that require or permit deportation as a collateral consequence of a growing number of criminal convictions. (53) Thus, 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.

The collateral sanction of removal now applies in a broad array of criminal cases. For example, the law currently requires that any noncitizen convicted of an aggravated felony be deported, regardless of the equities of his case. (54) For over two decades, the Immigration and Nationality Act (INA) had specified that noncitizens convicted of aggravated felonies were deportable. (55) Two laws passed in 1996--the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (56) and the Antiterrorism and Effective Death Penalty Act (AEDPA) (57)--changed the operation of this provision in draconian ways. Not only did these laws greatly expand the definition of "aggravated felonies," (58) but IIRIRA also eliminated the ability of an immigration judge to provide relief from deportation in cases in

which the equities favored that relief. (59) Congress also added to the list of offenses other than aggravated felonies that render a noncitizen deportable or excludable. For example, Congress mandated that even very minor drug crimes are grounds for exclusion and deportation, and has provided almost no relief for lawful permanent residents or unauthorized migrants charged under these provisions. (60) The expansion of immigration consequences for drug crimes coincided with the "war on drugs," (61) and the harshness of the resulting legal regime has been the subject of sustained scholarly criticism. (62)

Finally, even when no criminal charges are at stake, the administrative measures that the government employs to achieve civil immigration goals increasingly resemble criminal punishment. ICE agents conduct militarized raids in both criminal and civil matters. (63) DHS also imposes protracted detentions, sometimes under very harsh conditions, upon many migrants (including refugees) who are either attempting to establish their admissibility or contesting their deportability. (64) Indeed, immigration detention facilities now constitute the fastest-growing segment of the prison industry. (65) 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. (66) "By the end of 2009, the U.S. government will have more than 440,000 people in immigration custody" annually--three times the number of a decade ago. (67) Immigrants who are awaiting the completion--and in some cases, the initiations--of their civil removal proceedings are often housed in the same facilities as criminal offenders and are treated much like criminal detainees. (69) 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. (70)

These trends--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 immigration 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. As immigration control increasingly functions as an adjunct to crime control, the role of local law enforcement in immigration control has been reimagined. Perhaps unsurprisingly, local law enforcement officials who have previously had very little role in immigration enforcement are now participating in significant immigration-control efforts. (71)

The recent rise of local law enforcement participation in immigration enforcement demonstrates the shallowness of the fiction of deportation as a civil remedy 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 crime problems in and of themselves. The next Part explores the various ways in which state and local law enforcement have begun to participate in immigration enforcement efforts.


Over the past decade, state and local police have become involved in a wide variety of immigration enforcement efforts. This relatively recent development marks a very significant transformation in the role of state and local police. In 1996, the Department of Justice issued a memorandum that outlined the limits of state and local authority to enforce immigration laws. (72) The memorandum concluded that state and local officials did not have the authority to enforce civil immigration laws. (73) Thus, a state or local police officer could not detain a noncitizen based on the noncitizen's presence without current authorization, because that is a mere civil violation, not a criminal offense. (74) 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 law enforcement authority. (75)

In 1996, Congress expanded the power of state and local law enforcement to enforce federal immigration law. (76) First, AEDPA formally authorized those officers to arrest and detain unlawfully present noncitizens who had "previously been convicted of a felony in the United States." (77) Second, IIRIRA empowered the attorney general (now the secretary of DHS) to authorize local officials to enforce civil immigration laws when "an actual or imminent mass influx of aliens ... presents urgent circumstances requiring an immediate Federal response." (78) 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 have undergone adequate training to enforce the immigration laws. (79) Such agreements, now increasingly common, are often referred to as "287(g) agreements."

After September 11, 2001, the role of state and local law enforcement in enforcing immigration laws, particularly civil immigration laws, became increasingly murky. (80) The Office of Legal Counsel (OLC) in the Justice Department under Attorney General John Ashcroft revised the 1996 memorandum regarding the role of state and local police in immigration enforcement, concluding that state and local law enforcement had "inherent authority" to arrest and detain immigration violators, including civil violators. (81) 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. (82) Gonzales's memo indicated 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)." (83) But even this more limited authority signaled a definite broadening of state and local police power, because the NCIC then (as now) included civil violators of the immigration law. (84)

In the wake of this confusion, state and local police officers began to participate in immigration enforcement in a variety of forms. The remainder of this Part discusses three different forms of state and local involvement in federal immigration enforcement. (85) Section II.A addresses state and local cooperation pursuant to intergovernmental memoranda of agreement. Section II.B discusses a range of programs that fall under the broad umbrella of the "ICE ACCESS" programs. Section II.C focuses on a recently developed and expanding cooperation initiative known as the "Secure Communities initiative." Each of these Sections provides illustrations of the ways in which particular forms of cooperation can lead to procedural-rights violations.

A. Section 287(g) Agreements

Among the most oft-discussed examples of state-local collaboration in immigration enforcement are the partnerships between the Department of Homeland Security and state and local law enforcement agencies known as "287(g) agreements." (86) Section 287(g) of the Immigration and Nationality Act, which became law in 1996, allows for the cross-designation of certain trained state or local law enforcement officers to enforce federal immigration law. (87) As of December 2009, ICE had signed sixty-three memoranda of agreement (MOAs) with state and local law enforcement agencies. (88) According to ICE accounts, "[t]he program is credited for identifying more than 70,000 (since January 2006) individuals, mostly in jails, who are suspected of being in the country illegally." (89) In 2006, ICE budgeted $6,340,000 for training expenditures related to agreements entered into under section 287(g). (90)

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. (91) At their most expansive, these agreements allow designated state and local officers to act in the same capacity as immigration officers in enforcing immigration law. (92) 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." (93)

The powers of state and local agents to enforce immigration laws vary depending on the scope and content of the agreement in force. The most common form of 287(g) agreement is also the most limited. This kind of agreement exists between ICE and state or county prison and jail officials, or "Jail Enforcement Officers" (JEOs). (94) ICE trains these JEOs to make determinations of the immigration status of inmates in state and county prisons and jails, and to report immigration violators to ICE. (95) Agreements of this type 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. (96)

Other MOAs between ICE and local law enforcement are much broader and 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. (97) There are some limitations on the officers wielding this power. (98) Only officers who have received training are eligible to perform immigration enforcement duties, (99) and those officers are subject to ICE supervision during the course of their performance of immigration enforcement duties. (100) Generally, ICE requires that immigration arrests be reported to ICE within twenty-four hours. (101) In return, state and local officials are ensured federal immunity when performing immigration enforcement duties pursuant to the terms of the agreement. (102)

In spite of significant criticisms of the 287(g) program, (103) on July 10, 2009, DHS Secretary Janet Napolitano announced that her department planned to expand the 287(g) program, adding eleven new law enforcement agencies to the list of signatories of 287(g) agreements. (104) In response to the program's many critics, however, 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. (105) To combat the concern 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 clarified the fact that law enforcement agencies are required to pursue all criminal charges that originally caused the offender to be taken into custody. (106) The revised MOAs also prioritize the enforcement efforts on which participating law enforcement agencies ought to focus, noting that the first priority ought to be noncitizens arrested for major drug offenses or violent crimes. (107)

A number of civil rights organizations have concluded that the minor revisions to the program are unlikely to address racial-profiling concerns, and have also expressed a concern over the fact that the new MOAs specify that documents generated pursuant to these agreements "shall not be considered public records." (108) Demonstrating the complete lack of middle ground in the immigration debate, certain civil rights organizations criticize the Obama administration's reforms as completely ineffectual, while organizations that favor strict enforcement argue that these same revisions essentially gut the agreements. (109)

If 287(g) agreements raise concerns, they also have certain virtues. First, in spite of restrictions on public access, they are transparent relative to other forms of cooperation, insofar as the technical terms of cooperation are reduced to a written document. ICE publicizes a list of existing agreements, (110) and the public can obtain the agreements themselves. Second, the agreements contain complaint procedures for reporting abuses, (111) and DHS now has its own published procedure for complaints. (112) Moreover, when the federal government has concerns about a particular law enforcement agency, the government can decline to enter into an agreement with that agency, or can even cancel an existing one. (113) Finally, the agreements are limited in scope. Only trained law enforcement officials participate in immigration enforcement, and their powers are limited by written agreement. There is no doubt that 287(g) authority can be, and has been, subject to abuses and has suffered from insufficient federal oversight. Nevertheless, the agreements, entered into pursuant to a statutory provision, are constrained to a certain degree by law. As will be discussed below, not all enforcement cooperation is similarly constrained, and this raises an even more difficult set of problems than the 287(g) program.

B. ICE ACCESS and State and Local Law Enforcement

Although 287(g) programs have been the subject of a good deal of critical attention, they are a tiny part of the overall system of state and local participation in enforcement that has evolved over the past decade. Indeed, in recent months, ICE has organized a number of ongoing cooperative operations under the umbrella of its ACCESS program. (114)

Examples of ACCESS programs include the Law Enforcement Support Center (LESC), "Fugitive Operations Teams" deployed throughout the country, "Operation Predator," and "Operation Community Shield." (115) In each of these efforts, state and local law enforcement officers have played a role--one that has not been confined to the four corners of 287(g) agreements. This Section discusses each of these four programs in turn.

1. 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 of people that they labeled "absconders." (116) The absconder category is problematic: studies have shown that as many as two-thirds of the individuals categorized by ICE as absconders never actually received notice that they were subject to removal. (117) Nevertheless, these names were entered into the database.

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). (118) NSEERS required certain noncitizens deemed to be "high risk" to submit to fingerprinting, photographs, and registration of their location on a periodic basis (119) Notably, for purposes of the NSEERS program, risk was a function of one's nationality and religion. (120) Individuals who violated the terms of the program were entered into the NCIC database. (121)

Since that time, the Justice Department has expanded the NCIC database to include a host of noncitizens whose only infractions are violations of civil immigration law. (122) Yet because the names are in the database, police often detain these individuals following routine encounters. The practice of including civil violators in NCIC has thus resulted in a 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 officials. (123)

Regardless of potential criticism, the entry of immigration violators, including civil violators, into the NCIC has by now become a routine practice. The NCIC database now contains over 250,000 ICE records. (124) Currently, ICE agents train state and local law enforcement officers to use ICE's Law Enforcement Support Center, which provides officers with the ability to inquire about a person's criminal history and immigration history. (125) Upon a call from a state or local law enforcement officer, an ICE officer runs the individual's identification data through various DHS databases and the NCIC database to ascertain immigration status. (126) Increasingly, localities are taking advantage of this training so that individuals detained during routine traffic stops or other minor violations must be cleared through LESC. Despite concerns about the accuracy of these databases, the number of calls to the LESC database was over 800,000 in the year 2008, up from 4,000 in 1996. (127) From somewhat narrow beginnings, the practice of entering absconders into the NCIC database has resulted in what effectively amounts to robust cooperation between ICE and state and local law enforcement officers in enforcing not only criminal law, but also civil immigration law.

2. Fugitive Operations Teams. Another 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. (128) 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." (129) ICE has grouped its Fugitive Operations efforts, along with the 287(g) agreements, the LESC program, and several other programs, under the umbrella of its ACCESS program. (130) The Fugitive Operations program has rapidly expanded over the past five years. In 2003, at its inception, the program consisted of eight teams (131) and a $9 million budget. (132) By October 2008, there were one hundred teams and a $218 million budget. (133)

Even with a significant increase in staffing, ICE's Fugitive Operations Teams still rely on other law enforcement agencies to help them achieve their stated goals. Indeed, ICE actively solicits cooperation from state and local law enforcement to participate as liaisons to their Fugitive Operations efforts. (134) These state and local agents have conducted activities in connection with ICE's Fugitive Operations program in many different parts of the country. (135) State and local officials who participate in these operations--unlike those who enforce immigration laws pursuant to 287(g) agreements--need not undergo lengthy training. Interviews with various law enforcement agencies have revealed that participation in this program sometimes requires no training at all. (136) Moreover, unlike 287(g) programs, Fugitive Operations does not impose a formal reporting or supervision structure on state and local participants. Presumably, this is justified on the ground that ICE agents are responsible for actual arrests and interrogations, whereas state and local officers are limited to providing information to ICE about suspects and playing a supporting role for ICE during enforcement actions. (137)

The Fugitive Operations Teams' stated objective of apprehending "fugitives who have been convicted of crimes," (138) overlaps with state and local public safety responsibilities, which may explain the participation of untrained state and local officers in these efforts. The search for "fugitives," however, 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." (139) Until recently, the majority of the people Fugitive Operations Teams detained had no violent criminal record, and a substantial number were, in fact, "collateral catches" who did not even have outstanding removal orders against them. (140) This means that state and local law enforcement officers have assisted in the enforcement of civil immigration laws through their participation in these Fugitive Operations Teams.

In a break from the practices of the prior administration, Secretary Napolitano of DHS ordered a review of the program in early 2009, (141) and near the end of 2009, the Department announced that the Fugitive Operations Teams were to focus on their intended targets. (142) To promote this goal, ICE required that the teams identify the number of arrestees who are actually fugitives (as opposed to collateral catches) and removed the prior administration's quota requirements, which had helped to fuel more aggressive operations. To deal with allegations of constitutional violations by Fugitive Operations Teams, (143) ICE officials mandated Fourth Amendment training for team officers every six months. (144) The overall impact of the stated policy changes is still unclear, however. Raids on homes have continued under the new administration, (145) and the Fourth Amendment training that is now required for ICE agents does not extend to state and local participants. (146)

3. Criminal Alien Program. Like the Fugitive Operations Teams, the Criminal Alien Program (CAP) involves intergovernmental cooperation aimed at a particular subset of immigration violators. Whereas the Joint Fugitive Task Forces take aim at individuals with outstanding orders of removal, CAP focuses on a different subset of immigration violators: individuals that ICE identifies as criminal aliens. ICE's stated goal for CAP is to identify "criminal aliens incarcerated in federal, state and local prisons and jails throughout the United States, preventing their release into the general public by securing a final order of removal prior to the termination of their sentences." (147) Under CAP, ICE screens local arrestees in detention and issues detainers against removable noncitizens. (148)

In theory, CAP programs should have no impact on the nature of state and local policing. ICE screens individuals who have already been arrested to determine their immigration status. The commission of a criminal offense, therefore, should operate as a necessary predicate to the ICE screening. In practice, however, participating in CAP can influence police behavior. Because all arrestees are screened, not just those convicted, the CAP program covers individuals who are not actually criminals. To the extent that local police officers view immigration enforcement as a legitimate law enforcement priority, they can use their discretion to target for arrest those whom they believe--whether correctly or incorrectly--to be unlawfully present. Without proper training, such incentives can lead some law enforcement officials to engage in racial profiling. Indeed, a recent study of one CAP program in Irving, Texas, concluded that this is exactly what was happening in that town. (149)

The discretion allowed to state and local law enforcement has increased over the life of CAP. The Obama administration has announced plans to expand CAP with a new initiative called "Secure Communities" that is also premised on intergovernmental cooperation to target immigration offenders with criminal records. (150)

4. Operation Community Shield and Operation Predator. Operation Community Shield provides another example of a program of state-local cooperation with ICE that falls under the umbrella of ICE's ACCESS programs. The stated goal of Operation Community Shield is to target criminal street gang members and their associates for deportation. (151) This is not primarily an immigration enforcement goal, but rather a criminal law enforcement goal. (152) 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. (153) The implementation of Operation Community Shield has been less clear-cut than the stated goals, however.

One of the biggest ambiguities about the operation is that it provides no legal definitions for "criminal street gangs" or "associates," the targets of the operation. (154) Identification of the targets thus often falls to state and local law enforcement. (155) Once these agents identify an individual as a gang member and arrest him, ICE can initiate removal proceedings against that individual and any arrested associates on the basis of their violation of immigration law. (156) The lack of legal standards governing the identification of gang members creates a risk of increased racial profiling in law enforcement. (157) At a minimum, it ensures that state and local law enforcement can be responsible for leading efforts to enforce civil immigration laws against identified gang members and the associates of gang members, even though some of these individuals have no criminal record, and, in the case of associates, perhaps no actual gang affiliation. (158)

Operation Predator takes aim at one of the most reviled categories of criminals: sex offenders. (159) Generally, the targets of Operation Predator are identified through the use of the FBI's NCIC database of sex offenders from all fifty states. (160) ICE can determine which of these individuals may be subject to removal, and can target those individuals for apprehension. (161) Because the sex offender database includes not only serious sex offenders, but also individuals who have committed relatively minor offenses and individuals who clearly pose no risk to the greater community, however, Operation Predator can result in the targeting of individuals whose circumstances do not seem to align with DHS's and ICE's stated goal of "protecting children." (162)

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 initiative "protect[s] children worldwide." (163) But there is also a certain irony to this claim, given that the removal of persons identified as "sexual predators" does not seem like the best way to protect children in receiving countries.

C. Secure Communities Initiative

Another formal program involving state and local participation in immigration enforcement--one that is not grouped under the ICE ACCESS rubric--is the Secure Communities initiative. In December 2007, President Bush signed into law the fiscal year 2008 appropriations for the Department of Homeland Security, which included funds for the beginning of the Secure Communities Program Management Office. (164) By March 2008, DHS had submitted to Congress a report on the program entitled Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens. (165) The program initially focused on removable noncitizens in prisons and jails. State and local officials were charged with identifying removable individuals in their prisons and jails by running fingerprint data not only against the FBI's criminal databases but also against DHS's databases, which include information on immigration violations. DHS soon was directed by Congress to expand the program to include all "deportable criminal aliens." (166) ICE describes the program as a "risk based approach" that "prioritiz[es] the removal of the most dangerous criminals." (167) In its current form, however, the program results in screening of arrestees in participating jurisdictions without regard for the reason for the arrest or whether the person is guilty or innocent of a crime. (168) In this sense, ICE's characterization of this program as focused exclusively on criminal aliens is somewhat misleading.

