The Modern American

Volume 6 | Issue 2 Article 4

2010 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 Rachel Zoghlin American University Washington College of Law, [email protected]

Follow this and additional works at: http://digitalcommons.wcl.american.edu/tma Part of the Constitutional Law Commons, and the Immigration Law Commons

Recommended Citation Zoghlin, Rachel (2010) "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," The Modern American: Vol. 6: Iss. 2, Article 4. Available at: http://digitalcommons.wcl.american.edu/tma/vol6/iss2/4

This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in The odeM rn American by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. 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

Keywords immigration enforcement, Secure Communities, Immigration and Customs Enforcement, Equal Protection

This article is available in The odeM rn American: http://digitalcommons.wcl.american.edu/tma/vol6/iss2/4 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 inherent problems with the program. Part I will explain Maryland was recently stopped by the police while walking how the program works and address arguments made for to the Hyattsville Metro Station to go to work. Short, dark- and against the program. Part II will discuss the rights skinned and Latino, with long, black hair, the police told maintained by immigrants, and the rights they are denied by him that he resembled someone suspected of mugging an virtue of their non-citizen status. Part III will examine the old woman a few blocks away. The police questioned him constitutionality of Secure Communities through an Equal about his whereabouts (home) and what he was doing that Protection lens. Finally, Part IV will address the future of morning (getting ready for work). After approximately the Secure Communities program and the future of localized forty-five minutes, the police officers received a signal that immigration enforcement, by discussing the potential impact some the real mugger had been apprehended across town, of pending litigation, legislation, and advocacy within the so the officers allowed the man to continue on his commute immigration law field. Part VI will also propose an alternative to work. What would have happened if he lived in Virginia to the localized immigration enforcement movement, and (where Secure Communities is active state-wide) and not will advise interested individuals on ways to advocate against Maryland (where Secure Communities is only active in the implementation of the Secure Communities program in three counties)? What if the police never got the call that our local community. other officers had located the actual culprit? A completely innocent Mexican waiter with no criminal record, who takes I. The Move Towards Localized Immigration English classes, pays his taxes, and supports his family, may Enforcement have been deported. In the wake of fiery controversy surrounding In 1976, the Supreme Court held in De Canas v. Arizona’s contentious immigration bill, S.B. 1070, the issue Bica that although the “[p]ower to regulate immigration is of localization of immigration enforcement sprung to the unquestionably exclusively a federal power . . . [not every forefront of national political debate. Yet, S.B. 1070 is state law] which in any way deals with aliens is a regulation of certainly not the first instance of localities, unhappy with immigration and thus per se preempted by this constitutional federal immigration enforcement, taking matters into their power.”7 Still, the Supremacy Clause, in Article VI, clause 2 own hands. De-centralization of immigration enforcement of the Constitution, has been frequently invoked to give the is a growing trend, and has been the subject of much legal Federal Government exclusive jurisdiction over matters as debate. Virginia recently adopted one method of localized international in nature as immigration. The Supreme Court immigration enforcement, the Secure Communities has repeatedly held that state attempts to enact legislation program, making it “active” in all Virginia jurisdictions.2 governing immigrants and immigration are unlawful because Similarly, D.C. Police Chief Cathy Lanier has lobbied for they are preempted by Federal law. 8 Reaffirming the Federal the implementation of Secure Communities in the District Government’s power over immigration, the Supreme Court of Columbia.3 In the D.C., Maryland and Virginia area, remarked that “[s]tate laws which impose discriminatory advocates on both sides of the debate have been ramping burdens upon the entrance or residence of aliens lawfully up their efforts to sway legislators and constituents.4 within the United States conflict with this constitutionally Of the three million sets of fingerprints taken at derived federal power to regulate immigration, and have local jails between the onset of the Secure Communities accordingly been held invalid.”9 More recently, the Federal program in October 2008 and June of this year, nearly 47,000 Government again argued that a state unlawfully preempted fingerprints belonged to undocumented immigrants, against Federal power by designing and implementing its own laws whom deportation proceedings were initiated.5 Nearly dealing with immigration within the state. For primarily that half of the individuals removed from the United States reason, Arizona’s controversial anti-immigration legislation, through Secure Communities have never been convicted of S.B. 1070, has been enjoined.10 a crime.6 Recent studies show that nearly eleven million This article will introduce the Secure Communities immigrants may be living in the United States without program within the context of the increased localization documentation.11 Immigrations and Customs Enforcement of immigration enforcement. It will also discuss some (ICE), a division of the Department of Homeland Security,

20 THE MODERN AMERICAN

74428_text_cxs.indd 20 12/29/10 10:01 AM faced with an overwhelming task and caseload, has sought sensitivity training under 287(g) agreements, and should alternative means to achieve their objective of “enforce[ing] make complaint procedures available in various languages, federal laws governing border control, customs, trade and myriad problems remain: prominent racial profiling; chilling immigration.”12 Over the past decade, increasing numbers effect on Latino/a communities; lack of oversight and of state and local law enforcement agencies have begun to accountability; potential infringement of constitutional collaborate with the federal government to enforce federal rights and denial of due process.20 immigration law. Congress amended the Immigration and Nationality a. About Secure Communities Act (INA) of 1952 through the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 199613 to Although local law enforcement officers have been facilitate more rigorous enforcement of immigration laws. increasingly involved in helping ICE identify and remove In particular, section 287(g) of IIRIRA authorizes the federal criminal aliens, Secure Communities takes the localization government to enter into Memorandums of Agreement of immigration enforcement to a new level. Under (MOAs) with state and local law enforcement agencies, so 287(g)/ACCESS programs, local police officers train with that local police can help enforce Federal immigration law. immigration enforcement to implement federal immigration In response to the positive reception of 287(g) by state and laws by checking immigration status of individuals 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 Above: Arlington County Board of Supervisors deportation.”15 Hearing on Secure Communities Program Similar to efforts of the Legislature, throughout Credit: Rights Working Group & Pabitra Benjamin the George W. Bush Administration, the Executive branch ramped up efforts to utilize local law enforcement officials stopped on the street or brought into jail.21 Under Secure in enforcing immigration law. In 2002, Attorney General Communities, local law enforcement officers (not trained Ashcroft issued a memorandum stating that the Department by federal immigration enforcement officers) are authorized of Justice was mistaken in asserting that local officers did to send the fingerprints of all individuals charged with, but not have the power to enforce civil immigration violations not yet convicted of crime to ICE, enabling cross-checking (e.g., overstaying a visa).16 Ashcroft’s memo stipulated that mechanisms with the Department of Homeland Security local officers have “inherent authority” to make immigration (DHS) immigration database and the FBI criminal history arrests based on violation of civil immigration laws.17 The database.22 If the fingerprints match a DHS or FBI record, notion that local law enforcement maintains this “inherent ICE is automatically notified, even if the individual has authority” has been a powerful tool for law enforcement never been convicted of a crime.23 Local police can hold an agencies attempting to substantiate their role as immigration individual suspected of being in the country illegally for 48 enforcers. This language has never been written into federal hours, until ICE arrives to take him or her into custody.24 regulation, and the actual legal weight of this memo is To achieve its goals, Secure Communities uses debated.18 a three-tiered priority list for detaining and removing the In increasing numbers, ICE has signed MOAs most dangerous and high-risk criminal aliens. Level 1, the with local law enforcement agencies, giving state and local top priority, is to apprehend violent offenders: murderers, law enforcement officers authority and responsibility to rapists, kidnappers, and major drug offenders.25 The Level enforce immigration laws within the normal course of their 2 priority is to identify and remove individuals convicted duties.19 Although law enforcement officers must undergo of minor drug offenses and property offenses such as

