Federalism, Deportation, and Crime Victims Afraid to Call the Police

AuthorOrde F. Kittrie
PositionAssociate Professor of Law, Arizona State University College of Law
Pages02

Orde F. Kittrie: Associate Professor of Law, Arizona State University College of Law. Prior to joining the ASU law faculty in 2004, the author served for eleven years at the United States Department of State, most recently as Director of International Anti-Crime Programs. Thank you to Robert Bartels, Charles Calleros, Robert Clinton, Evelyn Cruz, Kevin Johnson, Stephen Legomsky, Huyen Pham, Peter Spiro, George Schatzki, Mary Sigler, Rebecca Tsosie, and Michael Wishnie for their helpful suggestions with respect to this Article.

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I Introduction

Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial "shadow population" of illegal migrants- numbering in the millions-within our borders . . . whose presence is tolerated, whose employment is perhaps even welcomed, but who are virtually defenseless against any abuse, exploitation or callous neglect . . . . The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.1

In the twenty-four years since Justice Brennan's opinion for the Court in Plyler v. Doe, the "shadow population" to which he referred has grown larger. There has been a tripling-to an estimated 11.1 million-of the number of unauthorized aliens in the United States.2 This number is currently increasing by at least 500,000 per year.3 An estimated 7.2 million unauthorized aliens are presently employed in the United States, comprising 4.9 percent of the civilian labor force, or one out of every twenty American workers.4

The "shadow population" of unauthorized aliens that Justice Brennan remarked upon in 1982 has remained vulnerable to abuse, exploitation, and callous neglect. The Supreme Court regularly has rejected the proposition that a person's unauthorized presence in the United States leaves that person without constitutional rights.5 But when unauthorized aliens either know or fear that turning to the justice system for protection would result in their deportation,6 the rights that they formally enjoy as persons present in Page 1451 the United States may be rendered practically irrelevant by their status as deportable outsiders.7 Their status as deportable aliens and the resulting possibility that they could at any time and by any person be reported to the authorities and deported, renders them vulnerable to abuse and exploitation by spouses, common criminals, corrupt government officials, border vigilantes, unscrupulous employers, and others.

Unauthorized alien women across the country are battered by spouses who exploit the women's fear of deportation in order to continue the abuse.8 Studies show that to the extent such women believe that police will report them to immigration authorities when they call for protection, "women and children will continue to endure ongoing abuse rather than call for help and their abusers' crimes will go unpunished."9

Criminals regularly target unauthorized aliens with scams fraudulently promising status adjustment or legalization assistance.10 Police have broken Page 1452 several immigration-status-assistance scams, each of which defrauded hundreds of unauthorized aliens,11 but officials reportedly "still have no real handle on the problem's scope since distrustful immigrants rarely turn to officials to report the con artists."12

Criminals often target unauthorized aliens with other scams or crimes.13A number of corrupt government officials have been caught preying on unauthorized aliens, threatening them with deportation if they refuse to pay large bribes.14 Vigilantes along the U.S.-Mexico border abuse unauthorized aliens, knowing the fear of deportation keeps all but a few from testifying.15 Page 1453

Unscrupulous employers often cheat unauthorized aliens out of their wages, relying on the fear of deportation to keep many unauthorized aliens from reporting the abuse. A recent nationwide survey of day laborers16found that three-quarters of day laborers are unauthorized aliens.17 Nearly half of day laborers reported having been denied payment by an employer for work they finished in the two months prior to being interviewed.18 One out of five day laborers reported that they experienced violence at the hands of their employers.19 The study's authors concluded that:

Because most day laborers are working without immigration documents, exploitative employers are emboldened to withhold wage payments, abandon workers at job sites and subject workers to other abuses, including physical violence. Employers are often able to deter workers from contesting these violations by threatening to turn them over to federal immigration authorities. Even when employers do not make these threats overtly, day laborers, mindful of their status, are reluctant to seek recourse through government channels.20 Page 1454

Unauthorized alien victims of such crimes are faced with a predicament: turn to the justice system and risk being deported or suffer the crime in silence in order to remain in the United States. The Supreme Court's 2005 decision in Muehler v. Mena21-that there no longer is a requirement of particularized reasonable suspicion for police to inquire into a person's citizenship status where the person has been lawfully stopped or detained for another reason-made this predicament more acute. With fewer constitutional limits than before on a police officer's authority to inquire as to a person's alien status, an unauthorized alien is even more likely than before to fear that any encounter between himself and federal, state, or local law enforcement-including the alien's effort to report a crime-is likely to result in the alien's deportation.

As one local law enforcement official put it, unauthorized aliens "'are almost the perfect victims . . . . They cannot turn to authorities because they have problems with their legal status . . . . They're prime for the picking."22

If unauthorized aliens choose to suffer crimes in silence, the unpunished crimes not only harm the unauthorized aliens, but they also encourage and reward criminals who may go on to prey on other Americans, undermine fundamental values, and coarsen the fabric of American life. New York City Mayor Michael Bloomberg recently described the negative impact on the broader society:

[W]e all suffer when an immigrant is afraid to tell the police . . . . As good as they are, our police officers cannot stop a criminal when they are not aware of his crimes, which leaves him free to do it again to anyone he chooses. Which means that all of us lose.23

Similarly, Los Angeles Police Department Assistant Chief George Gascon recently noted: "If an undocumented woman is raped and doesn't report it, the suspect who raped that woman . . . could be the suspect who rapes someone else's sister, mother or wife later."24

Federal immigration law, which creates the deportation-versus-crime- reporting predicament, also offers the possibility of mitigation of that predicament-in certain limited circumstances. Congress created three Page 1455 special visa categories to encourage and facilitate reporting by unauthorized aliens of certain specific crimes.25 However, these special visa categories are limited in both the types of crimes to which they apply and the annual number of unauthorized aliens who can receive such visas.26 A total of 15,250 special visas for unauthorized alien reporters of crime are currently available each year.27 But an estimated 200,000 violent crimes are committed against unauthorized aliens, and one million property crimes are committed against unauthorized alien households, in the United States each year.28Federal law thus currently offers no mitigation or alleviation of the deportation-versus-crime-reporting predicament with respect to more than ninety percent of crimes committed against unauthorized aliens in the United States each year.

Governments at the state, city, and other local levels (collectively referred to as "local") increasingly are stepping in to the breach with "sanctuary policies" specifying that the local law enforcement officers will refrain from actions that might contribute to the deportation of unauthorized aliens present in that locality. Such sanctuary policies generally specify that the jurisdiction's law enforcement officers shall do one or more of the following: (1) limit inquiries about a person's immigration status unless investigating illegal activity...

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