The precise contours of the program are difficult to assess because the agencies responsible have promulgated no regulations governing the Secure Communities program. (169) What is clear, though, is that the program affects a significant number of people. By November 2009, ninety-five cities and counties in eleven states were participating in the program. (170) In the first half of 2009, over 266,000 fingerprints were run through the system, resulting in 32,000 matches. (171) Not all of those individuals are necessarily removable--as critics point out, the net sweeps a bit widely. For example, lawful permanent residents who commit many types of misdemeanors are not removable, but they would come up as matches in this system. (172) Similarly, individuals who have been erroneously arrested but are in the DHS database would also come up as a match. The width of the Secure Community net has prompted many critics to argue that the program is simply not adequately tailored to achieve its purported objective of focusing resources on noncitizens who actually pose a threat to society. (173) Officials defending the program emphasize the fact that even when there are matches, ICE can ultimately exercise discretion in deciding whom to remove. (174)

ICE plans a significant, rapid expansion of the program. By 2012, the program will be running in all of the nation's prisons and 3,100 of its local jails. (175) It is possible that the Secure Community agreements will obviate the need for those 287(g) agreements that focus solely on immigration enforcement in prisons and jails. (176)

Federal-state-local cooperation in immigration enforcement runs the gamut from ICE's formal training of state and local officers in the enforcement of immigration laws to screening of noncitizens in local jails to state and local law enforcement participation in ICE arrests of purported street gang members or sexual predators. This summary of cooperation does not even take into account the more informal coordination between ICE and local agents in enforcement actions such as workplace and home raids (177) and other law enforcement efforts in jurisdictions across the country. (178)

Despite broad scholarly claims concerning the effect of local participation on immigration enforcement, it should be evident from the foregoing discussion that the forms of cooperation are many and various. Different modes of cooperation raise different kinds of risks. In recent months, a growing number of scholars and commentators have focused on the pitfalls of intergovernmental cooperation pursuant to 287(g) agreements. (179) But as the foregoing discussion illustrates, a great deal more intergovernmental cooperation is also taking place through the use of shared databases and both formal and ad hoc state and local law enforcement participation in ICE enforcement actions. All modes of cooperation that directly engage state and local officers in civil immigration enforcement--whether through 287(g) agreements, CAP, the anticrime operations discussed previously, or the new and expanding Secure Communities initiative--can fundamentally alter the procedural baselines governing the conduct of state and local law enforcement.


The decision by 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 in many parts of the United States. As previously noted, there has been an exponential expansion in the resources expended by the United States government on interior enforcement. (180) 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 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 38 million non-native born persons living in the United States. (181) Of those, more than 22 million are not naturalized citizens and remain subject to removal. (182) According to the Pew Hispanic Center, this number includes about 11.5 to 12 million unauthorized migrants. (183)

Moreover, it is important to stress that immigration enforcement does not affect only noncitizens. Increasingly, immigrants live in mixed-status families that include lawful immigrants and unauthorized migrants as well as citizens. (184) Because noncitizens and citizens share homes and neighborhoods, citizens and noncitizens who are lawfully present are subjected to enforcement actions as a collateral consequence of internal immigration enforcement measures taken against removable noncitizens. Citizens and lawfully present noncitizens already have been subject to immigration enforcement actions, including prolonged stops, searches, interrogations, arrest, detention, and (in rare cases) even removal. (185)

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 of individual rights and procedural protections.

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 drug war were impacting criminal procedural protections. Most (even those who supported the transformation) answered the question in the affirmative. (186) "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." (187) 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, (188) greatly increased the scope of stops and searches permissible without probable cause (189) or even reasonable suspicion, (190) watered down the "reasonable suspicion" (191) and "probable cause" standards, (192) and lowered procedural protections at the border and at airport customs. (193)

A byproduct of the loosening of checks on police investigations was that the nature of policing, particularly in low-income minority neighborhoods, was transformed. (194) Police had freer rein to stop, aggressively question, search, and detain individuals in such neighborhoods. This--along with disparate sentencing regimes--helped to fuel the rising tide of minority youth imprisoned in America's prisons and jails. (195) More than one in every hundred adults in the United States is in prison or jail. (196) African Americans are substantially overrepresented in this substantial number. One in nine African-American males between the ages of twenty and thirty-four is behind bars. (197) 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. (198) "[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, its legacy of slavery and racial domination and the structural deformation of democracy that these legacies produced." (199)

The new focus on immigration enforcement--which appears to be the most recent iteration of the war on crime--deserves the same sort of analysis. (200) The new criminal justice focus on migration is likely to encourage continued erosion of criminal procedural protections in ways that will be felt most keenly by racial minorities--in this case, Mexican Americans and other Latinos that are associated in the public mind with unauthorized migrants. (201)

This Part explores 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. Part III.A analyzes the gap between a noncitizen's rights in criminal proceedings and those in civil removal proceedings. Part III.B analyzes the gap in remedies for governmental misconduct in civil immigration proceedings that was created by the Supreme Court's 1984 Lopez-Mendoza decision. Part III.C discusses the implications of these rights and remedies gaps in a world where local-state-federal collaboration in immigration enforcement has become the norm. Part III.D highlights some troubling trends in criminal jurisprudence that suggest that the rights gap experienced by noncitizens may be migrating from the civil into the criminal context. Part III.E concludes with some thoughts about the significance of these trends.

A. The Rights Gap: Differential Procedural Protections in Civil Removal Proceedings

The federal Constitution provides certain procedural protections for individuals subject to criminal investigation, prosecution, and punishment. These protections include the Fourth Amendment protections against unreasonable searches and seizures, (202) the Fifth Amendment right against self-incrimination and right to due process, (203) the Sixth Amendment right to counsel, (204) and the Eighth Amendment protection against cruel and unusual punishment. (205) These protections apply to citizens and noncitizens alike in criminal proceedings. (206) These particular protections exist not only as against the federal government, but also against state actors by virtue of the Due Process Clause of the Fourteenth Amendment. (207) States also are able to set heightened standards of criminal procedural protection through their constitutions, statutes, and regulations, and some have. (208)

Because state action is involved in the enforcement of immigration law--even civil immigration law--constitutional protections apply. But the protections available in civil proceedings have been differentiated from those protections available in criminal proceedings. The Supreme Court long ago decided that deportation was a civil remedy, not a criminal punishment. (209) Thus, although the Constitution's provisions apply to state officials enforcing immigration law, the scope of applicable rights and the remedies for violations of constitutional rights is much different in the civil immigration context than in the criminal context.

With regard to rights, the Fourth Amendment protections against unreasonable searches and seizures apply, but by operation of statute and case law, those protections are narrower in the immigration enforcement context than in the criminal context. (210) The Fifth Amendment protections against self-incrimination do not apply in civil proceedings, (211) and federal regulations only call for officers to offer a portion of the basic requirement of the Miranda decision when conducting criminal arrests, (212) with no comparable requirement for civil arrests. Limitations on extremely coercive interrogations apply in civil proceedings by virtue of the operation of the Due Process Clause, (213) but these violations are much more difficult to establish than violations of the right against self-incrimination under Miranda. (214) There is no constitutional right to counsel at the government's expense in civil removal proceedings, (215) although noncitizens do have a statutory right to supply counsel at their own expense. (216) The Eighth Amendment prohibition on "cruel and unusual punishment" does not apply because "deportation is not a punishment for crime." (217)

Congress, in the Immigration and Nationality Act (INA), set forth the standards that are applicable in the investigation and prosecution of civil immigration violations. Section 287 of the INA establishes standards for seizures, searches, and custodial interrogations, and there are subtle differences that arise between the immigration enforcement context and general criminal investigations in each of these areas.

First, the INA addresses standards for brief investigative stops. INA section 287 gives any authorized officer or employee of DHS the general power, without a warrant, to briefly interrogate noncitizens about their immigration status. (218) The INA makes no distinction in this regard between internal immigration enforcement and enforcement at points of entry. The statute indicates that an agent can interrogate any person he "believes" to be an alien within the meaning of the act. (219) 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. Because it allows interrogation of noncitizens upon reasonable suspicion of a civil violation, this authority is slightly broader than the parameters of a stop justified by reasonable suspicion under Fourth Amendment law as it has developed in the criminal context, in which such stops are (technically) limited to cases in which there is reasonable suspicion of a crime or a threat to officer safety. (220) In immigration enforcement, reasonable suspicion of a civil violation is sufficient to justify the stop.

Whether an individual is obliged to answer these questions is a different question. In Hiibel v. Sixth Judicial District Court of Nevada, (221) 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 of a crime. (222) After Hiibel, if a state passes a "stop and identify" law, an individual is required to answer an officer's request that he identify himself in the course of an otherwise acceptable Terry stop, and that requirement--under which the individual must provide his name, but not supporting documentation--does not run afoul of the Fourth Amendment. (223) But constitutional stop-and-identify laws under Hiibel are triggered by suspicion of criminal conduct, not civil or technical violations. (224) Yet most immigrants' rights groups have advised noncitizens that authorities enforcing immigration law can require a person to give his name in a state with a stop-and-identify law. (225)

This position reasonably reflects the fact that courts have given broad authorization to law enforcement to ask questions concerning immigration status. 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 [immigration] status in almost any context." (226) The procedural gap that exists between immigration-related interrogation and interrogation in other enforcement contexts may have a corrosive effect on procedural norms concerning interrogation. Indeed, this could help to explain the cases in which immigration officials request information concerning immigration status in ways that exceed their legal authorization. (227)

Second, the INA establishes standards for arrest. The plain language of Section 287 allows for an immigration agent to conduct an arrest if the agent "has reason to believe that the alien so arrested is in the United States in violation of" immigration law. (228) This language may appear to suggest a lesser standard for arrest than the probable cause required to conduct an arrest under criminal law. But courts have construed this provision to require probable cause to conduct arrests, finding that the "reason to believe" language requires the equivalent of probable cause, (229) and the language of the statute makes clear that arrests without warrants are only permissible in exigent circumstances. (230) Nevertheless, it is less clear that the probable cause standard is as exacting in administrative arrests, (231) and the exigency requirement often seems to be taken for granted by enforcing agencies and reviewing courts. Again, this means that immigration enforcement agents may have the authority to arrest in a slightly broader array of circumstances than those that permit state and local officials to make arrests when acting in their general law enforcement capacity. Perhaps this is what has led some ICE officials to make boastful--if legally incorrect--pronouncements that they do not need warrants to conduct arrests in homes. (232)

Third, the INA establishes standards for searches. There are distinctions between criminal procedural practices and the immigration enforcement practices outlined in the implementing regulations for INA section 287. The law requires government officials to have warrants or consent before an agent can enter a private home or worksite. (233) Although officials may use administrative warrants to conduct immigration enforcement actions, the law requires criminal warrants for purposes of gathering criminal evidence. (234) Unfortunately, the line between immigration law and criminal law is sufficiently blurry that officers are sometimes relying on administrative warrants in situations in which criminal law enforcement objectives provide the central justification for the government's action. (235) In other cases, officials are conducting searches and seizures in private homes with no warrants, even though the law clearly requires warrants in this setting. (236) And courts have declined to suppress evidence seized when ICE officers conduct arrests in violation of the warrant requirements imposed by the immigration statute. (237)

Fourth, the INA establishes standards for post-arrest interrogations. Once an arrest has been made, procedure with regard to interrogations diverges depending on whether the noncitizen has been arrested for "civil" immigration violations or for criminal violations. Officials need not give Miranda warnings to civil violators, such as those who are present unlawfully but are charged with no other immigration violation, (238) as the Fifth Amendment protections extended to individuals in situations involving "custodial interrogations" since Miranda v. Arizona (239) do not attach in these "civil" proceedings. (240) The INA does specify, however, that the individual has the right to be represented by counsel at her own expense. (241) 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. (242)

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. (243) But the incentives for immigration enforcement officials to provide warnings are lower than in standard criminal cases because the government can still use any evidence obtained in violation of Miranda in civil deportation proceedings. (244) The absence of an exclusionary rule in removal proceedings for evidence obtained in violation of Miranda provides another means of using the illegally obtained testimony of a noncitizen as evidence against that noncitizen in a highly punitive, albeit civil, proceeding.

Compounding the disjuncture between civil and criminal procedures is the gap in remedies when violations of applicable rights do occur.

B. The Remedy Gap: The Absence of the Suppression Remedy in Removal Proceedings

Not only do fewer constitutional protections apply in civil proceedings, but those constitutional protections that do apply--in particular the Fourth Amendment right against unreasonable search and seizure--do not carry the same remedies in civil removal proceedings as in criminal cases. This is a consequence of the Supreme Court's 1984 decision in the case of INS v. Lopez-Mendoza, in which the Court addressed the question of whether the exclusionary rule should be applied in civil deportation proceedings. (245)

The Court first noted that suppression was not typically applied in civil proceedings unless the social benefits of excluding unlawfully seized evidence outweighed the cost of lost evidence. (246) In this case, the Court found that the deterrence value of the rule would be slight. First, in most cases, the government would have alternative means of establishing the facts to which the suppressed evidence pertained. (247) Second, "[e]very INS agent knows ... that it is highly unlikely that any particular arrestee will end up challenging the lawfulness of his arrest in a formal deportation proceeding." (248)

But the third and "perhaps most important" reason the Court concluded that suppression would offer little deterrence was that "the INS has its own comprehensive scheme for deterring Fourth Amendment violations by its officers." (249) Internal INS training, supervision, regulations, and disciplinary procedures for immigration officers were together sufficient to guard against Fourth Amendment violations. (250) And because a single agency perpetrated the violations, declaratory relief would be more effective than case-by-case post hoc suppression. (251) Thus, although the Fourth Amendment limitations on searches and seizures clearly applied to the actions of government officials engaged in immigration enforcement, when those officials violated the Fourth Amendment, the Court declined to require suppression of the fruits of an illegal search or seizure in civil immigration proceedings. (252)

Justice O'Connor's plurality opinion 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." (253) 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. (254) More recently, Stella Burch Elias has persuasively argued that the Supreme Court's "widespread violation" standard in Lopez-Mendoza has been met, requiring the reinstatement of the exclusionary rule in immigration proceedings. (255) Nor are academics the only ones making this argument: noncitizens have begun to argue for the applicability of the suppression remedy in immigration proceedings on the ground that the government's actions meet the widespread-violation standard set forth in Lopez-Mendoza, warranting the application of the exclusionary rule in immigration proceedings. (256)

The Lopez-Mendoza plurality also allowed that suppression would be warranted--even in civil immigration proceedings--in cases involving "egregious" violations of the Fourth Amendment. (257) 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 race (258) or of name. (259) Interestingly, the number of circumstances that some courts are willing to cognize as "egregious violations" has increased a bit in recent years. Courts have applied the standard to suppress evidence in cases involving warrantless, nonconsensual entries in which a show of force is used, (260) and have suggested that it would apply to "severe" seizures without adequate justification. (261)

Applying Lopez-Mendoza, courts have also suppressed evidence in cases involving conduct that, although not "egregious," still "undermined the reliability of the evidence in dispute." (262) Under this standard, the Second Circuit suppressed evidence obtained in lengthy custodial interrogations involving substantial sleep deprivation and a failure to warn the noncitizen of his right to counsel. (263) In numerous other cases involving alleged failures to provide Miranda warnings and the absence of counsel, however, the courts have declined to suppress the resulting testimonial evidence. (264)

The case law defining what constitutes an "egregious violation" suggests that immigration judges ruling on these issues must determine whether a constitutional violation has occurred, and if so, whether that violation was egregious. Thus, ironically, although the Lopez-Mendoza Court declined to apply the exclusionary rule in removal proceedings to keep deportation decisions "streamlined," (265) in cases in which allegations of constitutional violations are raised, immigration judges must still confront suppression questions that require the application of a complex body of constitutional law.

Notably, in declining to apply the suppression remedy in immigration proceedings, the Lopez-Mendoza Court assumed that the government agents committing the constitutional violations in question would be INS officials. (266) This assumption was central to the Court's conclusion that the law afforded adequate alternative remedies to suppression. (267) Like many of the other underpinnings of the Lopez-Mendoza case, this is no longer a valid assumption.

C. Assessing the Impact of the Rights and Remedies Gaps

Allegations of ICE misconduct in various court proceedings in Arizona, (268) California, (269) Connecticut, (270) Massachusetts, (271) Minnesota, (272) Ohio, (273) New York, (274) and Texas, (275) among other states, (276) 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 supervise state and local government officials acting under the auspices of ICE, thereby extending rather than containing the risk of rights violations. More troublingly, the evidence suggests that at least some state and local law enforcement officers, whether trained under the 287(g) programs or not, are disregarding the procedural protections that they are required to afford to the noncitizens they encounter in their official capacity.

Under section 287(g) agreements, the INA's statutory and regulatory guidelines govern the conduct of officials enforcing immigration law. (277) Therefore, the different standards that apply in immigration enforcement, as distinct from ordinary criminal policing, extend to state and local police. Moreover, to the extent that the cases resulting from immigration enforcement actions are civil removal proceedings, Lopez-Mendoza severely limits remedies for constitutional violations.

Perhaps it is therefore unsurprising that state and local participation in immigration enforcement pursuant to section 287(g) agreements has generated criticisms stemming from what critics have decried as unprofessional and even illegal policing tactics. (278) A recurring concern is that state and local law enforcement officers empowered to enforce immigration laws have engaged and will continue to engage in racial profiling targeting Latinos. (279) The most egregious example to date to confirm this concern is that of the police department of Maricopa County, Arizona, headed by Sheriff Joe Arpaio, whose agency stopped so many Latinos after the signing of the 287(g) agreement that the mayor of Phoenix called for a federal investigation of his practices, and then-Governor Janet Napolitano of Arizona called for the end of the contract. (280) As Secretary of the Department of Homeland Security, Napolitano more recently oversaw the cancellation of Maricopa County's 287(g) agreement. (281) Sheriff Arpaio appeared to conclude this would have little impact on his ability to enforce federal immigration law. (282)

Although Maricopa County may be an extreme case, it is not an isolated example. Similar profiling concerns have been raised in other counties with 287(g) agreements. (283) Thus, the training programs that ICE is providing may be insufficient to curb racial profiling, which has a long history of surfacing when local law enforcement becomes engaged in immigration enforcement. Compounding the lack of training is a lack of sufficient federal oversight, not only with regard to the specific issue of racial profiling, but with regard to 287(g) program objectives and operations more generally. (284)

As less formalized modes of cooperation, such as the Secure Communities initiative, rapidly expand, it is worth noting that the lack of alignment between procedural remedies in the criminal and civil contexts may have specific consequences for these programs as well. It is true that they do not increase the powers of state and local officials, but they do create a potential shelter for illegal government conduct in the form of civil removal proceedings. An illegal arrest or interrogation carried out by a local police officer will, for all of the reasons just stated, be without a remedy in removal proceedings if the noncitizen is removable and his matter is funneled into immigration proceedings. (285) Unless an immigration judge is prepared to rule that the illegal state action was "egregious" and that the evidence should be suppressed despite the fact that the action in question was not undertaken by ICE but rather by state officials, there will be no redress for constitutional violations.

