Insecure Communities: How Increased Localization of Immigration Enforcement under President Obama through the Secure Communities Program Makes Us Less Safe, and May Violate the Constitution

Author:Rachel Zoghlin
Position:Second-year student at American University Washington College of Law
Pages:20-35
 
CONTENT
THE MODERN AMERICAN
20
INSECURE COMMUNITIES: HOW INCREASED LOCALIZATION OF IMMIGRATION
ENFORCEMENT UNDER PRESIDENT OBAMA THROUGH THE SECURE COMMUNITIES
PROGRAM MAKES US LESS SAFE, AND MAY VIOLATE THE CONSTITUTION
By: Rachel Zoghlin1
An undocumented immigrant who lives in
Maryland was recently stopped by the police while walking
to the Hyattsville Metro Station to go to work. Short, dark-
skinned and Latino, with long, black hair, the police told
him that he resembled someone suspected of mugging an
old woman a few blocks away. The police questioned him
about his whereabouts (home) and what he was doing that
morning (getting ready for work). After approximately
forty-five minutes, the police officers received a signal that
some the real mug ger had been apprehended across town,
so the officers allowed the man to continue on his commute
to work. What would have happened if he lived in Virginia
(where Secure Communities is active state-wide) and not
Maryland (where Secure Communities is only active in
three counties)? What if the police never got the call that
other officers had located the actual culprit? A completely
innocent Mexican waiter with no criminal record, who takes
English classes, pays his taxes, and supports his family, may
have been deported.
In the wake of fiery controversy surrounding
Arizona’s contentious immigration bill, S.B. 1070, the issue
of localization of immigration enforcement sprung to the
forefront of national political debate. Yet, S.B. 1070 is
certainly not the first instance of localities, unhappy with
federal immigration enforcement, taking matters into their
own hands. De-centralization of immigration enforcement
is a growing trend, and has been the subject of much legal
debate. Virginia recently adopted one method of localized
immigration enforcement, the Secure Communities
program, making it “active” in all Virginia jurisdictions.2
Similarly, D.C. Police Chief Cathy Lanier has lobbied for
the implementation of Secure Communities in the District
of Columbia.3 In the D.C., Maryland and Virginia area,
advocates on both sides of the debate have been ramping
up their efforts to sway legislators and constituents.4
Of the three million sets of fingerprints taken at
local jails between the onset of the Secure Communities
program in October 2008 and June of this year, nearly 47,000
fingerprints belonged to undocumented immigrants, ag ainst
whom deportation proceedings were initiated.5 Nearly
half of the individuals removed from the United States
through Secure Communities have never been convicted of
a crime.6
This article will introduce the Secure Communities
program within the context of the increased localization
of immigration enforcement. It will also discuss some
inherent problems with the program. Part I will explain
how the program works and address arguments made for
and against the program. Part II will discuss the rights
maintained by immigrants, and the rights they are denied by
virtue of their non-citizen status. Part III will examine the
constitutionality of Secure Communities through an Equal
Protection lens. Finally, Part IV will address the future of
the Secure Communities program and the future of localized
immigration enforcement, by discussing the potential impact
of pending litigation, legislation, and advocacy within the
immigration law field. Part VI will also propose an alternative
to the localized immigration enforcement movement, and
will advise interested individuals on ways to advocate against
the implementation of the Secure Communities program in
our local community.
I. The Move Towards Localized Immigration
Enforcement
In 1976, the Supreme Court held in De Canas v.
Bica that although the “[p]ower to regulate immigration is
unquestionably exclusively a federal power . . . [not every
state law] which in any way deals with aliens is a regulation of
immigration and thus per se preempted by this constitutional
power.”7 Still, the Supremacy Clause, in Article VI, clause 2
of the Constitution, has been frequently invoked to give the
Federal Government exclusive jurisdiction over matters as
international in nature as immigration. The Supreme Court
has repeatedly held that state attempts to enact legislation
governing immigrants and immigration are unlawful because
they are preempted by Federal law. 8 Reaffirming the Federal
Government’s power over immigration, the Supreme Court
remarked that “[s]tate laws which impose discriminatory
burdens upon the entrance or residence of aliens lawfully
within the United States conflict with this constitutionally
derived federal power to regulate immigration, and have
accordingly been held invalid.”9 More recently, the Federal
Government again argued that a state unlawfully preempted
Federal power by designing and implementing its own laws
dealing with immigration within the state. For primarily that
reason, Arizona’s controversial anti-immigration legislation,
S.B. 1070, has been enjoined.10
Recent studies show that nearly eleven million
immigrants may be living in the United States without
documentation.11 Immigrations and Customs Enforcement
(ICE), a division of the Department of Homeland Security,
SPRING 2011 21
faced with an overwhelming task and caseload, has sought
alternative means to achieve their objective of “enforce[ing]
federal laws governing border control, customs, trade and
immigration.”12 Over the past decade, increasing numbers
of state and local law enforcement agencies have begun to
collaborate with the federal government to enforce federal
immigration law.
Congress amended the Immigration and Nationality
Act (INA) of 1952 through the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA) of 199613 to
facilitate more rigorous enforcement of immigration laws.
In particular, section 287(g) of IIRIRA authorizes the federal
government to enter into Memorandums of Agreement
(MOAs) with state and local law enforcement agencies, so
that local police can help enforce Federal immigration law.
In response to the positive reception of 287(g) by state and
local law enforcement agencies, ICE created the Office of
State and Local Coordination (OSLC) in 2007. OSLC builds
and maintains a handful of programs, collectively known as
ACCESS” (Agreements of Cooperation in Communities
to Enhance Safety and Security), which equip local law
enforcement agents with a wealth of tools to enforce federal
immigration law.14 The Secure Communities initiative falls
under ACCESS’s umbrella of programs through which local
law enforcement agencies can help with federal immigration
enforcement. Congress further amended sections 274 and
276 of the INA to give state and local law enforcement agents
express authority to enforce the prohibition of “smuggling,
transporting, or harboring of illegal immigrants” and to
establish “criminal penalties for illegal reentry following
deportation.”15
Similar to efforts of the Legislature, throughout
the George W. Bush Administration, the Executive branch
ramped up efforts to utilize local law enforcement officials
in enforcing immigration law. In 2002, Attorney General
Ashcroft issued a memorandum stating that the Department
of Justice was mistaken in asserting that local officers did
not have the power to enforce civil immig ration violations
(e.g., overstaying a visa).16 Ashcroft’s memo stipulated that
local officers have “inherent authority” to make immigration
arrests based on violation of civil immigration laws.17 The
notion that local law enforcement maintains this “inherent
authority” has been a powerful tool for law enforcement
agencies attempting to substantiate their role as immigration
enforcers. This language has never been written into federal
regulation, and the actual legal weight of this memo is
debated.18
In increasing numbers, ICE has signed MOAs
with local law enforcement agencies, giving state and local
law enforcement officers authority and responsibility to
enforce immigration laws within the normal course of their
duties.19 Although law enforcement officers must undergo
sensitivity training under 287(g) agreements, and should
make complaint procedures available in various languages,
myriad problems remain: prominent racial profiling; chilling
effect on Latino/a communities; lack of oversight and
accountability; potential infringement of constitutional
rights and denial of due process.20
a. About Secure Communities
Although local law enforcement officers have been
increasingly involved in helping ICE identify and remove
criminal aliens, Secure Communities takes the localization
of immigration enforcement to a new level. Under
287(g)/ACCESS programs, local police officers train with
immigration enforcement to implement federal immigration
laws by checking immigration status of individuals
stopped on the street or brought into jail.21 Under Secure
Communities, local law enforcement officers (not trained
by federal immigration enforcement officers) are authorized
to send the fingerprints of all individuals charged with, but
not yet convicted of crime to ICE, enabling cross-checking
mechanisms with the Department of Homeland Security
(DHS) immigration database and the FBI criminal history
database.22 If the fingerprints match a DHS or FBI record,
ICE is automatically notified, even if the individual has
never been convicted of a crime.23 Local police can hold an
individual suspected of being in the country illegally for 48
hours, until ICE arrives to take him or her into custody.24
To achieve its goals, Secure Communities uses
a three-tiered priority list for detaining and removing the
most dangerous and high-risk criminal aliens. Level 1, the
top priority, is to apprehend violent offenders: murderers,
rapists, kidnappers, and major drug offenders.25 The Level
2 priority is to identify and remove individuals convicted
of minor drug offenses and property offenses such as
Above: Arlington County Board of Supervisors
Hearing on Secure Communities Program
Credit: Rights Working Group & Pabitra Benjamin
THE MODERN AMERICAN
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burglary, larceny, fraud, and money laundering.26 Level 3
represents the lowest priority of aliens to detain and deport
and includes individuals who commit “public disorder” and
minor traffic violations, such as driving without a license, or
running a stop sign.27 Level 3 also includes the catch-all, “all
others” arrested for other minor offenses.28
The program falls short, however, of meeting its
projected goal of “Identifying and Removing Dangerous
Threats to [the] Community.29 In 2009, ICE data showed
that, of the 111,000 aliens successfully identified and detained
through the Secure Communities program, approximately
11,000 (10%) were charged with or convicted of “Level 1”
crimes; meanwhile, the other 90% of aliens identified and
detained were charged with or convicted of lesser crimes, and
not necessarily “dangerous threats” to their communities.30
Nearly half of those currently detained in immigration
detention have no criminal convictions at all.31 Moreover,
five to six percent of those identified and detained through
Secure Communities are mistakenly identified as aliens,
when they are actually U.S. citizens.32
Although the Secure Communities program was
first introduced under the Bush Administration, it has
expanded rapidly during the Obama Administration.33 As
of July 20, 2010, it was activated in 467 jurisdictions in
twenty-six states.34 By September 28, 2010, the program
was activated in 658 jurisdictions in thirty-two states.35 It
is activated in all Virginia jurisdictions, and in four out of
twenty-four counties in Maryland. The District of Columbia
has refused police department attempts to implement the
program. ICE hopes to make the program available in
every state by 2011,36 and in effect nation-wide by 2013.37
As the program grows, political debate surrounding the
controversial program continues.