SPRING 2011 21 burglary, larceny, fraud, and money laundering.26 Level 3 are never monitored or questioned, they are given nearly represents the lowest priority of aliens to detain and deport limitless power to enforce federal immigration law. and includes individuals who commit “public disorder” and minor traffic violations, such as driving without a license, or ii. Chilling Effect on Latino/a Communities running a stop sign.27 Level 3 also includes the catch-all, “all others” arrested for other minor offenses.28 If police use the Secure Communities program The program falls short, however, of meeting its as an excuse to identify and deport immigrants, fewer projected goal of “Identifying and Removing Dangerous immigrants will feel comfortable calling the police to report Threats to [the] Community.”29 In 2009, ICE data showed criminal activity. Alienating a subset of a community, and, that, of the 111,000 aliens successfully identified and detained in urban neighborhoods, a very substantial percentage of through the Secure Communities program, approximately the community, frustrates the goals and purposes of law 11,000 (10%) were charged with or convicted of “Level 1” enforcement. Police will have less information regarding crimes; meanwhile, the other 90% of aliens identified and the whereabouts of individuals involved in actual criminal detained were charged with or convicted of lesser crimes, and activity, because when some community members feel not necessarily “dangerous threats” to their communities.30 targeted and vulnerable, they stop cooperating with local Nearly half of those currently detained in immigration police, making the entire community less safe. detention have no criminal convictions at all.31 Moreover, five to six percent of those identified and detained through iii. Lack of Oversight and Accountability Secure Communities are mistakenly identified as aliens, when they are actually U.S. citizens.32 A program, such as Secure Communities, wholly Although the Secure Communities program was designed by an administrative agency, has never received first introduced under the Bush Administration, it has legislative input as to specific procedures for oversight expanded rapidly during the Obama Administration.33 As or accountability. Indeed, ICE outlines priorities for the of July 20, 2010, it was activated in 467 jurisdictions in Secure Communities program, but it is solely responsible twenty-six states.34 By September 28, 2010, the program for ensuring that those priorities are met; if they are not was activated in 658 jurisdictions in thirty-two states.35 It met, the impetus is on ICE alone to adjust its methods. is activated in all Virginia jurisdictions, and in four out of Furthermore, besides the initial agreements between twenty-four counties in Maryland. The District of Columbia ICE and local law enforcement agencies, ICE has shown has refused police department attempts to implement the no indication that it intends to train or monitor local law program. ICE hopes to make the program available in enforcement in anti-racial profiling practices when utilizing every state by 2011,36 and in effect nation-wide by 2013.37 Secure Communities. Consequently, local law enforcement As the program grows, political debate surrounding the agents are free to use their increased power without controversial program continues. supervisory guidance or interference. Finally, ICE has been exceedingly reluctant to publish data regarding how b. Problems with Secure Communities effective the program has been in achieving its purported goals. The program was launched in October of 2008, but i. Prominent Racial Profiling ICE only recently, after various Freedom of Information Act (FOIA) requests and complaints filed by advocacy Although ICE maintains that the goal of the Secure groups suspicious of foul play, acquiesced and published Communities program is to identify and remove dangerous data on the number of arrests connected to the program, criminal aliens, it effectively serves as a green-light for local the type of criminal records of aliens identified through the law enforcement agencies to use racial profiling tactics to program, and the number of individuals deported through target Latino individuals they suspect to be undocumented Secure Communities. Despite access to this information, immigrants.38 Once a law enforcement officer finds a many questions remain unanswered. pretext to arrest someone, the police officer can bring the arrested individual to the station for fingerprinting. When iv. Potential Infringement of Constitutional all fingerprints are immediately sent to ICE and the FBI for Rights and Denial of Due Process immigration enforcement cross-checking, it matters very little what the purpose of the initial arrest was, and whether Because the Secure Communities program the arrest ever led to a criminal conviction. Police officers implicitly condones the use of racial profiling (and racial motivated to rid their communities of Latino immigrants discrimination) to achieve its goals, the program must be not only have an avenue to do so, but because their motives examined through a

22 THE MODERN AMERICAN constitutional lens to ensure the protection of fundamental Rick Jones attested, “[i]t’s really a heaven-sent for us. [. . . rights. If the program is not narrowly tailored to achieve a ] I don’t want [criminal aliens] in my community, I’ve got specific and permissible government purpose, the program’s enough homegrown criminals here.”44 Indeed, as traditional inherent discrimination violates the Equal Protection clause methods of law enforcement fail to target immigrant of the Fourteenth Amendment. Secure Communities is not criminals specifically, Secure Communities helps differentiate narrowly tailored to suit its purported goal; in fact, it is not between American citizen criminals and immigrants. For tailored in the least. It encourages checking the immigration law enforcement officials seeking to rid their localities of status of all persons accused and arrested of crimes, even criminal aliens, the goals of Secure Communities certainly where criminal charges are never pressed and individuals are align with their own. never convicted. The vast majority of aliens identified and Similarly, in Virginia, Fairfax County Sheriff Stan removed through the program have never been convicted Barry remarked that the Secure Communities program of a dangerous crime, or never been convicted of any crime was “a win-win situation both for the community and law at all. What is worse, about 5% of the database “hits” enforcement.”45 Barry boasts, “[w]e will be able to identify through the Secure Communities program identify United illegal immigrants who commit crimes in Fairfax County States Citizens, not criminal aliens. and get them in the process for deportation, and it does not Furthermore, as many immigration law scholars require additional funds or manpower from us.”46 Indeed, note, what was once considered a non-punitive consequence Fairfax County will be able to identify undocumented of a civil infraction, immigration detention and deportation immigrants much sooner in the criminal process, without are increasingly likened to criminal punishment.39 As the needing to specifically recruit, employ, or train special teams consequences of civil immigration violations become of law enforcement to deal exclusively with immigration more severe, many argue that individuals involved in the enforcement. Still, despite Barry’s contention that the immigration system should be afforded more substantial program will not cost Virginia taxpayers money, the State is due process rights, like in the criminal system. Without in the process of building the largest immigration detention such procedural safeguards, our government runs the risk center in the Mid-Atlantic, a $21 million project that hopes of embodying an unfortunate hypocrisy, glorifying the to house up to 1,000 immigrant detainees by next year.47 protection of liberty and freedom at all costs by ensuring In contrast, opponents of Secure Communities argue proper due process before convicting and punishing the that the program ultimately will result in communities being accused, while simultaneously denying such due process and less safe. Noting that Secure Communities enforcement has enforcing severe judgments on others accused, on the basis not resulted in significant deportation of violent or dangerous of immigration status. criminals, CASA de Maryland Attorney, Enid Gonzalez, remarked that although the Program “claims to keep violent c. Community Tension criminals off the streets, [ . . .] it’s just incarcerating innocent busboys.”48 Furthermore, many advocates worry that the Many advocates of Secure Communities base their program has a chilling effect on Latino members of the support on anti-terrorism efforts.40 Bringing to light the community, dissuading them from coming forward as crime fact that some of the 9/11 terrorists had been stopped for victims and witnesses, and thereby enabling actual criminals minor traffic violations before the infamous plane hijacking, to continue terrorizing the community. An opponent of some argue that if local police officers had access to Secure Secure Communities in Utah, Police Chief Chris Burbank Communities technology at the time, the suspects may recognized this problem in his own community of Salt Lake have been identified earlier as criminal aliens, and could City: “Fighting crime without the help of one’s community have been taken into custody and placed in deportation [ . . . ] is like trying to disarm a hidden mine by stomping on proceedings.41 According to some, if Secure Communities the ground. By the time you have found the problem, it is had been implemented more broadly, and earlier, the entire already too late.”49 devastating terrorist attack could have been averted, and Opponents in Virginia argue that the State unjustly the lives of thousands of innocent people could have instituted the Program without the approval or consent of been saved.42 Utah Republican Senator Orrin Hatch even the local government. Although Secure Communities is most proposed legislative amendments to immigration law frequently enacted through individual agreements between that would require all localities to sign on to either 287(g) localities and ICE, Virginia recently implemented Secure programs or Secure Communities.43 Communities state-wide, leaving many immigrants’ rights Proponents of Secure Communities in Ohio praise advocates in Arlington arguing that it was unfairly instituted, the program as a tool to help identify dangerous criminals since the agreements had not been negotiated with Arlington that would otherwise go undetected. Butler County Sherriff law enforcement, or Arlington County government.50