Although agents of the INS's successor agencies--Immigration and Customs Enforcement and Customs and Border Protection--are still the primary enforcers of immigration law, state and local law enforcement agents throughout the country now participate in immigration enforcement activities. (286) In Mapp v. Ohio, (287) the Supreme Court concluded that unless the exclusionary rule were applied to state and local law enforcement in criminal proceedings, "the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom 'implicit in the concept of ordered liberty.'" (288) As these same actors come to play a central role in enforcing immigration laws, it seems apparent that the Fourth Amendment rights discussed in Mapp risk ephemeral status in a significant number of law enforcement actions. The gap between the rights and remedies available in criminal proceedings and those available in civil removal cases raises the genuine possibility that immigrants whose constitutional rights are violated will be served to ICE on a silver platter for removal. (289)

D. More Rights Gaps Ahead? Lower Protections for Noncitizens in Criminal Proceedings

There is also some indication that the slippage in procedural protections threatens to spread from immigration court to the criminal court. Although the law has long provided constitutional criminal procedural protections to citizens and noncitizens alike, some troubling developments in criminal courts suggest that courts will be less zealous in protecting the rights of noncitizens in criminal proceedings. This may in part be a result of the normalization of lower procedural protections that has been established in the civil realm, and that has persisted even as civil removal proceedings have become increasingly punitive. (290)

First, some courts have begun to raise doubts about the applicability of Fourth Amendment protections against unreasonable searches and seizures to certain noncitizens even in criminal proceedings. Federal District Court Judge Cassell of Utah has handed down the most visible of these decisions. In United States v. Esparza-Mendoza, (291) Judge Cassell concluded that the "persons" protected by the Fourth Amendment did not include certain unauthorized migrants. (292)

In reaching this decision, Judge Cassell relied on the Supreme Court's earlier ruling in United States v. Verdugo-Urquidez, (293) 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. (294) The Supreme Court had declined to apply the Fourth Amendment protection against unreasonable seizures to a Mexican national who was apprehended in Mexico and brought to trial in the United States. (295) In Esparza-Mendoza, Judge Cassell reasoned that the holding applied equally to certain noncitizens actually present on U.S. soil. He concluded that a noncitizen who had reentered 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. (296) Critics have contended that Judge Cassell's conclusion is supported neither by the text nor by the history of the Fourth Amendment. (297) Nevertheless, at least one other court has followed the lead taken by Judge Cassell in reasoning that Fourth Amendment protections do not apply to certain noncitizens. (298) This is not yet a widespread phenomenon, (299) 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 in which the target of the search is undocumented. (300) This would be true whether the nature of the investigation was criminal or civil.

Second, the criminal courts have recently become the sites of mass plea agreements related to immigration enforcement. (301) These mass plea agreements are dehumanizing at best, and at worst abrogate defendants' due process rights. One reviewing court has acknowledged that such procedures simply do not comport with Federal Rule of Criminal Procedure 11. (302) Nevertheless, tens of thousands of immigrants have been--and presumably will continue to be--processed in these insufficient proceedings because the courts have made no move to provide a remedy for the procedural violations. (303)

E. 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 United States (as opposed to at the border) is on the rise. (304) Second, there is a substantial and growing number of noncitizens present in the United States potentially subject to ICE jurisdiction. (305) Finally, local, state, and federal law enforcement officers are increasingly using immigration law as a means of achieving criminal law enforcement goals. (306) 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.

Even as the goals of criminal and immigration law enforcement converge, the procedural rules that govern them remain divergent. The procedural rules that constrain the actions of government officials engaged in immigration enforcement are slightly less restrictive than comparable rules in criminal law enforcement. The absence of a suppression remedy in removal proceedings also means that there is less deterrence for violating those rules than would be the case in a criminal investigation. Growing evidence suggests that these gaps between the rights and remedies available to noncitizens in removal proceedings and those available to noncitizens in criminal proceedings have encouraged more aggressive forms of policing in immigrant communities. (307) As the relaxed procedural norms that have long applied to immigration enforcement make their way into the daily policing of immigrant neighborhoods, the erosion of criminal procedural protections that began with the aggressive war on drugs of the 1980s and 1990s now continues as a byproduct of immigration enforcement.


The final Part of this Article proposes policy reforms to address the procedural problems previously identified. The application of the exclusionary rule to removal proceedings is a meritorious proposal to address the procedural problems previously discussed, and it is considered in Section IV.A.

Even if the exclusionary rule were applied in immigration proceedings, however, immigration courts would still lack the authority and capacity to address many of the rights violations occurring in the course of immigration enforcement. Immigration courts are overburdened and largely untrained in Fourth and Fifth Amendment jurisprudence. They also may lack jurisdiction over fundamental constitutional questions. Compounding the problems in immigration courts, federal district courts are increasingly declining to exercise jurisdiction over the civil class action claims that might serve as another deterrent to official misconduct in immigration policing. And the agencies responsible for immigration policing are not subject to the kind of oversight that the Lopez-Mendoza Court seemed to suggest was essential to preventing widespread rights abuses.

Therefore, Part IV.B includes a discussion of the need for comprehensive reform to the immigration adjudication structure, and provides some guiding principles for such reform. Finally, Part IV.C identifies mechanisms for increasing the oversight of immigration policing outside of the immigration court system through expanded availability of class action remedies in federal district court and through improved agency oversight procedures for federal immigration enforcement agents. The proposals are not comprehensive; this Article seeks only to illustrate the need for more systematic reforms to address the rights violations discussed above, and to provide some preliminary guidelines for such reforms.

A. Applying the Exclusionary Rule in Immigration Proceedings

In recent years, several commentators have concluded that the evidence of increasing constitutional violations by immigration enforcement officials requires the application of the exclusionary rule in immigration proceedings. (308) Certainly, if the reasoning of Lopez-Mendoza is taken at face value, it seems that a strong case can be made for doing so. (309) Indeed, a growing number of the violations taking place are not committed by federal immigration officials, but by the very state and local law enforcement agencies that the Supreme Court previously determined would require deterrence through the exclusionary rule. (310)

Although the application of the exclusionary rule seems logical given the evolution of the nature of immigration enforcement and the purpose of removal proceedings, it is also important to recognize that the exclusion remedy will be of only limited effectiveness in the context of removal proceedings for at least three reasons. First, because the government is not required to provide counsel to noncitizens in civil immigration proceedings, a significant number of individuals in removal proceedings are not represented by counsel. (311) Although representation by counsel is not a necessary predicate for raising an argument for the exclusion of illegally seized evidence, it seems unlikely that noncitizens representing themselves generally will have the capacity to raise this kind of claim in removal proceedings.

Second, in many removal proceedings, the nature of the evidence illegally seized ensures that even when suppression occurs, the noncitizen will still be removable. (312) Thus, in many cases in which the government has engaged in unlawful investigatory or detention tactics, the incentives for noncitizens to raise suppression arguments may be low. This is particularly true because, over the past two decades, the Supreme Court has gradually shrunk the sphere of Fourth and Fifth Amendment rights violations requiring suppression in criminal cases, and those limits would apply in civil proceedings, too, if the exclusionary rule were extended to such proceedings. (313) Third, it is not entirely clear that immigration courts are fully empowered to hear claims arising out of Fourth and Fifth Amendment violations. Immigration courts are able to decide matters involving violations of federal immigration regulations. Although such violations do not require application of the suppression remedy, immigration courts can terminate proceedings in cases in which a regulatory violation prejudices interests protected by the violated regulation. (314) Presumably, termination might be appropriate in certain cases involving violations of regulations protecting noncitizens against unreasonable searches and seizures.

As previously noted, however, the protections of the federal regulations with regard to searches and seizures do not align completely with constitutional criminal procedural protections. (315) An immigration court cannot rule on constitutional challenges to any of the federal regulations governing the conduct of an immigration enforcement officer or deputized state or local agent. Immigration courts can decide constitutional challenges to "procedures that they can correct administratively," (316) but not questions of whether the regulations themselves are constitutional. And, in spite of immigration judges' long track record of deciding Fourth and Fifth Amendment suppression claims, it is actually not entirely clear whether Fourth and Fifth Amendment claims raise the kind of procedural question that IJs have jurisdiction to consider. Federal appellate courts have implicitly approved immigration courts' rulings on constitutional claims, (317) but immigration courts frequently buttress their Fourth and Fifth Amendment decisions by also finding violations of the relevant implementing regulation. (318) Finally, the Lopez-Mendoza Court makes the case that immigration judges lack the institutional competency to address these claims. In Lopez-Mendoza, Justice O'Connor, writing for the Court, wrote:
   The average immigration judge handles about six deportation
   hearings per day.... Neither the hearings officers nor the
   attorneys participating in those hearings are likely to be well
   versed in the intricacies of Fourth Amendment law. The prospect of
   even occasional invocation of the exclusionary rule might
   significantly change and complicate the character of these
   proceedings. (319)

O'Connor goes on to quote from the Board of Immigration Appeals brief, which presented suppression issues as "a diversion of attention from the main issues which those proceedings were designed to resolve." (320) If this conclusion is taken at face value, it raises some very pressing concerns. First, because of the increase in immigration enforcement, immigration judges' workload has not decreased since 1984 despite an increase in their numbers. In 2007, the 214 immigration judges in the United States handled 1,500 cases each. (321) Moreover, the complexity of these cases has increased, because the actors involved in immigration enforcement are more numerous and come out of a wide variety of agencies. To the extent that "In]either the hearings officers nor the attorneys participating in those hearings are likely to be well versed in the intricacies of Fourth Amendment law," (322) the current system is virtually assured of creating bad results in at least some of the cases in which valid suppression arguments are raised.

At the time that the Lopez-Mendoza Court considered the question of whether evidence illegally seized could be used in deportation proceedings, they were operating on a relatively blank slate. In its decision, the Court noted that "lower court decisions dealing with this question [were] sparse," and cited only three cases. (323) Today, such motions are far more numerous. (324) Yet, there is nothing to suggest that IJs today receive better training on Fourth Amendment law than was the case in 1984.

This suggests not only that immigration courts are not required to suppress illegally seized evidence in matters in which such suppression would be required in criminal proceedings, but also that the EOIR has made no concerted effort in the years since Lopez-Mendoza to ensure that these courts will be prepared to deal more effectively with these claims as they arise. Given the increasingly seamless connections between law enforcement at all levels of government and immigration enforcement officials, the ability to adequately address suppression issues should now be identified as a core competency of the immigration judge and not a peripheral diversion of attention.

B. Immigration Court Reform

The issue of suppression thus raises a larger set of questions around immigration court competencies. There can be no doubt that immigration judges carry a heavy burden under the system's current structure, even though they do not have to sift through evidentiary suppression issues in many matters.

The immigration court system is also riddled with other problems that flow from or compound the issues associated with the heavy workload. In recent years, circuit courts have engaged in round denunciations of immigration judges' performances in various matters. (325) Most notably, Judge Richard Posner was moved to claim that adjudication by immigration judges had "fallen below the minimum standards of legal justice." (326) Moreover, in recent times, the immigration bench has been the subject of political manipulation that has raised questions concerning the integrity of the institution as a whole. (327) The time is ripe for institutional reform. (328) Although a full reform plan is well beyond the scope of this Article, the preceding discussion should make clear that any reform effort needs to take into account several institutional concerns. First, immigration judges should be fully trained to recognize and adjudicate constitutional violations that occur during the course of ICE investigations. Such training should focus significant attention on the substantial role of state and local law officials in immigration enforcement efforts, so that judges are prepared to understand the complex interaction of actors that may be involved when noncitizens appearing before them raise allegations of rights violations. Many reform proposals have called for even broader changes to the nation's immigration courts, including the creation of an Article I immigration court in which judges would have a guaranteed tenure, (329) the removal of the Executive Office for Immigration Review from the Justice Department to guarantee greater decisional independence, (330) and the creation of an independent administrative immigration court system whose decisions would be appealable to an Article III immigration court. (331) These broader proposals are not inconsistent with a narrower call for increased training concerning government investigations. Any reform agenda ought to include measures to sensitize immigration judges to the important role they now must play in policing large numbers of the nation's police.

Second, noncitizens should be provided with counsel in removal proceedings. During the first eight years of the new millennium, over eight hundred thousand noncitizens went through removal proceedings without access to counsel; (332) 84 percent of detained noncitizens lack counsel. (333) A case can be made for not guaranteeing all of these noncitizens a right to counsel in civil removal proceedings, (334) but in many cases, denial of counsel in removal proceedings seems to violate basic concepts of procedural fairness and due process. (335) When a Fourth Amendment violation occurs during a search or a seizure, or when a due process violation occurs during the government's interrogation of a noncitizen, unrepresented immigrants are unlikely to be able to adequately address the complex legal issues that a suppression motion requires. This is particularly true given the fact that immigration judges do not have a long history of dealing with these arguments, lack extensive training in these matters, and often require in-depth briefing on related issues. (336)

C. Reforms Outside of the Immigration Court

In addition to changing the procedures and structure of immigration courts, ensuring adequate policing of the many actors now engaged in immigration enforcement will require adjustments to institutions outside of the immigration courts. In particular, reforms are needed to ensure that two other constitutional safeguards cited by the Lopez-Mendoza Court--civil damage remedies and internal agency disciplinary measures--operate to provide adequate deterrence of constitutional rights violations.

First, Congress should revisit jurisdictional restrictions that prevent courts from hearing pattern-and-practice claims concerning ICE practices. As ICE enforcement actions proliferate and expand in scope and ambition, it is almost unavoidable that the agency will commit occasional rights violations. The possibility of such problems is magnified by the recent, large increase in the number of new ICE agents, (337) many of whom have not completed their training requirements before beginning their participation in enforcement actions. (338) The Lopez-Mendoza Court suggested that civil suits would be one way to keep agency action in check in the absence of a suppression remedy. (339) The rising number of civil actions suggests that this is indeed a viable mechanism by which to curb certain abuses of power.

It is important to recognize, however, that Congress has made substantial changes to the law since Lopez-Mendoza was decided in 1984, and these changes have limited the ability of noncitizens to file civil actions in cases in which government agents have violated constitutional rights in the course of immigration enforcement. In particular, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 enacted limitations to judicial review, and the REAL ID Act of 2005 requires administrative exhaustion and limits judicial review for certain matters arising out of immigration proceedings. (340) Some courts have held that the jurisdictional bars codified in section 242 of the Immigration and Nationality Act preclude federal district courts from deciding pattern-and-practice claims arising out of ICE enforcement that led to the initiation of removal proceedings against the petitioning noncitizens.

For example, the petitioners in Aguilar v. Immigration and Customs Enforcement (341) had filed a class-wide claim alleging that ICE engaged in a pattern and practice of violating due process during immigration raids in New Bedford, Massachusetts. (342) The petitioners argued that the statutory limitations on judicial review did not bar their claim because they were not challenging their removal orders, but rather were seeking relief arising out of ICE's illegal conduct. (343) The First Circuit rejected this argument, concluding that the claims arose from removal and that petitioners had adequate mechanisms for addressing rights violations in removal proceedings. (344) This ruling captures a broader trend wherein the courts have read class-action jurisdiction-stripping provisions broadly in the context of immigration law. (345) Such interpretations threaten one of the most effective means that noncitizens have to challenge illegalities in immigration law and procedures. (346)

Given the increasing judicial resistance to the suppression remedy, and the particular difficulties in suppressing the kinds of evidence that are frequently at issue in removal proceedings, civil remedies may be the only avenue toward remediation that remains available to some noncitizens. Thus, to be truly effective, adoption of the exclusionary rule in immigration proceedings would need to be accompanied by a reduction of the existing barriers to class actions arising out of constitutional rights violations in immigration enforcement.

Up to this point, the solutions presented have focused on the courts as the site for remediating and deterring constitutional violations in immigration enforcement. But the Lopez-Mendoza decision correctly notes that internal agency policies are also critical to the deterrence and punishment of illegal actions by agents. (347) Unfortunately, there is evidence that the internal investigative and disciplinary measures that might help to prevent rights violations are in need of fine tuning. Therefore, the final issue tackled in this Article is the need for more effective internal measures at the Department of Homeland Security to address rights violations by its immigration enforcement agents.

ICE is now the largest law enforcement agency in the country. By its own estimation, it also works with tens of thousands of state and local law enforcement officials throughout the country. It has the ability to initiate removal proceedings against over 10 percent of the U.S. population, and its actions affect countless others. Yet, in terms of accountability, it looks very different from other large police forces in the United States. Whereas about 80 percent of police departments in the nation's fifty largest cities are subject to the oversight of a civilian control board, (348) ICE has no such oversight mechanism. In this, of course, it is very much like other federal law enforcement agencies, which have long resisted external review. But as ICE becomes a hub for a whole host of state and local law enforcement efforts, it seems increasingly important to consider the possibility that external oversight might be appropriate and necessary to keeping rights violations in check.

It is also extremely difficult to access the basic statistical data about ICE enforcement that would be necessary for any observer to effectively monitor the agency's practice. To ensure compliance with constitutional requirements by ICE and the state and local agents who are increasingly charged with assisting in enforcing the nation's immigration laws, it is critical that these agencies be required to retain and report data that reveal the nature and effectiveness of their enforcement efforts.


The procedural consequences of ongoing changes in immigration enforcement should not be ignored. This Article seeks to highlight the genuinely transformative effect that contemporary immigration policing arrangements are having on criminal procedural norms. The immigration courts provide the institutional space where many of the questions over these procedures will be resolved. Unfortunately, these institutions cannot effectively address many of the issues that are now becoming staples of immigration court adjudication. Even if the procedural protections of the criminal realm--such as the exclusionary rule--are imported into these institutional settings, it is not clear that these tools can be effectively deployed. The transformation of immigration policing requires a parallel transformation of immigration adjudication. Creating more effective oversight mechanisms and reforming immigration adjudication are both necessary steps to ensure the adequate policing of those who police migration.

(1.) INS v. Lopez-Mendoza, 468 U.S. 1032, 1048 (1984) (quoting In re Sandoval, 17 I. & N. Dec. 70, 79-80 (B.I.A. 1979)).