b. Problems with Secure Communities
i. Prominent Racial Profiling
Although ICE maintains that the goal of the Secure
Communities program is to identify and remove dangerous
criminal aliens, it effectively serves as a green-light for local
law enforcement agencies to use racial profiling tactics to
target Latino individuals they suspect to be undocumented
immigrants.38 Once a law enforcement officer finds a
pretext to arrest someone, the police officer can bring the
arrested individual to the station for fingerprinting. When
all fingerprints are immediately sent to ICE and the FBI for
immigration enforcement cross-checking, it matters very
little what the purpose of the initial arrest was, and whether
the arrest ever led to a criminal conviction. Police officers
motivated to rid their communities of Latino immigrants
not only have an avenue to do so, but because their motives
are never monitored or questioned, they are given nearly
limitless power to enforce federal immigration law.
ii. Chilling Effect on Latino/a Communities
If police use the Secure Communities program
as an excuse to identify and deport immigrants, fewer
immigrants will feel comfortable calling the police to report
criminal activity. Alienating a subset of a community, and,
in urban neighborhoods, a very substantial percentage of
the community, frustrates the goals and purposes of law
enforcement. Police will have less information regarding
the whereabouts of individuals involved in actual criminal
activity, because when some community members feel
targeted and vulnerable, they stop cooperating with local
police, making the entire community less safe.
iii. Lack of Oversight and Accountability
A program, such as Secure Communities, wholly
designed by an administrative agency, has never received
legislative input as to specific procedures for oversight
or accountability. Indeed, ICE outlines priorities for the
Secure Communities program, but it is solely responsible
for ensuring that those priorities are met; if they are not
met, the impetus is on ICE alone to adjust its methods.
Furthermore, besides the initial agreements between
ICE and local law enforcement agencies, ICE has shown
no indication that it intends to train or monitor local law
enforcement in anti-racial profiling practices when utilizing
Secure Communities. Consequently, local law enforcement
agents are free to use their increased power without
supervisory guidance or interference. Finally, ICE has
been exceedingly reluctant to publish data regarding how
effective the program has been in achieving its purported
goals. The program was launched in October of 2008, but
ICE only recently, after various Freedom of Information
Act (FOIA) requests and complaints filed by advocacy
groups suspicious of foul play, acquiesced and published
data on the number of arrests connected to the program,
the type of criminal records of aliens identified through the
program, and the number of individuals deported through
Secure Communities. Despite access to this information,
many questions remain unanswered.
iv. Potential Infringement of Constitutional
Rights and Denial of Due Process
Because the Secure Communities program
implicitly condones the use of racial profiling (and racial
discrimination) to achieve its goals, the prog ram must be
examined through a
SPRING 2011 23
constitutional lens to ensure the protection of fundamental
rights. If the program is not narrowly tailored to achieve a
specific and permissible government purpose, the prog ram’s
inherent discrimination violates the Equal Protection clause
of the Fourteenth Amendment. Secure Communities is not
narrowly tailored to suit its purported goal; in fact, it is not
tailored in the least. It encourages checking the immigration
status of all persons accused and arrested of crimes, even
where criminal charges are never pressed and individuals are
never convicted. The vast majority of aliens identified and
removed through the program have never been convicted
of a dangerous crime, or never been convicted of any crime
at all. What is worse, about 5% of the database “hits”
through the Secure Communities program identify United
States Citizens, not criminal aliens.
Furthermore, as many immigration law scholars
note, what was once considered a non-punitive consequence
of a civil infraction, immigration detention and deportation
are increasingly likened to criminal punishment.39 As the
consequences of civil immig ration violations become
more severe, many argue that individuals involved in the
immigration system should be afforded more substantial
due process rights, like in the criminal system. Without
such procedural safeguards, our g overnment runs the risk
of embodying an unfortunate hypocrisy, glorifying the
protection of liberty and freedom at all costs by ensuring
proper due process before convicting and punishing the
accused, while simultaneously denying such due process and
enforcing severe judgments on others accused, on the basis
of immigration status.
c. Community Tension
Many advocates of Secure Communities base their
support on anti-terrorism efforts.40 Bringing to light the
fact that some of the 9/11 terrorists had been stopped for
minor traffic violations before the infamous plane hijacking,
some argue that if local police officers had access to Secure
Communities technology at the time, the suspects may
have been identified earlier as criminal aliens, and could
have been taken into custody and placed in deportation
proceedings.41 According to some, if Secure Communities
had been implemented more broadly, and earlier, the entire
devastating terrorist attack could have been averted, and
the lives of thousands of innocent people could have
been saved.42 Utah Republican Senator Orrin Hatch even
proposed legislative amendments to immig ration law
that would r equire all localities to sign on to either 287(g)
programs or Secure Communities.43
Proponents of Secure Communities in Ohio praise
the program as a tool to help identify dangerous criminals
that would otherwise go undetected. Butler County Sherriff
Rick Jones attested, “[i]t’s really a heaven-sent for us. [. . .
] I don’t want [criminal aliens] in my community, I’ve got
enough homegrown criminals here.”44 Indeed, as traditional
methods of law enforcement fail to target immigrant
criminals specifically, Secure Communities helps differentiate
between American citizen criminals and immig rants. For
law enforcement officials seeking to rid their localities of
criminal aliens, the goals of Secure Communities certainly
align with their own.