SPRING 2011 23 Raising the level of confusion about the implementation histories of people they arrest, it is not and possible dissolution of Secure Communities, ICE first realistic for states to withhold fingerprints announced there are no opt-out options, but then later from the FBI, which means it is impossible explained that despite discouragement, cities could opt out.51 to withhold them from ICE.62 ICE Deputy Press Secretary has stated that localities like Arlington cannot opt-out of the program through ICE, In early October 2010, in stark contrast to its declaration rather, the locality must settle the matter with the state one month earlier, ICE announced that local governments government.52 Oddly, in a letter dated September 8, 2010, would not be able to opt-out of the program.63 ICE Secretary of Homeland Security Janet Napolitano explained Director John Morton conceded that “the agency would to Representative Zoe Lofgren that local jurisdictions could meet with the localities to discuss the issue, but in the end opt-out by formally notifying the Assistant Director for the agreement is with the state.”64 After meeting with ICE the Secure Communities Program.53 In early November officials on November 5, 2010, Arlington County Manager 2010, ICE officials met with Arlington County officials, Barbara Donnellan explained to the rest of the County and informed them that “local activated communities do Board, “ICE stated that Secure Communities is a federal not have the option of withholding information from the information-sharing program which links two federal [Secure Communities] program.”54 fingerprint databases. . . . The program does not require state San Francisco’s Sherriff repeatedly attempted and local law enforcement to partner with ICE in enforcing to opt-out of California’s growing implementation of federal law.”65 Whether local jurisdictions will be free to Secure Communities.55 His appeal was denied by the opt-out remains to be definitively explained to confused law State Attorney General,56 but San Francisco advocates enforcement and government officials nation-wide. persisted, searching for ways to escape the implementation As the debate grows, and immigrants’ rights groups of Secure Communities. On September 1, 2010, after two advocate for the end of the Secure Communities program, years of dedicated advocacy by Immigrants’ rights groups the concern of whether and how the program infringes and Sherriff Michael Hennessey, ICE finally announced a upon the rights of immigrants becomes more ubiquitous. procedure for local jurisdictions to request to opt-out of Although immigrants to the United States do not enjoy Secure Communities.57 Angela Chan, an attorney at the all of the Constitutional rights as American citizens, the Asian Law Caucus acknowledged the potential impact this courts have held that immigrants enjoy some Constitutional recent announcement may make: protection. As such, the Secure Communities program may need careful scrutiny to determine whether it satisfies It’s a promising development that ICE Constitutional precedent. has finally come out and acknowledged that the program is voluntary in a written II. Immigrants’ Rights statement. The next step is for ICE to follow through and allow San Francisco In determining whether constitutional rights extend to opt out since both our Sheriff and our to immigrants, courts have frequently considered whether the Board of Supervisors have clearly stated framers of the Constitution would have meant for terms like our city’s request to opt out.58 “persons,” “people,” and “citizens,” to include immigrants. If the terms were intended to include immigrants, which Similarly, attorneys and advocates in Arlington, Virginia immigrants should be included? Most often, whether have fervently lobbied state legislators to permit the county constitutional rights are afforded to immigrants depends on to opt-out of the program.59 After indications that opting- their status. out was possible,60 the Arlington County Board voted to Some rights guaranteed to United States citizens withdraw from Secure Communities.61 have rarely been afforded to immigrants, and have rarely been Whether jurisdictions feasibly can opt-out continues contested. For example, interpretations of the Constitution to be unclear. After Arlington announced its intention to dating back to the early 1800s indicate that aliens were not opt-out, a senior ICE official explained to the Washington included in “the people of the several states” who enjoyed Post: the right to vote.66 Voting was considered a privilege, or at most, a “political right,” subject to the discretion of the The only way a local jurisdiction could opt State.67 In United States v. Esparaza-Mendoza, the Supreme out of the program is if a state refused to Court determined in 1874 that “citizenship has not in all send fingerprints to the FBI. Since police cases been made a condition precedent to the enjoyment and prosecutors need to know the criminal of the right of suffrage.”68 However, scholars note that

24 THE MODERN AMERICAN un-naturalized alien immigrants were not officially excluded protections ensured by the Constitution, in invalidating the from suffrage until 1928.69 The conclusion that immigrants local ordinance, the Supreme Court stated: are not included in “the people of the several states” has left the door open to the determination that immigrants are [I]f, by an ordinance general in its terms excluded from several other Constitutional protections as and form, like the one in question, by well. reserving an arbitrary discretion in the enacting body to grant or deny permission a. Equal Protection to engage in a proper and necessary calling, a discrimination against any class can be Despite being denied the right to vote, immigrants made in its execution, thereby evading and are afforded some constitutional rights. Plyler v. Doe ensured in effect nullifying the provisions of the that immigrants are protected under the Equal Protection national constitution, then the insertion of clause of the Fourteenth Amendment. 70 In Plyler, a group provisions to guard the rights of every class of undocumented Mexican children sought declaratory and and person in that instrument was a vain injunctive relief against a Texas statute that excluded them and futile act.78 from access to free education at state public schools.71 The Supreme Court struck down the statute, noting that even In invalidating the San Francisco ordinance, the court though the children had not been “legally admitted” to the held that the Equal Protection clause applied universally United States, discrimination against them on the basis of to all people, without regard to race, color, or nationality.79 their immigration status was impermissible because the Indeed, the Supreme Court recently reinforced the notion State did not establish a rational basis sufficient to deny the that laws based on alienage or immigration status be subject benefit of public education.72 Reflecting on the text of the to a higher level of judicial scrutiny.80 As such, “the power Fourteenth Amendment, “No State shall . . . deny to any of a state to apply its laws exclusively to its alien inhabitants person within its jurisdiction the equal protection of the as a class is confined within narrow limits.”81 laws[,]”73 the court held that “an alien is surely a ‘person’ in any ordinary sense of that term.”74 Because undocumented b. Confusion, Abridgement and Reinforcement of Immigrants’ alien children are protected by the Fourteenth Amendment, a Rights law discriminating against them on the basis of immigration status violated their Constitutional right to Equal Protection In the years since Yick Wo, Constitutional rights because, although conserving the state’s financial resources afforded to immigrants have been substantially abridged. may be a legitimate government interest, the law was not Indeed, as the court in Mathews v. Diaz noted, “[i]n the exercise narrowly tailored enough to advance such an interest.75 of its broad power over naturalization and immigration, Even facially neutral laws have been found to Congress regularly makes rules that would be unacceptable violate the Equal Protection clause if they are applied if applied to citizens.”82 in a racially discriminatory manner against immigrants. In 1904, John Turner, an Irish citizen and immigrant In the 1880s, many Chinese citizens immigrated to the to the United States, filed a writ of habeas corpus after Western United States and opened small businesses. A his detention and the commencement of deportation San Francisco ordinance gave the San Francisco Board proceedings. Turner was a self-proclaimed anarchist, and of Supervisors the power to oversee and authorize the the 1903 Act to Regulate the Immigration of Aliens into opening and maintenance of laundromats, particularly the United States prohibited anarchists from entering the laundromats in wooden buildings. Although the ordinance country.83 Many later courts have co-opted one famous was not discriminatory on its face, the custom of the Board line of dicta from Turner, in order to further deny rights to of Supervisors was to deny laundry permits to Chinese immigrants: “[An alien] does not become one of the people laundry shop owners. The Supreme Court held in Yick Wo to whom these things are secured by our Constitution by v. Hopkins that the arbitrary and discriminatory practices an attempt to enter, forbidden by law.”84 The Supreme of the Board of Supervisors, effectively barring Chinese Court held that the 1903 Act was not an unconstitutional immigrants from the entire profession of owning and abridgment of First Amendment rights; the First operating laundromats, constituted racial discrimination and Amendment’s guarantee of free speech did not extend to an therefore infringed upon the Constitutional rights of Chinese alien anarchist, particularly when his entry into the country immigrant applicants.76 The court noted that, “[t]he rights was prohibited by an act of Congress.85 of the petitioners . . . are not less because they are aliens Similarly, in 1945, an Australian citizen and and subjects of the emperor of China.”77 Reflecting upon immigrant to the United States filed a writ of habeas corpus