(2.) The government removed 358,886 noncitizens in 2008. 319,382 in 2007, 280,974 in 2006, 246,431 in 2005, 240,665 in 2004. and 211,098 in 2003. OFFICE OF IMMIGRATION STATISTICS, U.S. DEP'T OF HOMELAND SEC., 2008 YEARBOOK OF IMMIGRATION STATISTICS 95 (2008), available at xlibrary/assets/statistics/yearbook/2008/ois_yb_2008.pdf. The first year in which annual removals exceeded 200,000 was 2003. Id. Removals exceeded 100,000 for the first time in 1997. Id. Until 1996, immigration proceedings to prevent noncitizens from entering the country were termed "exclusion" proceedings, whereas proceedings to remove a noncitizen that had already entered the country were termed "deportation" proceedings. See STEPHEN H. LEGOMSKY & CRISTINA M. RODRIGUEZ, IMMIGRATION AND REFUGEE LAW AND POLICY 420-21 (5th ed. 2009). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 U.S.C. and 18 U.S.C.), consolidated exclusion and deportation, and labeled the resulting proceedings "removal" proceedings. Now, 8 U.S.C. [section] 1229a(3) indicates that the removal proceedings defined in that section are for determining "whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States." 8 U.S.C. [section] 1229a(3) (2006). This Article will therefore use the term "removal" to refer to deportation and exclusion.

(3.) In 2008, 811,263 noncitizens voluntarily departed, 891,390 noncitizens voluntarily departed in 2007, 1,043,381 noncitizens voluntarily departed in 2006, 1,096,920 noncitizens voluntarily departed in 2005, 1,166,576 noncitizens voluntarily departed in 2004, and 945,294 noncitizens voluntarily departed in 2003. OFFICE OF IMMIGRATION STATISTICS, supra note 2, at 95. Unlike formal removal statistics, voluntary departure statistics have been fairly constant over the past thirty years, Id.

(4.) John Schwartz, Immigration Enforcement Fuels Spike in U.S. Cases, N.Y. TIMES, Dec. 22, 2009, at A16.

(5.) LEGOMSKY & RODRIGUEZ, supra note 2, at 3; Customs and Border Patrol, This Is CBP, (last visited Mar. 28, 2010) (discussing typical daily apprehensions).

(6.) LEGOMSKY & RODRIGUEZ, supra note 2, at 3.

(7.) See, e.g., U.S. Immigration & Customs Enforcement, Border Enforcement Security Task Forces (BEST), (last visited Mar. 28, 2010) [hereinafter BEST] (describing collaboration with "Customs and Border Protection (CBP); Drug Enforcement Administration (DEA); Bureau of Alcohol, Tobacco, Firearms and Explosives; Federal Bureau of Investigation; U.S. Coast Guard; and the U.S. Attorney's Office along with other key federal, state, local and foreign law enforcement agencies"); U.S. Immigration & Customs Enforcement, ICE ACCESS, partners/dro/iceaccess.htm (last visited Mar. 28, 2010) [hereinafter ICE ACCESS] (describing its collaboration with state and local law enforcement).

(8.) BEST, supra note 7.

(9.) LEGOMSKY & RODRIGUEZ, supra note 2, at 649-50.

(10.) The focus of this Article is on civil removal proceedings, but it is worth bearing in mind that the rise in criminal prosecutions also creates stresses on federal prosecutors and magistrate judges. For a discussion of the rising caseload and the most affected areas of the country, see TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, IMMIGRATION PROSECUTIONS AT RECORD LEVELS IN FY 2009 (2009), Moreover, the procedures designed to facilitate these convictions raise fundamental questions of fairness and due process. See Jennifer M. Chacon, Managing Migration Through Crime, 109 COLUM. L. REV. SIDEBAR 135, 147 (2009), Chacon.pdf. The prosecution of immigration crimes also is facilitated by synergies with the civil enforcement mechanisms used to effectuate removal. See Ingrid V. Eagly, Prosecuting Immigration, 104 NW. U. L. REV. (forthcoming 2010) (manuscript at 68-75, on file with the Duke Law Journal) (describing the relationships between criminal prosecution and immigration enforcement); see also Teresa A. Miller, Citizenship and Severity: Recent Immigration Reforms and the New Penology, 17 GEO. IMMIGR. L.J. 611, 618 (2003) (describing this trend by noting that "the [term] 'criminalization' of immigration law fails to capture the dynamic process by which both systems converge at points to create a new system of social control that draws from both immigration and criminal justice, but it is purely neither").

(11.) 8 C.F.R. [section] 239.1 (2009); see also LEGOMSKY & RODRIGUEZ, supra note 2, at 650 (noting that NTAs are often served by ICE, but can be served by "a range of other DHS agencies and officials").

(12.) LEGOMSKY & RODRIGUEZ, supra note 2, at 34.

(13.) EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (EOIR), U.S. DEP'T OF JUSTICE, FY 2008 STATISTICAL YEAR BOOK C4 tbl.4 (2009), available at pub/fy08syb.pdf. The figure shown above for removal proceedings includes a small numbers of "exclusion" and "deportation" proceedings. Id.

(14.) See Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 DUKE L.J. 1635, 1651-52 (2010).

(15.) Id. at 1652.

(16.) Id. at 1652-53.

(17.) In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Court recorded that "[t]he average immigration judge handles about six deportation hearings per day." Id. at 1048.

(18.) EOIR, supra note 13, at C4 tbl.4, B7 fig.3. The Executive Office for Immigration Review (EOIR) figures also note that in 2008, IJs decided 13,294 motions to reopen and other motions. Id.; see also Legomsky, supra note 14, at 1651-54 (providing more examples of the strain on IJs).

(19.) Bond proceedings are not part of a removal proceeding; they are separate proceedings. See 8 C.F.R. [section] 1003.19(d) (2009) ("Consideration by the Immigration Judge of an application or request of a respondent regarding custody or bond under this section shall be separate and apart from, and shall form no part of, any deportation or removal hearing or proceeding."). Unless a noncitizen is subject to mandatory detention under the criminal or terrorism grounds of section 236(c)(1) of the Immigration and Nationality Act (INA), 8 U.S.C. [section][section] 1101-1537 (2006), the INA provides for the release of noncitizens arrested for immigration violations on bond or on their own recognizance pending resolution of their removal matter, INA [section] 236(a)(2), 8 U.S.C. [section] 1226(a)(2). An ICE official makes the initial custody and bond determination, INA [section] 236.1(d), 8 U.S.C. [section] 1236.1(d); 8 C.F.R. [section] 236.1(d), but at any time prior to the final removal order, a noncitizen may apply for bond redetermination by an immigration judge, 8 C.F.R. [section][section] 236.1(d), 1003.19(a), 1236.1(d).

(20.) INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

(21.) Id. at 1039 (emphasis added).

(22.) As discussed below, many of the assumptions about immigration enforcement underlying the Lopez-Mendoza decision are no longer valid in light of evolving enforcement practices. See infra Part III.B.

(23.) See infra Part IV.B.

(24.) See infra Part IV.C.

(25.) U.S. DEP'T OF HOMELAND SEC., BUDGET-IN-BRIEF: FISCAL YEAR 2008, at 19 (2008), available at

(26.) Id.

(27.) Id. This number does not include interdiction activities carried out by the Coast Guard, which carries out interdictions of noncitizens at sea. The Coast Guard accounted for an additional 18.9 percent of the DHS budget. Id.

(28.) Office of Nat'l Drug Control Policy, An Overview of Federal Drug Control Programs on the Southwest Border: Immigration and Naturalization Service, ondcppubs/publications/enforce/border/ins_3.html (last visited Mar. 28, 2010).

(29.) JUSTICE MGMT. DIV., U.S. DEP'T OF JUSTICE, BUDGET TREND DATA: FROM 1975 THROUGH THE PRESIDENT'S 2003 REQUEST TO THE CONGRESS 104-08 (2002), available at jmd/1975_2002/2002/pdf/BudgetTrand.pdf (showing budget trends for INS from 1975 to 2003 and recording an INS budget of $1.01 billion in 1988).

(30.) See, e.g., Immigration and Naturalization Service's (INS) Interior Enforcement Strategy: Challenges to Implementing the INS Interior Enforcement Strategy: Hearings Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 107th Cong. 13 (2002) (statement of Richard M. Stana, Director of Justice Issues, U.S. General Accounting Office) (noting that up through the 1990s, five times as many resources were devoted to border enforcement as to interior enforcement); U.S. DEP'T OF HOMELAND SEC., supra note 25, at 2 (noting an unprecedented number of workplace enforcement actions in 2008).


(32.) See, e.g., TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, supra note 10 (noting the rapid expansion of the Border Patrol in the period from the mid-1970s through 2001); INS: Enforcement, Detention, MIGRATION NEWS, Apr. 1998, more.php?id=1489_0_2_0 (noting that the number of Border Patrol agents doubled between 1993 and 1998).

(33.) U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, U.S. DEP'T OF HOMELAND SEC., ICE FISCAL YEAR 2010 ENACTED BUDGET 1 (2009), available at news/factsheets/2010budgetfactsheet.doc.

(34.) Julia Preston, No Need for a Warrant, You're an Immigrant, N.Y. TIMES, Oct. 14, 2007, [section] 4 (Week in Review), at 3; see also BESS CHIU ET AL., CONSTITUTION ON ICE: A REPORT ON IMMIGRATION HOME RAID OPERATIONS (2009), available at Profiles/immigrationlaw-741/IJC-ICE-Home-RaidReport%20Updated.pdf (noting the constitutional problems associated with ICE home raids in New York and New Jersey); NAT'L COMM'N ON ICE MISCONDUCT & VIOLATIONS OF 4TH AMENDMENT RIGHTS, RAIDS ON WORKERS: DESTROYING OUR RIGHTS 13-41 (2009), available at docUploads/UFCW%20ICE%20rpt%20FINAL%20 150B_061809_130632.pdf (reporting on aggressive tactics and rights violations by ICE in the course of several large-scale workplace raids across the country).

(35.) Anil Kalhan, The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement, 41 U.C. DAVIS L. REV. 1137, 1161-65 (2008). For details concerning this cooperation, see discussion infra Part II.

(36.) DANIEL KANSTROOM, DEPORTATION NATION 122-24 (2007); see also, e.g., Wong Wing v. United States, 163 U.S. 228, 233 (1896) (stating that Chinese laborers did not require the full range of protections under the criminal justice system).

(37.) KANSTROOM, supra note 36, at 125.

(38.) Id.

(39.) Id.

(40.) Id. at 125-30.

(41.) See supra notes 30-33 and accompanying text.

(42.) KANSTROOM, supra note 36, at 243.

(43.) See Daniel Kanstroom, Criminalizing the Undocumented: ironic Boundaries of the Post-September 11th "Pale of Law," 29 N.C.J. INT'L L. & COM. REG. 639, 652 (2004) ("Deportation is now often a virtually automatic consequence of a non-citizen's criminal conviction for even a minor state misdemeanor."); Stephen Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 WASH. & LEE L. REV. 469, 482 (2007) ("Just as more and more immigration violations are culminating in criminal convictions, so too are more and more criminal convictions culminating in deportation or other adverse immigration consequences."); Miller, supra note 10, at 618 (referring to this trend as the "immigrationization of criminal law").

(44.) See infra notes 63--69 and accompanying text.

(45.) Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367,376 (2006).

(46.) See Chacon, supra note 10, at 137-40 (discussing the consequences of the overlap of the immigration and criminal law systems). See generally Legomsky, supra note 43 (discussing five related trends).

(47.) TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, PROSECUTION OF IMMIGRATION CASES SURGE IN U.S. WHILE SENTENCES SLUMP (2005), available at 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%).").

(48.) Schwartz, supra note 4.


(50.) One example is Arizona's identity-theft law. Arizona law creates criminal culpability for the use of an alternate identity whether or not the defendant knows that he is using the identity of an actual person and whether or not another person with such an identity actually exists. See ARIZ. REV. STAT. ANN. [section] 13-2008 (2010). This offense is deployed as a means of prosecuting noncitizens who have used false identities to obtain employment. For more examples of state legislation allowing prosecution for migration-related offenses, see Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, 86 N.C.L. REV. 1557, 1599 n.224 (2008).

(51.) See Valerie Fernandez, Profiling Persists Despite Revamped Guidelines, INTER PRESS SERVICE, July 30, 2009, (relaying the argument of Aarti Shahani, Researcher, Justice Strategies, that Arizona officials do not need federal government contracts to enforce immigration law because the Arizona code provides such broad tools to law enforcement). See generally Chacon, supra note 10 (documenting a simultaneous increase in immigration prosecutions and an erosion of criminal protections for immigration defendants).

(52.) See Jennifer M. Chacon, Unsecured Borders: Immigration Restrictions, Crime Control and National Security, 39 CONN. L. REV. 1827, 1844 (2007) (noting a number of increasingly punitive penalties relating to immigration); Hiroshi Motomura, Immigration Outside the Law, 108 COLUM. L. REV. 2037, 2087-88 (2008) (explaining the severity of the proposed Development, Relief, and Education for Alien Minors (DREAM) Act). See generally Kanstroom, supra note 43, at 651-52 ("[W]e live in a time of extreme 'vigor, efficiency, and strictness' as to deportation of non-citizens convicted of crimes, due to nearly two decades of sustained attention to this issue." (footnote omitted)); Legomsky, supra note 43, at 482-86 (discussing the increasingly severe immigration consequences that follow from noncitizens' criminal convictions); Miller, supra note 10, at 631-39 (discussing the increasingly common imposition of deportation on noncitizens who commit certain kinds of criminal offenses).

(53.) Chacon, supra note 52, at 1844; Legomsky, supra note 43, at 471.

(54.) INA [section] 236, 8 U.S.C. [section] 1226.1 (2006).

(55.) Id.

(56.) IIRIRA, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 U.S.C. and 18 U.S.C.).

(57.) AEDPA, Pub. L. No. 104-132, 110 Star. 1214 (codified as amended in scattered sections of the U.S.C.).

(58.) Chacon, supra note 52, at 1827. For the complete definition of "aggravated felony," see INA [section] 101(a)(43), 8 U.S.C. [section] 1101(a)(43).

(59.) Chacon, supra note 52, at 1845; see also BILL ONG HING, DEPORTING OUR SOULS: VALUES, MORALITY, AND IMMIGRATION POLICY 54-58 (2006) (discussing the severity of immigration law and associated punishments). See generally Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936 (2000) (discussing the changes to the law and critiquing reform proposals).

(60.) INA [section] 212(h), 8 U.S.C. [section] 1182(h); see also Nancy Morawetz, Rethinking Drug Inadmissibility, 50 WM. & MARY L. REV. 163, 166-67 (2008) (discussing the broad scope of the drug inadmissibility provision and the limited nature of waiver); Jeff Yates, Todd A. Collins & Gabriel J. Chin, A War on Drugs or a War on Immigrants? Expanding the Definition of "Drug Trafficking" in Determining Aggravated Felon Status for Noncitizens, 64 MD. L. REV. 875, 878-79 (2005) (highlighting certain inequities of the sentencing system as it currently stands).

(61.) See Yates et al., supra note 60, at 876 (suggesting a strong causality between the war on drugs and the severity of immigration law on drug offenses); see also Morawetz, supra note 60, at 166-67 (commenting on the "zero tolerance" policy on inadmissibility over even the most minor of offenses).

(62.) See, e.g., Morawetz, supra note 60; Yates et al., supra note 60.

(63.) CHIU ET AL., supra note 34, at 1 ("[ICE] home raids generally involve teams of heavily armed ICE agents making predawn tactical entries into homes, purportedly to apprehend some high priority target believed to be residing therein. ICE has admitted that these are warrantless raids and, therefore, that any entries into homes require the informed consent of residents. However, frequent accounts in the media and in legal filings have told a similar story of constitutional violations occurring during ICE home raids--a story that includes ICE agents breaking into homes and seizing all occupants without legal basis."); NAT'L COMM'N ON ICE MISCONDUCT & VIOLATIONS OF 4TH AMENDMENT RIGHTS, supra note 34, at 35.

(64.) See, e.g., Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 FORDHAM L. REV. 541, 551-52 (2009) (providing a case study about the barriers to litigating immigration claims from an immigration detention facility); Nina Bernstein, For a Mentally Ill Immigrant, a Path Clears Out of the Dark Maze of Detention, N.Y. TIMES, Sept. 11, 2009, at A20 (detailing the harsh conditions in immigration detention for a mentally ill detainee): Nina Bernstein, Officials Obscured Truth of Migrant Deaths in Jail, N.Y. TIMES, Jan. 10, 2010, at A1 (discussing numerous immigrant deaths in detention and the agency cover-up of the details of these deaths).

(65.) DORA SCHRIRO, U.S. DEP'T OF HOMELAND SEC., IMMIGRATION DETENTION OVERVIEW AND RECOMMENDATIONS 2 (2009), available at immigration-detention-overview-and-recommendations; see also Nina Bernstein, Report Critical of Scope and Cost of Immigration Detention, N.Y. TIMES, Oct. 7, 2009, at A17 (highlighting the significant and potentially wasteful costs associated with current detention facilities).

(66.) Compare U.S. DEP'T. OF JUSTICE, FY2002 BUDGET SUMMARY 114 (2001), available at jmd/2002summary/pdf/ins_breached_bond.pdf (providing 1996 data), with U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, U.S. DEP'T OF HOMELAND SEC., OFFICE OF DETENTION AND REMOVAL: KEY ACCOMPLISHMENTS IN FISCAL YEAR 2006 (2006), factsheets/dro110206.htm (providing 2006 data).

(67.) Jared Polis, The Case for Detention Reform, HUFFINGTON POST, Sept. 15, 2009, jared-polis/case-for-detention-reform-b-287260.html. This is also double the number that the American Bar Association reported to be detained in 2004. COMM'N ON IMMIGRATION, ABA, IMMIGRATION DETAINEE PRO BOND OPPORTUNITIES GUIDE 1 (2004), available at

(68.) DONALD KERWIN & SERENA YI-YING LIN, IMMIGRANT DETENTION: CAN ICE MEET ITS LEGAL IMPERATIVES AND CASE MANAGEMENT RESPONSIBILITIES 1 (2009), available at 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).

(69.) SCHRIRO, supra note 65, at 21-22.

(70.) KERWIN & LIN, supra note 68, at 20-21 (noting that 58 percent of the detainees had no criminal record, and that of those who did, the "most serious" convictions for 6 percent of them were immigration offenses, whereas the most serious convictions for another 13 percent were traffic violations).

(71.) Huyen Pham, When Immigration Borders Move, 61 FLA. L. REV. 1115. 1118-19 (2009). See generally Stumpf, supra note 50 (describing and theorizing the trend).


(73.) Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26, 32 (1996) ("[S]tate and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to criminal violations of the immigration laws or other laws.").

(74.) See MICHAEL JOHN GARCIA, CONG. RESEARCH SERV., CRIMINALIZING UNLAWFUL PRESENCE: SELECTED ISSUES 2 (2006), available at P585.pdf ("Although an alien who unlawfully enters the United States is potentially subject to removal and criminal prosecution, an alien found unlawfully present in the U.S. is typically subject only to removal.").