Similarly, in Virginia, Fairfax County Sheriff Stan
Barry remarked that the Secure Communities prog ram
was “a win-win situation both for the community and law
enforcement.”45 Barry boasts, “[w]e will be able to identify
illegal immigrants who commit crimes in Fairfax County
and get them in the process for deportation, and it does not
require additional funds or manpower from us.”46 Indeed,
Fairfax County will be able to identify undocumented
immigrants much sooner in the criminal process, without
needing to specifically recruit, employ, or train special teams
of law enforcement to deal exclusively with immigration
enforcement. Still, despite Barry’s contention that the
program will not cost Virginia taxpayers money, the State is
in the process of building the largest immigration detention
center in the Mid-Atlantic, a $21 million project that hopes
to house up to 1,000 immigrant detainees by next year.47
In contrast, opponents of Secure Communities argue
that the program ultimately will result in communities being
less safe. Noting that Secure Communities enforcement has
not resulted in significant deportation of violent or dangerous
criminals, CASA de Maryland Attorney, Enid Gonzalez,
remarked that although the Program “claims to keep violent
criminals off the streets, [ . . .] it’s just incarcerating innocent
busboys.”48 Furthermore, many advocates worry that the
program has a chilling effect on Latino members of the
community, dissuading them from coming forward as crime
victims and witnesses, and thereby enabling actual criminals
to continue terrorizing the community. An opponent of
Secure Communities in Utah, Police Chief Chris Burbank
recognized this problem in his own community of Salt Lake
City: “Fighting crime without the help of one’s community
[ . . . ] is like trying to disarm a hidden mine by stomping on
the ground. By the time you have found the problem, it is
already too late.”49
Opponents in Virginia argue that the State unjustly
instituted the Program without the approval or consent of
the local government. Although Secure Communities is most
frequently enacted through individual agreements between
localities and ICE, Virginia recently implemented Secure
Communities state-wide, leaving many immigrants’ rights
advocates in Arlington arguing that it was unfairly instituted,
since the ag reements had not been negotiated with Arlington
law enforcement, or Arlington County government.50
THE MODERN AMERICAN
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Raising the level of confusion about the implementation
and possible dissolution of Secure Communities, ICE first
announced there are no opt-out options, but then later
explained that despite discouragement, cities could opt out.51
ICE Deputy Press Secretary has stated that localities like
Arlington cannot opt-out of the program through ICE,
rather, the locality must settle the matter with the state
government.52 Oddly, in a letter dated September 8, 2010,
Secretary of Homeland Security Janet Napolitano explained
to Representative Zoe Lofgren that local jurisdictions could
opt-out by formally notifying the Assistant Director for
the Secure Communities Program.53 In early November
2010, ICE officials met with Arlington County officials,
and informed them that “local activated communities do
not have the option of withholding infor mation from the
[Secure Communities] program.”54
San Francisco’s Sherriff repeatedly attempted
to opt-out of Califor nia’s growing implementation of
Secure Communities.55 His appeal was denied by the
State Attor ney General,56 but San Francisco advocates
persisted, searching for ways to escape the implementation
of Secure Communities. On September 1, 2010, after two
years of dedicated advocacy by Immigrants’ rights groups
and Sher riff Michael Hennessey, ICE finally announced a
procedure for local jurisdictions to request to opt-out of
Secure Communities.57 Angela Chan, an attorney at the
Asian Law Caucus acknowledged the potential impact this
recent announcement may make:
It’s a promising development that ICE
has finally come out and acknowledged
that the program is voluntary in a written
statement. The next step is for ICE to
follow through and allow San Francisco
to opt out since both our Sheriff and our
Board of Supervisors have clearly stated
our city’s request to opt out.58
Similarly, attorneys and advocates in Arlington, Virginia
have fervently lobbied state legislators to permit the county
to opt-out of the program.59 After indications that opting-
out was possible,60 the Arlington County Board voted to
withdraw from Secure Communities.61
Whether jurisdictions feasibly can opt-out continues
to be unclear. After Arlington announced its intention to
opt-out, a senior ICE official explained to the Washington
Post:
The only way a local jurisdiction could opt
out of the program is if a state refused to
send fingerprints to the FBI. Since police
and prosecutors need to know the criminal
histories of people they arrest, it is not
realistic for states to withhold fingerprints
from the FBI, which means it is impossible
to withhold them from ICE.62
In early October 2010, in stark contrast to its declaration
one month earlier, ICE announced that local governments
would not be able to opt-out of the program.63 ICE
Director John Morton conceded that “the agency would
meet with the localities to discuss the issue, but in the end
the agreement is with the state.”64 After meeting with ICE
officials on November 5, 2010, Arlington County Manager
Barbara Donnellan explained to the rest of the County
Board, “ICE stated that Secure Communities is a federal
information-sharing program which links two federal
fingerprint databases. . . . The program does not require state
and local law enforcement to partner with ICE in enforcing
federal law.”65 Whether local jurisdictions will be free to
opt-out remains to be definitively explained to confused law
enforcement and government officials nation-wide.
As the debate grows, and immigrants’ rights groups
advocate for the end of the Secure Communities program,
the concern of whether and how the program infringes
upon the rights of immigrants becomes more ubiquitous.
Although immigrants to the United States do not enjoy
all of the Constitutional rights as American citizens, the
courts have held that immigrants enjoy some Constitutional
protection. As such, the Secure Communities program
may need careful scrutiny to determine whether it satisfies
Constitutional precedent.
II. Immigrants’ Rights
In determining whether constitutional rights extend
to immigrants, courts have frequently considered whether the
framers of the Constitution would have meant for terms like
“persons,” “people,” and “citizens,” to include immigrants.
If the terms were intended to include immigrants, which
immigrants should be included? Most often, whether
constitutional rights are afforded to immigrants depends on
their status.
Some rights guaranteed to United States citizens
have rarely been afforded to immigrants, and have rarely been
contested. For example, interpretations of the Constitution
dating back to the early 1800s indicate that aliens were not
included in “the people of the several states” who enjoyed
the right to vote.66 Voting was considered a privilege, or
at most, a “political right,” subject to the discretion of the
State.67 In United States v. Esparaza-Mendoza, the Supreme
Court determined in 1874 that “citizenship has not in all
cases been made a condition precedent to the enjoyment
of the right of suffrage.”68 However, scholars note that
SPRING 2011 25
un-naturalized alien immigrants were not officially excluded
from suffrage until 1928.69 The conclusion that immigrants
are not included in “the people of the several states” has
left the door open to the determination that immigrants are
excluded from several other Constitutional protections as
well.
a. Equal Protection
Despite being denied the right to vote, immigrants
are afforded some constitutional rights. Plyler v. Doe ensured
that immig rants are protected under the Equal Protection
clause of the Fourteenth Amendment. 70 In Plyler, a group
of undocumented Mexican children sought declaratory and
injunctive relief against a Texas statute that excluded them
from access to free education at state public schools.71 The
Supreme Court struck down the statute, noting that even
though the children had not been “legally admitted” to the
United States, discrimination against them on the basis of
their immigration status was imper missible because the
State did not establish a rational basis sufficient to deny the
benefit of public education.72 Reflecting on the text of the
Fourteenth Amendment, “No State shall . . . deny to any
person within its jurisdiction the equal protection of the
laws[,]”73 the court held that “an alien is surely a ‘person’ in
any ordinary sense of that term.”74 Because undocumented
alien children are protected by the Fourteenth Amendment, a
law discriminating against them on the basis of immigration
status violated their Constitutional right to Equal Protection
because, although conserving the state’s financial resources
may be a legitimate government interest, the law was not
narrowly tailored enough to advance such an interest.75
Even facially neutral laws have been found to
violate the Equal Protection clause if they are applied
in a racially discriminatory manner against immigrants.
In the 1880s, many Chinese citizens immigrated to the
Western United States and opened small businesses. A
San Francisco ordinance gave the San Francisco Board
of Supervisors the power to oversee and authorize the
opening and maintenance of laundromats, particularly
laundromats in wooden buildings. Although the ordinance
was not discriminatory on its face, the custom of the Board
of Supervisors was to deny laundry permits to Chinese
laundry shop owners. The Supreme Court held in Yick Wo
v. Hopkins that the arbitrary and discriminatory practices
of the Board of Supervisors, effectively barring Chinese
immigrants from the entire profession of owning and
operating laundromats, constituted racial discrimination and
therefore infringed upon the Constitutional rights of Chinese
immigrant applicants.76 The court noted that, “[t]he rights
of the petitioners . . . are not less because they are aliens
and subjects of the emperor of China.”77 Reflecting upon
protections ensured by the Constitution, in invalidating the
local ordinance, the Supreme Court stated:
[I]f, by an ordinance general in its ter ms
and form, like the one in question, by
reserving an arbitrary discretion in the
enacting body to grant or deny permission
to engage in a proper and necessary calling,
a discrimination against any class can be
made in its execution, thereby evading and
in effect nullifying the provisions of the
national constitution, then the insertion of
provisions to guard the rights of every class
and person in that instrument was a vain
and futile act.78
In invalidating the San Francisco ordinance, the court
held that the Equal Protection clause applied universally
to all people, without regard to race, color, or nationality.79
Indeed, the Supreme Court recently reinforced the notion
that laws based on alienage or immigration status be subject
to a higher level of judicial scrutiny.80 As such, “the power
of a state to apply its laws exclusively to its alien inhabitants
as a class is confined within narrow limits.”81
b. Confusion, Abridgement and Reinforcement of Immigrants’
Rights
In the years since Yick Wo, Constitutional rights
afforded to immig rants have been substantially abridged.