SPRING 2011 25 appealing his detention and imminent deportation after he And only by expressing that wrath can we was determined to be affiliated with the Communist party in give form and substance to ‘the great, the violation of an amendment to the Immigration Act of 1917.86 indispensable democratic freedoms,’ to Unlike Turner, however, the court determined that Bridges’ which this nation is dedicated.92 “isolated instances”87 of affiliation with the Communist party did not necessitate his immediate deportation. Somewhat Although seemingly progressive and forward- confusingly, the court asserted that aliens residing within thinking, Justice Murphy’s remarks have been used to both the United States are afforded Constitutional protections of bolster the rights of lawfully present immigrants, and to deny freedom of speech and freedom of press.88 In reversing Constitutional rights to undocumented immigrants. Justice the Circuit court’s dismissal of Bridges’ habeas petition, the Murphy recognized the limitations of the Constitution, court reiterated that, noting that “[s]ince an alien obviously brings with him no constitutional rights,” Congress may enact laws excluding although deportation technically is not him or her as it sees fit.93 Murphy reasoned, “once an criminal punishment . . . it may nevertheless alien lawfully enters and resides in this country he becomes visit as great a hardship as the deprivation invested with the rights guaranteed by the Constitution to of the right to pursue a vocation or a all people within our borders . . . [including] the First and calling. . . . As stated by Mr. Justice Brandeis the Fifth Amendments and by the due process clause of the . . . deportation may result in the loss ‘of all Fourteenth Amendment.”94 that makes life worth living’.89 In 1982, the Supreme Court seemingly defied earlier case law regarding the Constitutional rights of immigrants As such, procedures involving such a deprivation must when it found valid a California statute requiring United “meet the essential standards of fairness.”90 The court States citizenship for employment as a government officer. determined that the lower courts misconstrued the definition The court explained that, of “affiliation” when considering Bridges’ relationship to the communist party, and therefore his detention under the [t]he exclusion of aliens from basic deportation order was indeed unlawful. In his concurring governmental processes is not a deficiency opinion, Justice Murphy remarked famously upon the in the democratic system but a necessary importance of safeguarding Constitutional rights: consequence of the community’s process of political self-definition. Self-government The record in this case will stand forever as . . . begins by defining the scope of the a monument to man’s intolerance of man. community of the governed and thus of the Seldom if ever in the history of this nation governors as well: Aliens are by definition has there been such a concentrated and those outside of this community.95 relentless crusade to deport an individual because he dared to exercise the freedom that The exclusion of aliens from the definition of community belongs to him as a human being and that is stands in contrast to prior declarations that aliens are guaranteed to him by the Constitution.91 . included within the definition of “people” protected under . . [T]he Constitution has been more than the Constitution.96 a silent, anemic witness to this proceeding. Diverging interpretations of whether immigrants It has not stood idly by while one of its should be afforded Constitutional protections continue to subjects is being excommunicated from result in differing and sometimes conflicting case law. A this nation without the slightest proof recent local case in a Virginia circuit court held that an that his presence constitutes a clear and undocumented immigrant was barred from bringing a present danger to the public welfare. Nor workers’ compensation claim against his employer.97 The has it remained aloof while this individual court determined that, although Virginia code defined is being deported, resulting in the loss “employee” as “every person, including aliens and minors, in ‘of all that makes life worth living,’ . . . . the service of another under any contract of hire . . . whether When the immutable freedoms guaranteed lawfully or unlawfully employed[,]” an undocumented by the Bill of Rights have been so openly immigrant could not be included in that definition “without and concededly ignored, the full wrath of subverting federal immigration policy.”98 Relief like worker’s constitutional condemnation descends compensation “is foreclosed by federal immigration policy, upon the action taken by the Government. as expressed by Congress in the Immigration Reform and

26 THE MODERN AMERICAN Control Act of 1986.”99 strict scrutiny review. However, if the law denies a benefit Looking back, the Plyler decision may have been on the basis of legitimate differences between differentiated either an aberration on a historical tradition of denying classes, or the characteristic upon which the discrimination rights to immigrants, or it may be a turning point towards is based is not an immutable characteristic, the court broader assurance of rights for aliens in the United States. may apply an intermediate level of review, less stringent While some immigrants are afforded Constitutional and than strict scrutiny, but more stringent than rational basis other legal protections, others are excluded due to various review.102 Although discrimination on the basis of race interpretations of “person,” “people,” “employee,” and 103 and national origin are afforded strict scrutiny review, even “immigrant.” Still, precedent set by Plyler assures that discrimination on the basis of immigration status is analyzed all immigrants (documented and undocumented alike) are under intermediate scrutiny.104 Immigration status is largely protected by the Equal Protection clause. Considering both considered a voluntary condition, and therefore not an the broad power of Congress with respect to immigration, immutable characteristic.105 Still, immigrants are a discrete and the rights that immigrants maintain under the and vulnerable class, and often the target of discrimination. Constitution, is Secure Communities a permissible exercise While laws analyzed under rational basis review are given of government power? much deference, and only rarely overturned, laws evaluated under intermediate review or strict scrutiny are subject to a III. Secure Communities: An Equal Protection higher standard; as such, they are examined more critically Analysis to determine if the discrimination in question is sufficiently invidious to be deemed unconstitutional. A law violates the Equal Protection clause when According to Plyler, although immigrants are a it denies a benefit to a discrete class of people while it is discrete class of individuals, and frequently discriminated afforded to others similarly situated. In analyzing the against, their status is at least partly voluntary (and not constitutionality of a law under Equal Protection, a court immutable); therefore, their Equal Protection claim may will first determine what level of scrutiny must be applied. be subject to an intermediate level of scrutiny. One could A law is presumed valid unless a challenger shows that the argue that the immigration status of most undocumented law in question falls within exceptions to this presumption: immigrants is involuntary because there are few and near- if the law infringes upon a fundamental right; if the law impossible legal avenues for an undocumented immigrant distorts the political process; if the law targets a racial or to adjust his/her status. Furthermore, many individuals religious minority; or if the law targets another “discrete faced with poverty, political persecution, or gang violence and insular minority.”100 in their home country, feel as though they have no choice The next step in an Equal Protection analysis is but to immigrate to the United States. Still, some would discerning whether the law seeks to achieve a permissible argue that, albeit an unappealing choice between remaining government purpose. If the purported goal of the law is in the United States undocumented or returning to one’s impermissible, it fails an Equal Protection review, and is country of origin, the fact that an individual chooses to unconstitutional. However, the actual purpose of a law remain in the United States without documentation is may differ from its purported goal. If the actual purpose evidence of his/her voluntarily determined status; therefore of a law is impermissible, it also fails an Equal Protection an Equal Protection claim would require an analysis under review, and is unconstitutional. If the government purpose intermediate scrutiny. is legitimate, the final step is to determine whether the law is related to the achievement of its goal. b. Permissible Government Purpose

a. What Level of Scrutiny Should be Applied? i. Purported Purpose

For the purposes of an Equal Protection challenge, Does the Secure Communities program seek to a law is presumed valid, and subject to rational basis review, achieve a permissible government goal? ICE’s purported unless a challenger can show either that the benefit denied goals of Secure Communities are to identify aliens in law is a fundamental right, or that individuals denied the benefit enforcement custody, prioritize apprehending and removing are part of a discrete or suspect class.101 If the benefit denied criminal aliens who pose the greatest threat to public safety, is a fundamental right, the court will review the questionable and efficiently identify, process and remove criminal aliens law or practice with strict scrutiny. If the law discriminately from the United States.106 affords the benefit, and denies it to a group of individuals First, identifying aliens in law enforcement on the basis of race or religion, the court similarly applies custody may be problematic. Although deportation was

SPRING 2011 27 always considered a civil penalty, the current process and were published, it may very likely show that the overwhelming consequences of deportation make the reality of deportation majority of individuals identified through the program are more like criminal punishment.107 If deportation is more akin Latino. Although the program does not overtly require to a criminal punishment, aliens in custody should be given discrimination on the basis of race, its intended effect is to proper due process, including notice, an opportunity to be remove as many Latino immigrants from the United States heard, and an opportunity to contest charges against them, as possible. If this were the case, the program would fail an before punishment is exacted. Identifying, apprehending Equal Protection challenge, for promoting an impermissible and removing criminal aliens from the United States may government objective. be a permissible goal for the federal government, but is it a permissible responsibility for localities? Surely efficiency c. Ends and Means Nexus in the process of identifying and removing criminal aliens should be a permissible government goal, but is it i. How Closely Should the Program Fit its permissible to delegate this power to localities, and require Purported Goals? locality compliance? It is likely permissible if localities opt- in to the program on their own accord, but ICE expects to Assuming that an analyzing court determines that have the Secure Communities program in effect nation-wide the purpose of the Secure Communities program is not by 2013.108 Requiring states and localities to enforce federal dubious, but rather a permissible government goal, how law is a violation of the Tenth Amendment.109 If Secure broad or narrow must be program be tailored to remain Communities defies the Tenth Amendment by unlawfully constitutionally valid under Equal Protection? Under a forcing state participation in the enforcement of federal rational basis review, a law challenged under Equal Protection law, it will have an impermissible goal and will consequently must be rationally related to a legitimate government purpose. violate Equal Protection principles as well. It is unlikely that Secure Communities, a program highly contested for its overwhelming reliance on racial profiling, ii. Actual Purpose would be subject to such a low level of constitutional review. If Secure Communities were analyzed under rational basis Where a facially-neutral law has a dubiously review, because the court pays high deference to existing impermissible actual purpose, the court will take into account laws and administrative programs, Secure Communities the actual purpose in analyzing whether the law violates the would likely be found constitutionally permissible. Equal Protection clause. However, the court most often Under strict scrutiny review, a challenged program defers to decisions of the legislature where the level of is presumed invalid. In order to remain valid, the program scrutiny is not heightened.110 If the impermissible outcome must be necessary to achieve a compelling government of the law is simply an unintended effect, a law may not purpose. Under intermediate scrutiny review, a challenged necessarily be invalidated for having an impermissible program must be narrowly tailored to achieve an important purpose. However, if the court determines that a law has government goal. If ICE’s important government goal an impermissible intended purpose, despite being facially is prioritizing the identification and removal of criminal neutral, the court may invalidate it for violating Equal aliens, it may need to clarify the definition of a “criminal Protection.111 alien.” If violating a civil immigration law is not a crime, ICE maintains that the actual purpose of Secure undocumented aliens who have never been convicted Communities is to ensure community safety by removing of criminal offenses would not be “criminal aliens,” and dangerous criminal aliens. However, ICE’s own statistics therefore would not be reached by the Secure Communities show that the majority of those identified and removed program. If this is the case, the fact that some non-criminal through Secure Communities have been Level 2 and Level undocumented workers have been removed under the Secure 3 offenders.112 Indeed, only 8-10% of those identified Communities program may constitute prima facie evidence through the program are Level 1 offenders, those specifically that the government’s program is not sufficiently tailored targeted as dangerous and high-risk threats. Interestingly, to meet its goal. It is unlawfully over-inclusive, catching the number of Level 1 offenders is only slightly higher than in its net far more individuals than it purports to identify the number of U.S. citizens who are identified as a “hit” and deport. If the program is too broad in attempting to through the Secure Communities program (5%).113 achieve its purported goal, it may be an unconstitutional Specific data on the race and national origin violation of Equal Protection. of individuals identified and deported through Secure Communities is seriously lacking, and is the subject of both ii. Negative Externalities and Policy Concern FOIA investigations and complaints.114 If this specific data