(75.) See Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel at 27 ("Subject to the provisions of state law, state and local police may constitutionally detain or arrest aliens who have violated the criminal provisions of the Immigration and Nationality Act...." (footnote omitted)).

(76.) NAT'L IMMIGRATION FORUM, supra note 72, at 3, 5.

(77.) AEDPA, 8 U.S.C. [section] 1252c (2006); see also NAT'L IMMIGRATION FORUM, supra note 72, at 3-4 (describing the changes in the law).

(78.) 8 U.S.C. [section] 1103(a)(10) see also NAT'L IMMIGRATION FORUM, supra note 72, at 3-4 (describing the changes in the law); NAT'L IMMIGRATION LAW CTR., SAMPLE LANGUAGE FOR POLICIES LIMITING THE ENFORCEMENT OF IMMIGRATION LAW BY LOCAL AUTHORITIES 2-3 (2004) (same).

(79.) INA [section] 287(g), 8 U.S.C. [section] 1357(g); NAT'L IMMIGRATION FORUM, supra note 72, at 2.

(80.) NAT'L IMMIGRATION FORUM, supra note 72, at 2.

(81.) Memorandum from Jay S. Bybee, Assistant Att'y Gen., Office of Legal Counsel, U.S. Dep't of Justice, to the U.S. Att'y Gen., Regarding Non-Preemption of the Authority of State and Local Law Enforcement Officials to Arrest Aliens for Immigration Violations (Apr. 3, 2002), available at; see also NAT'L IMMIGRATION FORUM, supra note 72, at 5 (discussing the Justice Department's 2002 policy change regarding civil violations); Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 VAND. L. REV. 787, 801-02 (2008) (discussing the OLC memo and the varied responses taken by states and localities in asserting their "inherent authority"); Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965, 966 (2004) (same).

(82.) Letter from Alberto R. Gonzales, Counsel to the President, to Demetrios G. Papademetriou, Migration Policy Institute (June 24, 2002), available at files/whitehouse.pdf; see also Pham, supra note 81, at 987 (discussing and contesting the reasoning of the letter).

(83.) Letter from Alberto R. Gonzales, Counsel to the President, to Demetrios G. Papademetriou, Migration Policy Institute, supra note 82; see also NAT'L IMMIGRATION FORUM, supra note 72, at 5 (discussing the Justice Department's 2002 inclusion of civil offenders in the database); Pham, supra note 81, at 987 (discussing the letter).

(84.) Cf. Kalhan, supra note 35, at 1162-63 (critiquing this development); Michael J. Wishnie, State and Local Police Enforcement of Immigration Law, 6 U. PA. J. CONST. L. 1084, 1086 (2004) (same).

(85.) At the same time that states and localities are increasing their participation in the enforcement of federal immigration law, they are also increasing the roles of their law enforcement officials in policing migration by enacting immigration-related legislation at the state and local level. For additional discussions of this development, see Jennifer M. Chacon, Tensions and Tradeoffs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. PA. L. REV. (forthcoming 2010) (manuscript at 81-87, on file with the Duke Law Journal); Karla Mari McKanders, The Constitutionality of State and Local Laws Targeting Immigrants. 31 U. ARK. LITTLEE ROCK L. REV. 579, 580-81 (2009); Pham, supra note 71, at 1118-19 (2009): Cristina M. Rodriguez, The Significance of the Local in Federal Immigration Regulation, 106 MICH. L. REV. 567, 582-90 (2008); Stumpf, supra note 50, at 1559-60; Rick Su, A Localist Reading of Local Immigration Regulations, 86 N.C.L. REV. 1619, 1622-24 (2008). See generally Michael A. Olivas, Immigration-Related State and Local Ordinances: Preemption, Prejudice and the Proper Role for Enforcement, 2007 U. CHI. LEGAL F. 23 (disagreeing with Professor Spiro and arguing that preemption of state involvement in immigration enforcement is not an abrogation of state rights).

(86.) See INA [section] 287(g), 8 U.S.C. [section] 1357(g) (2006).

(87.) See IIRIRA, Pub. L. No. 104-208, div. C, [section] 133, 110 Stat. 3009-546, 3009-563 to -564 (codified as amended at 8 U.S.C. [section] 1357(g)).

(88.) U.S. Immigration & Customs Enforcement, Partners, 287g/Section287_g.htm (last visited Mar. 28, 2010); see also Senate Judiciary Committee Holds Hearing on Oversight of DHS, 85 INTERPRETER RELEASES 1209, 1210 (2008) (citing to the testimony of Secretary Chertoff that there were over forty such agreements in March 2008). The number of 287(g) agreements actually peaked at seventy-seven, but after Secretary Napolitano of the Department of Homeland Security announced reforms to the program in July 2009, the number of participating jurisdictions declined. Press Release, U.S. Dep't of Homeland Sec., Secretary Napolitano Announces New Agreements for State and Local Immigration Enforcement Partnerships & Adds 11 New Agreements (July 10, 2009), available at http:/ releases/pr_1247246453625.shtm.

(89.) U.S. Immigration & Customs Enforcement, supra note 88. This number is significantly larger than the one provided to the Senate Judiciary Committee by DHS Secretary Michael Chertoff in March 2008, when he told the committee that more than 28,000 unauthorized migrants had been identified for potential removal through joint efforts under section 287(g) as of the spring of 2008. Senate Judiciary Committee Holds Hearing on Oversight of DHS, supra note 88, at 1210.

(90.) Letter from Reba A. McGiniss, Chief, Information Disclosure Unit, U.S. Immigration & Customs Enforcement, to Professor Michael Wishnie (Jan. 17, 2008) (on file with the Duke Law Journal).

(91.) See U.S. Immigration & Customs Enforcement, supra note 88.

(92.) These are the agreements designated as "Task Force Officers" agreements by ICE. Id.; see also U.S. GOV'T ACCOUNTABILITY OFFICE, No. GAO-09-109, IMMIGRATION ENFORCEMENT: BETTER CONTROLS NEEDED OVER PROGRAM AUTHORIZING STATE AND LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS 8 (2009), available at

(93.) INA [section] 287, 8 U.S.C. [section] 1357(g)(1) (2006).

(94.) U.S. Immigration & Customs Enforcement, supra note 88: see also U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 92, at 8 (describing the "jail model" of state and local participation).

(95.) U.S. Immigration & Customs Enforcement, supra note 88.

(96.) Id.

(97.) See, e.g., Memorandum of Understanding Between U.S. Dep't of Homeland Sec. and the State of Ala. (Sept. 10, 2003) (on file with the Duke Law Journal). Some participating agencies are designated as both JEOs and TFOs. U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 92, at 8.

(98.) U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 92, at 7-8.

(99.) See, e.g., Memorandum of Understanding Between U.S. Dep't of Homeland Sec. and the State of Ala., supra note 97, at 2, 5.

(100.) Id. at 5.

(101.) Id.

(102.) Id. at 6.

(103.) See infra notes 278-84 and accompanying text.

(104.) Press Release, U.S. Dep't of Homeland Sec., supra note 88.

(105.) Id.

(106.) Id.

(107.) See, e.g., Sherry Greenfield, Federal Authorities Announce Changes to Controversial 287g Program, GAZETTE.NET, July 21, 2009, 74048_32538.shtml (outlining local law enforcement's understanding of 287(g) priorities). For a hyperlink to a side-by-side comparison of a typical MOA before and after the changes, see id.

(108.) Daphne Eviatar, Immigration Program Expands, Despite Abuse Record: Many of Arpaio's Tactics Sanctioned by Federally Granted Authority, WASH. INDEP., July 23, 2009, immigration-program-expands-despite-abuse-record; see also Daphne Eviatar, New DHS Rules Disappoint Immigrants' Advocates, WASH. INDEP., July 17, 2009 51662/new-dhs-rules-disappoint-immigrants-advocates (noting the dissatisfaction of the National Immigration Law Center, the Detention Watch Network, and the ACLU, and reporting that "a group of 25 civil rights and community groups issued a statement denouncing" the expansion of the program).

(109.) See, e.g., JENA BAKER MCNEILL & MATT A. MAYER, SECTION 287(6) REVISIONS: TEARING DOWN STATE AND LOCAL IMMIGRATION ENFORCEMENT ONE CHANGE AT A TIME (2009), (writing that by requiring law enforcement to process noncitizens for crime, the revisions "gut the force-multiplier purpose of 287(g)").

(110.) U.S. Immigration & Customs Enforcement, supra note 88.

(111.) U.S. Immigration & Customs Enforcement, Section 287g, (last visited Mar. 28, 2010) (noting that each MOA "prescribes the agreed upon complaint process governing officer conduct during the life of the MOA"). Given the Government Accountability Office's concerns regarding the inconsistencies of oversight generally, it is not clear how effective such procedures have been. See U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 92, at 14-15.

(112.) U.S. Immigration & Customs Enforcment, 287(g) Complaint Process, news/factsheets/section287_g-complaints.htm (last visited Mar. 28, 2010).

(113.) For a discussion of the cancellation of the Maricopa County contract, see infra notes 280-81 and accompanying text.

(114.) ACCESS stands for Agreements of Cooperation in Communities to Enhance Safety and Security. At the moment, it encompasses fourteen programs, although the umbrella is loose enough to accommodate frequent changes in enforcement efforts. See U.S. Immigration & Customs Enforcement, Office of State and Local Coordination: Access--Agreements of Cooperation in Communities to Enhance Safety and Security, iceaccess.htm (last visited Mar. 28, 2010) (listing ACCESS programs). This Article does not address all fourteen programs, but instead focuses on those most directly related to interior immigration enforcement.

(115.) Id.


(117.) Id. at 6.

(118.) Id.

(119.) Susan M. Akram & Maritza Karmely, Immigration and Constitutional Consequences of Post-9/11 Policy Involving Arabs and Muslims in the United States: Is Alienage a Distinction Without a Difference?, 38 U.C. DAVIS. L. REV. 609,630 (2005).

(120.) See id. (discussing the NSEERS program's targeting of those originating from Arabian or Muslim countries, regardless of what passport they held).

(121.) Wishnie, supra note 84, at 1096.

(122.) Id. at 1086-87.

(123.) See, e.g.. IMMIGRATION COMM., MAJOR CITIES CHIEFS, M.C.C. IMMIGRATION COMMITTEE RECOMMENDATIONS FOR ENFORCEMENT OF IMMIGRATION LAWS BY LOCAL POLICE AGENCIES 10 (2006), available at mcc_position_statement_revised_cef.pdf ("The inclusion of civil detainers on the system has created confusion for local police agencies and subjected them to possible liability for exceeding their authority by arresting a person upon the basis of a mere civil detainer."); see also APPLESEED, FORCING OUR BLUES INTO GRAY AREAS: LOCAL POLICE AND FEDERAL IMMIGRATION ENFORCEMENT 28-29 (2008), available at local_police_and_immigration_enforcement.pdf (discussing this criticism).

(124.) U.S. Immigration & Customs Enforcement, Law Enforcement Support Center, news/factsheets/lesc.htm (last visited Mar. 28, 2010).

(125.) Id.

(126.) Id.

(127.) Id.

(128.) U.S. Immigration & Customs Enforcement, National Fugitive Operations Program, pi/dro/nfop.htm (last visited Mar. 28, 2010).

(129.) ICE ACCESS, supra note 7.

(130.) Id.

(131.) Jessica Schau, Amidst Critical Reports, Obama Administration to Review Home Raids Program, 23 GEO. IMMIGR. LJ. 251, 252 (2008) (citing Michael Chertoff, Sec'y, U.S. Dep't of Homeland Sec., Remarks on the State of Immigration and the No Match Rule (Oct. 23, 2008), available at


(133.) Id. (citing Chertoff, supra note 131).

(134.) U.S. Immigration & Customs Enforcement, supra note 128; see also OFFICE OF THE INSPECTOR GEN., supra note 132, at 24 (describing state and local participation in these efforts).

(135.) See, e.g., Comm. for Immigrant Rights of Sonoma County v. County of Sonoma, 644 F. Supp. 2d 1177, 1185-89, 1203-04 (N.D. Cal. 2009) (describing, inter alia, local police involvement in immigration enforcement and ruling on civil rights violations by local and federal officials); Nina Bernstein, Raids Were a Shambles, Nassau Complains to U.S., N.Y. TIMES, Oct. 3, 2007, at B1 (noting the participation of the Nassau County Police in area ICE raids and recording a local officer's dissatisfaction with the way the raid was conducted).

(136.) Interview with Carolyn Hsu, Pub. Relations Office, U.S. Immigration & Customs Enforcement, in Dallas, Tex. (Sept. 16, 2008) (stating that no additional training is required for local law enforcement to participate on Fugitive Operations Teams, while noting the limited role of local police in enforcement actions); Interview with Marshals from the Joint E. Tex. Fugitive Apprehension Task Force, Sherman, Tex., and the Gulf Coast Violent Offenders Task Force, S. Dist. of Tex. (Sept. 16, 2008) (same). These interviews have been memorialized in a document on file with the Duke Law Journal. Indeed, not all federal agent participants received special training prior to their involvement in these programs. See OFFICE OF THE INSPECTOR GEN., supra note 132, at 29-30.

(137.) See OFFICE OF THE INSPECTOR GEN., supra note 132, at 26-29. Police engage in activities such as securing the perimeter of homes during ICE raids. Id. at 27. Presumably, this implies that they are authorized to use force against civil immigration violators as necessary to "secure" the area, although there is no available information about whether or how often this has actually happened. Interestingly, DHS's Office of the Inspector General report suggests that the role of state and local law enforcement officers at the scene of enforcement activities is to "ease[] the[] concerns" of the subjects of the enforcement action who would otherwise be "afraid of the [immigration] officers in plainclothes," id. at 27, although it is a bit hard to fathom how adding armed police officers into the raid equation would do anything other than escalate the concerns of the targets.

(138.) Id. at 4.

(139.) Nina Bernstein, Despite Vow, Target of Immigrant Raids Shifted, N.Y. TIMES, Feb. 4, 2009, at A1: Spencer S. Hsu, Immigration Priorities Questioned: Report Says Focus on Deporting Criminals Apparently Shifted, WASH. POST, Feb. 5, 2009, at A2; see also CHIU ET AL., supra note 34, at 11 ("[T]he high percentage of collateral arrests is consistent with allegations that ICE agents are using home raids for purported targets as a pretext to enter homes and illegally seize mere civil immigration violators.... who ICE happens to encounter during home raid operations."): MARGOT MENDELSON, SHAYNA STROM & MICHAEL WISHNIE, MIGRATION POLICY INST., COLLATERAL DAMAGE: AN EXAMINATION OF ICE's FUGITIVE OPERATIONS PROGRAM 1-2 (2009), available at ("Despite NFOP's mandate to arrest dangerous fugitives, almost three-quarters (73 percent) of the individuals apprehended by FOTs from 2003 through February 2008 had no criminal conviction.").

(140.) See MENDELSON ET AL., supra note 139, at 1-2 (noting that between 2003 and 2008, 73 percent of individuals detained by the Fugitive Operations Teams had no criminal records and in 2007, 40 percent of detainees were non-fugitive, "collateral catches"); Katherine Evans, The Ice Storm in U.S. Homes: An Urgent Call for Policy Change, 33 N.Y.U. REV. L. & SOC. CHANGE 561, 574 n.92 (2009) ("Note that of the arrests that do fall within one of the five priority categories, the vast majority falls within the lowest category--those individuals who have received an order of deportation but have no criminal history. This category, in addition to the collateral arrests, accounts for seventy-three percent of the nearly 97,000 arrests by Fugitive Operations Teams from fiscal year 2003 to fiscal year 2008."); see also Lee Rood. Register Exclusive: Many ICE Arrests Are Not of Criminals, Data Show, DES MOINES REG., Sept. 16, 2009, at A1 (noting that in 2009 in a five-state region including Iowa, 42 percent of the arrestees of the Fugitive Operations Team were actually "non-fugitives" with no outstanding removal orders against them, and only 36 percent of arrestees actually had criminal convictions).

(141.) Press Release, U.S. Dep't of Homeland Sec., Secretary Napolitano Issues Immigration and Border Security Action Directive (Jan. 30, 2009), available at releases/pr_1233353528835.shtm. See generally Schau, supra note 131 (discussing the political and social developments leading up to the issuance of the Immigration and Border Security Action Directive).

(142.) Memorandum from John Morton, Assistant Sec'y, U.S. Dep't of Homeland Sec., to Field Office Directors and Fugitive Operation Team Members, U.S. Immigration & Customs Enforcement (Dec. 8, 2009), available at ops_priorities12-08-09.pdf.

(143.) For a discussion of successful suppression motions brought in response to unconstitutional searches and seizures by ICE Fugitive Operations Teams, see infra note 236.

(144.) Memorandum from John Morton to Field Office Directors and Fugitive Operation Team Members, supra note 142.

(145.) See Julia Preston, Firm Stance on Illegal Immigrants Remains Policy, N.Y. TIMES, Aug. 3, 2009, at A14 ("After early pledges by President Obama that he would moderate the Bush administration's tough policy on immigration enforcement, his administration is pursuing an aggressive strategy for an illegal-immigration crackdown that relies significantly on programs started by his predecessor.").

(146.) See Memorandum from John Morton to Field Office Directors and Fugitive Operation Team Members, supra note 142 (not specifying training or guidelines for state and local law enforcement officers).

(147.) U.S. Immigration & Customs Enforcement, Criminal Alien Program, gov/pi/news/factsheets/criminal_alien_program.htm (last visited Mar. 30, 2010).

(148.) Id.


(150.) Rood, supra note 140. For additional discussion of the Secure Communities initiative, see infra Part II.C.

(151.) U.S. Immigration & Customs Enforcement, Operation Community Shield: Targeting Violent Transnational Street Gangs, (last visited Mar. 28, 2010).

(152.) Jennifer M. Chacon, Whose Community Shield? Examining the Removal of the "Criminal Street Gang Member," 2007 U. CHI. LEGAL F. 317, 321-24.

(153.) U.S. Immigration & Customs Enforcement, supra note 151.

(154.) Chacon, supra note 152, at 330-33.

(155.) Id.

(156.) Id.

(157.) Id. at 337-44.