Indeed, as the court in Mathews v. Diaz noted, “[i]n the exercise
of its broad power over naturalization and immigration,
Congress regularly makes r ules that would be unacceptable
if applied to citizens.”82
In 1904, John Turner, an Irish citizen and immigrant
to the United States, filed a writ of habeas corpus after
his detention and the commencement of deportation
proceedings. Turner was a self-proclaimed anarchist, and
the 1903 Act to Regulate the Immigration of Aliens into
the United States prohibited anarchists from entering the
country.83 Many later courts have co-opted one famous
line of dicta from Turner, in order to further deny rights to
immigrants: “[An alien] does not become one of the people
to whom these things are secured by our Constitution by
an attempt to enter, forbidden by law.”84 The Supreme
Court held that the 1903 Act was not an unconstitutional
abridgment of First Amendment rights; the First
Amendment’s guarantee of free speech did not extend to an
alien anarchist, particularly when his entry into the country
was prohibited by an act of Cong ress.85
Similarly, in 1945, an Australian citizen and
immigrant to the United States filed a writ of habeas corpus
THE MODERN AMERICAN
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appealing his detention and imminent deportation after he
was determined to be affiliated with the Communist party in
violation of an amendment to the Immigration Act of 1917.86
Unlike Turner, however, the court determined that Bridges’
“isolated instances”87 of affiliation with the Communist party
did not necessitate his immediate deportation. Somewhat
confusingly, the court asserted that aliens residing within
the United States are afforded Constitutional protections of
freedom of speech and freedom of press.88 In reversing
the Circuit court’s dismissal of Bridges’ habeas petition, the
court reiterated that,
although deportation technically is not
criminal punishment . . . it may nevertheless
visit as great a hardship as the deprivation
of the right to pursue a vocation or a
calling. . . . As stated by Mr. Justice Brandeis
. . . deportation may result in the loss ‘of all
that makes life worth living’.89
As such, procedures involving such a deprivation must
“meet the essential standards of fairness.”90 The court
determined that the lower courts misconstrued the definition
of “affiliation” when considering Bridges’ relationship to
the communist party, and therefore his detention under the
deportation order was indeed unlawful. In his concurring
opinion, Justice Murphy remarked famously upon the
importance of safeguarding Constitutional rights:
The record in this case will stand forever as
a monument to man’s intolerance of man.
Seldom if ever in the history of this nation
has there been such a concentrated and
relentless crusade to deport an individual
because he dared to exercise the freedom that
belongs to him as a human being and that is
guaranteed to him by the Constitution.91 .
. . [T]he Constitution has been more than
a silent, anemic witness to this proceeding.
It has not stood idly by while one of its
subjects is being excommunicated from
this nation without the slightest proof
that his presence constitutes a clear and
present danger to the public welfare. Nor
has it remained aloof while this individual
is being deported, resulting in the loss
‘of all that makes life worth living,’ . . . .
When the immutable freedoms guaranteed
by the Bill of Rights have been so openly
and concededly ignored, the full wrath of
constitutional condemnation descends
upon the action taken by the Government.
And only by expressing that wrath can we
give form and substance to ‘the great, the
indispensable democratic freedoms,’ to
which this nation is dedicated.92
Although seemingly progressive and forward-
thinking, Justice Murphy’s remarks have been used to both
bolster the rights of lawfully present immigrants, and to deny
Constitutional rights to undocumented immigrants. Justice
Murphy recognized the limitations of the Constitution,
noting that “[s]ince an alien obviously brings with him no
constitutional rights,” Congress may enact laws excluding
him or her as it sees fit.93 Murphy reasoned, “once an
alien lawfully enters and resides in this country he becomes
invested with the rights guaranteed by the Constitution to
all people within our borders . . . [including] the First and
the Fifth Amendments and by the due process clause of the
Fourteenth Amendment.”94
In 1982, the Supreme Court seemingly defied earlier
case law regarding the Constitutional rights of immigrants
when it found valid a California statute requiring United
States citizenship for employment as a government officer.
The court explained that,
[t]he exclusion of aliens from basic
governmental processes is not a deficiency
in the democratic system but a necessary
consequence of the community’s process
of political self-definition. Self-government
. . . begins by defining the scope of the
community of the governed and thus of the
governors as well: Aliens are by definition
those outside of this community.95
The exclusion of aliens from the definition of community
stands in contrast to prior declarations that aliens are
included within the definition of “people” protected under
the Constitution.96
Diverging interpretations of whether immigrants
should be afforded Constitutional protections continue to
result in differing and sometimes conflicting case law. A
recent local case in a Virginia circuit court held that an
undocumented immig rant was barred from bringing a
workers’ compensation claim against his employer.97 The
court determined that, although Virginia code defined
“employee” as “every person, including aliens and minors, in
the service of another under any contract of hire . . . whether
lawfully or unlawfully employed[,]” an undocumented
immigrant could not be included in that definition “without
subverting federal immigration policy.”98 Relief like worker’s
compensation “is foreclosed by federal immigration policy,
as expressed by Congress in the Immigration Reform and
SPRING 2011 27
Control Act of 1986.”99
Looking back, the Plyler decision may have been
either an aberration on a historical tradition of denying
rights to immigrants, or it may be a turning point towards
broader assurance of rights for aliens in the United States.
While some immigrants are afforded Constitutional and
other legal protections, others are excluded due to various
interpretations of “person,” “people,” “employee,” and
even “immigrant.” Still, precedent set by Plyler assures that
all immigrants (documented and undocumented alike) are
protected by the Equal Protection clause. Considering both
the broad power of Congress with respect to immigration,
and the rights that immigrants maintain under the
Constitution, is Secure Communities a permissible exercise
of government power?
III. Secure Communities: An Equal Protection
Analysis
A law violates the Equal Protection clause when
it denies a benefit to a discrete class of people while it is
afforded to others similarly situated. In analyzing the
constitutionality of a law under Equal Protection, a court
will first deter mine what level of scrutiny must be applied.
A law is presumed valid unless a challenger shows that the
law in question falls within exceptions to this presumption:
if the law infringes upon a fundamental right; if the law
distorts the political process; if the law targets a racial or
religious minority; or if the law targets another “discrete
and insular minority.100
The next step in an Equal Protection analysis is
discerning whether the law seeks to achieve a permissible
government purpose. If the purported goal of the law is
impermissible, it fails an Equal Protection review, and is
unconstitutional. However, the actual purpose of a law
may differ from its purported goal. If the actual purpose
of a law is impermissible, it also fails an Equal Protection
review, and is unconstitutional. If the government purpose
is legitimate, the final step is to determine whether the law is
related to the achievement of its g oal.
a. What Level of Scrutiny Should be Applied?
For the purposes of an Equal Protection challenge,
a law is presumed valid, and subject to rational basis review,
unless a challenger can show either that the benefit denied
is a fundamental right, or that individuals denied the benefit
are part of a discrete or suspect class.101 If the benefit denied
is a fundamental right, the court will review the questionable
law or practice with strict scrutiny. If the law discriminately
affords the benefit, and denies it to a group of individuals
on the basis of race or religion, the court similarly applies
strict scrutiny review. However, if the law denies a benefit
on the basis of legitimate differences between differentiated
classes, or the characteristic upon which the discrimination
is based is not an immutable characteristic, the court
may apply an intermediate level of review, less stringent
than strict scrutiny, but more stringent than rational basis
review.102 Although discrimination on the basis of race
103 and national origin are afforded strict scrutiny review,
discrimination on the basis of immigration status is analyzed
under intermediate scrutiny.104 Immigration status is largely
considered a voluntary condition, and therefore not an
immutable characteristic.105 Still, immigrants are a discrete
and vulnerable class, and often the target of discrimination.
While laws analyzed under rational basis review are given
much deference, and only rarely overturned, laws evaluated
under intermediate review or strict scrutiny are subject to a
higher standard; as such, they are examined more critically
to determine if the discrimination in question is sufficiently
invidious to be deemed unconstitutional.
According to Plyler, although immigrants are a
discrete class of individuals, and frequently discriminated
against, their status is at least partly voluntary (and not
immutable); therefore, their Equal Protection claim may
be subject to an inter mediate level of scrutiny. One could
argue that the immigration status of most undocumented
immigrants is involuntary because there are few and near-
impossible leg al avenues for an undocumented immigrant
to adjust his/her status. Furthermore, many individuals
faced with poverty, political persecution, or gang violence
in their home country, feel as though they have no choice
but to immigrate to the United States. Still, some would
argue that, albeit an unappealing choice between remaining
in the United States undocumented or retur ning to one’s
country of origin, the fact that an individual chooses to
remain in the United States without documentation is
evidence of his/her voluntarily determined status; therefore
an Equal Protection claim would require an analysis under
intermediate scrutiny.
b. Permissible Government Pur pose
i. Purported Purpose
Does the Secure Communities program seek to
achieve a permissible g overnment g oal? ICE’s purported
goals of Secure Communities are to identify aliens in law
enforcement custody, prioritize apprehending and removing
criminal aliens who pose the greatest threat to public safety,
and efficiently identify, process and remove criminal aliens
from the United States.106
First, identifying aliens in law enforcement
custody may be problematic. Although deportation was
THE MODERN AMERICAN
28
always considered a civil penalty, the current process and
consequences of deportation make the reality of deportation
more like criminal punishment.107 If deportation is more akin
to a criminal punishment, aliens in custody should be given
proper due process, including notice, an opportunity to be
heard, and an opportunity to contest charges against them,
before punishment is exacted. Identifying, apprehending
and removing criminal aliens from the United States may
be a permissible goal for the federal government, but is it
a permissible responsibility for localities? Surely efficiency
in the process of identifying and removing criminal
aliens should be a permissible government goal, but is it
permissible to delegate this power to localities, and require
locality compliance? It is likely permissible if localities opt-
in to the program on their own accord, but ICE expects to
have the Secure Communities program in effect nation-wide
by 2013.108 Requiring states and localities to enforce federal
law is a violation of the Tenth Amendment.109 If Secure
Communities defies the Tenth Amendment by unlawfully
forcing state participation in the enforcement of federal
law, it will have an impermissible goal and will consequently
violate Equal Protection principles as well.