28 THE MODERN AMERICAN If the goal of Secure Communities is to promote tomorrow.119 safety, it is deeply and ironically flawed since a troubling consequence of Secure Communities is its profound chilling More recently, Justice Goldberg, reflecting upon the effect on immigrants with respect to reporting crimes. Civil Rights Act of 1964, emphasized the importance of Concerned about their potential vulnerability to inquiries protecting the dignity of individuals discriminated against about immigration status, fewer immigrants who are crime on the basis of race: “Discrimination is not simply dollars witnesses or victims will come forward to the authorities.115 and cents, hamburgers and movies; it is the humiliation, Increased reluctance to report criminal activity can only frustration, and embarrassment that a person must surely result in insecure communities, where criminals remain free feel when he is told that he is unacceptable as a member of to commit more crimes. the public because of his race or color.”120 Additionally, although ICE admitted that 5% of Governmental utilization of racial profiling individuals identified through the Program are U.S. citizens, programs serves to aggravate these issues. Condoning it never mentioned how many of those identified were racial profiling tactics is not only unethical, but may soon Lawful Permanent Residents. ICE’s data fails to include be explicitly unlawful as well.121 Considering the multitude how often U.S. Citizens or Lawful Permanent Residents of negative externalities of Secure Communities program, were arrested, fingerprinted, identified, and detained by Congress must specifically address the program, and local ICE as a result of Secure Communities. The Supreme governments must reconsider their involvement in the Court cautioned against imposing substantial burdens on enforcement of federal immigration law. lawful immigrants, because “our traditional policy [is] not treating aliens as a thing apart.”116 Highlighting Congress’s IV. The Future of Secure Communities role in specifically regulating immigration, the Court held that the purpose of immigration regulation is to “protect a. Litigation Against Secure Communities the personal liberties of law-abiding aliens . . . and to leave them free from the possibility of inquisitorial practices In February 2010, the National Day Laborer and police surveillance.”117 Because Secure Communities Organizing Network, Center for Constitutional Rights, and effectively facilitates removals for many individuals who, Immigration Justice Clinic of the Benjamin N. Cardozo though arrested and fingerprinted, have never have been School of Law (the “Network”) filed a Freedom of convicted of a crime, the Program inherently stands in stark Information Act (FOIA) request, to obtain data related to contrast to the Supreme Court’s mandate of leaving law- the two-year old Secure Communities program.122 In late abiding aliens free from invasive police practices. April 2010, they commenced a lawsuit against ICE, DHS, Furthermore, the Secure Communities program Executive Office for Immigration Review, the FBI, and relies heavily on racial profiling to achieve its goal of the Office of Legal Counsel, for failing to release agency identifying and removing alien immigrants. The practice of records under the Freedom of Information Act.123 After racial profiling alone is problematic because it perpetuates much delay, ICE and DHS reluctantly disclosed information negative stereotypes and bias-related crime against about the Secure Communities program, confirming what individuals on the basis of their skin color. Furthermore, advocates at the Network feared: the Program functions it makes already-vulnerable groups even more vulnerable to as a “dragnet,” funneling individuals into a highly flawed discrimination and socio-economic oppression. It reinforces detention and removal system; 79% of those caught in despicable notions of inferiority, and deeply offends the the Program’s net are not criminals or were picked up for dignity of people of color, regarding both an individual’s minor offenses; the Program serves as a smokescreen for sense of self-worth and the presumptive social value of racial profiling, allowing police officers to make arrests that such and individual in the community.118 As Justice Murphy could lead to deportations, rather than to convictions; and remarked in his dissent in Korematsu v. United States, although the Program is not mandatory, there is no clear opt-out procedure.124 Although ICE complied with FOIA giv[ing] constitutional sanction to that requests, many of the questionable practices inherent in inference [that race could be used as a Secure Communities remain. As such, it is likely that the proxy for criminal suspicion] . . . is to adopt Network, or other like-minded advocacy organizations, will one of the cruelest of the rationales used continue to pursue litigation against ICE to remedy these by our enemies to destroy the dignity of issues. the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of

SPRING 2011 29 b. Effect of Judicial Findings in United States v. Arizona than receiving measly declarative relief, victims may finally witness unlawful government action being judicially If Arizona’s SB 1070 withstands Constitutional sanctioned. Rather than receiving apologies, victims would scrutiny, it may provide a dangerous foundation for racial receive financial compensation. Additionally, allowing profiling and the expansion of Secure Communities. Like a disparate impact private right of action ensures that Secure Communities, Arizona’s recent anti-immigration bill facially-neutral, or even unintentional discrimination is has been the subject of much political debate. Both programs avoided. Perhaps most significantly, the bill would require involve delegating significant responsibility to unsupervised agencies like ICE to regularly publish data to show how its local law enforcement officers, which implicates a grave program functions, and whether it is achieving its goals. potential for racial profiling tactics to be tacitly enacted in Making such data available to the public would force ICE day-to-day policing. to be responsible for the way in which its programs are The most prominent argument in the Federal executed. It would better equip advocacy organizations Government’s case against the State of Arizona regarding to ensure that civil rights are not violated. The bill would Arizona’s anti-immigration law, SB 1070, is that the state require steadfast and dedicated oversight to ensure that impermissibly attempts to preempt an area of law specifically racial profiling be eradicated. Still, although this bill would reserved for the Federal Government. Control over deeply de-claw some of the problematic aspects of the immigration policy and enforcement, a clear responsibility Secure Communities program, it would not rectify all of its of the Federal Government,125 is reinforced by the Tenth injustices. Amendment.126 However, considering the proliferation of ICE programs that delegate significant power in d. Alternative Approaches to Immigration Enforcement immigration enforcement to localities, this argument may no longer be persuasive. Arizona District Court Judge Rather than engaging in complicated, ad-hoc, non- Bolton granted a preliminary injunction against SB1070,127 congressionally authorized, federal-local collaborations concurring with the Federal Government’s argument that to identify and deport all undocumented immigrants, the Arizona unlawfully attempted to preempt Federal law, but Federal government needs to re-examine and reinstate in the absence of clear Congressional discussion of ICE’s comprehensive immigration reform, including just and fair current programs, and authority to delegate the power immigration enforcement. This reform should consider of immigration enforcement, the Secure Communities why individuals come into the United States illegally. As program may similarly be found to be an impermissible co- experts at the Migration Policy Institute point out, “our opting of Federal authority. Furthermore, ICE’s attempt to immigration laws provide inadequate legal avenues to enter delegate its clearly federal responsibility to state and local the United States for employment purposes at levels that governments may violate the Tenth Amendment.128 our economy demands.”130 By issuing visas like the H1-A and H1-B, U.S. c. The Impact of Congressional Legislation: The End Racial Customs and Immigration Services grants temporary Profiling Act of 2010 legal status to immigrants coming to work in the United States. Unfortunately, the government offers only 66,000 Legislative efforts to end discrimination are evident visas to individuals coming to work in low-skilled, non- in HR 5748, also known as the End Racial Profiling Act agricultural settings inside the United States; this number of 2010. The bill, introduced in Congress in July of 2010, falls grossly below the number of people interested, and seeks to eliminate racial profiling by law enforcement by actually performing this work.131 If the U.S. issued more giving individual victims of racial profiling a private right visas to low-skilled workers, more people would follow of action to sue; by creating a disparate impact private legal avenues to obtain employment here. Furthermore, right of action; by requiring the Attorney General’s because applying for and obtaining visas through family oversight; and by requiring data collection and publication, members take many immigrants nearly a decade,132 there allowing the public to provide external oversight.129 is little incentive to follow government rules. Rather, If passed, this bill has the potential to change the as experts note, immigrants and their employers follow current state of immigration enforcement radically, and market rules.133 ensure the liberty and dignity of all citizens, immigrants, Indeed, changes in immigration enforcement residents and visitors to the United States. Granting are an empty and fool-hardy attempt to solve what individual victims of racial profiling a private right of is a tremendously decisive issue to all sides of the action to sue would force ICE and local law enforcement contemporary political debate. Before reforming to exercise discretion and care in routine practices. Rather immigration enforcement, the federal government