(158.) Questions have also been raised regarding the efficacy of using removal as an antigang strategy. There is no doubt that the policy is tremendously burdensome for receiving countries. Id. at 349-50; see also GEOFF THALE & ELSA FALKENBURGER, YOUTH GANGS IN CENTRAL AMERICA: ISSUES IN HUMAN RIGHTS, EFFECTIVE POLICING AND PREVENTION, A WASHINGTON OFFICE ON LATIN AMERICA SPECIAL REPORT 1-2 (2006), available at gangs_report_final_nov_06.pdf. Moreover, there is some evidence suggesting that U.S. removal policy has actually strengthened the transnational ties of gang members and has fueled rather than diminished the gang problem. See, e.g., Rocky Delgadillo, Going Global to Fight Gangs, L.A. TIMES, Aug. 18, 2008, at A15 (noting that "[t]he two fastest-growing and most powerful gangs in the world are home grown products of Los Angeles," and explaining how past U.S. deportation policy helped make them into powerful transnational criminal elements); Matthew Quirk, How to Grow a Gang, ATLANTIC, May 2008, doc/200805/world-in-numbers ("For hard-core gang members, quickie deportations on immigration charges are often no more than short-term fixes: lengthy American prison sentences would be more effective.").

(159.) Press Release, U.S. Dep't of Homeland Sec., Fact Sheet: Operation Predator (July 9, 2003), available at; U.S. Immigration & Customs Enforcement, ICE Fact Sheet Operation Predator, pi/news/factsheets/070607operationpredator.htm (last visited Mar. 28, 2010).

(160.) Press Release, U.S. Dep't of Homeland Sec., supra note 159.

(161.) Id.

(162.) See Nora V. Demleitner, Misguided Prevention: The War on Terrorism as a War on Immigrant Offenders and Immigration Violators, 40 CRIM. L. BULL. 550, 573 (2004) ("Even though the sex offenders have been styled as 'the worst of the worst,' as a consequence of their convictions for a sex offense, many of them were not sentenced to prison but rather to probation, presumably an indicator of the lesser seriousness of their offense. Those sentenced to prison are often moved directly from prison to immigration custody. This explains why most of those caught through Operation Predator either had relatively old convictions or had not been sentenced to imprisonment.") For example, Operation Predator targeted a 25-year-old Mexican national due to a statutory rape charge "that stemmed from his relationship with a 14-year-old girlfriend that began when he was 17 and in high school." Frank James, Immigrant Sex Offenders Targeted, CHI. TRIB., Feb. 24, 2005, at 1. He was convicted, served his time in prison, and fulfilled his probation requirements, but was still targeted by Operation Predator. Id.

(163.) Press Release, U.S. Dep't of Homeland Sec., supra note 159.

(164.) U.S. Immigration & Customs Enforcement, Secure Communities, secure_communities/mission.htm (last visited Mar. 28, 2010); see also U.S. Immigration & Customs Enforcement, Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens, (last visited Mar. 28, 2010) (describing the general mission of the Secure Communities initiative).

(165.) Press Release, U.S. Immigration & Customs Enforcement, ICE Unveils Sweeping New Plan to Target Criminal Aliens in Jails Nationwide (Mar. 28, 2008), pi/news/newsreleases/articles/ 080414washington.htm (last visited Mar. 28, 2010).

(166.) Department of Homeland Security Appropriations for 2010: Priorities Enforcing Immigration Law: Hearing Before the Subcomm. on Homeland Sec. of the H. Appropriations Comm., 111th Cong. 946 (2009) (statement of David Venturella, Executive Director, Secure Communities, U.S. Immigration and Customs Enforcement).

(167.) U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, U.S. DEP'T OF HOMELAND SEC., SECURE COMMUNITIES FACT SHEET (2009), available at factsheets/secure_communities.pdf.

(168.) NAT'L IMMIGRATION LAW CTR., MORE QUESTIONS THAN ANSWERS ABOUT THE SECURE COMMUNITIES PROGRAM 1-2 (2009), available at LocalLaw/secure-communities-2009-03-23.pdf.

(169.) Id. at 2.

(170.) Editorial, Immigrants, Criminalized, N.Y. TIMES, Nov. 26, 2009, at A38.

(171.) Susan Carroll, ICE Program Is Casting a Wide Net, HOUSTON CHRON., July 13, 2009, at A1

(172.) Id. On the other hand, the system also misses individuals who entered without inspection and are therefore not included in DHS's records. Id.

(173.) Id.; see also NAT'L IMMIGRATION LAW CTR., supra note 168, at 3 (citing studies finding that ICE "has done a bad job of focusing enforcement on the 'worst of the worst,'" and that the "programs largely target those accused of immigration status violations and traffic offenses"); Muzaffar Chishti & Claire Bergeron, ICE to Expand New Immigration Enforcement Program in Local Jails. MIGRATION INFO. SOURCE, June 15, 2009, http://www.migrationin (noting that the ICE guidelines fail to prioritize removal of those offenders who pose the greatest risks of harm to society).

(174.) Carroll, supra note 171.

(175.) Chishti & Bergeron, supra note 173.

(176.) Id.

(177.) Worksite enforcement was relatively lax in the twenty-year period that followed the prohibition on hiring unauthorized noncitizens. See Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. CHI. LEGAL F. 193, 209-11 (noting that enforcement declined throughout the 1990s and explaining reasons for the decline). Over the past few years, as the staffing and budget of ICE has grown, the Department of Homeland Security has increased the focus on worksite enforcement. See Impacts of Border Security and Immigration on Ways and Means Programs: Hearing Before the H. Comm. on Ways & Means, 109th Cong. 12 (2006) (statement of Julie L. Myers, Assistant Sec'y, U.S. Immigration and Customs Enforcement) (noting that worksite enforcement is now a "top priority" for the Department and the administration); Michael Chertoff, Myth vs. Fact: Worksite Enforcement, U.S. DEPARTMENT HOMELAND SECURITY LEADERSHIP J., July 9, 2008, 07/myth-vs-fact-worksite-enforcement.html (noting the increasing numbers of worksite raids and arrests since 2004). ICE maintains that coordination with state and local law enforcement is a central component of its worksite enforcement strategy. See Chertoff, supra ("When ICE conducts an enforcement action, it coordinates with state and local law enforcement and those responsible for public safety in a manner that will not compromise the operation."). State and local officials are credited with participation in a number of such raids in dozens of jurisdictions over the past year. See, e.g., ICE Conducts Raids on Pilgrim's Pride Plants in Five States; Arrests 311 Foreign Nationals, 85 INTERPRETER RELEASES 1292, 1292 (2008) (noting that investigations were a product of multi-agency, state-federal cooperation and that ninety-one of those individuals faced criminal charges for identity theft and fraud).

(178.) Such cooperation has also occurred in antismuggling and antitrafficking enforcement efforts. See, e.g., Noteworthy: ICE Arrests More than 600 Illegal Aliens in Phoenix, 85 INTERPRETER RELEASES 883, 883-84 (2008); Noteworthy: More than 300 Immigrants and Suspected Smugglers Arrested in Mississippi, 85 INTERPRETER RELEASES 278, 278 (2008).

(179.) See infra notes 278-84.

(180.) See supra Part I.A.

(181.) Press Release, U.S. Census Bureau, Census Bureau Releases 2008 American Community Survey Data (Sept. 21, 2009), available at www/releases/archives/american_community_survey_acs/014237.html.

(182.) Id. Indeed, changes in the law over the past two decades have rendered lawful permanent residents much more vulnerable to removal than in the past. See, e.g., HING, supra note 59, at 70-87 (2006) (discussing the removal of lawful permanent residents after the 1996 elimination of INA [section] 212(c) relief); KANSTROOM, supra note 36, at 227-28 (discussing the increasing legal vulnerability of LPRs); HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006) (describing the shift and advocating a return to treating lawful permanent residents as "citizens in waiting"); Morawetz, supra note 59, at 1953-54 (providing examples of lawful permanent residents removed despite substantial family ties). See generally Morawetz, supra note 60, 180-92 (discussing the harsh immigration consequences for drug crimes committed by lawful permanent residents).


(184.) MICHAEL FIX, WENDY ZIMMERMAN & JEFFREY S. PASSEL, THE INTEGRATION OF IMMIGRANT FAMILIES IN THE UNITED STATES 15 (2001) (noting that one in every ten children in the United States lives in a family in which at least one family member is undocumented); see also Molly Hazel Sutter, Note, Mixed-Status Families and Broken Homes: The Clash Between the U.S. Hardship Standard in Cancellation of Removal Proceedings and International Law, 15 TRANSNAT'L L. & CONTEMP. PROBS. 783, 806-08 (2006) (discussing the heavy restrictions on relief from removal for the undocumented relatives of U.S. citizens). See generally David B. Thronson, Choiceless Choices: Deportation and the Parent-Child Relationship, 6 NEV. L.J. 1165 (2006) (discussing the plight of these mixed-status families).

(185.) See, e.g., NAT'L COMM'N ON ICE MISCONDUCT & VIOLATIONS OF 4TH AMENDMENT RIGHTS, supra note 34, at 13-41 (reporting on protracted detention and interrogation of U.S. citizens in several workplace raids); Nina Bernstein, Citizens Caught Up in Immigration Raid, N.Y. TIMES, Oct. 4, 2007, at BS; Kristin Collins, N.C. Native Wrongly Deported to Mexico, CHARLOTTE OBSERVER, Aug. 30, 2009, 917007.html (discussing ICE's removal of an American citizen); Jacqueline Stevens, Deporting American Citizens: ICE's Mexican-izing of Mark Lyttle, HUFFINGTON POST, Aug. 21, 2009, jacqueline-stevens-phd/deporting_american_citize_b_265187. html ("A systematic examination of thousands of individual case files for detainees in southern Arizona between 2006 and 2008 revealed that just over one percent were deemed U.S. citizens by an immigration judge. Almost all were held for more than two months."); Jacqueline Stevens, Thin ICE, NATION, June 23, 2008, at 20, 20; Stephanie Francis Ward, Illegal Aliens on I.C.E., A.B.A. J., June 1, 2008, at 44, 47 (noting several incidents involving the wrongful deportation of U.S. citizens, many of whom had cognitive disabilities).

(186.) See, e.g., Erik Luna, Drug Exceptionalism, 47 VILL. L. REV. 753, 755-56 (2002); Thomas Regnier, The "Loyal Foot Soldier": Can the Fourth Amendment Survive the Supreme Court's War on Drugs?, 72 UMKC L. REV. 631, 649 (2004); Omar Saleem, The Age of Unreason." The Impact of Reasonableness, Increased Police Force, and Colorblindness on Terry "Stop and Frisk," 50 OKLA. L. REV. 451, 471-75 (1997); William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2160 (2002) ("Like the war on drugs before it, the war on terrorism is likely to leave us with a different law of criminal procedure than we had before."); William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881, 938-41 (1991). See generally David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271 (describing Fourth Amendment jurisprudence and its application to drug cases).

(187.) Margaret Raymond, Commentary on "The Drug War," 6 J. GENDER RACE & JUST. 447, 448-49 (2002) (footnotes omitted).

(188.) See, e.g., Florida v. Bostick, 501 U.S. 429, 434-37 (1991) (finding "consensual," and therefore exempt from the warrant requirement, police officers' searches of a passenger's bags on a bus detained by police); California v. Acevedo, 500 U.S. 565, 572-76 (1991) (upholding the warrantless search of a container within a car during which there was probable cause to search only the container); Illinois v. Rodriguez, 497 U.S. 177, 186-89 (1990) (upholding a warrantless entry based upon the consent of a third party when police incorrectly but "reasonably" believed that the third party possessed common authority over the premises); California v. Greenwood, 486 U.S. 35, 39-41 (1988) (holding that a warrantless search of garbage bags for items indicative of narcotics use did not violate the defendant's reasonable expectation of privacy); United States v. Leon, 468 U.S. 897, 922-25 (1984) (establishing a "good faith" exception to the exclusionary rule for warrants issued on less than probable cause); United States v. Place, 462 U.S. 696, 705-07 (1983) (upholding the use of drug-detecting dogs to conduct a sniff examination of luggage without probable cause); United States v. Knotts, 460 U.S. 276, 281-85 (1983) (approving the use of transmitters or beepers to conduct surveillance of suspects); United States v. Ross, 456 U.S. 798, 823-24 (1982) (approving a warrantless search of closed containers inside an automobile, if officers have probable cause to search the vehicle).

(189.) See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 542-44 (1985) (allowing the sixteen-hour detention on the basis of reasonable suspicion at an international airport); United States v. Sharpe, 470 U.S. 675, 682, 686-88 (1985) (allowing a protracted roadside stop on the basis of "reasonable suspicion" alone); New Jersey v. T.L.O., 469 U.S. 325, 330-33 (1985) (allowing a full search of a student's purse on reasonable suspicion that she had violated school rules); Michigan v. Long, 463 U.S. 1032, 1049-51 (1983) (allowing a brief "protective" search of a car on the basis of reasonable suspicion).

(190.) See, e.g., United States v. Flores-Montano, 541 U.S. 149, 155-56 (2004) (finding that no reasonable suspicion was needed to detain a driver and vehicle and disassemble the gas tank of the vehicle at the international border); Bd. of Educ. v. Earls, 536 U.S. 822, 825 (2002) (holding that no individualized suspicion was necessary to conduct drug tests on students engaged in extracurricular activities); Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 449-55 (1990) (requiring no individualized suspicion for stops at DUI checkpoints); United States v. Martinez-Fuerte, 428 U.S. 543, 547, 566-67 (1976) (finding that no individualized suspicion was necessary for referral to a secondary inspection at a border checkpoint); cf. Illinois v. Caballes, 543 U.S. 405, 408 (2005) (finding that the use of a drug-detecting dog did not constitute a "search" requiring individualized suspicion).

(191.) Illinois v. Wardlow, 528 U.S. 119, 124-26 (2000) (finding that flight from officers in a high-crime area generated the reasonable suspicion necessary to justify a stop).

(192.) Illinois v. Gates, 462 U.S. 213, 237-38 (1983) (adopting a "totality of the circumstances" test for determining whether an informant's tip is reliable for purposes of a search warrant).

(193.) See, e.g., Flores-Montano, 541 U.S. at 155-56; Montoya de Hernandez, 473 U.S. at 542-44; Martinez-Fuerte, 428 U.S. at 566-67.

(194.) See, e.g., Tracey Maclin, Race and the Fourth Amendment, 51 VAND. L. REV. 333, 342-54 (1998) (describing racial targeting of minority motorists for stops and searches); Saleem, supra note 186, at 453-60 (describing the modern dilution of criminal procedural protections).


(196.) PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 3 (2008), available at uploadedFiles/8015PCTS_Prison08_FINAL_ 2-1-1_FORWEB.pdf.

(197.) Id.

(198.) See Loic Wacquant, The Place of the Prison in the New Government of Poverty, in AFTER THE WAR ON CRIME 23, 23-25, 27-28 (Mary Louise Frampton, Ian Haney Lopez & Jonathan Simon eds., 2008).

(199.) Jonathan Simon, Ian Haney Lopez & Mary Louise Frampton, Introduction to AFTER THE WAR ON CRIME, supra note 198, at 3.

(200.) In theorizing the parallels, Ian Haney-Lopez has posited that both the war on crime that gave rise to mass incarceration and the current criminalization of immigration can be seen as different forms of "governing through the fear of minority crime." See Ian F. Haney-Lopez, Post-Racial Racism: Policing Race in the Age of Obama, 98 CAL. L. REV. (forthcoming 2010) (manuscript at 109, 113), available at ("[R]acialized mass incarceration finds its origins ... in racial politics.... [but] [o]nce institutionalized and available as a form of social ordering, crime control and the carceral state more generally achieved ever-greater autonomy from race, and indeed from traditional areas of criminal justice." (footnotes omitted)).

(201.) MAE M. NGAI, IMPOSSIBLE SUBJECTS; ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA 58 (2004) ("Europeans and Canadians tended to be disassociated from the real and imagined category of illegal alien, which facilitated their national and racial assimilation as white American citizens. In contrast, Mexicans emerged as the iconic illegal aliens. Illegal status became constitutive of a racialized Mexican identity and of Mexicans' exclusion from the national community and polity."). Modern policing practices evince exclusionary policing practices aimed at Latinos. See, e.g., Rights Working Group, ACLU, The Persistence of Racial and Ethnic Profiling in the United States 42 (2009), available at pdfs/humanrights/cerd_finalreport.pdf ("In April 2008, in the most controversial of the neighborhood sweeps, Sheriff Arpaio saturated a small town of approximately 6,000 Yaqui Indians and Latinos outside of Phoenix with more than one hundred deputies, a volunteer posse, and a helicopter for two days, stopping residents and chasing them into their homes. In the end, nine undocumented immigrants were arrested. The community was so scarred by the event that families are still terrified to leave their homes when they see the Sheriff's patrol cars." (footnotes omitted)); see also id. at 43 (noting "roadblocks and concentrations of police outside Latino-owned businesses and churches and predominately Latino areas" of Arkansas); id. at 48 (noting "serious allegations of racial profiling in [three Georgia] counties, especially in the context of traffic stops"); BORDER ACTION NETWORK, JUSTICE ON THE LINE: THE UNEQUAL IMPACTS OF BORDER PATROL ACTIVITIES IN ARIZONA BORDER COMMUNITIES 3 (2004), PDFs/justice_on_the_line.pdf (noting that DHS agents routinely stop many Latinos and question them about their citizenship, causing them to feel like outsiders in their communities).

(202.) "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV.

(203.) "No person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...." U.S. CONST. amend. V. The right against self-incrimination is triggered upon arrest or "custodial interrogation." See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).

(204.) "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. This requires the government to provide counsel for indigent defendants in criminal cases. See Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).

(205.) "'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII.

(206.) See, e.g., Wong Wing v. United States, 163 U.S. 228, 237-38 (1896) (finding noncitizens in criminal proceedings entitled to full constitutional criminal procedural protections and distinguishing the situation of noncitizens in removal proceedings).

(207.) WAYNE LAFAVE ET AL., PRINCIPLES OF CRIMINAL PROCEDURE: INVESTIGATIONS 14 (2d ed. 2009) ("IT]he Supreme Court has held that the Fourteenth Amendment makes applicable to the states the various Fourth, Fifth and Sixth Amendment provisions that apply to criminal investigation practices.").

(208.) Id.

(209.) See Wong Wing, 163 U.S. at 236 ("The order of deportation is not a punishment for crime."); KANSTROOM, supra note 36, at 122 (noting that Wong Wing was central to the genesis of a dichotomy between civil and criminal proceedings).

(210.) See discussion infra notes 228-35,243-65 and accompanying text.

(211.) The tight is limited to the criminally accused. See U.S. CONST. amend. V. Thus, the constitutional requirements of Miranda v. Arizona, 384 U.S. 436 (1966), whereby an individual subject to a custodial interrogation must be advised of her right to silence and to counsel--at the government expense if necessary--do not apply in the civil context.