ii. Actual Purpose
Where a facially-neutral law has a dubiously
impermissible actual purpose, the court will take into account
the actual purpose in analyzing whether the law violates the
Equal Protection clause. However, the court most often
defers to decisions of the legislature where the level of
scrutiny is not heightened.110 If the impermissible outcome
of the law is simply an unintended effect, a law may not
necessarily be invalidated for having an impermissible
purpose. However, if the court determines that a law has
an impermissible intended purpose, despite being facially
neutral, the court may invalidate it for violating Equal
Protection.111
ICE maintains that the actual purpose of Secure
Communities is to ensure community safety by removing
dangerous criminal aliens. However, ICE’s own statistics
show that the majority of those identified and removed
through Secure Communities have been Level 2 and Level
3 offenders.112 Indeed, only 8-10% of those identified
through the program are Level 1 offenders, those specifically
targeted as dangerous and high-risk threats. Interestingly,
the number of Level 1 offenders is only slightly higher than
the number of U.S. citizens who are identified as a “hit”
through the Secure Communities program (5%).113
Specific data on the race and national origin
of individuals identified and deported through Secure
Communities is seriously lacking, and is the subject of both
FOIA investigations and complaints.114 If this specific data
were published, it may very likely show that the overwhelming
majority of individuals identified through the program are
Latino. Although the program does not overtly require
discrimination on the basis of race, its intended effect is to
remove as many Latino immigrants from the United States
as possible. If this were the case, the program would fail an
Equal Protection challenge, for promoting an impermissible
government objective.
c. Ends and Means Nexus
i. How Closely Should the Program Fit its
Purported Goals?
Assuming that an analyzing court determines that
the purpose of the Secure Communities program is not
dubious, but rather a permissible government goal, how
broad or narrow must be program be tailored to remain
constitutionally valid under Equal Protection? Under a
rational basis review, a law challenged under Equal Protection
must be rationally related to a legitimate government purpose.
It is unlikely that Secure Communities, a program highly
contested for its overwhelming reliance on racial profiling,
would be subject to such a low level of constitutional review.
If Secure Communities were analyzed under rational basis
review, because the court pays high deference to existing
laws and administrative programs, Secure Communities
would likely be found constitutionally permissible.
Under strict scrutiny review, a challenged program
is presumed invalid. In order to remain valid, the prog ram
must be necessary to achieve a compelling government
purpose. Under intermediate scrutiny review, a challenged
program must be narrowly tailored to achieve an important
government goal. If ICE’s important government goal
is prioritizing the identification and removal of criminal
aliens, it may need to clarify the definition of a “criminal
alien.” If violating a civil immigration law is not a crime,
undocumented aliens who have never been convicted
of criminal offenses would not be “criminal aliens,” and
therefore would not be reached by the Secure Communities
program. If this is the case, the fact that some non-criminal
undocumented workers have been removed under the Secure
Communities program may constitute prima facie evidence
that the government’s program is not sufficiently tailored
to meet its goal. It is unlawfully over-inclusive, catching
in its net far more individuals than it purports to identify
and deport. If the program is too broad in attempting to
achieve its purported goal, it may be an unconstitutional
violation of Equal Protection.
ii. Negative Externalities and Policy Concern
SPRING 2011 29
If the goal of Secure Communities is to promote
safety, it is deeply and ironically flawed since a troubling
consequence of Secure Communities is its profound chilling
effect on immigrants with respect to reporting crimes.
Concerned about their potential vulnerability to inquiries
about immigration status, fewer immigrants who are crime
witnesses or victims will come forward to the authorities.115
Increased reluctance to report criminal activity can only
result in insecure communities, where criminals remain free
to commit more crimes.
Additionally, although ICE admitted that 5% of
individuals identified through the Program are U.S. citizens,
it never mentioned how many of those identified were
Lawful Permanent Residents. ICE’s data fails to include
how often U.S. Citizens or Lawful Permanent Residents
were arrested, fingerprinted, identified, and detained by
ICE as a result of Secure Communities. The Supreme
Court cautioned against imposing substantial burdens on
lawful immig rants, because “our traditional policy [is] not
treating aliens as a thing apart.”116 Highlighting Congress’s
role in specifically regulating immig ration, the Cour t held
that the purpose of immigration regulation is to “protect
the personal liberties of law-abiding aliens . . . and to leave
them free from the possibility of inquisitorial practices
and police surveillance.”117 Because Secure Communities
effectively facilitates removals for many individuals who,
though arrested and fingerprinted, have never have been
convicted of a crime, the Program inherently stands in stark
contrast to the Supreme Court’s mandate of leaving law-
abiding aliens free from invasive police practices.
Furthermore, the Secure Communities program
relies heavily on racial profiling to achieve its goal of
identifying and removing alien immigrants. The practice of
racial profiling alone is problematic because it perpetuates
negative stereotypes and bias-related crime against
individuals on the basis of their skin color. Further more,
it makes already-vulnerable groups even more vulnerable to
discrimination and socio-economic oppression. It reinforces
despicable notions of inferiority, and deeply offends the
dignity of people of color, regarding both an individual’s
sense of self-worth and the presumptive social value of
such and individual in the community.118 As Justice Murphy
remarked in his dissent in Korematsu v. United States,
giv[ing] constitutional sanction to that
inference [that race could be used as a
proxy for criminal suspicion] . . . is to adopt
one of the cruelest of the rationales used
by our enemies to destroy the dignity of
the individual and to encourage and open
the door to discriminatory actions ag ainst
other minority groups in the passions of
tomorrow.119
More recently, Justice Goldberg, reflecting upon the
Civil Rights Act of 1964, emphasized the importance of
protecting the dignity of individuals discriminated against
on the basis of race: “Discrimination is not simply dollars
and cents, hamburgers and movies; it is the humiliation,
frustration, and embarrassment that a person must surely
feel when he is told that he is unacceptable as a member of
the public because of his race or color.”120
Governmental utilization of racial profiling
programs serves to ag gravate these issues. Condoning
racial profiling tactics is not only unethical, but may soon
be explicitly unlawful as well.121 Considering the multitude
of negative externalities of Secure Communities program,
Congress must specifically address the prog ram, and local
governments must reconsider their involvement in the
enforcement of federal immigration law.
IV. The Future of Secure Communities
a. Litigation Against Secure Communities
In February 2010, the National Day Laborer
Organizing Network, Center for Constitutional Rights, and
Immigration Justice Clinic of the Benjamin N. Cardozo
School of Law (the “Network”) filed a Freedom of
Information Act (FOIA) request, to obtain data related to
the two-year old Secure Communities program.122 In late
April 2010, they commenced a lawsuit against ICE, DHS,
Executive Office for Immigration Review, the FBI, and
the Office of Legal Counsel, for failing to release agency
records under the Freedom of Information Act.123 After
much delay, ICE and DHS reluctantly disclosed information
about the Secure Communities prog ram, confirming what
advocates at the Network feared: the Program functions
as a “dragnet,” funneling individuals into a highly flawed
detention and removal system; 79% of those caught in
the Program’s net are not criminals or were picked up for
minor offenses; the Program serves as a smokescreen for
racial profiling, allowing police officers to make arrests that
could lead to deportations, rather than to convictions; and
although the Program is not mandator y, there is no clear
opt-out procedure.124 Although ICE complied with FOIA
requests, many of the questionable practices inherent in
Secure Communities remain. As such, it is likely that the
Network, or other like-minded advocacy organizations, will
continue to pursue litigation against ICE to remedy these
issues.
THE MODERN AMERICAN
30
  
If Arizona’s SB 1070 withstands Constitutional
scrutiny, it may provide a dangerous foundation for racial
profiling and the expansion of Secure Communities. Like
Secure Communities, Arizona’s recent anti-immigration bill
has been the subject of much political debate. Both programs
involve delegating significant responsibility to unsupervised
local law enforcement officers, which implicates a grave
potential for racial profiling tactics to be tacitly enacted in
day-to-day policing.
