The Potential for a Rise in Wrongful Removals and Detention Under the United States Immigration and Customs

Enforcements Secure Communities Strategy

Laura Donohue
I. INTRODUCTION The terrorist attacks of September 11, 2001 not only brought down New York Citys Twin Towers, but spurred a major reorganization of the federal governments approach to immigration enforcement.1 In 2002, Congress passed the Homeland Security Act (HSA) creating the Department of Homeland Security (DHS), abolishing the Immigration and Naturalization Service (INS), and transferring most immigration enforcement responsibilities from the Department of Justice (DOJ) to newly created DHS agencies.2 The United States Immigration and Customs Enforcement Agency (ICE), one of two agencies charged with immigration enforcement, was established as a result of this change.3 ICE is responsible for safeguarding the interior of the country, and to this end may conduct investigations, gather intelligence, detain noncitizens, and recommend removal.4 The Enforcement and Removal Operations Unit, a subdivision within ICE, is charged with identif[ying] and apprehend[ing] removable aliens, detain[ing] these individuals when necessary[,] and remov[ing] illegal aliens from the U.S.5 In 2008, to assist
1. STEPHEN H. LEGOMSKY & CRISTINA M. RODRIGUEZ, IMMIGRATION AND REFUGEE LAW AND POLICY 2 (Robert C. Clark et al. eds., 5th ed. 2009). 2. Id. at 2-3. 3. U.S. DEPT OF HOMELAND SEC., Border Reorganization Fact Sheet, HOMELAND SECURITY (Jan. 30 2003), http://www.dhs.gov/xnews/releases/press_release_0073.shtm. The other agency is United States Customs and Border Protection. Id. 4. LEGOMSKY, supra note 1, at 3. 5. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ICE Enforcement and Removal Operations, ICE.GOV, http://www.ice.gov/about/offices/enforcement-removal-operations/

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in its effort to prioritize the removal of criminal aliens,6 ICE created the Secure Communities Strategy (Strategy) to identify noncitizens in U.S. jails that are eligible for removal, and quickly remove those aliens convicted of aggravated felonies.7 The Strategy allows for data sharing between DOJ and DHS.8 When an individual is arrested and processed, fingerprints are checked against criminal records of the Federal Bureau of Investigation (FBI) as well as DHSs immigration records.9 While initially the Strategy was voluntary, it now appears as if the Strategy is mandatory and ICE Director John Morton is still on track to have the Strategy present in all states by 2013.10 As of September 27, 2011, 1595 jurisdictions in forty-four states and territories were actively participating in the Secure Communities Strategy.11 Programs aimed at removing criminal aliens have existed since the 1980s, but the most familiar method through which the federal government has delegated its immigration enforcement power to states is the 287(g) Program.12 Under the 287(g) Program, the Attorney General permits local law enforcement to carry out the duties of federal immigration officers by signing a Memorandum of Agreement between local and federal authorities.13 Despite its voluntary nature, the 287(g) Program has proved controversial, and critics allege it encourages racial profiling and creates tension between law enforcement and immigrant populations.14 The Secure
(last visited August 18, 2011). 6. Id. 7. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Secure Communities, ICE.GOV, http://www.ice.gov/secure_communities/ (last visited August 18, 2011) [hereinafter Secure Communities]. 8. Id. 9. Id. 10. Editorial, Using Police on Immigration is Only Justified for Criminals, BOS. GLOBE, (Dec. 21, 2010), http://www.boston.com/bostonglobe/editorial_opinion/editorials/ articles/2010/12/21/using_police_on_immigration_is_only_justified_for_criminals/; Letter from John Morton, Assistant Secy of ICE, to Zoe Lofgren, U.S. Representative (Apr. 28, 2011), https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B_6gbFPj VDoxMzQxOThiMDMtM2I4Yy00NzEyLWExZjYtYjhmYjVjMGI5ZDVj&hl=en. 11. See generally U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ACTIVATED JURISDICTIONS, 1-26 (June 30, 2011), http://www.ice.gov/doclib/secure-communities/pdf/scactivated.pdf [hereinafter ACTIVATED JURISDICTIONS]. 12. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, (Aug. 18, 2008), http://www.ice.gov/287g/. 13. Nicholas D. Michaud, From 287(g) to SB 1070: The Decline of the Federal Immigration partnership and the Rise of State Level Immigration Enforcement, 52 ARIZ. L. REV. 1083, 1093, 1096 (2010). 14. Id.

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Communities Strategy is potentially as controversial because, as an enforcement tool that is used at the arrest stage, its electronic data sharing capabilities reach a greater number of people, including United States citizens. Furthermore, when the Strategy becomes mandatory, an unprecedented level of errors could ensue as no other ICE criminal immigration enforcement program has ever been compulsory. Equally unsettling is that while the Secure Communities Strategy aims to remove criminal aliens, statistics show that nationwide, as many as twenty-seven percent of those removed through the Strategy had no criminal convictions.15 With such a grievous disparity between objective and result, it is likely that non-criminal aliens are mistakenly detained and removed under the Strategy, as are other vulnerable populationsincluding U.S. citizens mistakenly believed to be noncitizens. The Strategys far reach also has the potential to influence victims of crimes who lack legal status to choose not to report a crime for fear of removal. This Note will argue that while perhaps the Secure Communities Strategys eventual hold across the country cannot be stopped, ICE needs to address and end the disparity between its objective and actual results and ensure that wrongful removals and detention do not occur. Without an end to these removals, the Strategy will impede law enforcement efforts to bring justice to crime victims and will create issues of unlawful detention that violate the Fourth Amendment. Part II of this Note will offer an introduction to the history of local and federal immigration partnerships, cross agency collaboration, and a primer on why a noncitizen may be removed. Part III will discuss the Secure Communities Strategy and statistics, which show that more non-criminal than criminal aliens are removed under the Strategy. Part IV will demonstrate how the Strategy facilitates the wrongful removal and detention of U.S. citizens and removal of victims of crime. This Note will conclude by suggesting that ICE should resolve the inconsistency between its objectives and actual results of the Secure Communities Strategy. II. TOWARDS THE SECURE COMMUNITIES STRATEGY A. Creation of ICE in 2003 The HSA and the subsequent reorganization of federal agencies charged with national security was a direct response to the September 11, 2001

15. ILL. COAL. FOR IMMIGRANT AND REFUGEE RIGHTS, IMMIGRATION ENFORCEMENT THE DANGEROUS REALITY BEHIND SECURE COMMUNITIES 4 (2011), http://icirr.org/sites/ default/files/ImmigrationEnforcementTheDangerousRealityBehindSecure%20Communities. pdf.

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terrorist attacks on the United States.16 The lack of data sharing across the national security agencies at the time (the DOJ, the Department of Treasury, and the Department of Agriculture) led to inconsistent inspections and lapses of information,17 and ultimately to the tragic events of that day. Recognizing the need for change, Congress, through the HSA, created two agencies under DHS: one tasked with immigration enforcement and the other with providing immigration benefits.18 The HSA further allowed President George W. Bush to create additional bureaus, provided that immigration enforcement and immigration benefits did not comingle.19 President Bush used this authority to create Customs and Border Protection (CBP) to secure the border and ICE to enforce the interior.20 The creation of DHS was most directly aimed at safeguarding Americans from the evil of terrorism,21 but also attempted to instill better oversight of a failed immigration system that allowed two of the nineteen September 11 hijackers to overstay their visas while still another obtained a student visa, but never registered for classes.22 The Congressional Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, notes that INS did not know about these lapses until after the attacks.23 Therefore, it came as no surprise when in 2003 then Secretary of Homeland Security, Tom Ridge, announced improving and protecting immigration practices as a major goal of DHS.24 Thus, by distinguishing immigration benefits from immigration enforcement while linking the new agencies together under the umbrella of DHS, the HSA attempted to break down barriers to communication and provide a direct line of authority to the Departments headquarters and give homeland security employees a clear mission.25 In summary, the HSA's creation was an effort to tackle threats presented by the evil of terrorism26 and the weaknesses of a failed immigration system.