(212.) See 8 C.F.R. [section] 287.8(c)(2)(v) (2009) (requiting that at the time of arrest, an "arresting officer shall advise the person of the appropriate rights as required by law at the time of the arrest, or as soon thereafter as practicable"). Of course, not every situation involving a "custodial interrogation" that triggers Miranda need be preceded by an official arrest. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (explaining that "custody" for purposes of Miranda involves situations in which a reasonable person in the suspect's position believes that he has been constrained in a manner akin to a formal arrest). Thus, it is not clear that this regulation fully captures the requirements of Miranda.

(213.) Compare Chavez v. Martinez, 538 U.S. 760, 766-67 (2003) (holding that the Fifth Amendment's self-incrimination provisions attach only when there is a "'criminal case' [which] at the very least requires the initiation of legal proceedings"), with Bong Youn Choy v. Barber, 279 F.2d 642, 647 (9th Cir. 1960) (suppressing a coerced confession in a deportation proceeding on due process grounds).

(214.) Establishing a due process violation generally requires a defendant to establish that some form of government coercion came into play in bringing about the confession. Sleep deprivation, physical abuse, and certain forms of official threats can meet the test. but a defendant must demonstrate that the governmental conduct amounted to some form of impermissible coercion. See, e.g., Brown v. Mississippi, 297 U.S. 278, 287 (1936) (holding that physical torture constituted a due process violation). In contrast, a Miranda violation is established when an interrogating officer fails to offer the requisite warnings or respect an individual's right to remain silent and right to counsel when those rights have been invoked. See Miranda, 384 U.S. at 442.

(215.) See Zakonaite v. Wolf, 226 U.S. 272, 275 (1912) (holding that proceedings to enforce immigration regulations do not involve Sixth Amendment protections).

(216.) The statutory right is provided in the Immigration and Nationality Act at section 292. 8 U.S.C. [section] 1362 (2006) ("In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.").

(217.) Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893); see also Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir. 1999) (holding that Eighth Amendment protection against cruel and unusual punishment is inapplicable in removal proceedings because they are civil).

(218.) INA [section] 287, 8 U.S.C. [section] 1357(a)(1).

(219.) Id.; see also 8 C.F.R. [section] 287.7 (2009) (authorizing DHS employees to issue detainer orders for persons already in the custody of other government agencies).

(220.) See, e.g., Terry v. Ohio, 392 U.S. 1, 30 (1968) ("We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search."); LAFAVE ET AL., supra note 207, at 171-90 (discussing the contemporary parameters of a Terry stop).

(221.) Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004).

(222.) Id. at 185.

(223.) Id.

(224.) Compare Brown v. Texas, 443 U.S. 47, 50-53 (1979) (holding unconstitutional a Texas law requiring an individual, in the absence of any suspicion of wrongdoing, to provide a name and address to police upon request), with Hiibel, 542 U.S. at 185 (affirming the requirement to identify oneself on reasonable criminal suspicion).

(225.) See, e.g., ACLU RACIAL JUSTICE PROGRAM ET AL., KNOW YOUR RIGHTS WHEN ENCOUNTERING LAW ENFORCEMENT 4 (2004), available at kyr/kyr_english.pdf (noting that the requirement to identify oneself exists in "some states"); NAT'L IMMIGRATION LAW CTR., IMMIGRATION ENFORCEMENT: KNOW YOUR RIGHTS AT HOME AND AT WORK 3 (2008), available at homework_rts_2008-05.pdf (noting that most states do not require persons to give their name to law enforcement).

(226.) Kalhan, supra note 35, at 1208.

(227.) See, e.g., CHIU ET AL., supra note 34, at 3 (noting that in many ICE home raids, following unlawful home entries, "agents immediately seize and interrogate all occupants, often in excess of their legal authority"); NAT'L COMM'N ON ICE MISCONDUCT & VIOLATIONS OF 4TH AMENDMENT RIGHTS, supra note 34, at 49-51 (discussing immigration status requests that exceed due process bounds).

(228.) INA [section] 287, 8 U.S.C. [section] 1357(a)(2) (2006).

(229.) United States v. Varkonyi, 645 F.2d 453, 458 (5th Cir. 1981); Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th Cir. 1980); Lee v. INS, 590 F.2d 497, 500 (3d Cir. 1979); United States v. Cantu, 519 F.2d 494, 496 (7th Cir. 1975); Au Yi Lau v. INS, 445 F.2d 217, 222 (D.C. Cir. 1971); accord Contreras v. United States, 672 F.2d 307, 308 (2d Cir. 1982) ("[P]laintiffs do not contest that the officers had probable cause to believe that plaintiffs were in the country illegally." (emphasis added)).

(230.) INA [section] 287, 8 U.S.C. [section] 1357(a)(2) (allowing warrantless arrests only if the noncitizen "is likely to escape before a warrant can be obtained for his arrest").

(231.) With respect to administrative warrants for immigration enforcement, at least one court has held that "[p]robable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that 'reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular (establishment).'" Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1223 (D.C. Cir. 1981) (quoting Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978)). But another court has expressly rejected this conclusion, finding that warrants of inspection used by the then-Immigration and Naturalization Service required traditional probable cause analysis to determine whether issuance of a search warrant was constitutional. Int'l Molders' & Allied Workers' Local Union No. 164 v. Nelson, 643 F. Supp. 884, 890-91 (N.D. Cal. 1986). Presumably, the same standard would apply to warrantless arrests in situations in which warrantless arrests are authorized under the statute. Moreover, even when the initial arrest is illegal, that illegality does not void a subsequent deportation order based on the alien's admission of his status at the hearing. Avila-Gallegos v. INS, 525 F.2d 666, 667 (2d Cir. 1975): La Franca v. INS, 413 F.2d 686, 689 (2d Cir. 1969); Vlissidis v. Anadell, 262 F.2d 398, 400 (7th Cir. 1959); Medeiros v. Brownell, 240 F.2d 634, 635 (D.C. Cir. 1957) (per curiam).

(232.) See Preston, supra note 34 (quoting an ICE official, "We don't need warrants to make the arrests"); Ward, supra note 185, at 44 (quoting an arresting agent in Minnesota after a warrantless raid, who said in response to a question about warrants, "We don't need one").

(233.) 8 C.F.R. [section] 287.8(f)(2) (2009).

(234.) Abel v. United States, 362 U.S. 217, 230 (1960) (cautioning that the use of the administrative process in criminal matters "to circumvent the latter's legal restrictions" would violate the Fourth and Fifth Amendments).

(235.) See, e.g., Preston, supra note 34 (noting that raids without warrants were carried out in efforts to round up 1,300 "gang members" and associates).

(236.) See, e.g., In re [redacted], No. [redacted] (Immigration Ct. Hartford, Conn. June 2, 2009) (order granting the respondent's motion to suppress and motion to terminate removal proceedings), available at default/files/docs/lac/HartfordGrant-l-6.2.09.pdf (suppressing the respondent's 1-213 because the information therein was obtained in violation of the Fourth Amendment in a warrantless home raid by ICE Fugitive Operations Team agents); In re P., No. [redacted] (Immigration Ct. N.Y., N.Y June 25, 2008) (order granting the respondent's motion to suppress and motion to terminate removal proceedings), available at (suppressing evidence obtained in a warrantless home raid and in unlawful interrogations conducted by a Fugitive Operations Unit); In re Pineda Morales, No. [redacted] (Immigration Ct. N.Y., N.Y May 13, 2008) (order granting the respondent's motion to suppress), available at default/files/docs/lac/NY-5-13-08.pdf (suppressing evidence obtained in a warrantless home raid by an ICE Fugitive Operations Team); see also Ward, supra note 185, at 45 (noting that at least four lawsuits had been filed in the previous year alleging illegal home entries by ICE). State and local law enforcement sometimes participate in these home raids. See Preston, supra note 34 (describing home raids in which local sheriffs teamed up with immigration officers to raid a Tennessee trailer park); Opinion, Raids Promise to Make Bad Immigration Situation Worse, TENNESSEAN, Aug. 21, 2007 (online ed., on file with the Duke Law Journal) (describing local police participation in Maury County raids); Rene Romo, Suits Fault Immigration "Raid": Groups Allege Rights Violated, ALBUQUERQUE J., Oct. 18, 2007, at A1 (noting state and local participation in widespread immigration home raids in Otero, New Mexico, as part of Operation Stone Garden).

(237.) See, e.g., United States v. Abdi, 463 F.3d 547,557 (6th Cir. 2006) ("[N]othing in the text of 8 U.S.C. [section] 1357 provides an independent statutory remedy of suppression for failing to obtain an administrative [arrest] warrant. Accordingly, we find that the district court erred in reading such a remedy into the statute. Because the statute authorizing ICE agents to arrest persons for immigration violations ... does not require the application of the exclusionary rule to violations of the statute, we hold that the district court erred in suppressing Abdi's statements and the derivative evidence based on the Government's failure to comply with the statute." (citation omitted)). For reasons explored infra, noncitizens often also lack a remedy under the federal constitution as a result of the Lopez-Mendoza decision.

(238.) Unlawful presence is a civil, not a criminal, violation. See ALISON SISKIN ET AL., CONG. RESEARCH SERV., IMMIGRATION ENFORCEMENT WITHIN THE UNITED STATES 8 & n.33 (2006).

(239.) Miranda v. Arizona, 384 U.S. 436 (1966).

(240.) Courts have found, however, coerced confessions to be suppressible. Bong Youn Choy v. Barber, 279 F.2d 642, 647 (9th Cir. 1960).

(241.) INA [section] 292, 8 U.S.C. [section] 1362 (2006).

(242.) See, e.g., Sioban Albiol, R. Linus Chan & Sarah J. Diaz, Re-Interpreting Postville: A Legal Perspective, 2 DEPAUL J. SOC. JUST. 31, 70 (2008) (noting the limited access to counsel for Postville detainees); Preston, supra note 34 (discussing the lawsuit in the Tennessee home raids case); Katherine F. Riordan, Comment, Immigration Law: Enforcing Administrative Exhaustion Requirements for Pattern and Practice Claims Concerning Due Process Violations During Immigration Raids Aguilar v. United States Immigration & Customs Enforcement, 42 SUFFOLK U. L. REV. 377, 385 & n.54 (2009); Letter from Kathleen Campbell Walker, President, and Jeanne Butterfield, Executive Dir., AILA, to Linda R. Reade, C.J., U.S. Dist. Court for the N. Dist. of Iowa (May 19, 2008), available at 25440.

(243.) Miranda, 384 U.S. at 444-45. Under Article 36 of the Vienna Convention on Consular Relations, they should also be informed of their right to contact their consular representative, but the Supreme Court has recently made this another right without a remedy in the United States. See Medellin v. Texas, 128 S. Ct. 1346, 1356-57 (2008). In Medellin v. Texas, 128 S. Ct. 1346 (2008), the Supreme Court acknowledged the International Court of Justice decision in Case Concerning Arena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31), in which the ICJ found the United States had violated Article 36(1)(b) of the Convention by failing to inform criminal defendants of their right to contact their consulate when accused of a crime. The Court concluded, however, that the ICJ decision was not enforceable in a state court to preempt state limitations on filing successive habeas petitions, notwithstanding the president's Memorandum directing enforcement, because the decision was not "self-executing"; the remedy under the treaty is referral to the U.N. Security Council. Medellin, 128 S.Ct. at 135657; see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 337 (2006) (declining to suppress statements obtained without informing the noncitizen of his rights under Vienna Convention Article 36 to consular notification and communication).

(244.) See, e.g., Bustos-Torres v. INS, 898 F.2d 1053, 1056-57 (5th Cir. 1990) (concluding that Miranda warnings are not required in deportation proceedings).

(245.) INS v. Lopez-Mendoza, 468 U.S. 1032, 1034 (1984). Until 1996, immigration proceedings to prevent noncitizens from entering the country were termed "'exclusion" proceedings, whereas proceedings to remove a noncitizen that had already entered the country were termed "deportation" proceedings. See LEGOMSKY & RODRIGUEZ, supra note 2, at 42021. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated exclusion and deportation, and labeled the resulting proceedings "removal" proceedings. IIRIRA, Pub. L. No. 104-208, div. C, [section] [section] 304, 308, 110 Stat. 3009-546, 3009-587 to -597, 3009-614 to -625 (codified as amended at 8 U.S.C. [section] 1324c(e) (2006), 18 U.S.C. [section] 1546(a) (2006), and 18 U.S.C. [section] 1015(e)-(f) (2006)). Now, 8 U.S.C. [section] 1229a(3) indicates that the removal proceedings defined in that section are for determining "whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States." This Article therefore uses the term "removal" to refer to deportation and exclusion.

(246.) Lopez-Mendoza, 468 U.S. at 1042.

(247.) Id. at 1042-43.

(248.) Id. at 1044.

(249.) Id.

(250.) Id. at 1044-45.

(251.) Id. at 1045.

(252.) Id. at 1050-51.

(253.) Id. at 1050.

(254.) Wishnie, supra note 84, at 1102-11 (arguing that national and local data of INS racial profiling data may "compel reconsideration" of Lopez-Mendoza); cf. Jonathan L. Hafetz, Note, The Rule of Egregiousness: INS v. Lopez-Mendoza Reconsidered, 19 WHITTIER L. REV. 843, 861 (1998) (making a very broad claim that all INS violations are race based, and therefore egregious, so as to require suppression under Lopez-Mendoza).

(255.) Stella Butch Elias, Good Reason to Believe: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 WIS. L. REV. 1109, 1115.

(256.) See Pinto-Montoya v. Mukasey, 540 F.3d 126, 131 n.2 (2d Cir. 2008) (per curiam) ("In their submissions to the Court, petitioners argue for the first time that Fourth Amendment violations by immigration authorities are so widespread as to make exclusion appropriate in these circumstances. Because they did not raise the issue before the [Board of Immigration Appeals (BIA)], it has not been exhausted and is therefore not appropriately before us."); see also Melnitsenko v. Mukasey, 517 F.3d 42, 47 (2d Cir. 2008) (acknowledging the petitioner's argument regarding the widespread nature of Fourth Amendment violations but declining to review the claim due to Melnitsenko's failure to exhaust his administrative remedies by raising the argument before the BIA). The author was also asked to consult on a pending immigration matter involving multiple suppression motions in which counsel has raised an argument concerning the widespread nature of ICE Fourth Amendment violations.

(257.) Lopez-Mendoza, 468 U.S. at 1050.

(258.) Melnitsenko, 517 F.3d at 47; Gonzalez-Rivera v. INS, 22 F.3d 1441, 1452 (9th Cir. 1994); see also Almeida-Amaral v. Gonzales, 461 F.3d 231, 234-37 (2d Cir. 2006) (noting that a stop solely on the basis of race would constitute an "egregious violation," but finding that the petitioner's mere assertion was insufficient to establish that the stop was race based).

(259.) Orhorhaghe v. INS, 38 F.3d 488, 497 (9th Cir. 1994).

(260.) Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1019 (9th Cir. 2008), reh'g en banc denied sub nom. Lopez-Rodriguez v. Holder, 560 F.3d 1098 (9th Cir. 2009); Evans, supra note 140, at 556-57, 557 n.52 (discussing suppression motions granted in five cases based on illegal home searches and seizures); see also Peitrzak v. Mukasey, 260 F. App'x 334, 340 (2d Cir. 2008) (suggesting that a nighttime, warrantless home entry could constitute an "egregious" violation).

(261.) Almeida-Amaral, 461 F.3d at 235.

(262.) Singh v. Mukasey, 553 F.3d 207, 215 (2d Cir. 2009).

(263.) Id. at 215-16.

(264.) See, e.g., Martins v. Att'y Gen., 306 F. App'x 802, 804-05 (3d Cir. 2009); Lucero v. Mukasey, 272 F. App'x 612, 613 (9th Cir. 2008) (mem.) (declining suppression when there was no evidence that the statements were involuntary).

(265.) INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984).

(266.) Id. at 1045.

(267.) Id.

(268.) Complaint, Slaughter v. DHS, No. 2:09-cv-00433-SRB (D. Ariz. Mar. 4, 2009).

(269.) E.g., Complaint for Violations of the Fourth and Fifth Amendments to the United States Constitution and Demand for Jury Trial, Reyes v. Alcantar, No.4:07-cv-02271-SBA (N.D. Cal. Apr. 26, 2007) (alleging the unlawful detention of a seven-year-old citizen in the course of ICE raids); see also Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1019 (9th Cir. 2008), reh'g en banc denied sub nom. Lopez-Rodriguez v. Holder, 560 F.3d 1098 (9th Cir. 2009) (holding that an INS violation of Fourth Amendment rights in Fresno, California, required suppression of evidence); Comm. for Immigrants Rights of Sonoma County v. County of Sonoma, 644 F. Supp. 2d 1177, 1204 (N.D. Cal. 2009) (order granting in part and denying in part the defendants' motion to dismiss) (describing the plaintiffs' allegation that ICE agents unlawfully targeted individuals who appeared to be Latino).

(270.) Esther Zuckerman & Colin Ross, Immigrants Sue Feds over 2007 Raids, YALE DALLY NEWS, Oct. 28, 2009, city-news/2009/10/28/immigrants-suefeds-over-2007-raid/.

(271.) See Aquilar v. ICE, 490 F. Supp. 2d 42, 43 (D. Mass. 2007), aff'd, 510 F.3d 1 (1st Cir. 2007) (alleging rights violations during the New Bedford raid).

(272.) Plaintiffs' Complaint for Declaratory and Injunctive Relief and Damages, Barrera v. DHS, No. 0:07-cv-03879-JNE-SRN (D. Minn. Sept. 4, 2007) (alleging rights violations during the Swift plant raid); Complaint for Declaratory and Injunctive Relief and Damages, Arias v. ICE, No. 0:07-cv-01959-ADM-JSM (D. Minn. Apr. 19, 2007) (raising allegations of violations of the Fourth Amendment rights of U.S. citizen children during ICE home raids).

(273.) Emergency Petition for a Writ of Habeas Corpus, Writ of Mandamus, Complaint for Declaratory and Injunctive Relief and Motion for a Stay of Removal, Martinez v. Chertoff, No. l:07-cv-00722-SJD-TSH (S.D. Ohio Aug. 31, 2007) (alleging rights violations during a workplace raid).

(274.) Class Action Complaint and Jury Trial Demand, Aguilar v. ICE, No. 07-CIV-8224 (S.D.N.Y. Sept. 20, 2007) (alleging rights violations in the course of raids relating to "Operation Return to Sender").

