Introduction I. ICE's Current Practices II. Searching for a Standard for Home Enforcement: Fourth Amendment Requirements in Other Contexts A. Standards for Home Entry in the Criminal Context 1. Searches Based on Consent 2. Searches Pursuant to Exigent Circumstances 3. Entry of a Home to Effectuate an Arrest 4. Consequences of Fourth Amendment Violations B. Barriers to Application of the Traditional Fourth Amendment Scheme to Immigration Enforcement in the Home 1. Differences Between Criminal and Immigration Enforcement for Fourth Amendment Purposes 2. Home Raids as Searches and Seizures? a. Searches b. Seizures C. Specific Standards in the Immigration Enforcement Context 1. Home Raid Cases 2. Workplace Enforcement Cases 3. Vehicle Cases III. Application of Existing Immigration Enforcement Standards to the Home: Evaluation of Current Practices and a Call for Reform A. Extension of Workplace and Vehicle Enforcement Standards to the Home B. Minimal Protections Required for Home Raids 1. Current Home Enforcement Behavior Tested Against Workplace and Vehicle Standards 2. Lessons from ICE's Own Internal Guidelines 3. Is ICE Complying with These Minimum Requirements? C. Home Enforcement Reform Through Existing Standards: Specific Proposals Conclusion INTRODUCTION
On February 20th, 2007, Adriana Leon was awakened at 5:00 a.m. when armed agents burst into her room and pulled the blankets off her and her four-year-old son. (1) The agents gathered Adriana's family in an office space, blocked the exits to the area, and threatened her with their weapons when she attempted to contact a lawyer. (2)
On September 27th, 2007, Peggy Delarosa-Delgado was asleep in her bed at 6:00 a.m. when more than a dozen agents pushed past her high-school aged son to enter her home. (3) Ms. Delarosa-Delgado awoke to find her family frightened and distraught after U.S. Immigration and Customs Enforcement ("ICE") (4) agents had gathered her three children into the living room and threatened a houseguest with a gun. (5)
These women were not criminals, nor were they living in a totalitarian state. Rather, they were U.S. citizens whose homes were mistakenly targeted in raids by ICE.
In recent years, the Department of Homeland Security ("DHS") has increasingly expanded its enforcement focus from patrol of the border to efforts to apprehend illegal immigrants already within the United States. (6) The Leons and the Delarosa-Delgados were targets of such interior enforcement efforts. DHS targeted the Leon home pursuant to "Operation Return to Sender." The purpose of this initiative, which began in May 2006, is to apprehend "immigration fugitives": people who remain in this country despite a final order of deportation. (7) The Delarosa-Delgado home was a target of "Operation Community Shield," a program that began in February, 2005 and seeks to remove illegal immigrants who are also gang members. (8) These enforcement programs have been the subject of criticism and multiple federal lawsuits (9) because ICE agents are instructed to carry out these initiatives by targeting private homes without judicial warrants. (10)
ICE claimed authority to target the Leon and Delarosa-Delgado homes based on administrative arrest warrants. (11) Such warrants need not be issued by a judge, but rather can be issued by forty-nine different officials within DHS. (12) In order to secure a standard administrative warrant, an ICE officer must present such an official with a Notice to Appear for the person sought, a document that sets forth the facts and law justifying an arrest for a violation of immigration law. (13) ICE came to the Leon household with a warrant to arrest Adriana's estranged ex-husband. (14) Despite the five years since their divorce, the order of protection she had against him, and her subsequent marriage, ICE agents sought to execute the warrant at the Leon home. (15) For her part, Ms. Delarosa-Delgado had never seen or heard of the person who ICE sought to arrest in her home. (16) However, during the summer of 2006, Ms. Delarosa-Delgado had been the victim of another pre-dawn raid searching for the same person. (17)
Unfortunately, the experiences of the Leons and the Delarosa-Delgados are not isolated incidents. In fact, the Delarosa-Delgado raid was part of a series of raids conducted in Nassau County during the last week of September 2007. (18) During the course of these raids, ICE agents' behavior prompted Nassau County Executive Thomas Suozzi to write a letter to Department of Homeland Security Secretary Michael Chertoff calling for an investigation of the enforcement operation. (19) One of the major complaints in the letter was that ICE agents targeted homes without "current intel[ligence]" as to whether the people they were seeking could actually be found in those homes. (20) Specifically, although the purpose of the raid was allegedly to apprehend illegal aliens who were also gang members, (21) on several occasions ICE agents neglected to verify