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

See LEGOMSKY, supra note 1, at 816. U.S. DEPT. OF HOMELAND SEC., supra note 3. LEGOMSKY, supra note 1, at 3. Id. Id. U.S. DEPT. OF HOMELAND SEC., supra note 3. S. REP. NO. 107-351, pt. 2, at 189-90 (2002). Id. at 190. U.S. DEPT. OF HOMELAND SEC., supra note 3. Id. Id.

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B. Immigration and Nationality Act 287(g) and Earlier Initiatives to Remove Criminal Aliens The authority for state and federal partnerships to enforce immigration law stems from the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),27 which added provision 287(g) to the Immigration and Nationality Act (INA).28 The addition was the result of frustration felt on the local level about illegal immigration.29 The 287(g) Program, which deputized local law enforcement officers to carry out federal immigration law, was one of the first examples of such collaboration to tackle illegal immigration.30 The 287(g) Program has always remained voluntary, although recent changes have directed local law enforcement to prioritize the removal of criminal aliens.31 Its model of partnership must surely have provided the inspiration when, true to the DHS goal of streamlining and strengthening information sharing,32 ICE created the Secure Communities Strategy in 2008.33 Prior to the 287(g) Program, INS instituted two other criminal immigration enforcement programs: the Institutional Removal Program (IRP) and the Alien Criminal Apprehension Program (ACAP).34 Both programs were plagued with inefficiencies and were eventually subsumed by the Criminal Alien Program (CAP) in 2007.35 A 2009 report by the National Immigration Law Center highlighted several concerns with CAP, including removals of aliens with non-serious criminal offenses, violations of a federal law that requires transfer into ICE custody forty-eight hours upon release from federal or state custody, as well as racial profiling and pre-textual arrests.36 These are many of the same concerns the Secure
27. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, Div. C, sec. 133, 287, 110 Stat. 3009-546 (1996). 28. Immigration and Nationality Act, ch. 477, 66 Stat. 163 (1952) (codified as amended 8 U.S.C. 1357(g) (1996). 29. Mimi E. Tsankov & Christina J. Martin, Measured Enforcement: A Policy Shift in the ICE 287(g) Program, 31 U. LA VERNE L. REV. 403, 413 (2010). 30. Id. at 403, 416. 31. Michaud, supra note 13, at 1083, 1096, 1103. 32. U.S. DEPT OF HOMELAND SEC., supra note 3. 33. Secure Communities, supra note 7. 34. Fact Sheet, Secure Communities, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 3 (March 28, 2008), http://www.aila.org/content/default.aspx?docid=25045 [hereinafter Fact Sheet, Secure Communities]. 35. Id. 36. Melissa Keaney and Joan Friedland, Overview of the Key ICE ACCESS Programs 287(g), the Criminal Alien Program and Secure Communities, NATL IMMIGR. L. CENTER, 5 (Nov. 2009). Pretext as defined in Blacks Law Dictionary is an [o]stensible reason or motive assigned or assumed as a color or cover for the real reason or motive. BLACKS LAW

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Communities Strategy presents. C. How and Why a Criminal Noncitizen May Become Removable Although Congress has been setting the agenda for immigration regulation since the enactment of the INA in 1952,37 the most sweeping changes to the modern practice of immigration law38 came with the passage of IIRIRA in 1996.39 The United States has for many years removed those convicted of crimes in the United States, but IIRIRA drastically changed removal qualifications.40 Post IIRIRA, more noncitizens are deemed removable and the forms of relief available to prevent removal are likewise limited.41 IIRIRA expanded the definition of what constitutes an aggravated felony, reducing the qualifying time served for an offense from five years to one, and removed all forms of relief available to those convicted of aggravated felonies.42 This has led to much confusion as state convictions for misdemeanors can now be considered aggravated felonies for purposes of immigration law.43 After IIRIRA, the most common crimes for which noncitizens are removed are aggravated felonies, crimes of moral turpitude, and controlled substance offenses.44 Simple assaults that carry a term of imprisonment of one year or more and most drug offenses are considered aggravated felonies.45 A noncitizen, including a Lawful Permanent Resident (LPR), is instantly removable after an aggravated felony conviction.46 A crime involving moral turpitude (CIMT) encompasses crimes such as theft, fraud, deceit, and property crimes.47 Whether a noncitizen is removable based on a conviction for a

DICTIONARY 1069 (5th ed. 1979). Thus, a pre-textual arrest is one that is made in order to fulfill a motivein this case usually stopping Hispanic-looking drivers for minor traffic violations to check their immigration status. 37. See Immigration and Nationality Act of 1952, 8 U.S.C. 1101 - 1537 (2006). 38. See Atilla Bogdan, Guilty Pleas by Non-Citizens in Illinois: Immigration Consequences Reconsidered, 53 DEPAUL L. REV. 19, 26 (2003). 39. See 110 Stat. 3009-546. 40. John J. Francis, Failure to Advise Non-Citizens of Immigration Consequences of Criminal Convictions: Should this be Grounds to Withdraw a Guilty Plea?, 36 U. MICH. J.L. REFORM 691, 701 (2003). 41. Id. 42. Id.; Bogdan, supra note 38; Cody Harris, A Problem of Proof: How Routine Destruction of Court Records Routinely Destroys a Statutory Remedy, 59 STAN. L. REV. 1791, 1797 (2007). 43. Francis, supra note 40, at 702. 44. Bogdan, supra note 38, at 27-28. 45. Francis, supra note 40, at 702. 46. Bogdan, supra note 38, at 28. 47. Id. at 32.

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CIMT depends on the length of time he has lived in the United States and the number of CIMTs he has committed.48 Because there is no statute of limitations regarding criminal convictions used in removal proceedings, a noncitizen could be removed as an adult for a crime he was convicted of when he was a juvenile.49 A noncitizen convicted at any time of a controlled substance violation in the United States or foreign country, is deportable.50 This includes conspiracy or attempt to violate, but excludes convictions for a single offense involving possession for ones own use of thirty grams or less of marijuana.51 III. ORIGIN OF THE SECURE COMMUNITIES STRATEGY AND ITS MISTAKEN REMOVALS OF NON-CRIMINAL ALIENS A. Creation of the Strategy The Secure Communities Strategys objective to remove criminal aliens is no different than the purpose of predecessor and concurrent ICE programs.52 However, upon its unveiling in March of 2008, ICE heralded the Strategy as improving community safety . . . [and] chang[ing] immigration enforcement by using technology to share information between law enforcement agencies.53 In a press release issued in March 2008 to announce the Strategy, ICE explained that technology would eventually allow it to reach its goal of finding and removing all criminal aliens and would encourage information sharing between the FBIs Integrated Automated Fingerprint Identification System and DHSs Automated Biometric Identification System.54 The press release cited additional cross-agency partnerships between ICE and the Department of State, the Bureau of Prisons, the U.S. Attorneys Office, and the U.S. Marshal Service, to achieve the ICE goal of making enhancements to the nations immigration strategy and providing even greater disincentives for recidivists.55 The Secure Communities Strategy is but one piece of this comprehensive initiative by ICE to create an infallible system of immigration enforcement.

48. 49. 50. 51. 52. 53. 54. 55.

8 U.S.C. 1227(a)(2)(A)(i) - (ii) (2006). Francis, supra note 40, at 704. 8 U.S.C. 1227(a)(2)(B)(i) (2006). Id. See discussion supra Part II.B. Fact Sheet, Secure Communities, supra note 34, at 1. Id. Id. at 2.