(275.) Original Complaint, Valenzuela v. Swift Beef Co., No. 3:06-cv-02322 (N.D. Tex. Dec. 15, 2006); Complaint, Swift & Co. v. ICE, No. 2:06-cv-00314-J (N.D. Tex. Nov. 28, 2006); Original Complaint--Class Action Request for Injunctive and Declaratory Relief and Damages, United Food & Commercial Workers Int'l Union v. Chertoff, No. 2:07-cv-00188-J (N.D. Tex. Sept. 12, 2007) (alleging rights violations during the Swift plant raid).

(276.) See Elias, supra note 255, at 1129-31 (discussing lawsuits and media accounts of constitutional rights violations by ICE across the country); Ward, supra note 185, at 45 ("[W]ithin the last year, ICE has been sued at least four times--the latest in New Jersey--for allegedly entering homes without a warrant in violation of the Fourth Amendment.").

(277.) INA [section] 287(g)(1), 8 U.S.C. [section] 1357(g)(1) (2006) (allowing the participating state agent to "perform a function of an immigration officer in relation to the investigation, apprehension or detention"); id. [section] 1357(g)(8) (extending federal tort liability standards to participating state agents). It is an oddity that section 287(g) effectively allows localities--which are not federally recognized constitutional entities--to contract around the constitutional investigative restrictions imposed upon their agents by their states, which are federally recognized constitutional entities. See Su, supra note 85, at 1629 ("[T]he U.S. Constitution does not define the legal or political role of localities.").

(278.) See, e.g., GLADSTEIN ET AL., supra note 116, at 29 (identifying six concerns with agreements under the program, namely, that (1) they damage immigrants' safety and civil liberties; (2) they distract police from their primary crime-fighting responsibilities: (3) police lack the necessary training; (4) they encourage racial profiling; (5) the National Crime Information Center database upon which the program relies contains too much incorrect information; and (6) they will make immigrants reluctant to cooperate with the police and report information about crimes out of fear of removal). But see Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57, 74-75 (arguing that these concerns do not justify "categorical opposition" to 287(g) agreements).

(279.) See Rodriguez, supra note 85, at 635 ("[T]he possibility of racial profiling of Latinos and mistaken identity rises substantially with state and local involvement."); Carrie L. Arnold, Note, Racial Profiling in Immigration Enforcement." State and Local Agreements to Federal Immigration Law, 49 ARIZ. L. REV. 113, 116 (2007) (concluding that federal training was unlikely to eradicate racial profiling in enforcement under 287(g) agreements); cf. Wishnie, supra note 84, at 1102 (noting the increased likelihood of racial profiling when state and local police become involved in immigration enforcement).

(280.) See Chris Kahn, Governor Pushes for Bigger Effort to Crackdown on Felons, AZCENTRAL.COM, May 14, 2008, napolitano0513-ON.html ("Governor Janet Napolitano has ordered the state to end an anti-illegal immigration contract with the Maricopa County sheriff so she can pay for a larger effort to track down thousands of felons around Arizona. Sheriff Joe Arpaio on Tuesday criticized the governor's decision as a maneuver to thwart his efforts against illegal immigrants."): Phoenix Mayor Seeks DOJ Investigation of Maricopa County Sheriff Joe Arpaio, 85 INTERPRETER RELEASES 1292, 1292-93 (2008) (noting the mayor's concern that Sheriff Arpaio was engaged in racial profiling); see also Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1029 (D. Ariz. 2009) (denying motion to dismiss allegations of racial profiling in traffic stops to ask auto occupants about their immigration status).

(281.) Nicholas Riccardi, Arizona Sheriff Ups the Ante Against His Foes, L.A. TIMES, Dec. 12, 2009, la-na-joe-arpaio12-2009dec12,0,2123666. story?page=2/ ("In October, the federal Department of Homeland Security revoked the 287(g) for Arpaio's street operations, though he could continue to question jail inmates about their immigration status.").

(282.) Id. ("The day after the federal government told Maricopa County Sheriff Joe Arpaio that he could no longer use his deputies to round up suspected illegal immigrants on the street, the combative Arizona sheriff did just that.").

(283.) See, e.g., Sherry Greenfield, Authorities Announce Changes to the Controversial 287(g) Program, The Policies and Politics of Local Immigration Enforcement Laws: 287(g) Program in North Carolina, AMER. C.L. UNION N.C., Feb. 18, 2009, q=new-study-findsdramatic-problems-287g-immigration- program; Andrea Simmons, Is Sheriff a Hero or Racial Profiler?, ATLANTA J. & CONST., Oct. 12, 2009, at A1 ("The ACLU of Georgia has compiled into a report the accounts of 10 people who had experiences of racial profiling in Cobb County, along with interviews of five community activists or attorneys.").

(284.) U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 92, at 5 (noting that the program lacked documented objectives, that ICE "has not described the nature and extent of its supervision ... which has led to wide variation in the perception of the nature and extent of supervisory responsibility among ICE field officials and officials from the participating agencies," and that ICE "did not define what data should be tracked or how it should be collected and reported").

Another concern raised by 287(g) agreements is that law enforcement participation in immigration enforcement may strain the ability of participating local police departments to focus on crime control. When local law enforcement officers are engaged in immigration enforcement, they are not available to conduct investigations and detentions in cases involving violent crime. At the same time, many of the immigration violators whom they detain are not engaged in criminal activity, raising questions about whether immigration enforcement constitutes the most effective use of local resources. See, e.g., GLADSTEIN, supra note 116, at 5 ("Historically, police departments primarily concerned themselves with enforcement of criminal law, while the federal government had exclusive responsibility for addressing civil immigration violations.").

(285.) In contrast, if immigration agents conduct illegal arrests and the matter winds up in criminal court rather than immigration court, judges in criminal cases are in a position to police the conduct of these officers through the imposition of the exclusionary rule in state court criminal proceedings. See, e.g., United States v. Rangel-Portillo, 586 F.3d 376, 381, 383 (5th Cir. 2009) (reversing the conviction based on evidence obtained by CBP in violation of the Fourth Amendment and subsequently introduced in federal criminal court); State v. Maldonado-Arreaga, 772 N.W.2d 74, 78 (Minn. Ct. App. 2009) (suppressing biographical information provided by a noncitizen detainee after a warrantless raid by ICE Fugitive Operations Team agents).

(286.) See supra Part II.

(287.) Mapp v. Ohio, 367 U. S. 643 (1961).

(288.) Id. at 655.

(289.) See, e.g., In re Sanchez, No. A 98 300 503, slip op. at 5-6 (Immigration Ct. Hartford, Conn. Jan. 31, 2008) (order denying the respondent's motion to suppress and motion to terminate removal proceedings) (on file with the Duke Law Journal) (noting that even if the court accepted Sanchez's claim that he was illegally arrested by local law enforcement prior to being turned over to ICE for removal, "the exclusionary rule does not apply ... because ICE merely relied in good faith on the evidence gathered by [the Danbury Police Department] .... [E]ven if the DPD obtained information from the Respondent in violation of the Fourth Amendment, the exclusionary rule would not apply to bar said evidence from the current [removal] proceeding").

(290.) Legomsky, supra note 43, at 512.

(291.) United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254 (D. Utah 2003).

(292.) Id. at 1265.

(293.) United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

(294.) Id. at 269.

(295.) ld. at 262.

(296.) Id. at 271.

(297.) 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); see also VICTOR C. ROMERO, ALIENATED: IMMIGRANT RIGHTS, THE CONSTITUTION, AND EQUALITY IN AMERICA 69-75 (2005) (criticizing the reasoning of Esparza-Mendoza); Kalhan, supra note 35, at 1195 n.229 (noting that the Esparza-Mendoza decision rests on an interpretation of Verdugo-Urquidez that is inconsistent with Justice Kennedy's outcome-decisive plurality opinion); Kal Raustiala, The Geography of Justice, 73 FORDHAM L. REV. 2501, 2523 (2005) (critiquing the reasoning of this and other cases as relying on a conception of rights that "is not especially consistent with American practice").

(298.) See United States v. Gutierrez-Casada, 553 F. Supp. 2d 1259, 1265-67 (D. Kan. 2008): see also Tenn. Op. Att'y Gen. No. 09-97, 2009 WL 1511176, at *2 (May 22, 2009) (relying on both Gutierrez-Casada and Esparza-Mendoza in outlining the applicable rights of noncitizens).

(299.) More widespread, but as yet of uncertain impact, is the tendency of courts to refer in dicta to Fourth Amendment rights as the rights of "citizens." See Medina, supra note 297, at 1557. This reading, taken literally, would be even narrower than Judge Cassell's reading because it would exclude not only unauthorized noncitizens, but all noncitizens, including both lawful permanent residents and nonimmigrants present on temporary visas. To date, no one has argued that such a reading of the Fourth Amendment is correct, but the casual imposition of a citizenship requirement into the doctrines concerning Fourth Amendment protections is troubling.

(300.) The exclusionary rule has long been considered a critical factor in Fourth Amendment compliance. See, e.g., Mapp v. Ohio, 367 U.S. 643, 665 (1961).

(301.) Chacon, supra note 10, at 145.

(302.) United States v. Roblero-Solis, 588 F.3d 692. 700 (9th Cir. 2009).

(303.) Id.; see also Chacon, supra note 10, at 137 (discussing this issue).

(304.) See supra Part I.A.

(305.) See supra notes 181-83 and accompanying text.

(306.) See supra Part II.B.

(307.) See supra Part III.C.

(308.) Elias, supra note 255, at 1114; Wishnie, supra note 84, at 1102-11; Hafetz, supra note 254, at 845; Matthew S. Mulqueen, Note, Rethinking the Role of the Exlcusionary Rule in Removal Proceedings, 82 ST. JOHN'S L. REV. 1157, 1160 (2008).

(309.) See Elias, supra note 255, at 1114; Mulqueen, supra note 308, at 1160.

(310.) See supra note 300 and accompanying text.

(311.) See infra notes 332-36 and accompanying text.

(312.) INS v. Lopez-Mendoza, 468 U.S. 1032, 1035-36 (1984) (noting that many facts in the 1213 will not be subject to suppression); see also Kalhan, supra note 35, 1189-91 (discussing the fact that much evidence will be admissible even if illegally seized). It is important to note, however, that in at least some circuits, identity evidence seized illegally is suppressible. Compare United States v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007) (deciding that Lopez-Mendoza permits suppression of impermissibly obtained identity information), United States v. Olivares-Rangel, 458 F.3d 1104, 1106 (10th Cir. 2006) (interpreting Lopez-Mendoza as merely reiterating a long-standing jurisdictional rule), United States v. Garcia-Beltran, 389 F.3d 864, 868 (9th Cir. 2004) (same), and United States v. Guevara-Martinez, 262 F.3d 751, 754-55 (8th Cir. 2001) (same), with United States v. Bowley, 435 F.3d 426, 430-31 (3d Cir. 2006) (interpreting Lopez Mendoza as barring suppression of evidence of identity), United States v. Navarro-Diaz, 420 F.3d 581,588 (6th Cir. 2005) (same), and United States v. Roque-Villanueva, 175 F.3d 345,346 (5th Cir. 1999) (same).

(313.) See, e.g., Hudson v. Michigan, 547 U.S. 586, 602 (2006) (declining to apply the exclusionary rule in a case involving a violation of the well-established "knock and announce" requirement of the Fourth Amendment); United States v. Patane, 542 U.S. 630, 634 (2004) (declining to apply the exclusionary rule to physical evidence that was the fruit of an un-Mirandized statement).

(314.) See, e.g., In re Garcia-Flores, 17 I. & N. Dec. 325, 328 (B.I.A. 1980). At least one immigration court has noted, however, that "there is no clear holding sanctioning that a violation of a regulation could result in termination of proceedings, thereby allowing a respondent to continue his unlawful presence in the United States, absent egregious conduct." In re [redacted], No. [redacted], slip op. at 22 (Immigration Ct. Hartford, Conn. June 2, 2009) (order granting the respondent's motion to suppress and motion to terminate removal proceedings), available at files/docs/lac/HartfordGrant-l-6.2.09.pdf.

(315.) See supra Part III.A.

(316.) Hiroshi Motonmra, Judicial Review in Immigration Cases After AADC: Lessons from Civil Procedure, 14 GEO. IMMIGR. L.J. 385,388 (2000).

(317.) See, e.g., Pinto-Montoya v. Mukasey, 540 F.3d 126, 127 (2d Cir. 2008); Almeida-Amaral v. Gonzales, 461 F.3d 231,232 (2d Cir. 2006).

(318.) See, e.g., In re [redacted], No. [redacted], slip op. at 14 (Immigration Ct. L.A., Cal. Jan. 8, 2010) (order granting the respondent's motion to suppress and motion to terminate removal proceedings), available at ("[T]he Court finds that Respondent experienced both actual and presumptive prejudice as a result of the Government's violations of the regulation under 8 C.F.R. [section][section] 287.8(b) and (c).").

(319.) INS v. Lopez-Mendoza, 468 U.S. 1032, 1048-49 (1984) (citations omitted).

(320.) Id. at 1048.

(321.) See Jennifer Ludden, Immigration Crackdown Overwhelms Judges, NPR, Feb. 9, 2009, story/story.php?storyId=100420476 (quoting Dana Leigh Marks, Nat'l Ass'n of Immigration Judges).

(322.) Lopez-Mendoza, 468 U.S. at 1048.

(323.) Id. at 1041.

(324.) Elias, supra note 255, at 1126-27 ("EOIR records show that between 1952 and 1979--the year that the Lopez-Mendoza respondents Adan Lopez-Mendoza and Elias Sandoval-Sanchez first appeared in immigration court--fewer than fifty motions to suppress evidence or terminate proceedings had ever been filed in immigration court. Twenty-eight years later, in 2007 alone, 21,144 motions to terminate were granted.").

(325.) Adam Liptak, Courts Criticize Judges' Handling of Asylum Cases, N.Y. TIMES, Dec. 26, 2005, at A1.

(326.) Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005).

(327.) Emma Schwartz & Jason McLure, DOJ Made Immigration Judgeships Political, LEGAL TIMES, May 28, 2007, at 12.

(328.) See Legomsky, supra note 14, at 1637--41 (calling for a restructuring of the immigration adjudication system).

(329.) Id. at 1678-81(summarizing and critiquing such proposals).

(330.) ld. at 1683-85 (summarizing and critiquing such proposals).

(331.) ld. at 1686-1721 (offering such a proposal).

(332.) EOIR, U.S. DEP'T OF JUSTICE, FY 2007 STATISTICAL YEAR BOOK G1 fig.9 (2008), available at eoir/statspub/fy07syb.pdf.


(334.) See, e.g., Peter L. Markowitz, Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings, 43 HARV. C.R.C.L.L. REV. 289, 345-46 (2008) (arguing for a right to counsel in removal proceedings for individuals previously admitted to the United States as lawful permanent residents). This approach risks providing no counsel to a wide variety of individuals subject to removal who might have legitimate due process concerns. For example, this proposal would not apply to an H-1B visa holder, present in the U.S. for six years, with strong family and employment ties to the country. It would not apply to an unauthorized noncitizen who has been in the country for thirty years and has established extensive family ties or a noncitizen who entered the country unlawfully as a small child and has never known any other home. Nevertheless, this proposal provides a useful starting point for thinking about appropriate cases in which to guarantee the right to counsel, and it may be that a good case can be made for denying the right to very recent entrants who either lack legal status or whose legal entry is authorized only by short-term nonimmigrant visas. See Michael Kaufman, Note, Detention, Due Process, and the Right to Counsel in Removal Proceedings, 4 STAN. J. C.R. & C.L. 113, 114 (2008) (arguing for a right to counsel for detained noncitizens in removal proceedings).

(335.) See sources cited supra note 334; see also DONALD KERWIN, MIGRATION POLICY INST., INSIGHT NO. 4, REVISITING THE NEED FOR APPOINTED COUNSEL 1, 3 (2004), available at Insight_Kerwin.pdf (critiquing the denial of counsel for its negative effect on the fairness and legitimacy of the removal process).

(336.) Ward, supra note 185, at 46 (quoting a former attorney advisor for the San Francisco Immigration Court for the proposition that immigration judges "often seek significant research" in deciding suppression motions).

(337.) See supra note 33 and accompanying text.

(338.) See U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 92, at 20-21.

(339.) See United States v. Lopez-Mendoza, 468 U.S. 1032, 1049 (1984).

(340.) INA [section] 242, 8 U.S.C. [section] 1252 (2006). See generally Jill E. Family, Another Limit on Federal Court Jurisdiction? Immigrant Access to Class-Wide Injunctive Relief, 53 CLEV. ST. L. REV. 11, 23-27 (2006) (discussing IIRIRA's limitations on federal jurisdiction); Nancy Morawetz, Back to Back to the Future? Lessons Learned from Litigation over the 1996 Restrictions on Judicial Review, 51 N.Y.L. SCH. L. REV. 113 (2007) (discussing the legal issues raised by the 2005 revisions to the INA's judicial review provisions).

(341.) Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007).

(342.) Id. at 9. For a discussion of the case, see Riordan, supra note 242, at 378-79.

(343.) Riordan, supra note 242, at 378-79.

(344.) ld. (citing Aguilar, 510 F.3d at 10).

(345.) See, e.g., Jill E. Family, Threats to the Future of the Immigration Class Action, 27 WASH. U. J.L. & POL'Y 71, 110-16 (2008) (discussing Supreme Court interpretations of these provisions); see also Motomura, supra note 316, at 414 (arguing for a narrow interpretation of jurisdiction-stripping provisions).

(346.) See Family, supra note 345, at 76-81 (discussing the use of class actions for these purposes). Immigration reform proposals to date have included provisions seeking to further restrict the class action in immigration-related matters, ld. at 118-21.

(347.) See United States v. Lopez-Mendoza, 468 U.S. 1032, 1054 (1984) (discussing the importance of the INS's internal disciplinary scheme for remedying constitutional violations).


JENNIFER M. CHACON, Professor of Law, School of Law, University of California at Irvine. A.B., Stanford University, 1994. J.D., Yale Law School, 1998. I would like to thank Dean Chemerinsky of the U.C. Irvine School of Law and Dean Johnson of the U.C. Davis School of Law for supporting this research. Special thanks to Carolyn Hsu and Kelly White for indispensable research assistance.
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Title Annotation:Fortieth Annual Administrative Law Symposium
Author:Chacon, Jennifer M.
Publication:Duke Law Journal
Date:May 1, 2010
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