the names and addresses of their targets with the local police department's Gang Intelligence Files. (22) ICE agents also used other unreliable information. For example, ICE agents used a childhood photograph in their attempts to locate one twenty-eight-year-old suspect. (23) As a result of this lack of current information, ICE agents raided many homes that, like Ms. Delarosa-Delgado's, should not have been targets of the investigation. In fact, of the eighty-two people arrested, only nine were targets of the operation. (24) The ICE agents' aggressive attitude in the Delarosa-Delgado home was not unique. Suozzi's letter complains that ICE agents maintained a "cowboy" attitude and even drew guns on local police during the course of the raids. (25)
One question raised by these raids is whether targeting and entering homes without court-ordered warrants raises problems under the Fourth Amendment's prohibition of "unreasonable searches and seizures." (26) The Fourth Amendment applies to civil as well as criminal law enforcement, and courts recognize that both citizens and non-citizens are entitled to some degree of Fourth Amendment protection in the immigration enforcement context. (27) Furthermore, entry of the home is characterized as the "chief evil against which the wording of the Fourth Amendment is directed." (28) Therefore, interior enforcement efforts that target the home without judicial warrants raise serious concerns, especially in light of anecdotal evidence of indiscriminate targeting of homes and coerced consent.
This Note argues that additional protections are necessary to ensure that ICE does not violate the Fourth Amendment rights of those they target and those who get swept up in their enforcement efforts. This is particularly true with initiatives such as "Operation Return to Sender" and "Operation Community Shield" because they are carried out in private homes, the traditional sphere of greatest Fourth Amendment protection. The experiences of the Leons, the Delarosa-Delgados, and many others like them, as well as official reports of ICE misconduct, indicate that there are insufficient safeguards in place to ensure that ICE's enforcement efforts comply with the Fourth Amendment.
Part I of this Note details the particular ICE practices that individuals, community groups, and scholars have questioned on Fourth Amendment grounds. Part II then examines the legal framework through which this behavior can be analyzed to evaluate its compliance with the Fourth Amendment. Part II first describes the special protections for the home afforded in the criminal context, then outlines the distinctions courts draw between the criminal and immigration contexts for Fourth Amendment purposes. Because of these distinctions, Fourth Amendment standards for ICE conduct must be independently evaluated based on the particular privacy interests at stake in the immigration enforcement context. Part II then reviews the case law that establishes Fourth Amendment standards in the immigration enforcement context. Because there have been few cases challenging immigration enforcement behavior in the home, the discussion centers around standards for workplace raids and vehicle stops and searches. Part III applies the standards set forth in the vehicle and workplace contexts to the home, arguing that because the Fourth Amendment interests at stake in the home are greater than in workplaces or vehicles, the standards set forth in those contexts are the minimal standards that should be applied to the home. This argument finds further support in ICE's own internal guidelines, which contain similar requirements. Application of vehicle and workplace standards and ICE's own guidelines to ICE's current home enforcement scheme reveals that these minimal standards are not respected. Finally, Part III concludes that by enforcing standards already in place in the immigration enforcement scheme, ICE could significantly curb Fourth Amendment violations in the home.
ICE's CURRENT PRACTICES
The stories told in the Introduction above show the general modus operandi of home raids pursuant to "Operation Return to Sender" or "Operation Community Shield." Commentators, advocacy groups, and scholars have taken issue with a number of ICE's home enforcement practices on Fourth Amendment grounds. (29) The first practice that raises concern is targeting homes with little or no evidence that a subject of the search resides at the home in question. This indiscriminate targeting is not limited to the communities described in the opening stories. Across the country, news reports and legal complaints tell stories of people whose homes were raided pursuant to warrants containing inaccurate or outdated information. (30) In other cases, it is not clear that ICE possesses a warrant at all because ICE agents refuse to produce one, (31) or do not disclose the name of the person they are trying to apprehend. (32)
The effects of targeting homes based on little or...