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When an individual is arrested and booked in a jurisdiction that has chosen to enroll in the Secure Communities Strategy, his fingerprints are checked not only against DOJ criminal records, but also against DHS immigration records, including the U.S. Visitor and Immigrant Status Indicator Technology Program (US-VISIT) database.56 If a DHS immigration record match is found, indicating that the individual arrested is a noncitizen, local ICE officers are notified and may take any of the following actions as deemed appropriate: (a) transferring the noncitizen to ICE custody to avoid release; (b) conducting personal interviews to gather additional information from the noncitizen; and (c) issuing detainers or charging documents.57 At its inception in 2008, the Strategy removed criminal aliens according to a three tiered risk based approach.58 Level One offenders included those who had serious drug convictions and those who had committed murder, manslaughter, rape, robbery, or kidnapping.59 Level Two identified those with minor drug convictions and those with convictions for burglary, larceny, fraud, and money laundering.60 Level Three targeted those who had been convicted of any other offense.61 ICE appears to have abandoned the three tiered approach in favor of a prioritization of criminal aliens, public safety threats and repeat immigration offenders.62 A memo issued by ICE Director John Morton in March 2011 seems to merge these two methods.63 Priority One removals now include aliens who pose a danger to national security or a risk to public safety.64 Within Priority One there are three levels of criminal aliens: Level One includes aliens convicted of aggravated felonies or at least two felonies, Level Two includes aliens convicted of any felony or at least three misdemeanors, and Level Three is comprised of aliens convicted
56. Secure Communities, supra note 7; Secure Communities: A Fact Sheet, IMMIGR. POLY CTR., 1 http://www.immigrationpolicy.org/just-facts/secure-communities-fact-sheet (last updated Nov. 4, 2010); LEGOMSKY, supra note 1, at 828 (explaining US-VISIT is a DHS program created in 2003 which logs the arrivals and departures of noncitizens as well as their contacts with DHS and other government agencies). 57. Fact Sheet, Secure Communities, supra note 34, at 2. 58. Keaney & Friedland, supra note 36, at 6. 59. Fact Sheet, Secure Communities, supra note 34, at 2. 60. Id. 61. Id. 62. Secure Communities, supra note 7, at 1-2. 63. Memorandum from John Morton to All ICE Employees, Dir., U.S. Immigration and Customs Enforcement (Mar. 2, 2011), http://www.ice.gov/doclib/news/releases/2011/ 110302washingtondc.pdf. 64. Id.

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of crimes punishable by less than one year.65 Priority Two consists of aliens who recently entered illegally and Priority Three are fugitive aliens or aliens who otherwise obstruct immigration controls.66 It should be noted that individuals ICE considers fugitive aliens include those who have not been convicted of a crime.67 Whatever form ICEs immigration enforcement priorities take, throughout the years its stated objective has remained the same: to identify and remove all criminal aliens, improve detention capabilities, shorten the removal process, and reduce recidivism.68 C. ICE Reported Success Stories ICE records successful removals on its webpage.69 One story relays the arrest of three illegal aliens wanted for rape, kidnapping, and robbery.70 A similar story tells of an illegal immigrant who killed his nephew.71 Another success story recounts a visa overstay with an outstanding warrant for attempting to murder a police officer.72 There is little room for argument that such individuals should be removed for committing crimes in the United States; however, ICEs website undoubtedly highlights the most successful of its stories yet leaves out instances in which the priorities of the Secure Communities Strategy were forgotten or neglected.73 The Strategys objectives are more questionable when individuals like Susana Ramirez of Illinois face removal after an arrest for a minor traffic violation.74 Ramirez, who had no criminal convictions, was arrested for failure to possess a license, at which point it was discovered she had overstayed her visa,75 all thanks to the Strategys ability to data-share between agencies. She now faces removal,76 which does not seem to comply with any of the four strategic goals of the Secure Communities
Id. at 2. Id. Id. at 3. Fact Sheet, Secure Communities, supra note 34, at 2. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Secure Communities: Success Stories, ICE, http://www.ice.gov/secure_communities/success-stories.htm (last visited Oct. 13, 2011). 70. Id. 71. Id. 72. Id. 73. But see id. 74. Antonio Olivio, Report Criticizes Immigration Enforcement, CHI. TRIB., Jan. 13, 2011, http://www.chicagotribune.com/news/local/ct-met-immigration-arrests-report-20110 113,0,204830.story. 75. Id. 76. Id.
65. 66. 67. 68. 69.

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D. Actual Statistics on Those Removed Under the Strategy Despite the success stories set out on ICEs website, statistics regarding the number of high-risk criminals actually removed under the Strategy paint a different picture. Nationally, as many as twenty-seven percent of those arrested under the Strategy through July 2010 had no criminal record, while seventy-seven percent of noncitizens arrested in Illinois under the Strategy through July 2010 had no criminal convictions.78 An examination of county specific arrest records from the same time period showed that in at least three Illinois counties, not a single person arrested under the Secure Communities Strategy had a criminal record.79 Similarly, a report by DOJs National Institute of Corrections stated that data collected in March 2009 showed that the Strategy had analyzed more than 170,000 fingerprints of arrestees, finding an immigration match for 19,495 people.80 Of all the matches, only 1436 were for Level One type offenders, while more than 17,000 of the remaining individuals had been arrested for less serious crimes.81 Although ICE claims that the intent of the Secure Communities Strategy is not to deport law-abiding working persons,82 it is hard to reconcile these alarming statistics which indicate that ICE may instead be disrupting families and wasting law enforcement resources.83 Under the Secure Communities Strategy, local officers arrest noncitizen offenders and yet have neither knowledge of immigration law or status of their family members, concern for the immigration consequences of these arrests, nor do they operate under any memoranda of agreement from ICE, which would outline their level of participation in the Strategy.84 This is a
Fact Sheet, Secure Communities, supra note 34, at 2. ILL. COAL. FOR IMMIGRANT AND REFUGEE RIGHTS, supra note 15, at 1. Id. U.S. DEPT OF JUSTICE, NATL INST. OF CORR., LARGE JAIL NETWORK PROCEEDINGS 7 (2009). 81. Id. 82. Id. 83. ILL. COAL. FOR IMMIGRANT AND REFUGEE RIGHTS, supra note 15, at 1. 84. RANDY CAPPS ET AL., MIGRATION POLICY INST., Delegation and Divergence: A Study of 287(G) State and Local Immigration Enforcement 48 (2011), http://www.migrationpolicy.org/pubs/287g-divergence.pdf. It appears that at least in some instances, ICE did enter into memoranda of agreement with states but as of August 5, 2011, ICE has suspended all operating memoranda and has decided it does not need one to activate Secure Communities in a state. Letter from John Morton, Director of ICE, to Jack Markell, Governor of Delaware 1 (Aug. 5, 2011), http://www.latimes.com/media/acrobat/ 2011-08/158828360-05134319.pdf [hereinafter Letter to Jack Markell].
77. 78. 79. 80.