The most prominent argument in the Federal
Government’s case against the State of Arizona regarding
Arizona’s anti-immigration law, SB 1070, is that the state
impermissibly attempts to preempt an area of law specifically
reserved for the Federal Government. Control over
immigration policy and enforcement, a clear responsibility
of the Federal Government,125 is reinforced by the Tenth
Amendment.126 However, considering the proliferation
of ICE programs that delegate significant power in
immigration enforcement to localities, this argument may
no longer be persuasive. Arizona District Court Judge
Bolton granted a preliminary injunction against SB1070,127
concurring with the Federal Government’s argument that
Arizona unlawfully attempted to preempt Federal law, but
in the absence of clear Congressional discussion of ICE’s
current programs, and authority to delegate the power
of immigration enforcement, the Secure Communities
program may similarly be found to be an impermissible co-
opting of Federal authority. Further more, ICE’s attempt to
delegate its clearly federal responsibility to state and local
governments may violate the Tenth Amendment.128
  
 
Legislative efforts to end discrimination are evident
in HR 5748, also known as the End Racial Profiling Act
of 2010. The bill, introduced in Congress in July of 2010,
seeks to eliminate racial profiling by law enforcement by
giving individual victims of racial profiling a private right
of action to sue; by creating a disparate impact private
right of action; by requiring the Attorney General’s
oversight; and by requiring data collection and publication,
allowing the public to provide external oversight.129
If passed, this bill has the potential to change the
current state of immigration enforcement radically, and
ensure the liberty and dignity of all citizens, immigrants,
residents and visitors to the United States. Granting
individual victims of racial profiling a private right of
action to sue would force ICE and local law enforcement
to exercise discretion and care in routine practices. Rather
than receiving measly declarative relief, victims may finally
witness unlawful government action being judicially
sanctioned. Rather than receiving apologies, victims would
receive financial compensation. Additionally, allowing
a disparate impact private right of action ensures that
facially-neutral, or even unintentional discrimination is
avoided. Perhaps most significantly, the bill would require
agencies like ICE to regularly publish data to show how its
program functions, and whether it is achieving its goals.
Making such data available to the public would force ICE
to be responsible for the way in which its programs are
executed. It would better equip advocacy organizations
to ensure that civil rights are not violated. The bill would
require steadfast and dedicated oversight to ensure that
racial profiling be eradicated. Still, although this bill would
deeply de-claw some of the problematic aspects of the
Secure Communities program, it would not rectify all of its
injustices.
 
Rather than engaging in complicated, ad-hoc, non-
congressionally authorized, federal-local collaborations
to identify and deport all undocumented immigrants, the
Federal government needs to re-examine and reinstate
comprehensive immigration reform, including just and fair
immigration enforcement. This reform should consider
 individuals come into the United States illegally. As
experts at the Migration Policy Institute point out, “our
immigration laws provide inadequate legal avenues to enter
the United States for employment purposes at levels that
our economy demands.”130
By issuing visas like the H1-A and H1-B, U.S.
Customs and Immigration Services grants temporar y
legal status to immigrants coming to work in the United
States. Unfortunately, the government offers only 66,000
visas to individuals coming to work in low-skilled, non-
agricultural settings inside the United States; this number
falls grossly below the number of people interested, and
actually performing this work.131 If the U.S. issued 
visas to low-skilled workers, more people would follow
legal avenues to obtain employment here. Furthermore,
because applying for and obtaining visas through family
members take many immigrants nearly a decade,132 there
is little incentive to follow government rules. Rather,
as experts note, immigrants and their employers follow
market rules.133
Indeed, changes in immigration enforcement
are an empty and fool-hardy attempt to solve what
is a tremendously decisive issue to all sides of the
contemporary political debate. Before reforming
immigration enforcement, the federal government
SPRING 2011 31
first needs to address much-needed reforms to federal
immigration policy.
e. Local Advocacy Efforts Against Secure Communities
Rights Working Group (RWG) a group of
hundreds of progressive local, state and national
organizations, committed to protecting civil liberties and
human rights, spearheads two campaigns closely tied to
addressing and reforming recent changes in immigration
enforcement: Face the Truth (addressing racial profiling),
and Hold DHS Accountable (urging President Obama to
issue a moratorium on current immigration enforcement
policies that deny due process). In addition to supporting
pending legislation by the Network and the Center for
Constitutional Rights, RWG also worked closely with
Virginia-based attorneys in Arlington to investigate the
possibility of Arlington opting-out of the state-mandated
Secure Communities program. After Secretary Napolitano
announced to Congress that jurisdictions could opt-out,
the Arlington County Board voted to officially withdraw
from participating in the program, despite Virginia’s state-
wide activation of Secure Communities.134 Despite this
seemingly successful event, the outcome of which remains
vague, Secure Communities continues to spread rapidly
across the country.
Conclusion
In the wake of Virginia Attor ney General Ken
Cuccinelli’s recent opinion, authorizing law enforcement to
check the immigration status of anyone stopped by police
officers for any reason, it is likely that local immigration
enforcement policies will be thrust further into the center
of political debate.135
Is Secure Communities Constitutional? Probably
not. The Supreme Court has held and reaffirmed that
immigrants constitute a discrete class of individuals,
worthy of at least an intermediate standard of review in an
Equal Protection claim. The program relies substantially
on racial profiling, and laws enabling or condoning racial
classifications are always strictly scrutinized by a reviewing
court. Considering the heightened level of scrutiny to
be applied, the program certainly is not narrowly tailored
enough to warrant deference. ICE’s own data proves
that Secure Communities broadly overreaches its goal
of identifying and removing dangerous criminal aliens;
nearly 80% of the immigrants removed through Secure
Communities since 2008 were neither dangerous, nor
criminals.
Too many people get caught up in popular
political fervor, repeating uninformed rhetoric without
fully considering the realities of the debate. Despite our
embarrassing history of slavery, oppression and racism,
the United States has a strong history of protecting the
disenfranchised, impoverished, and vulnerable from
tyranny of an unrelenting majority.136 This nation was
founded upon the premise that all individuals, even the
politically unpopular, are free from persecution, and
afforded due process and equal protection of the laws.
However contentious this debate may be, considering the
high stakes of constitutional and human rights violations
at hand, legal advocacy cannot wait.
1 Rachel Zoghlin is a second-year student at American
University Washington College of Law. She is a graduate
of Vassar College, and is involved in immigrant advocacy
through her work with the UNROW Human Rights Impact
Litigation Clinic (litigating on behalf of a derivative U.S.
citizen in ICE custody) and the Central American Resource
Center (CARECEN) (assisting clients filing various visa
petitions and applications for Temporary Protected
Status). She extends a special thanks to TMA Editor-in-
Chief Richael Faithful for her thoughtful advice and support
in the creation and evolution of this piece.
2 Secure Communities Now Activated in All Virginia Counties,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (June
21, 2010) http://www.ice.gov/news/releases/1006/
100621washington.htm.
3 Arizona Immigration Debate Heats up in D.C. Area, WTOP
(June 3, 2010) http://www.wtop.com
/?nid=596&sid=1971895.
4 See, e.g., Jennifer Buske, Suit Won’t Deter Pr. William
Leader’s Immigration Law Push, WASH. POST, (July 11,
2010), http://www.washingtonpost.com/wp-dyn/
content/article/2010/07/09/AR2010070905518.html
(supporting controversial immigration laws in Prince
William County, Virginia); Secure Communities Program
(Nov. 8, 2010), http://www.arlingtonva.us/departments/
Communications/page77334.aspx (explaining Arlington’s
role with respect to the Secure Communities program in
Virginia).
5 Fingerprints Misused to Deport Immigrants?, CBS NEWS/
ASSOCIATED PRESS (Aug. 10, 2010), http://www.
cbsnews.com/stories/2010/08/10/politics/main6759493.
shtml.
6 Secure Communities, National Immigration Forum, (Aug. 4,
2010) http://www.immigrationforum.org/
images/uploads/Secure_Communities.pdf.
Endnotes
THE MODERN AMERICAN
32
7 De Cana v. Bica, 424 U.S. 351, 354-55 (1976).
8  Henderson v. Mayor of New York, 92 U.S. 259, 272-74
(1875) (holding that “[we] are of the opinion that this whole
subject (immigration) has been confided to Congress by the
Constitution; that Congress can more appropriately and with
more acceptance exercise it than any other body known to
our law, state or national; that by providing a system of laws
in these matters, applicable to all ports and to all vessels,
a serious question, which has long been matter of contest
and complaint, may be effectually and satisfactorily settled.).
 Hines v. Davidowitz, 312 U.S. 52, 62 (1941) (citing
Article VI of the Constitution to illustrate that “[w]hen the
national government by treaty or statute has established rules
and regulations touching the rights, privileges, obligations
or burdens of aliens as such, the treaty or statute is the
supreme law of the land.”).
9 Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419
(1948) (citation omitted).
10 United States v. Arizona, No. CV 10-1413-PHX-SRB,
2010 WL 2926157, at *22 (D. Ariz. July 28, 2010).
11 Steven A. Camarot & Karen Jensenius,  
      , CENTER FOR
IMMIGRATION STUDIES (July 2009),   http://www.
cis.org/IllegalImmigration-ShiftingTide.
