Shadow immigration enforcement and its constitutional dangers.

• Author: Sweeney, Maureen A.
• Position: Introduction through I. State and Local Police as Shadow Immigration Enforcers, p. 227-254

TABLE OF CONTENTS INTRODUCTION I. STATE AND LOCAL POLICE AS SHADOW IMMIGRATION ENFORCERS A. The Growth of Shadow Immigration Enforcement B. The Constitutional Context of Shadow Enforcement II. UNIQUE CONSTITUTIONAL CONCERNS WITH SHADOW IMMIGRATION ENFORCEMENT A. Heightened Risk of Constitutional Abuses B. Ineffective Constitutional Safeguards with Shadow Enforcement III. CONSTITUTIONAL SAFEGUARDS IN RESPONSE TO SHADOW IMMIGRATION ENFORCEMENT A. Reconsidering the Strategy of Federal--State Cooperation B. Fully Enforcing the Exclusionary Rule in Immigration Courts C. Prosecutorial Discretion D. Civil Rights Advocacy CONCLUSION Introduction

The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards. (1)

--Justice Potter Stewart

The last thirty years have seen an important shift in the federalism of immigration law, as the federal government has gradually enlisted state and local law enforcement officers as "force multipliers" (2) in its enforcement of our nation's immigration laws, and our systems of criminal and immigration enforcement have gradually converged. Police and sheriffs' deputies throughout the country now routinely participate in federal immigration enforcement through a variety of programs that involve them in the day-to-day mechanics of checking immigration status and communicating that information to federal authorities. In some limited circumstances, these local officers may have been delegated authority to investigate immigration status, (3) but the much more common and troubling phenomenon occurs when officers gather immigration information through their regular law enforcement duties and communicate that information to the Department of Homeland Security (DHS) as an informal way of assisting the agency. This kind of communication has escalated sharply in recent years and, having been sanctioned by the Supreme Court in Arizona v. United States, (4) is unlikely to lessen anytime soon.

While the sharing of information itself seems unobjectionable, this informal and unregulated collaboration between federal, state, and local officers with differing enforcement mandates has a number of serious but generally unintended negative consequences. Many of these consequences coalesce in what I term "shadow immigration enforcement" by state and local officers.

Shadow immigration enforcement is the distorted exercise of regular policing powers by a state or local officer who has no immigration enforcement authority for the purpose of increasing immigration enforcement. In a regular law enforcement environment, shadow enforcement involves the disproportionate targeting of vulnerable "foreign-seeming" populations for hyper-enforcement for reasons wholly independent of suspected involvement in criminal activity as defined by state or local law. Shadow enforcement occurs at the margins of regular police work, external to the enforcement mandate of state troopers, local police, and sheriffs' deputies. In the vast majority of cases, these officers have no training, mandate, or authority to enforce federal immigration law. Their involvement in the routine communication of immigration information to federal authorities, however, can create strong and sometimes perverse incentives that distort the ways in which they carry out their mandated policing duties. The lure of possible immigration checks, for example, can influence the officers' choice of targets for traffic enforcement or whether to merely cite people for offenses or to arrest them (and thus bring them into the station for fingerprint checks that can reveal immigration status). (5) This dynamic generally goes unacknowledged and unregulated within regular police structures. It operates under the table, in the shadows. The effects of shadow immigration incentives are widespread and profound for the relationship between local law enforcement and the broad communities they serve, especially with regard to community trust and guarantees against biased policing based on race or national origin.

A few concrete illustrations help to describe the phenomenon of shadow enforcement and to highlight its dangers. The U.S. Department of Justice (DOJ) Civil Rights Division recently conducted a number of investigations of biased policing that revealed compelling evidence of shadow immigration enforcement, which both distorted the conduct of regular policing in local jurisdictions and resulted in rampant civil rights violations. One of these investigations focused on the sheriffs office in Alamance, North Carolina. After an exhaustive two-year investigation that included statistics and records review; review of policies, procedures, and training materials; and over 125 interviews, DOJ concluded that the sheriffs office engaged in a pervasive pattern or practice of biased policing targeted against Latinos. (6) Among other problems, DOJ found that Latino drivers were targeted for traffic enforcement at a rate between four and ten times greater than non-Latino drivers. (7) Notably, DOJ found that many of the deputies' discriminatory practices were specifically intended to facilitate immigration checks on the targeted Latinos, thus connecting the racially targeted policing to shadow immigration enforcement.8

Another illustration of these dynamics in a different context can be seen in the recent investigations of Transportation Security Administration (TSA) officers at various airports. (9) The officers in question were specially trained "assessors" as part of a model behavior detection antiterrorism program tasked with detecting unusual behavior in passengers that could indicate a security threat. But officers reported that managers in Boston, anxious to boost numbers and justify their program, pressured their assessors to meet certain threshold numbers for referrals to other law enforcement agencies, including the state police and immigration officials. To meet those thresholds, significant numbers of officers explicitly targeted blacks and Latinos in the hope that searches would yield drugs or immigration problems. (10) In the words of an attorney who interviewed eight officers who complained about the rampant practice, "Selecting people based on race or ethnicity was a way of finding easy marks." (11) Officers reported that as many as 80% of passengers searched during certain shifts were minorities and that so many minorities were referred to the state police that officers there questioned why minorities represented such a disproportionate number of those referred. (12) In Newark, New Jersey, the racial profiling of Mexicans and Dominicans was so blatant that fellow TSA officers called that airport's behavior detection group "the great Mexican hunters." (13) Officers reported that the direction for these practices came to them from their superiors who conveyed that they were "to go look for illegal aliens and make up behaviors" with which they could justify and document a referral to immigration authorities. (14)

Finally, there are instances when even this thin veneer of regular law enforcement disappears, leaving a state officer with absolutely no justification for an arrest other than immigration enforcement that is wholly outside his authority. Recently, in Maryland, a Latino man was called to the scene of a traffic stop to recover his car, which someone else had been driving. When he arrived at the scene (at the officer's request and having committed no violation of traffic or other state law), he was immediately questioned by the officer about his immigration status; had his keys taken; and was removed from the car, handcuffed, taken to a holding cell, and held for approximately two hours for purposes of "immigration investigation" before he was turned over to Immigration and Customs Enforcement (ICE). (15) The state officer had no delegated federal authority to conduct civil immigration enforcement, and he did not have authority under state law to detain or arrest this man for a (nonexistent) state crime or for a federal administrative violation. When the officer was questioned in immigration court about the legal basis for his actions, he acknowledged that he had no authority to enforce federal civil immigration violations and explained that this was why he had merely "detained," rather than arrested, the man. (16) He further explained that he was not required to inform the man of his right to remain silent under Miranda or to comply with other arrest procedures because the man was not being accused of a crime. (17) In other words, precisely because the officer was acting without legal authority, he took the position that the usual legal limits to his authority did not apply, leaving him free to act without constitutional justification.

These examples demonstrate how the lure of the easy, collateral immigration arrest has proved to be strong for officers in a variety of...