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recipe for disaster and can serve as a basis for arrests by officers who, by way of racial profiling, suspect someone to be an illegal immigrant. Also adding to the disparity between ICEs objective of catching and removing serious noncitizen offenders and actual results is that ICE seems to have widened the net of the Strategy over time. Initial statements by ICE emphasized removing convicted criminals, yet the Strategy operated by running fingerprint checks on anyone booked at a local police station and placing immigration holds on those who had an immigration record match.85 In response to immigration advocates who condemned this approach, ICE issued a statement in 2009 clarifying its approach to the type of noncitizen criminals the Strategy aimed to target: ICE is focusing efforts first and foremost on the most dangerous criminal aliens currently charged with, or previously convicted of, the most serious criminal offenses.86 E. Is the Strategy Mandatory or Not? There is confusion not only about whether ICE is achieving its objective of removing criminal aliens, but also as to whether the Strategy will truly become mandatory in every state by 2013.87 Only recently has ICE taken steps to clarify this confusion.88 In April 2011, ICE Director Morton wrote a letter to California Congresswoman Zoe Lofgren in which he stated that, federal law requires information sharing between federal agencies expressly for purposes of immigration enforcement. As a result, state and local jurisdictions cannot prohibit the information sharing between the Departments of Justice and Homeland Security upon which the Secure Communities Program rests.89 Yet, in September 2010, DHS Secretary Janet Napolitano indicated in a letter to Congresswoman Lofgren that local jurisdictions could opt-out of the Strategy.90 A month later, in October 2010, Secretary Napolitano and ICE Director Morton issued a statement
Keaney & Friedland, supra note 36, at 6. Michele Waslin, THE SECURE COMMUNITIES PROGRAM: UNANSWERED QUESTIONS AND CONTINUING CONCERNS 10 (2010), available at http://www.immigrationpolicy.org/site s/default/files/docs/Secure_Communities_updated_110410.pdf. 87. Lena Graber, Secure Communities: Do We Know Anything For Certain?, IMMPOLITIC BLOG para. 14 (Mar. 2, 2011), http://www.immigrationforum.org/blog/display/ secure-communities-do-we-know-anything-for-certain/. 88. See Letter from John Morton, Director of ICE, to Zoe Lofgren, U.S. Representative (Apr. 28, 2011), https://docs.google.com/viewer?a=v&pid=explorer& chrome=true&srcid=0B_6gbFPjVDoxMzQxOThiMDMtM2I4Yy00NzEyLWExZjYtYjhm YjVjMGI5ZDVj&hl=en. 89. Id. 90. Letter from Janet Napolitano, Secy of Dept of Homeland Security, to Zoe Lofgren, U.S. Representative (Sept. 7, 2010), available at http://crocodoc.com/yzmmKP.
85. 86.

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confirming that the Secure Communities Strategy was not an opt-out program.91 Most recently, as a result of a Freedom of Information Act (FOIA) request by the National Day Laborer Organizing Network, Center for Constitutional Rights and Cardozo Immigrant Justice Clinic, which was released in February 2011, it seems that despite what Director Morton says, the Strategy may not be mandatory after all.92 The FOIA request produced documents including emails and internal memos which show that despite ICEs stance that Secure Communities is a mandatory program, states can opt-out.93 However, one of the ICE documents from the FOIA request, titled Tactical Approach to Sensitive Jurisdictions suggested that ICE create a ring of inoperability around the resistant site94 to target hold out areas that refuse to implement the Strategy. Furthermore, additional documents and emails show that as the Obama administration encountered push-back from jurisdictions that did not want the Strategy, such as Santa Clara and San Francisco in California, it considered withholding federal funding and FBI information from resisters and eventually dug up case law to justify requiring cooperation.95 Thus, while officially it seems as if the Secure Communities Strategy will be mandatory in a few years, it does appear certain that ICE will strive boldly in the meantime to ensure participation. On ICEs website, a map of the U.S. accompanies enrollment statistics showing activated jurisdictions in green.96 The majority appear to be in the South, Southwest, California, the Mid-Atlantic, and Wisconsin.97 Currently there are more states with one hundred percent compliance, sixteen in total,98 than states with zero jurisdictions enrolled, eight in

Graber, supra note 87. Press Release, Uncover the Truth, ICE and Police Collaborations, Newly Released Secure Communities Documents Signal Opening for Local Opt-out (Feb. 17, 2011), http://uncoverthetruth.org/featured/newly-released-secure-communities-documents-signalopening-for-local-opt-out/. 93. Id. 94. Id. 95. While Santa Clara and San Francisco did initially resist participation in the Strategy, both were enrolled in 2010. ACTIVATED JURISDICTIONS, supra note 11, at 2; Rina Palta, Secure Communities: ICE Documents Show Policy Change, Push Back, UNCOVER THE TRUTH (Feb. 16, 2011), http://uncoverthetruth.org/secure-communities-ice-documentsshow-policy-change-push-back. 96. ACTIVATED JURISDICTIONS, supra note 11. 97. Id. The ICE website contains statistics for U.S. territories, but I have not included those as part of this discussion. 98. These states are Ariz., Cal., Del., Fla., Haw., Mich., N.M., N.C., Ohio, Or., R.I., S.C., Tex., Va., W. Va., and Wis. ACTIVATED JURISDICTIONS, supra note 11, at 1-4, 6, 11,

91. 92.

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total.99 The states with full compliance have led rallying cries against illegal immigration, and since most share a border with Mexico, it comes as little surprise that these states have agreed to participate in the Strategy.100 For the states included in the zero-compliance category, the lack of participation in the Strategy may or may not be intentional. Although there are pockets of illegal immigrants in New England States such as Vermont, New Hampshire, and Maine,101 until Secure Communities becomes mandatory, it may not be a priority for ICE to have these states participate in the Strategy. Other states, like New Jersey, have actively resisted participation in the Strategy,102 while Rhode Islands Attorney General only recently agreed, in January 2011, to bring Secure Communities to the state.103 As a result, Rhode Island is currently listed as fully participating in the Strategy on ICEs website.104 Rhode Island presents a good example of the struggle a state may face as it attempts to implement the Strategy. Although the states Attorney General has recently agreed that Rhode Island will enroll in Secure Communities, the city of Providence sent a letter to DHS in February 2011, asking how to opt-out.105 Meanwhile, in the same month that the Attorney General enlisted Rhode Island in the Secure Communities Strategy, Rhode Islands Governor, Lincoln Chafee, rescinded an executive order implemented by former Governor Carcieri which allowed for a 287(g) Program in the state.106 By April 2011, Providence was reluctantly participating in the Strategy.107 More recently, other states such as Massachusetts, Illinois, and New
15-19, 18, 21, 23-24. 99. These states are Alaska, D.C., Me., Minn., N.H., N.J., N.D., and Vt. ACTIVATED JURISDICTIONS, supra note 11, at 1, 4, 10-11, 14, 16, 22. 100. PEW HISPANIC CENTER, UNAUTHORIZED IMMIGRANT POPULATION: NATIONAL AND STATE TRENDS, 2010 at 14 (2011), http://pewhispanic.org/reports/report.php?ReportID=133. 101. Id. at 23. 102. Confusion Helped Spread of Secure Communities, Even as Resistance Remains Strong, DEPORTATION NATION (Feb. 17, 2011), http://www.deportationnation.org/2011/02/ confusion-helped-spread-of-secure-communities-even-as-resistance-remains-strong/. 103. Karen Lee Ziner, Kilmartin Signs Secure Communities Agreement, PROVIDENCE J. (Jan. 11, 2011), http://news.providencejournal.com/breakingnews/2011/01/kilmartin-signs-secure-communi.html. 104. ACTIVATED JURISDICTIONS, supra note 11, at 18. 105. Letter from Steven Par, Public Safety Commissioner, Providence, Rhode Island, to David Venturella, Assistant Director, Secure Communities Program (Feb. 10, 2011). 106. Ziner, supra note 103. 107. Gregory Smith, Secure Communities Active in RI; Providence Included, PROVIDENCE J. (April 5, 2011), http://news.providencejournal.com/breaking-news/2011/04/ secure-communities-active-in-r.html.