12 Immigration and Customs Enforcement (ICE) (Aug. 12,
2010), http://www.ice.gov/about/index.htm.
13 Illegal Immigration Reform and Immigrant Responsibility
Act , Pub. L. 104-208, 110 Stat. 3009 (1996).
14     
  , IMMIGRATION AND CUSTOMS
ENFORCEMENT, www.ice.gov/about/offices/leadership/
osltc/.
15 Anne B. Chandler, 
 , 15 TULSA
J. COMP. & INTL L. 209, 213 (2008).
16  at 219-20.
17 
18 ACLU Immigrants’ Rights Project, (Sept. 6, 2005), http://
www.aclu.org/FilesPDFs/ACF3189.pdf
19 Chandler,  note 15, at 216-17.
20 ,  note 6.
21 
22
23 
24 Interview with Margaret Huang, Executive Director,
Rights Working Group, in Washington D.C. (July 28, 2010).
25      ,U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT 5 (Apr. 29,
2010), http://www.ice.gov/pi/news/factsheets/secure_
communities-facts.htm;    , U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT 7 (Aug. 27, 2010),
http://www.ice.gov/
doclib/foia/secure_communities/securecommunitiesprese
ntations.pdf.
26     , IMMIGRATION POLICY
CENTER (Nov. 4, 2010), http://immigrationpolicy.org/
just-facts/secure-communities-fact-sheet.
27   ,  note 25; Interview
with Margaret Huang,  note 24.
28 ,  note 25,
29     , U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT (Apr. 29, 2010), http://www.ice.
gov/pi/news/factsheets/secure_communities-facts.htm.
30        

     ,
HOMELAND SECURITY (Nov. 12, 1999), http://www.dhs.gov/
ynews/releases/pr_1258044387591.shtm.
31 , NATIONAL IMMIGRATION FORUM, (Aug.
4, 2010), http://www.immigrationforum.org/
images/uploads/Secure_Communities.pdf.
32 Andrew Becker, 
   CALIFORNIA WATCH (Feb. 17, 2010),
http://californiawatch.org/watchblog/federal-program-
deport-criminal-immigrants-expands-california.
33 Daniel Denvir,     
 , SALON (July 17, 2010), http://www.salon.
com/news/feature/2010/07/16/immigration_safe_
communities_obama/index.html.
34  , U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT (Aug. 3, 2010), www.ice.gov/doclib/news/
library/factsheets/pdf/sc-central.pdf.
35  , U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT (Sept. 28, 2010), http://www.ice.gov/doclib/
secure_communities/pdf/sc_activated.pdf.
36        

 , U.S
IMMIGRATION AND CUSTOMS ENFORCEMENT (Nov. 12, 1999),
http://www.dhs.gov/ynews/releases/pr_1258044387591.
shtm.
37 note 35
38    , IMMIGRATION
POLICY CENTER (Nov. 4, 2010), http://immigrationpolicy.
org/just-facts/secure-communities-fact-sheet; 
, NATIONAL IMMIGRATION FORUM (Aug. 4, 2010),
http://www.immigrationforum.org/images/uploads/
Secure_Communities.pdf.
39 , Padilla v. Kentucky, 130 S. Ct.1473, 1481 (2010)
(explaining that “[a]lthough removal proceedings are civil in
nature . . . de portation is nevertheless intimately related to
the criminal process.”); I.N.S. v. St. Cyr, 533 U.S. 289, 323
(2001) (quoting 3 Bender, Criminal Defense Techniques §§
60A.01, 60A.02[2] (1999), “Preserving the client’s right to
SPRING 2011 33
remain in the United States may be more important to the
client than any potential jail sentence.”).
40 Janice Kephart, 
, CENTER FOR IMMIGRATION STUDIES (Oct. 3,
2010), http://www.cis.org/kephart/hatch-bill.
41 ;   Janice Kephart, 
    , CENTER
FOR IMMIGRATION STUDIES, (Nov., 2009), http://cis.org/exit-
tracking.
42 Chandler,  note 15, at 240-41.
43 Janice Kephart, 
, CENTER FOR IMMIGRATION STUDIES (Oct. 3,
2010), http://www.cis.org/kephart/hatch-bill.
44 Ivan Moreno, ,
ASSOCIATED PRESS (July 26, 2010), abcnews.go.com/US/
wireStory?id=11253152.
45  
 (Mar. 9, 2009), http://www.fairfaxcounty.gov/
sheriff/news/ice.htm.
46 
47 Elise Foley,      
, THE WASH. INDEPENDENT, July 19, 2010, http://
washingtonindependent.com/91924/where-should-we-
house-secure-communities-detainees.
48 Kevin Sieff,    
 , WASH. POST, July 18, 2010, 
 http://www.washingtonpost.com/wpdyn/content/
article/2010/07/17/AR2010071701416.
html?hpid=moreheadlines.
49 Chris Burbank, Phillip Atiba Goff & Dr. Tracie L. Keesee,
, THE HUFFINGTON
POST, (June 7, 2010), http://www.huffingtonpost.com/
chief-chris-burbank/policing-immigration-a-jo_b_602439.
html .
50  , ARLINGTON COUNTY (Aug.
5, 2010), http://www.arlingtonva.us
/departments/Communications/page77334.aspx
(attempting to clarify its participation in the Secure
Communities Program and to answer its residents’ frequently
asked questions, Arlington County has published a news
alert on its website).
51 Denvir,  note 18.
52 
53 Letter from Janet Napolitano, U.S Secretary of Homeland
Security, to Zoe Logfren, Chairwoman Subcomm. On
Immigration, Citizenship, Refugee, Border Sec. & Int’l.
Law (Sept. 8, 2010) (on file with author),  http://
crocodoc.com/yzmmKP.
54 Rebecca A. Cooper,    
 , TBD (Nov. 5, 2010), http://www.
tbd.com/blogs/tbd-neighborhoods/2010/11/ice-vetoes-
arlington-s-withrawal-from-secure-communities-4263.html.
55          (May 18,
2010), http://uncoverthetruth.org/wp-content/uploads/
Microsoft-Word-Secure-communities-BOS-Resolution-5-
18-10-draft9.pdf.
56  
, OFFICE OF THE ATTORNEY GENERAL OF
CALIFORNIA (May 25, 2010), http://ag.ca.gov/newsalerts/
release.php?id=1925&.
57       
        
, COMMON DREAMS (Sept. 1, 2010), http://www.
commondreams.org/newswire/2010/09/01-8.
58 
59 Interview with Margaret Huang,  note 24.
60  the September 1st notice from ICE that local
jurisdictions could opt-out, and the September 8th letter
from Secretary of Homeland Security Janet Napolitano
outlining opt-out procedures. Res. of S. F.of Supervisors
(May 18, 2010), http://uncoverthetruth.org/wp-content/
uploads/Microsoft-Word-Secure-communities-BOS-
Resolution-5-18-10-draft9.pdf; Letter from Ronald Weich,
U.S Assistant Attorney Gen., to Zoe Logfren, Chairwoman
Subcomm. On Immig ration, Citizenship, Refugee, Border
Sec. & Int’l. Law (Sept. 8, 2010) (on file with author), 
 http://crocodoc.com/yzmmKP.
61  
, ARLNOW, Sept. 28, 2010, http://www.arlnow.
com/2010/09/28/breaking-news-county-board-votes-to-
withdraw-from-immigration-enforcement-program/.
62 Shankar Vedantam,  
 , WASH. POST , Sept. 30,
2010, http://www.washingtonpost.com/wpdyn/content/
story/2010/09/30/
ST2010093007299.html.
63 Dena Potter, ,
ASSOCIATED PRESS, Oct. 8, 2010, http://www.salon.com/
wires/us/2010/10/08/D9INP8980_us_immigration_
fingerprints/index.html.
64 
65  Cooper,  note 54.
66  United States v. Esparza-Mendoza, 265 F. Supp. 2d
1254, 1267 (N.D. Utah 2003) (citing In re Opinion of
Justices, 7 Mass. 523, 1811 WL 1136 (1811); Elkin v. Deshler,
25 N.J.L. 177, 186 (1855) (opinion of Haines, J.)).
67 Yick Wo v. Hopkins, 118 U.S. 356, 371 (1886).
68 United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254,
1267 (N.D. Utah 2003) (citing Minor v. Happersett, 21 Wall.
162, 22 L.Ed. 627 (1875)).
69  at 1268 (N.D. Utah 2003) (citing Leon E. Aylsworth, 
 , 25 Am. Pol. Sci. Rev. 114 (1931)).
70 Plyler v. Doe, 457 U.S. 202, 230 (1982).
71  at 205.