30 THE MODERN AMERICAN first needs to address much-needed reforms to federal fully considering the realities of the debate. Despite our immigration policy. embarrassing history of slavery, oppression and racism, the United States has a strong history of protecting the e. Local Advocacy Efforts Against Secure Communities disenfranchised, impoverished, and vulnerable from tyranny of an unrelenting majority.136 This nation was Rights Working Group (RWG) a group of founded upon the premise that all individuals, even the hundreds of progressive local, state and national politically unpopular, are free from persecution, and organizations, committed to protecting civil liberties and afforded due process and equal protection of the laws. human rights, spearheads two campaigns closely tied to However contentious this debate may be, considering the addressing and reforming recent changes in immigration high stakes of constitutional and human rights violations enforcement: Face the Truth (addressing racial profiling), at hand, legal advocacy cannot wait. and Hold DHS Accountable (urging President Obama to issue a moratorium on current immigration enforcement policies that deny due process). In addition to supporting Endnotes 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 1 Rachel Zoghlin is a second-year student at American Secure Communities program. After Secretary Napolitano University Washington College of Law. She is a graduate announced to Congress that jurisdictions could opt-out, of Vassar College, and is involved in immigrant advocacy the Arlington County Board voted to officially withdraw through her work with the UNROW Human Rights Impact from participating in the program, despite Virginia’s state- Litigation Clinic (litigating on behalf of a derivative U.S. wide activation of Secure Communities.134 Despite this citizen in ICE custody) and the Central American Resource seemingly successful event, the outcome of which remains Center (CARECEN) (assisting clients filing various visa vague, Secure Communities continues to spread rapidly petitions and applications for Temporary Protected across the country. Status). She extends a special thanks to TMA Editor-in- Chief Richael Faithful for her thoughtful advice and support Conclusion in the creation and evolution of this piece. 2 Secure Communities Now Activated in All Virginia Counties, In the wake of Virginia Attorney General Ken U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (June Cuccinelli’s recent opinion, authorizing law enforcement to 21, 2010) http://www.ice.gov/news/releases/1006/ check the immigration status of anyone stopped by police 100621washington.htm. officers for any reason, it is likely that local immigration 3 Arizona Immigration Debate Heats up in D.C. Area, WTOP enforcement policies will be thrust further into the center (June 3, 2010) http://www.wtop.com of political debate.135 /?nid=596&sid=1971895. Is Secure Communities Constitutional? Probably 4 See, e.g., Jennifer Buske, Suit Won’t Deter Pr. William not. The Supreme Court has held and reaffirmed that Leader’s Immigration Law Push, WASH. POST, (July 11, immigrants constitute a discrete class of individuals, 2010), http://www.washingtonpost.com/wp-dyn/ worthy of at least an intermediate standard of review in an content/article/2010/07/09/AR2010070905518.html Equal Protection claim. The program relies substantially (supporting controversial immigration laws in Prince on racial profiling, and laws enabling or condoning racial William County, Virginia); Secure Communities Program classifications are always strictly scrutinized by a reviewing (Nov. 8, 2010), http://www.arlingtonva.us/departments/ court. Considering the heightened level of scrutiny to Communications/page77334.aspx (explaining Arlington’s be applied, the program certainly is not narrowly tailored role with respect to the Secure Communities program in enough to warrant deference. ICE’s own data proves Virginia). that Secure Communities broadly overreaches its goal 5 Fingerprints Misused to Deport Immigrants?, CBS NEWS/ of identifying and removing dangerous criminal aliens; ASSOCIATED PRESS (Aug. 10, 2010), http://www. nearly 80% of the immigrants removed through Secure cbsnews.com/stories/2010/08/10/politics/main6759493. Communities since 2008 were neither dangerous, nor shtml. criminals. 6 Secure Communities, National Immigration Forum, (Aug. 4, Too many people get caught up in popular 2010) http://www.immigrationforum.org/ political fervor, repeating uninformed rhetoric without images/uploads/Secure_Communities.pdf.

SPRING 2011 31 7 De Cana v. Bica, 424 U.S. 351, 354-55 (1976). doclib/foia/secure_communities/securecommunitiesprese 8 See Henderson v. Mayor of New York, 92 U.S. 259, 272-74 ntations.pdf. (1875) (holding that “[we] are of the opinion that this whole 26 Secure Communities: A Fact Sheet, IMMIGRATION POLICY subject (immigration) has been confided to Congress by the CENTER (Nov. 4, 2010), http://immigrationpolicy.org/ Constitution; that Congress can more appropriately and with just-facts/secure-communities-fact-sheet. more acceptance exercise it than any other body known to 27 Secure Communities Presentation, supra note 25; Interview our law, state or national; that by providing a system of laws with Margaret Huang, supra note 24. in these matters, applicable to all ports and to all vessels, 28 Secure Communities Presentation, supra note 25, a serious question, which has long been matter of contest 29 Get the Facts: Secure Communities, U.S. IMMIGRATION AND and complaint, may be effectually and satisfactorily settled.). CUSTOMS ENFORCEMENT (Apr. 29, 2010), http://www.ice. See also Hines v. Davidowitz, 312 U.S. 52, 62 (1941) (citing gov/pi/news/factsheets/secure_communities-facts.htm. Article VI of the Constitution to illustrate that “[w]hen the 30 Secretary Napolitano and ICE Assistant Secretary Morton national government by treaty or statute has established rules announce that the Secure Communities Initiative identified more than and regulations touching the rights, privileges, obligations 111,000 aliens charged with or convicted of crimes in its first year, or burdens of aliens as such, the treaty or statute is the HOMELAND SECURITY (Nov. 12, 1999), http://www.dhs.gov/ supreme law of the land.”). ynews/releases/pr_1258044387591.shtm. 9 Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 31 Secure Communities, NATIONAL IMMIGRATION FORUM, (Aug. (1948) (citation omitted). 4, 2010), http://www.immigrationforum.org/ 10 United States v. Arizona, No. CV 10-1413-PHX-SRB, images/uploads/Secure_Communities.pdf. 2010 WL 2926157, at *22 (D. Ariz. July 28, 2010). 32 Andrew Becker, Federal Program to Deport Criminal Immigrants 11 Steven A. Camarot & Karen Jensenius, A Shifting Tide: Expands in California, CALIFORNIA WATCH (Feb. 17, 2010), Recent Trends in the Illegal Immigrant Population, CENTER FOR http://californiawatch.org/watchblog/federal-program- IMMIGRATION STUDIES (July 2009), available at http://www. deport-criminal-immigrants-expands-california. cis.org/IllegalImmigration-ShiftingTide. 33 Daniel Denvir, The ICE man: Obama’s backdoor Arizona- 12 Immigration and Customs Enforcement (ICE) (Aug. 12, style program, SALON (July 17, 2010), http://www.salon. 2010), http://www.ice.gov/about/index.htm. com/news/feature/2010/07/16/immigration_safe_ 13 Illegal Immigration Reform and Immigrant Responsibility communities_obama/index.html. Act , Pub. L. 104-208, 110 Stat. 3009 (1996). 34 Activated Jurisdictions, U.S. IMMIGRATION AND CUSTOMS 14 See Office of State, Local and Tribal Coordination, Immigration ENFORCEMENT (Aug. 3, 2010), www.ice.gov/doclib/news/ and Customs Enforcement, IMMIGRATION AND CUSTOMS library/factsheets/pdf/sc-central.pdf. ENFORCEMENT, www.ice.gov/about/offices/leadership/ 35 Activated Jurisdictions, U.S. IMMIGRATION AND CUSTOMS osltc/. ENFORCEMENT (Sept. 28, 2010), http://www.ice.gov/doclib/ 15 Anne B. Chandler, Why is the Policeman Asking for my Visa? secure_communities/pdf/sc_activated.pdf. The Future of Federalism and Immigration Enforcement, 15 TULSA 36 Secretary Napolitano and ICE Assistant Secretary Morton J. COMP. & INT’L L. 209, 213 (2008). announce that the Secure Communities Initiative identified more than 16 Id. at 219-20. 111,000 aliens charged with or convicted of crimes in its first year, U.S 17 Id. IMMIGRATION AND CUSTOMS ENFORCEMENT (Nov. 12, 1999), 18 ACLU Immigrants’ Rights Project, (Sept. 6, 2005), http:// http://www.dhs.gov/ynews/releases/pr_1258044387591. www.aclu.org/FilesPDFs/ACF3189.pdf shtm. 19 Chandler, supra note 15, at 216-17. 37 Supra note 35. 20 Secure Communities, supra note 6. 38 See generally Secure Communities: A Fact Sheet, IMMIGRATION 21 Id. POLICY CENTER (Nov. 4, 2010), http://immigrationpolicy. 22 Id. org/just-facts/secure-communities-fact-sheet; Secure 23 Id. Communities, NATIONAL IMMIGRATION FORUM (Aug. 4, 2010), 24 Interview with Margaret Huang, Executive Director, http://www.immigrationforum.org/images/uploads/ Rights Working Group, in Washington D.C. (July 28, 2010). Secure_Communities.pdf. 25 Secure Communities & Standard Operating Procedures, U.S. 39 See, e.g., Padilla v. Kentucky, 130 S. Ct.1473, 1481 (2010) IMMIGRATION AND CUSTOMS ENFORCEMENT 5 (Apr. 29, (explaining that “[a]lthough removal proceedings are civil in 2010), http://www.ice.gov/pi/news/factsheets/secure_ nature . . . deportation is nevertheless intimately related to communities-facts.htm; Secure Communities Presentation, U.S. the criminal process.”); I.N.S. v. St. Cyr, 533 U.S. 289, 323 IMMIGRATION AND CUSTOMS ENFORCEMENT 7 (Aug. 27, 2010), (2001) (quoting 3 Bender, Criminal Defense Techniques §§ http://www.ice.gov/ 60A.01, 60A.02[2] (1999), “Preserving the client’s right to