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York have either refused to join the Strategy or have chosen to pull out after initially enrolling because of concerns that the Strategy was removing the wrong type of individual.108 In Massachusetts, a day after Governor Deval Patrick publicly announced that the state would not enroll in the Strategy, DHS officials reminded the Governor that the Strategy would be mandatory in all states by 2013.109 In response to growing criticism of the Strategy, on June 17, 2011, ICE issued a memo urging prosecutorial discretion in certain removal cases.110 In deciding whether to prosecute, ICE agents, attorneys, and field office directors should look to factors such as how and when the alien arrived in the United States, if an individual is currently pursuing a higher education degree, an individuals criminal history, age and cooperation with federal authorities.111 Critics say the notion of prosecutorial discretion is nothing new and have labeled this a public relations campaign that is too late to undo the wrongs of the Secure Communities Strategy.112 Until DHS follows through with its promise to make the Strategy mandatory, states or jurisdictions that do not wish to comply may resort to a number of strategies to avoid compliance. Immigration advocates are urged to focus efforts on states and counties not currently enrolled to prevent implementation of the Strategy and to help counties that wish to opt-out to that end.113 Additionally, perhaps foreseeing the future implementation of the Strategy nationwide, the Coalition further encourages reform of the Strategy itself, including requiring more transparency regarding what type of criminal noncitizens are actually removed under the Strategy, and encouraging similar reporting at a local level.114

108. Jason Buch, States Diverging on Secure Communities, SAN ANTONIO EXPRESS NEWS, June 13, 2011, http://www.mysanantonio.com/default/article/States-diverging-onSecure-Communities-1421266.php. 109. Maria Sacchetti and Noah Bierman, US Overrules Patrick on Immigration, BOS. GLOBE, June 7, 2011, http://articles.boston.com/2011-06-07/news/29630407_1_immigrantadvocates-illegal-immigrants-federal-immigration. 110. Memorandum from John Morton to All Field Office Directors, All Special Agents in Charge and All Chief Counsel (June 17, 2011), http://www.ice.gov/doclib/securecommunities/pdf/prosecutorial-discretion-memo.pdf [hereinafter Prosecutorial Discretion Memo]. 111. Id. at 4. 112. Press Release, Rights Groups Say Proposed Tweaks to Secure Communities Program are Too Little, Too Late, CENTER FOR CONSTITUTIONAL RIGHTS (June 17, 2011), http://ccrjustice.org/newsroom/press-releases/rights-groups-say-proposed-tweaks-securecommunities-program-are-too-little-too-late. 113. ILL. COAL FOR IMMIGRANT AND REFUGEE RIGHTS, supra note 15, at 9. 114. Id. at 9-10.

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The Secure Communities Strategy has endured continued criticism through the summer and early fall of 2011 despite ICEs issuance of its memo on prosecutorial discretion in June 2011.115 On July 11, 2011, a district court judge in New York ordered DHS and ICE to reproduce previously redacted documents produced from the FOIA request by the Cardozo Immigrant Justice Clinic, which could highlight if and how a jurisdiction might opt-out of the Strategy.116 On August 5, in response to states withdrawing from the Strategy or refusing to join altogether, ICE cancelled all existing Memoranda of Agreement with states and explained that a Memorandum is not required to activate or operate Secure Communities for any jurisdiction.117 In a letter from John Morton to the Governor of Delaware, Morton wrote, Once a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another part.118 On August 18, 2011, the Obama Administration announced that it would work with DHS to prioritize the removal of individuals convicted of crimes instead of targeting people who are low priorities for deportation.119 This includes those who were brought here at a young age and consider the United States their home and military veterans and the spouses of activeduty military personnel.120 The White House indicated it would consider the recommendations of John Mortons Prosecutorial Discretion Memo in prioritizing the deportation caseload.121 In September 2011, the Task Force on Secure Communities issued its final report regarding the strengths and weaknesses of the Strategy.122 DHS created the Task Force on Secure Communities to make recommendations
Prosecutorial Discretion Memo, supra note 110. District Court Rejects DHS and ICE FOIA Withholdings That Conceal Misrepresentations and Embarrassment, CENTER FOR CONSTITUTIONAL RIGHTS (July 11, 2011), http://ccrjustice.org/newsroom/press-releases/district-court-rejects-dhs-and-ice-foiawithholdings-conceal-misrepresentations-and-embarrassment (last visited Oct. 13, 2011). 117. Letter to Jack Markell, supra note 84. 118. Id. 119. See Cecilia Munoz, Immigration Update: Maximizing Public Safety and Better Focusing Resources, THE WHITE HOUSE BLOG (Aug. 18, 2011, 2:00 PM), http://www.whitehouse.gov/blog/2011/08/18/immigration-update-maximizing-publicsafety-and-better-focusing-resources. 120. Id. 121. Munoz, supra note 119. 122. See HOMELAND AND SEC. ADVISORY COUNCIL, TASK FORCE ON SECURE COMMUNITIES FINDINGS AND RECOMMENDATIONS (2011), http://www.aila.org/content/ default.aspx?docid=37003.
115. 116.

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on how the Strategy could be improved and on how ICE [could] adjust the Secure Communities program to mitigate potential impacts on community policing practices, including whether and how to implement policy regarding the removals of individuals charged with, but not convicted of, minor traffic offenses who have no other criminal history.123 The Task Force grouped its findings and recommendations into five sections: Misunderstandings Regarding the Secure Communities Program and the Role of Local Law Enforcement Agencies; Perceived Inconsistencies Between Secure Communities Stated Goals and Outcomes; Minor Traffic Offenses and Misdemeanors; Unintended Consequences of Secure Communities on Community Policing and Community Impact; and The Question of Whether to Suspend Secure Communities.124 To remedy the flaws of the Secure Communities Strategy, the Task Force stressed that [t]he systematic and professional use of prosecutorial discretion is the key to regaining public support and to making the best use of limited resources.125 It further urged that ICE proceed with transparency, clarify the stated objectives of the Strategy, and adhere to removing only serious criminal offenders all while closely collaborating with immigrant communities and the police that patrol these communities.126 One of the Task Forces most significant recommendations was that ICE not issue immigration detainers for individuals arrested for minor traffic offenses and other minor misdemeanors.127 The group also suggested that should ICE not embrace this recommendation, it should consider issuing conditional immigration detainers to individuals arrested for misdemeanors that would only be enforced if and when that individual is actually convicted of the offense.128 In closing, the Task Force asked that DHS and ICE respond in writing to its requests and identify which Task Force recommendations it would accept, and for those recommendations it does not accept, to explain the rationale as to why not.129 As another measure of oversight of the Strategy, the DHS Office of Inspector General and the Government Accountability Office are performing their own analysis of the Secure Communities

Id. at 4. Id. at 9. Id. at 29. Id. at 9-10. Id. at 22. The Task Force suggested that a minor traffic offense does not include driving under the influence, hit-and-run, or reckless driving resulting in injury to persons, or other violations that have the potential of causing serious injury or harm to the public. Id. 128. Id. 129. Id. at 29.
123. 124. 125. 126. 127.

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Strategy.130 With the exception of ICEs suspension of existing Memorandums of Agreement and its assertion that states have no choice but to participate in the Strategy, the recent happenings regarding the Strategy are steps in the right direction. This oversight is integral to the reformation of the Strategy which the Task Force on Secure Communities highlighted several times in its report, emphasizing that its criticism is not of ICEs authority to remove high risk criminals, but rather its application thus far of the Secure Communities Strategy.131 IV. THE POTENTIAL FOR FOURTH AMENDMENT VIOLATIONS WITH THE WRONGFUL REMOVAL AND DETENTION OF U.S. CITIZENS AND CRIME VICTIMS A. The Wrongful Removal of U.S. Citizens Under the 287(g) Program and Continued Potential Under the Secure Communities Strategy The Secure Communities Strategy and similar ICE initiatives have been criticized not only for removing noncitizens with no criminal record, but also, surprisingly enough, for removing U.S. citizens.132 Since the 287(g) Program has existed for longer, there are more stories of wrongful detention and removal of U.S. citizens under this Program than under the Secure Communities Strategy.133 However, given the Strategys great potential to repeat the mistakes of the 287(g) Program, the Strategy could very easily replicate a number of the following tragic events. Pedro Guzman, a mentally ill U.S. citizen who was serving time in jail for a misdemeanor offense was removed to Mexico in 2007 after a jail employee had Guzman sign a form which allowed for his removal without a hearing.134 Even though legal documents verified that Guzman had been born in California, as he had indicated when asked by jail officials, he spent three months in Mexico before he was found by his family and was allowed to re-enter the U.S.135
Id. Id. at 8. The Secure Communities Program: Unanswered Questions and Continuing Concerns, IMMIGRATION POLICY CENTER (Nov. 4, 2010), http://www.immigrationpolicy.org/ special-reports/secure-communities-program-nanswered-questions-and-continuingconcerns. 133. See discussion infra Part IV.A. 134. Suzanne Gamboa, Citizens Held as Illegal Immigrants, THE NEWS VIRGINIAN, Apr. 13, 2009, http://www2.newsvirginian.com/news/2009/apr/13/citizens_held_as_ illegal_immigrants-ar-303399/. 135. Id.
130. 131. 132.