THE MODERN AMERICAN
34
72  at 230.
73 U.S. Const. amend. XIV.
74 , 457 U.S. at 210.
75  at 209-10.
76 Yick Wo v. Hopkins, 118 U.S. 356, 362 (1886).
77  at 368.
78  at 362.
79  at 369.
80  Graham v. Richardson, 403 U.S. 365, 371-72 (1971)
(citing United States v. Carolene Prod. Co., 304 U.S. 144,
152-153, n. 4 (1938)) (holding that “classifications based on
alienage, like those based on nationality or race, are inherently
suspect and subject to close judicial scrutiny. Aliens as a class
are a prime example of a ‘discrete and insular’ minority for
whom such heightened judicial solicitude is appropriate.”).
81 Torao Takahashi v. Fish & Game Comm’n, 334 U.S. 410,
420 (1948).
82 Mathews v. Diaz, 426 U.S. 67, 80 (1976).
83 U.S. ex rel. Turner v. Williams, 194 U.S. 279, 282, 284
(1904).
84  at 292.
85  at 284.
86 Bridges v. Wixon, 326 U.S. 135, 140 (1945).
87  at 144-45.
88  at 148 (citing Bridges v. California, 314 U.S. 252, 280
(1941))(holding that, although one of the petitioners was an
alien, editorials published in the newspapers were protected
by the First Amendment).
89  147 (citations omitted).
90  at 154.
91  at 157 (Murphy, J., concurring).
92  at 159-60 (Murphy, J., concurring) (citations omitted).
93  at 161 (Murphy, J., concurring) (citing Turner v.
Williams, 194 U.S. 279 (1904)).
94  (emphasis added).
95 Cabell v. Chavez-Salido, 454 U.S. 432, 440 (1982).
96 , Plyler v. Doe, 457 U.S. 202, 210 (1982).
97 Xinic v. Quick, No. 2004-226030, 2005 WL 3789231 (Va.
Cir.Ct. Nov. 14, 2005).
98  (citing Hoffman Plastic Compounds, Inc. v. N.L.R.B.,
535 U.S. 137, 140 (2002); Rios v. Ryan Inc. Central, 542
S.E.2d 790, 791 (Va.App., 2001)).
99 Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S.
137, 140 (2002).
100 United States v. Carolene Prod. Co., 304 U.S. 144, 152-
153, n. 4 (1938).
101 
102 , United States v. Virginia, 518 U.S. 515, 563 (1996)
(Rehnquist, J., concurring) (agreeing that the exclusion of
women from the Virginia Military Institute violated Equal
Protection, but explaining that “[h]ad Virginia made a
genuine effort to devote comparable public resources to a
facility for women, and followed through on such a plan, it
might well have avoided an equal protection violation.”).
103 Regents of Univ. of California v. Bakke, 438 U.S. 265,
290 (1978).
104 Plyler v. Doe, 457 U.S. 202, 218, n.16 (1982).
105  at 219, n.19.
106  , U.S IMMIGRATION & CUSTOMS
ENFORCEMENT (Aug. 5, 2010), http://www.ice.gov/
about/offices/enforcement-removal-operations/secure-
communities/index.htm.
107  Maureen A. Sweeney,     
   , 27 YALE J. ON
REG. 47, 51 (2010) (arguing that the doctrinal foundation for
the assertion that immigration removals are not punishment
for crime but rather remedial civil sanctions and collateral
consequences has disintegrated, and that changes in
immigration law have rendered removal for many crimes a
direct consequence of a defendant’s conviction).
108  , U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT (Aug. 13, 1999), http://www.ice.gov/
about/offices/enforcement-removal-operations/secure-
communities/index.htm.
109 Printz v. United States, 521 U.S. 898, 909 (1997)
(emphasizing that, “[n]ot only do the enactments of the early
Congresses . . . contain no evidence of an assumption that
the Federal Government may command the States’ executive
power in the absence of a particularized constitutional
authorization, they contain some indication of precisely the
opposite assumption.”).
110  , Minnesota v. Clover Leaf Creamery Co., 449
U.S. 456, 481-82 (1981); Nordlinger v. Hahn, 505 U.S. 1, 11
(1992).
111 , Allegheny Pittsburgh Coal Co. v. County Com’n
of Webster County, 488 U.S. 336, 344 (1989) (citing Brown-
Forman Co. v. Kentucky, 217 U.S. 563, 573 (1910)) (noting
that, “[i]f the selection or classification is neither capricious
nor arbitrary, and rests upon some reasonable consideration
of difference or policy, there is no denial of the equal
protection of the law.”)
112       

     ,
HOMELAND SECURITY (Nov. 12, 1999), http://www.dhs.gov/
ynews/releases/pr_1258044387591.shtm.
113 Stewart J. Lawrence,     
, ALTO ARIZONA,
(July 26, 2010), http://blog.altoarizona.com/blog/2010/07/
why-obamas-secure-communities-program-may-be-more-
dangerous-than-arizona.html.
114 National Day Laborer Organizing Network v. United
States Immigration and Customs Enforcement Agency, No.
10 CV 3488 (S.D. N.Y. filed Apr. 27, 2010); National Day
SPRING 2011 35


Laborer Organizing Network, Freedom of Information
Act Request, Center of Constitutional Rights (Feb. 3,
2010), http://ccrjustice.org/files/FOIA%20Request%20-
%20ICE%202.3.10%20-FINAL.pdf.
115  Ivan Moreno, ,
ASSOCIATED PRESS (July 26, 2010), http://abcnews.go.com/
US/wireStory?id=11253152.
116 Hines v. Davidowitz, 312 U.S. 52, 73 (1941).
117  at 74.
118 Christopher A. Bracey,    , 7 U.
PA. J. CONST. L. 669, 680 (2005).
119 Toyosaburo Korematsu v. United States, 323 U.S. 214,
240 (1944) (Murphy, J., dissenting).
120 Bracey,  note 118, at 698 (citing Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 291-92 (1964)
(Goldberg, J., concurring).
121 H.R. 5748, 111th Cong. (2010).
122 National Day Laborer Organizing Network, Freedom
of Information Act Request, Center of Constitutional
Rights (Feb. 3, 2010), http://ccrjustice.org/files/
FOIA%20Request%20-%20ICE%202.3.10%20-FINAL.
pdf.
123 National Day Laborer Organizing Network v. United
States Immigration and Customs Enforcement Agency, No.
10 CV 3488 (S.D. N.Y. filed Apr. 27, 2010).
124 Rights Groups Release Documents from U.S. Immigration
and Customs Enforcement (ICE) Agency FOIA Lawsuit, Aug.
10, 2010, http://ccrjustice.org/newsroom/press-releases/
rights-groups-release-documents-u.s.-immigration-and-
customs-enforcement-(ice)-agency-foia-lawsuit.
125 U.S. Const. art. I, § 8.
126 U.S. Const. amend. X.
127 United States v. Arizona, No. CV 10-1413-PHX-SRB,
2010 WL 2926157, at *22 (D. Ariz. July 28, 2010).
128 Printz v. United States, 521 U.S. 898, 909 (1997).
129 End Racial Profiling Act of 2010, H.R. 5748, 111th
Cong. (2010).
130 Doris Meissner and James W. Ziglar, 
 , WASH. POST, July 22, 2010,
  http://www.washingtonpost.com/wp-dyn/
content/article/2010/07/21/AR2010072104559.html
131 , U.S. CITIZENSHIP
AND IMMIGRATION SERVICES (Nov. 8, 2010), http://www.
uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66
f614176543f6d1a?vgnextoid=356b6c521eb97210VgnVCM
100000082ca60aRCRD&vgnextchannel=d1d333e5592742
10VgnVCM100000082ca60aRCRD.
132 , U.S.
DEPT. OF STATE, BUREAU OF CONSULAR A FFAIRS, http://travel.
state.gov/visa/bulletin/bulletin_5172.html (last visited
Oct.13, 2010) (noting that petitions for many categories of
immigrating family members from Mexico originally filed
in 1992 and 1995 will be current beginning in November
of 2010 for finalizing of applications and adjustment of
status).
133 Meissner & Ziglar,  note 130.
134 
, ARLN OW (Sept. 28, 2010), http://www.arlnow.
com/2010/09/28/breaking-news-county-board-votes-to-
withdraw-from-immigration-enforcement-program/.
135 Anita Kumar and Rosalind S. Helderman,  
      , WASH. POST,
Aug. 3, 2010, http://www.washingtonpost.com/wpdyn/
content/article/2010/08/02/AR2010080205229.
html?hpid%3Dtopnews&sub=AR.
136 James Madison, , DAILY ADVISER, Nov.
22, 1787, http://www.constitution.org/
fed/federa10.htm.

