Shadow immigration enforcement and its constitutional dangers.

Author:Sweeney, Maureen A.
Position:II. Unique Constitutional Concerns with Shadow Immigration Enforcement through Conclusion, with footnotes, p. 255-282


  2. Targeting Racial and Other Vulnerable Minorities

    Shadow immigration enforcement raises heightened civil liberties concerns because of the very significant overlap between the targeted population of noncitizens and identifiable racial minority groups, primarily Latinos and Asians. Estimates from the Pew Hispanic Center show that approximately 80% of unauthorized immigrants came from Mexico and other parts of Latin America in 2010. (133) Asians now make up approximately 11% of the undocumented population, (134) and are significantly concentrated in a few states. (135)

    Because the undocumented population overlaps with easily identifiable racial minority groups, civil liberties questions are broached with extra caution. The history of race relations in the United States has been troubled, to say the least, and our equal protection jurisprudence recognizes this by subjecting categories based on race to strict scrutiny, requiring them to serve a compelling governmental purpose. (136) Given the connections between immigration and race, the same history and principles support heightened vigilance with regard to civil rights concerns for immigration enforcement.

    Courts have also recognized a heightened concern for discrimination by state actors on the basis of nationality, arising from the identity of noncitizens as a "discrete and insular minority" vulnerable to discrimination. (137) Though equal protection jurisprudence has given deference to distinctions made by the federal government with regard to noncitizens, (138) it has applied strict scrutiny to state efforts to enforce distinctions based on citizenship or nationality. (139) This is explicitly because "[a]liens as a class are a prime example of a 'discrete and insular' minority ... for whom such heightened judicial solicitude is appropriate." (140) These concerns certainly apply in the context of immigration enforcement, as the target is a subset of noncitizens.

    Noncitizens, as such, are both politically and procedurally disadvantaged and therefore vulnerable. As noncitizens, they are categorically disenfranchised in our political system, which does not accord them the vote. (141) This restricts their access to the political process. Furthermore, as relative newcomers, noncitizens are less likely than U.S. citizens to be familiar with other ways to challenge abusive treatment, such as police complaint procedures, equal protection lawsuits, and the like. Finally, the very context of immigration enforcement heightens noncitizens' vulnerability as a procedural matter. Those who are picked up in immigration enforcement are subject to the significant limitations of the civil removal process. They are often detained (142) and are put into an administrative hearing system where courts have not yet recognized any right to appointed counsel. (143) In fiscal year 2011, 49% of individuals in immigration court were not represented by counsel. (144) Furthermore, once they are detained, DHS has the discretion to transfer individuals anywhere in the country during the course of their removal proceedings. (145) These factors combine to make it very procedurally and practically difficult for individuals in removal proceedings to pursue actions challenging the circumstances of their arrests, however egregious those circumstances might be. (146)

    All of these characteristics of noncitizens combine to make them a discrete, identifiable minority that is particularly vulnerable to abuse and ill-equipped to challenge mistreatment through traditional means.

    1. A Highly Charged Political Atmosphere

      Immigration is currently one of the most highly charged political issues in the United States. (147) This is perhaps not surprising in an era of economic crisis and demographic change. Anti-immigrant sentiment is predictably high in times of economic pressure, (148) though scholars and economists debate the actual economic impact of immigration. (149) The face of the country has also changed demographically in recent decades, and many traditionally low-immigration states and localities are finding themselves host to a growing population of immigrants and second- and third-generation descendants of immigrants. (150) In 2011, for the first time, "minority," nonwhite births outnumbered white births in the United States. (151)

      It is also undoubtedly true that political parties and politicians in recent years have deliberately--and perhaps cynically--used immigration to motivate their political bases and differentiate themselves from their opponents. (152) The result is that immigration has become a deeply divisive issue, tapping into wells of strongly held beliefs and feelings about the identity of our nation, our way of life, our families, our economic and social future, and, increasingly, the rule of law.

      This last point is crucial to understanding the current dynamics. While immigration has traditionally been understood as a complex phenomenon resulting from a web of powerful "push" and "pull" factors--such as economics, family, political upheaval, and educational opportunities (153)--it has increasingly come to be seen in the United States through the lens of legality and law enforcement. Since the late 1980s, federal immigration law has become more focused on the (real and perceived) overlap between immigration and criminal law, leading to the "criminalization" of immigration law and procedures. (154) Since 2001, immigration violations are increasingly considered and, in many cases, prosecuted as criminal violations (155) or violations that, at a minimum, indicate the perpetrator's general lawlessness. This last attitude is well-expressed in the statement of purpose in Alabama's restrictive state immigration law, commonly known as H.B. 56. It begins, "The State of Alabama finds that illegal immigration is causing economic hardship and lawlessness in this state ... " (156) Former Arizona State Senator Russell Pearce, a proponent of strict immigration enforcement and the author of Arizona's S.B. 1070, takes the position that the lawlessness of an individual who has no legal immigration status is fundamentally at odds with what it means to be an American: "Being an American is a responsibility, and it comes through respecting and upholding the Constitution, the law of our land which says what you must do to be a citizen of this country. Freedom is not free." (157) This mindset is likewise reflected at the highest levels of our legal system, most recently in Justice Samuel Alito's concurring opinion in the Arizona case, in which the Justice artfully conflates the administrative question of immigration status with the criminal offense of entering the country without inspection. (158)

      The political exploitation of this swirling stew of emotional flashpoints and the increasingly common view of immigration as a law-and-order question have combined to create an atmosphere in which there is a high level of hostility to foreigners and a strong impulse in many quarters to expel immigration violators. At the same time, there is a widely held perception that the federal government has failed in its job of expelling these violators. State and local lawmakers and other elected officials have been motivated to step into that breach, proposing many ranging solutions and making immigration a lively local political issue. (159)

      The dangers of this heated political rhetoric are particularly acute in local jurisdictions where sheriffs, police chiefs, states' attorneys, and other law enforcement policymakers are likely to hold elected, political positions. These elected officials are directly accountable to the voting majority. They are therefore both sensitive and vulnerable to immigration's highly charged politics.

    2. Law Enforcement Involvement in "Attrition Through Enforcement"

      In such a charged political atmosphere, local and state law officers have often been conscripted into assisting "attrition through enforcement" or "voluntary deportation" through state immigration laws. Law enforcement involvement in this project exacerbates both racial and political dynamics in immigrant communities' relationship with law enforcement.

      The phrase "attrition through enforcement" was coined by Kris Kobach, (160) the principal author of both Arizona's S.B. 1070 and Alabama's H.B. 56. (161) Arizona's law explicitly states:

      The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. (162) Kobach's statement of the theory behind this approach is that "ratcheting up" enforcement and simultaneously restricting access to the benefits of life in the United States (principally, employment) can convince unauthorized immigrants to leave voluntarily and remain outside the country. (163) The concept subsequently has been embellished in political rhetoric and actualized in proposed and enacted state laws in a variety of ways. These state laws restrict everything from employment, (164) to housing, (165) transportation, (166) public education, (167) and utility and water contracts. (168) Statements surrounding these laws' proposal and passage demonstrate lawmakers' purposes: to deny unlawfully present immigrants enough basic necessities and make their lives so unlivable that they will leave the jurisdiction and to deter others from entering.

      A key component in each of these laws is also explicit state and local police involvement in ratcheting up immigration enforcement. Arizona's law, famously, was designed to enlist the state's officers in immigration enforcement. It requires officers to investigate the...

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