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Another mentally ill U.S. citizen, Mark Lyttle, was also removed to Mexico in December 2008, even though he did not speak Spanish and record searches conducted by ICE indicated that Lyttle was a U.S. citizen.136 Criminal records checks indicating his nationality as American, his social security card, and information pertaining to his parents supported Lyttles sworn statement that he was an American.137 However, when deciding to proceed with his removal, ICE agents did not give any credence to this documentation because Lyttle had told ICE that he was Mexican on two prior occasions.138 Nonetheless, when Lyttle revoked his previous statements regarding his nationality and asserted instead that he was a U.S. citizen by birth, ICE was legally obligated to investigate this claim.139 Procedurally, when a detainee in ICE custody makes a credible claim to U.S. citizenship, ICE officers will ask the detainee whether he or she can produce supporting evidence. In addition, the officer will review the detainees files and query all relevant databases to support the detainees claims.140 Lyttle provided the names of family members, who presumably could have produced a U.S. birth certificate, but this lead was not followed and there was no ICE attempt to locate Lyttles birth certificate after an initial search did not produce anything.141 Thus, despite the fact that ICE was aware that Lyttle suffered from bipolar disorder, and the legal obligation ICE was under after Lyttle had made a credible claim to U.S. citizenship (which was subsequently verified by FBI background checks), an immigration judge ordered him removed to Mexico.142 When Lyttle tried to re-enter the U.S. ten days later, he was refused entry and sent by Mexican immigration authorities to Honduras and then Guatemala.143 Finally, after almost five months outside the country, Lyttle found the U.S. Embassy in Guatemala City.144 An employee there called Lyttles brother, received his adoption papers, and issued him a passport so

136. Kristin Collins, N.C. Native Wrongly Removed to Mexico, CHARLOTTE OBSERVER, Aug. 30, 2009, http://www.charlotteobserver.com/2009/08/30/917007/nc-native-wronglyremoved-to.html. 137. Id. 138. Id. 139. See Problems with ICE Interrogation, Detention, and Removal Procedures: Hearing Before the Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law of the Committee on the Judiciary House of Representatives, 110th Cong. 5 (2008) [hereinafter Problems with ICE Interrogation]. 140. Id. 141. Collins, supra note 136. 142. Id. 143. Id. 144. Id.

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Lyttle could return to the U.S.145 Guzman and Lyttles stories are extreme, but not rare examples of what can go wrong in an overburdened immigration system. Statistics vary as to how many U.S. citizens are mistakenly removed each year mostly because it is considered a phenomenon, not a regularity, and therefore is not tracked in the annually published USCIS Yearbook of Immigration Statistics.146 In testimony before the House of Representatives Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law in 2008, Gary Mead, Assistant Director for Detention and Removal (an ICE unit now called Enforcement and Removal Operations) stated that out of 280,000 individuals removed in the four years prior, only one had been a U.S. citizen.147 Throughout the testimony Mead asserted that ICE does not knowingly or willfully detain or remove U.S. citizens148 and insisted that the one instance in which it happened, to Pedro Guzman, was not the fault of ICE.149 However, after Meads remarks in February 2008, at least two more removals of U.S. citizens occurred: that of Mark Lyttle in December of 2008 and of Alberto Delgado in 2010.150 One controversial study conducted by the Vera Institute in 2007 indicated that as many as 125 individuals were eligible for removal who had legitimate claims of U.S. citizenship.151 Thus, however one looks at these statistics, the removal of U.S. citizens is not so rare when it appears to occur on average at least once a year and has been the subject of a House of Representatives Hearing. This is alarming not only because it occurs outside of ICEs mandate but also because it poses a severe constitutional violation. B. The Wrongful Detention of U.S. Citizens The wrongful detention of U.S. citizens has also been too frequent of an
Id. OFFICE OF IMMIGRATION STATISTICS, 2009 YEARBOOK OF IMMIGRATION STATISTICS (2009), available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_yb_ 2009.pdf. 147. Problems with ICE Interrogation, supra note 139, at 17. That citizen was Guzman. Id. 148. Id. at 28. 149. Id. 150. Collins, supra note 136; Susan Carroll, Houston Native Wrongly Removed for 85 Days, HOUS. CHRON., Sept. 13, 2010, http://www.chron.com/disp/story.mpl/special /immigration/7199653.html. Delgado was removed to Mexico even though he was able to produce a U.S. birth certificate, an identity card from Texas and a social security card after signing papers agreeing to removal because he mistakenly believed that by signing the papers he would be staying in Houston and fighting removal from there. Id. 151. Problems with ICE Interrogation, supra note 139, at 17.
145. 146.

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occurrence in ICEs various enforcement strategies for rooting out criminal noncitizens. When ICE arrests or issues a detainer on an individual, officers have forty-eight hours to decide whether to institute removal proceedings or keep the individual in ICE custody, unless extreme circumstances provide for an exception to the time requirement.152 Illegal detention can occur either when a U.S. citizen is wrongfully detained, since ICE has no jurisdiction over U.S. citizens,153 or when an individual is held by ICE with no decision made on his case for longer than forty-eight hours.154 For instance, Daniel Renteria-Villegas was arrested for aggravated assault in August 2010 in Nashville, Tennessee and was immediately marked by an ICE detention hold because his arresting officer had identified his birthplace as Mexico.155 However, when Renteria-Villegas was cleared of his charges on September 3 after a judge found no probable cause in his case, he remained in ICE custody for another nine hours and was only released from jail twelve hours after charges against him had been dismissed.156 Renteria-Villegas has filed a lawsuit against the city of Nashville, his arresting officer and the sheriff of the county in which Nashville is located alleging that he was wrongfully detained despite having made a credible claim of U.S. citizenship and providing adequate documentation to show it.157 C. Why are U.S. Citizens Being Detained and Removed? The simple answer to why U.S. citizens are being detained and removed is that the immigration enforcement system in the United States is overwhelmed and inefficient. Although the agencies charged with immigration enforcement have become more streamlined since 2003, the programs these agencies have implemented to carry out this enforcement lack efficiency.158 The 287(g) Program and Secure Communities Strategy have similar objectivesto remove high risk criminal noncitizens159yet,
Id. at 16. Id. at 15. Id. at 16. Brantley Hargrove, Will an Arcane Legal Challenge Bring Down Nashville's Controversial 287(g) Program?, NASHVILLE SCENE, Jan. 13, 2011, http://www.nashvillescene.com/gyrobase/will-an-arcane-legal-challenge-bring-downnashvilles-controversial-287gprogram/Content?oid=2156751&storyPage=1. 156. Id. 157. Id. Renteria-Villegas provided officers with a Tennessee identification card, which is proof of residency or citizenship, a valid social security number, and could name the hospital in which he had been born. Id. 158. See The Secure Communities Program: Unanswered Questions and Continuing Concerns, supra note 132. 159. See id.
152. 153. 154. 155.