32 THE MODERN AMERICAN remain in the United States may be more important to the 55 Resolution of San Francisco Board of Supervisors (May 18, client than any potential jail sentence.”). 2010), http://uncoverthetruth.org/wp-content/uploads/ 40 Janice Kephart, Senator Hatch Drops a Helpful and Thoughtful Microsoft-Word-Secure-communities-BOS-Resolution-5- Border Security Bill, CENTER FOR IMMIGRATION STUDIES (Oct. 3, 18-10-draft9.pdf. 2010), http://www.cis.org/kephart/hatch-bill. 56 Brown Denies San Francisco Sheriff’s Request to Opt Out of Secure 41 See id.; see generally Janice Kephart, Dallas Would-Be Bomber Communities Program, OFFICE OF THE ATTORNEY GENERAL OF Hosam Smadi: The Case for 287(g) and Exit Tracking, CENTER CALIFORNIA (May 25, 2010), http://ag.ca.gov/newsalerts/ FOR IMMIGRATION STUDIES, (Nov., 2009), http://cis.org/exit- release.php?id=1925&. tracking. 57 New Document Confirms Secure Communities Program Is 42 Chandler, supra note 15, at 240-41. Voluntary, Rights Groups Say ICE Must Allow Counties Opt 43 Janice Kephart, Senator Hatch Drops a Helpful and Thoughtful Out, COMMON DREAMS (Sept. 1, 2010), http://www. Border Security Bill, CENTER FOR IMMIGRATION STUDIES (Oct. 3, commondreams.org/newswire/2010/09/01-8. 2010), http://www.cis.org/kephart/hatch-bill. 58 Id. 44 Ivan Moreno, Immigrant Groups Criticize Fingerprint Initiative, 59 Interview with Margaret Huang, supra note 24. ASSOCIATED PRESS (July 26, 2010), abcnews.go.com/US/ 60 See the September 1st notice from ICE that local wireStory?id=11253152. jurisdictions could opt-out, and the September 8th letter 45 Sheriff’s Office Partners with ICE to Launch Secure Communities from Secretary of Homeland Security Janet Napolitano Program (Mar. 9, 2009), http://www.fairfaxcounty.gov/ outlining opt-out procedures. Res. of S. F.of Supervisors sheriff/news/ice.htm. (May 18, 2010), http://uncoverthetruth.org/wp-content/ 46 Id. uploads/Microsoft-Word-Secure-communities-BOS- 47 Elise Foley, Where Should We House Secure Communities Resolution-5-18-10-draft9.pdf; Letter from Ronald Weich, Detainees?, THE WASH. INDEPENDENT, July 19, 2010, http:// U.S Assistant Attorney Gen., to Zoe Logfren, Chairwoman washingtonindependent.com/91924/where-should-we- Subcomm. On Immigration, Citizenship, Refugee, Border house-secure-communities-detainees. Sec. & Int’l. Law (Sept. 8, 2010) (on file with author), available 48 Kevin Sieff, Immigrant Detention Center in Virginia would be at http://crocodoc.com/yzmmKP. Mid-Atlantic’s Largest, WASH. POST, July 18, 2010, available 61 County Board Votes to Withdraw from Immigration Enforcement at http://www.washingtonpost.com/wpdyn/content/ Program, ARLNOW, Sept. 28, 2010, http://www.arlnow. article/2010/07/17/AR2010071701416. com/2010/09/28/breaking-news-county-board-votes-to- html?hpid=moreheadlines. withdraw-from-immigration-enforcement-program/. 49 Chris Burbank, Phillip Atiba Goff & Dr. Tracie L. Keesee, 62 Shankar Vedantam, Local jurisdictions find they can’t opt out of Policing Immigration. A Job We Do Not Want, THE HUFFINGTON federal immigration enforcement program, WASH. POST , Sept. 30, POST, (June 7, 2010), http://www.huffingtonpost.com/ 2010, http://www.washingtonpost.com/wpdyn/content/ chief-chris-burbank/policing-immigration-a-jo_b_602439. story/2010/09/30/ html . ST2010093007299.html. 50 See Secure Communities Program, ARLINGTON COUNTY (Aug. 63 Dena Potter, ICE: No opt-out for program checking legal status, 5, 2010), http://www.arlingtonva.us ASSOCIATED PRESS, Oct. 8, 2010, http://www.salon.com/ /departments/Communications/page77334.aspx wires/us/2010/10/08/D9INP8980_us_immigration_ (attempting to clarify its participation in the Secure fingerprints/index.html. Communities Program and to answer its residents’ frequently 64 Id. asked questions, Arlington County has published a news 65 See Cooper, supra note 54. alert on its website). 66 See United States v. Esparza-Mendoza, 265 F. Supp. 2d 51 See Denvir, supra note 18. 1254, 1267 (N.D. Utah 2003) (citing In re Opinion of 52 Id. Justices, 7 Mass. 523, 1811 WL 1136 (1811); Elkin v. Deshler, 53 Letter from Janet Napolitano, U.S Secretary of Homeland 25 N.J.L. 177, 186 (1855) (opinion of Haines, J.)). Security, to Zoe Logfren, Chairwoman Subcomm. On 67 Yick Wo v. Hopkins, 118 U.S. 356, 371 (1886). Immigration, Citizenship, Refugee, Border Sec. & Int’l. 68 United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254, Law (Sept. 8, 2010) (on file with author), available at http:// 1267 (N.D. Utah 2003) (citing Minor v. Happersett, 21 Wall. crocodoc.com/yzmmKP. 162, 22 L.Ed. 627 (1875)). 54 Rebecca A. Cooper, ICE vetoes Arlington’s withrawal [sic] 69 Id. at 1268 (N.D. Utah 2003) (citing Leon E. Aylsworth, The from Secure Communities, TBD (Nov. 5, 2010), http://www. Passing of Alien Suffrage, 25 Am. Pol. Sci. Rev. 114 (1931)). tbd.com/blogs/tbd-neighborhoods/2010/11/ice-vetoes- 70 Plyler v. Doe, 457 U.S. 202, 230 (1982). arlington-s-withrawal-from-secure-communities-4263.html. 71 Id. at 205.