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in implementing the Strategy, ICE did not attempt to improve it by learning from the mistakes of the 287(g) Program.160 For this reason, the Strategy has serious potential to repeat the same errors of the 287(g) Program. One reason a U.S. citizen might get lost in the system and be subject to detention or removal is because he might not even know his status. Many young adults discover only upon arrest that they are not citizens or lawful permanent residents.161 On the other end of the spectrum, detainees who are not citizens claim citizenship, perhaps thinking they will fool ICE, tainting those who have legitimate claims.162 Similarly, some U.S. citizens claim to be noncitizens to avoid further jail time.163 Whether a detainee makes a credible claim of citizenship is up to an ICE agent to decide,164 so after seeing many false claims of U.S. citizenship, any detainee who makes a citizenship claim may seem as if he is crying wolf. ICE maintains that even if U.S. citizenship is not proven at this stage, any removable individual must, before leaving the country, be approved for a travel document from the country to which they are being removed.165 This is meant to ensure that the individual is truly a citizen of the country to which they are removed. However, a travel document is not needed for removals to Canada or Mexico.166 Of 580,107 total removals in 2009, 490,581 individuals were removed to Canada and Mexico.167 Of the few documented cases of U.S. citizens who were mistakenly removed, all were removed to Mexico.168 In his statement before the House of Representatives Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law in 2008, Gary Mead stated that a review of ICE policies was being conducted to determine if even greater safeguards can be put in place to prevent the rare instance when this event might potentially occur.169 Given these statistics, this policy should indeed be reviewed. Nationally, 2010 was a record year for removals with 3000 more removals than those occurring in fiscal year 2009.170 As the U.S. continues
See id. See Problems with ICE Interrogation, supra note 139, at 10. Id. Id. Id. at 9. Id. at 10-11. Id. at 10. OFFICE OF IMMIGRATION STATISTICS, supra note 146, at 96. See Gamboa, supra note 134; Collins, supra note 136; Carroll, supra note 150. Problems with ICE Interrogation, supra note 139. Brian Bennett, U.S. Deported Record Number of Illegal Immigrants, L.A. TIMES, Oct. 6, 2010, http://articles.latimes.com/2010/oct/06/nation/la-na-illegal-immigration20101007.
160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170.

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to refuse to implement solutions to a burgeoning problem of immigration and instead ramps up enforcement, wrongful removals and detentions will rise as well. D. Detentions and Removals of U.S. Citizens are a Violation of the Fourth Amendment The Fourth Amendment to the Constitution protects against unlawful arrest and detention.171 Since ICE has no jurisdiction over U.S. citizens172 any arrest or detention by an ICE officer of a U.S. citizen is in violation of the Fourth Amendment.173 Section 287(a) of the Immigration and Nationality Act gives immigration officers extremely broad powers to interrogate and arrest individuals without a warrant as to their right to be in the United States.174 However, this power to question ones status and arrest is extended only to any alien or person believed to be an alien.175 The burden of proving citizenship at the border is different than it is in the interior.176 Any individual entering the United States must prove citizenship or that they have a right to enter the country.177 However, once in the interior, the burden of proving citizenship falls on the ICE officer and the officer may question an individual in this pursuit.178 If done pursuant to federal regulations, once an individual credibly identifies himself as a U.S. citizen, all questions regarding legal status must stop.179 However, once again, this determination of credibility is a subjective one, left to the ICE officer to conclude. Credibility is measured by a reasonable suspicion standard, a standard lower than that of probable cause.180 To understand the scope of the immigration enforcement power it is necessary to understand how the Fourth Amendment rights of a U.S. citizen could become implicated by an unlawful detention or arrest. In United States v. Brignoni-Ponce, the Supreme Court held that in the context of stopping cars, border guards could use Hispanic heritage as a reason to stop someone, but only if combined with specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion

171. 172. 173. 174. 175. 176. 177. 178. 179. 180.

U.S. CONST. amend. IV. Problems with ICE Interrogation, supra note 139, at 15. See U.S. CONST. amend. IV. 8 U.S.C. 1357 (2006). Id. Problems with ICE Interrogation, supra note 139. Id. Id. Id. at 15. Id.

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that the vehicles contain aliens who may be illegally in the country.181 As limiting as this holding already was to illegal immigrants, any protective element it offered was practically stripped away by a 2005 decision of the Court in Muehler v. Mena.182 In Mena, the Court held that local law enforcement can question an individuals immigration status so long as the person has been lawfully stopped or detained for another purpose, [e]ven when officers have no basis for suspecting a particular individual, because this type of questioning is not a seizure or violation of the Fourth Amendment.183 The way in which a U.S. citizens Fourth Amendment rights may become implicated by an ICE officers authority to question him is best understood by an analogy. As one critic of Brignoni-Ponces holding stated, [c]ould we imagine the Supreme Court stating that [t]he likelihood that any given person of African American ancestry is a criminal is high enough to make African American appearance a relevant factor in a criminal stop?184 As this critic went on to point out, such criteria would create public outrage,185 and rightly so. Therefore, the question becomes: why are federal immigration officials and even local law enforcement allowed to discriminate on the basis of ethnic origin, particularly that of Hispanic origin? At least in 1975 when Brignoni-Ponce was decided, the Court relied heavily on a government figure that concluded that eighty-five percent of the illegal alien population in the United States was Mexican and that undocumented immigrants take a toll on our countrys economic and social resources.186 Given that in 2010 at fifty-eight percent, Mexicans made up the largest number of undocumented individuals living in the U.S.,187 and there is a persistent national debate about how illegal immigration contributes to crime and other social ills, the Courts justification for ethnic profiling in 1975 remains strong today. Thus, the potential for abuse of this authority to question can become a reality for any U.S. citizen who happens to fit the profile of an illegal alien, thereby giving the police a pretext by which to detain the individual. It is at this point, when an interrogation goes wrong and results in ICE detention or arrest of a U.S. citizen, the Fourth Amendment is violated.
United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). See Muehler v. Mena, 544 U.S. 93, 100-01 (2005). Id. (quoting Florida v. Bostick, 501 U.S. 429, 434-35 (1991)). Kevin R. Johnson, The Case Against Race Profiling in Immigration Enforcement, 78 WASH. U.L. QUARTERLY. 675, 694 (2000). 185. Id. 186. Brignoni-Ponce, 422 U.S. at 878-79. 187. Unauthorized Immigrant Population: National and State Trends, 2010, PEW HISPANIC CENTER, (Feb. 1, 2011), http://pewhispanic.org/reports/report.php?ReportID=133.
181. 182. 183. 184.

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E. The Secure Communities Strategy has Potential to Impede Law Enforcements Effort to Bring Justice to Undocumented Crime Victims The Secure Communities Strategy not only has implications for U.S. citizens, but also serious implications for undocumented noncitizens. Illegal aliens are commonly vulnerable to police presence on the roadways, but may also become vulnerable when they are the victims of crime.188 For fear of being removed themselves or that their attacker may be removed, illegal aliens who are crime victims may fail to report the crime.189 This not only impedes law enforcement efforts to deter present and future crime, but also results in an injustice to the victim. Statistically, the typical harmed victim is a female victim of domestic violence.190 Approximately fifty-five percent of women in the U.S. who have been victims of domestic violence report their attacker.191 However, only thirty percent of immigrant women lawfully present in the U.S. report their attackers and only fourteen percent of undocumented women officially report instances of domestic abuse.192 The near removal of Rita Cote provides a good example of why an undocumented woman might not call the police.193 In February of 2009, Cote called local police to report that her sisters boyfriend had assaulted her sister, but when the police arrived, they interrogated Cote as to her status in the country.194 As she was unable to produce any proof of legal status, she was arrested by the police, but her sisters boyfriend was not arrested for the attack.195 As a response to this unfairness of the criminal justice system, some cities and localities across the U.S. have attempted to become sanctuary cities which limit the ability of local police to question an individuals immigration status to encourage successful community policing.196 However, as the Secure Communities Strategy continues to take hold across America, sanctuary cities will likely have to battle to
188. See Orde F. Kittrie, Federalism, Deportation and Crime Victims Afraid to Call the Police, 91 IOWA L. REV. 1449, 1454 (2006). 189. Id. 190. Ajmel Quereshi, 287(g) and Women: The Family Values of Local Enforcement of Federal Immigration Law, 25 WIS. J.L. GENDER & SOCY 261, 282 (2010). 191. Id. at 287. 192. Id. 193. Ralph De La Cruz, The Police Took Mommy: How Reporting a Crime Nearly Resulted in Deportation for Florida Woman, FLA. CENTER FOR INVESTIGATIVE REPORTING (Jan. 31, 2011), http://fcir.org/2011/01/31/the-police-took-mommy-how-reporting-a-crimenearly-resulted-in-deportation-for-florida-woman/. 194. Id. 195. Id. 196. Kittrie, supra note 188, at 1455.

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maintain that status. A factor contributing to the trend of making criminals out of victims is that in marriage-based immigration benefits, the success of the petition lies in the hands of the U.S. citizen or legally-present spouse.197 A noncitizen can become a lawful permanent resident (LPR) and eventually a U.S. citizen by virtue of being married to an LPR or American.198 However, the ability of a noncitizen to adjust to LPR status is technically conditioned upon the filing of certain applications that are rendered void unless the instatus spouse submits them.199 This traditionally has given great power to the in-status spouse, which exacerbates the vulnerability of the noncitizen spouse in domestic violence riddled marriages.200 A noncitizen who does not adjust status is removable201 and thus for fear of discovery, a noncitizen who is suffering abuse may not report to avoid possible removal. Recognizing the vulnerable position of an abused noncitizen spouse who is dependent on her in-status spouse to file her application for permanent residency, Congress in 1994, passed the Violence Against Women Act (VAWA)202 as part of the Violent Crime Control and Law Enforcement Act of 1994.203 VAWA allows a battered spouse to self-petition for permanent residency if she can prove a prima facie case of domestic violence, battery and extreme cruelty.204 Similar concerns for the plight of abused noncitizen women spurred Congress to authorize legislation enacting U Visas in 2000 as part of the reauthorization of VAWA.205 A U Visa is a path to permanent residency for a noncitizen crime victim who meets the following criteria: the individual must have suffered substantial physical or mental abuse from criminal activity; have information regarding the criminal activity; assist government officials in the investigation or prosecution of such criminal activity; and the crime of which he or she is a victim must have occurred in the United States.206 An additional filing requirement to a U Visa is that the applicant obtain a certification from the police department or agency responsible for the
See 8 U.S.C. 1153(a)(2), 1186a(c)(1) (2006). See id. Id.; see also infra note 204 and accompanying text. See Quereshi, supra note 190, at 285. 8 U.S.C. 1186a(c)(2)(A). Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796, 1902. 203. Id. at 1796. 204. USCIS Issues Guidance For Approved Violence Against Women Act (VAWA) SelfPetitioners, U.S. CITIZENSHIP AND IMMIGR. SERVICES, (Apr. 11, 2008), http://www.uscis. gov/portal/site/uscis (search Fact Sheet VAWA; click first hyperlink). 205. Quereshi, supra note 190, at 261, 292. 206. Id.
197. 198. 199. 200. 201. 202.

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investigation for which she is helping or may be of some help.207 However, despite the best efforts of Congress to help undocumented victims of crime or domestic abuse, VAWA and U Visas are no match for immigration enforcement programs like Secure Communities. In fact, the Secure Communities Strategy impedes Congresss intent in creating such visa categories: delivering justice to an already marginalized portion of society. How do we reconcile recognizing a need to help undocumented victims of crime with a policy that supports the arrest and subsequent removal of these undocumented victims? The Strategys data sharing capability only speeds up the removal of these victims even if they may benefit from one of these specially created visas.208 The paradox between enforcement initiatives and attempts at protecting victims of crime209 has been identified and despite its visibility, ICE does not actively use the list of beneficiaries of programs such as VAWA and U Visas created by DHS and distributed to immigration authorities. Furthermore, it is common for both the victim and the attacker to be arrested in domestic violence incidents when one partner calls the police, particularly in situations where neither party speaks English and there are inconsistencies about the incident.210 The same day ICE Director Morton issued a memo on exercising prosecutorial discretion,211 he also issued a memo addressing the removals of crime victims.212 The memo reminded its recipients that it is against ICE policy to initiate removal proceedings against victims of or witnesses to a crime.213 More broadly, it directed agents, attorneys, and field office directors to exercise their prosecutorial discretion regarding any individuals pursuing legitimate civil rights complaints.214 The memo explained that any individual granted some form of victim based immigration relief would now appear with a special notation in the Central Index System (CIS).215
Id. See Pilar Merrero, Abused and Deported: Immigrant Women Face Double Disgrace, LA OPINION, Mar. 14, 2011, translated in NEW AMERICAN MEDIA, http://newamericamedia.org/2011/03/abused-and-removed-immigrant-women-face-doubledisgrace.php (indicating that undocumented immigrants may still be removed even if they have been awarded VAWA or U visa status). 209. Id. 210. Id. 211. Prosecutorial Discretion Memo, supra note 110. 212. Id. 213. Id. 214. Id. at 2. 215. Id. at 3. The CIS is a database with information on individuals who have sought immigration benefits. U.S. DEPT OF HOMELAND SEC., PRIVACY IMPACT ASSESSMENT FOR
207. 208.

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However, until this memo takes full effect, it is likely that the Secure Communities Strategy will continue to remove many more undocumented immigrants than high risk offenders. It is equally likely that a victim of a crime or domestic violence incident will not be helped by reporting the crime to the police, but rather indefinitely harmed. This will result in a fear of reporting crimes which leaves society far more vulnerable than any threat posed by a non-criminal illegal alien. V. CONCLUSION States such as Arizona and Georgia have recognized that the federal government is incapable of effectively enforcing immigration laws at a local level.216 At the same time, this local resistance to illegal immigration in particular fuels the governments response to the overburdened immigration system in our country.217 The Secure Communities Strategy is one such response, created to eliminate communication failures of the magnitude that led to the attack on September 11.218 As such, the Strategy is noble in its objective to work across agencies to share valuable data about arrestees and remove serious criminal offenders. However, to date, the Strategy has fallen short of its objectives and has proven as controversial as its predecessor programs.219 The Strategy has continued to perpetuate the mistakes of the 287(g) Program, instead of learning from them, by continuing to arrest, detain, and remove non-criminal aliens, U.S. citizens, and undocumented victims of crimes under the guise of enforcing our nations security, all while violating the U.S. Constitution.220 The Strategy further lacks credibility when those in the upper echelon of its administration cannot seem to find a constitutional basis for making participation mandatory throughout the country.221 The Secure Communities Strategy casts a wide net because the data sharing that the Strategy encourages occurs at the moment of an arrest of any U.S. citizen, LPR, non-citizen, or undocumented alien.222 Yet, for the Strategy to be implemented in a particular jurisdiction, no memorandum of

2 (June 22, 2007), http://www.dhs.gov/xlibrary/assets/privacy/ privacy_pia_uscis_cis.pdf. 216. Richard Fausset, Georgia Passes Immigration Bill Similar to Arizonas, L.A. TIMES, Apr. 14, 2011, http://articles.latimes.com/2011/apr/14/nation/la-na-georgiaimmigration-20110415. 217. See discussion supra Part IV.C. 218. See discussion supra Part II.A. 219. See discussion supra Part II.B, Part IV.A-C. 220. U.S. CONST. amend. IV. 221. See discussion supra Part III.E. 222. Secure Communities, supra note 7.

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agreement is required between ICE and officials in the state or locality.223 Therefore, no memorialized agreement exists to define the scope of the participating jurisdiction. As ICE intends to make the Strategy mandatory, this lack of guidelines and standard operating procedures, combined with the Strategys potential for error, could prove costly to ICEs ability to effectively enforce immigration law. To ease the tension in immigrant communities and among immigrant advocates, ICE must clarify the parameters of the Strategy and acknowledge its shortcomings. It has taken that first step with its June 17, 2011 memos, but it must not just encourage prosecutorial discretion, but rather actually implement it. For a program that has potential to make our country safer if used correctly and efficiently, the Secure Communities Strategy will be forever disgraced if it allows for the removal of noncriminal aliens, the unconstitutional detentions and removal of U.S. citizens, and the inhumane policy of removing victims of crime.

223.

See CAPPS ET AL., supra note 84.