SPRING 2011 33 72 Id. at 230. facility for women, and followed through on such a plan, it 73 U.S. Const. amend. XIV. might well have avoided an equal protection violation.”). 74 Plyler, 457 U.S. at 210. 103 Regents of Univ. of California v. Bakke, 438 U.S. 265, 75 Id. at 209-10. 290 (1978). 76 Yick Wo v. Hopkins, 118 U.S. 356, 362 (1886). 104 Plyler v. Doe, 457 U.S. 202, 218, n.16 (1982). 77 Id. at 368. 105 Id. at 219, n.19. 78 Id. at 362. 106 Secure Communities, U.S IMMIGRATION & CUSTOMS 79 Id. at 369. ENFORCEMENT (Aug. 5, 2010), http://www.ice.gov/ 80 See Graham v. Richardson, 403 U.S. 365, 371-72 (1971) about/offices/enforcement-removal-operations/secure- (citing United States v. Carolene Prod. Co., 304 U.S. 144, communities/index.htm. 152-153, n. 4 (1938)) (holding that “classifications based on 107 See Maureen A. Sweeney, Fact or Fiction: The Legal alienage, like those based on nationality or race, are inherently Construction of Immigration Removal for Crimes, 27 YALE J. ON suspect and subject to close judicial scrutiny. Aliens as a class REG. 47, 51 (2010) (arguing that the doctrinal foundation for are a prime example of a ‘discrete and insular’ minority for the assertion that immigration removals are not punishment whom such heightened judicial solicitude is appropriate.”). for crime but rather remedial civil sanctions and collateral 81 Torao Takahashi v. Fish & Game Comm’n, 334 U.S. 410, consequences has disintegrated, and that changes in 420 (1948). immigration law have rendered removal for many crimes a 82 Mathews v. Diaz, 426 U.S. 67, 80 (1976). direct consequence of a defendant’s conviction). 83 U.S. ex rel. Turner v. Williams, 194 U.S. 279, 282, 284 108 Secure Communities, U.S. IMMIGRATION AND CUSTOMS (1904). ENFORCEMENT (Aug. 13, 1999), http://www.ice.gov/ 84 Id. at 292. about/offices/enforcement-removal-operations/secure- 85 Id. at 284. communities/index.htm. 86 Bridges v. Wixon, 326 U.S. 135, 140 (1945). 109 Printz v. United States, 521 U.S. 898, 909 (1997) 87 Id. at 144-45. (emphasizing that, “[n]ot only do the enactments of the early 88 Id. at 148 (citing Bridges v. California, 314 U.S. 252, 280 Congresses . . . contain no evidence of an assumption that (1941))(holding that, although one of the petitioners was an the Federal Government may command the States’ executive alien, editorials published in the newspapers were protected power in the absence of a particularized constitutional by the First Amendment). authorization, they contain some indication of precisely the 89 Id. 147 (citations omitted). opposite assumption.”). 90 Id. at 154. 110 See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 91 Id. at 157 (Murphy, J., concurring). U.S. 456, 481-82 (1981); Nordlinger v. Hahn, 505 U.S. 1, 11 92 Id. at 159-60 (Murphy, J., concurring) (citations omitted). (1992). 93 Id. at 161 (Murphy, J., concurring) (citing Turner v. 111 See, e.g., Allegheny Pittsburgh Coal Co. v. County Com’n Williams, 194 U.S. 279 (1904)). of Webster County, 488 U.S. 336, 344 (1989) (citing Brown- 94 Id. (emphasis added). Forman Co. v. Kentucky, 217 U.S. 563, 573 (1910)) (noting 95 Cabell v. Chavez-Salido, 454 U.S. 432, 440 (1982). that, “[i]f the selection or classification is neither capricious 96 See, e.g., Plyler v. Doe, 457 U.S. 202, 210 (1982). nor arbitrary, and rests upon some reasonable consideration 97 Xinic v. Quick, No. 2004-226030, 2005 WL 3789231 (Va. of difference or policy, there is no denial of the equal Cir.Ct. Nov. 14, 2005). protection of the law.”) 98 Id. (citing Hoffman Plastic Compounds, Inc. v. N.L.R.B., 112Secretary Napolitano and ICE Assistant Secretary Morton 535 U.S. 137, 140 (2002); Rios v. Ryan Inc. Central, 542 announce that the Secure Communities Initiative identified more than S.E.2d 790, 791 (Va.App., 2001)). 111,000 aliens charged with or convicted of crimes in its first year, 99 Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. HOMELAND SECURITY (Nov. 12, 1999), http://www.dhs.gov/ 137, 140 (2002). ynews/releases/pr_1258044387591.shtm. 100 United States v. Carolene Prod. Co., 304 U.S. 144, 152- 113 Stewart J. Lawrence, Why Obama’s “Secure Communities” 153, n. 4 (1938). Program May Be More Dangerous than Arizona, ALTO ARIZONA, 101 Id. (July 26, 2010), http://blog.altoarizona.com/blog/2010/07/ 102 See e.g., United States v. Virginia, 518 U.S. 515, 563 (1996) why-obamas-secure-communities-program-may-be-more- (Rehnquist, J., concurring) (agreeing that the exclusion of dangerous-than-arizona.html. women from the Virginia Military Institute violated Equal 114 National Day Laborer Organizing Network v. United Protection, but explaining that “[h]ad Virginia made a States Immigration and Customs Enforcement Agency, No. genuine effort to devote comparable public resources to a 10 CV 3488 (S.D. N.Y. filed Apr. 27, 2010); National Day

34 THE MODERN AMERICAN Laborer Organizing Network, Freedom of Information 128 Printz v. United States, 521 U.S. 898, 909 (1997). Act Request, Center of Constitutional Rights (Feb. 3, 129 End Racial Profiling Act of 2010, H.R. 5748, 111th 2010), http://ccrjustice.org/files/FOIA%20Request%20- Cong. (2010). %20ICE%202.3.10%20-FINAL.pdf. 130 Doris Meissner and James W. Ziglar, Why the U.S. had to 115 See Ivan Moreno, Immigrant groups criticize fingerprint initiative, Challenge Arizona on Immigration, WASH. POST, July 22, 2010, ASSOCIATED PRESS (July 26, 2010), http://abcnews.go.com/ available at http://www.washingtonpost.com/wp-dyn/ US/wireStory?id=11253152. content/article/2010/07/21/AR2010072104559.html 116 Hines v. Davidowitz, 312 U.S. 52, 73 (1941). 131 H-2B Temporary Non-Agricultural Workers, U.S. CITIZENSHIP 117 Id. at 74. AND IMMIGRATION SERVICES (Nov. 8, 2010), http://www. 118 Christopher A. Bracey, Dignity in Race Jurisprudence, 7 U. uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66 PA. J. CONST. L. 669, 680 (2005). f614176543f6d1a?vgnextoid=356b6c521eb97210VgnVCM 119 Toyosaburo Korematsu v. United States, 323 U.S. 214, 100000082ca60aRCRD&vgnextchannel=d1d333e5592742 240 (1944) (Murphy, J., dissenting). 10VgnVCM100000082ca60aRCRD. 120 Bracey, supra note 118, at 698 (citing Heart of Atlanta 132 Visa Bulletin for November 2010, Number 26, Volume IX, U.S. Motel, Inc. v. United States, 379 U.S. 241, 291-92 (1964) DEPT. OF S TATE, B UREAU OF C ONSULAR A FFAIRS, http://travel. (Goldberg, J., concurring). state.gov/visa/bulletin/bulletin_5172.html (last visited 121 H.R. 5748, 111th Cong. (2010). Oct.13, 2010) (noting that petitions for many categories of 122 National Day Laborer Organizing Network, Freedom immigrating family members from Mexico originally filed of Information Act Request, Center of Constitutional in 1992 and 1995 will be current beginning in November Rights (Feb. 3, 2010), http://ccrjustice.org/files/ of 2010 for finalizing of applications and adjustment of FOIA%20Request%20-%20ICE%202.3.10%20-FINAL. status). pdf. 133 Meissner & Ziglar, supra note 130. 123 National Day Laborer Organizing Network v. United 134 County Board Votes to Withdraw from Immigration Enforcement States Immigration and Customs Enforcement Agency, No. Program, ARLNOW (Sept. 28, 2010), http://www.arlnow. 10 CV 3488 (S.D. N.Y. filed Apr. 27, 2010). com/2010/09/28/breaking-news-county-board-votes-to- 124 Rights Groups Release Documents from U.S. Immigration withdraw-from-immigration-enforcement-program/. and Customs Enforcement (ICE) Agency FOIA Lawsuit, Aug. 135 Anita Kumar and Rosalind S. Helderman, Virginia Legal 10, 2010, http://ccrjustice.org/newsroom/press-releases/ Opinion Supports Checks of Immigration Status, WASH. POST, rights-groups-release-documents-u.s.-immigration-and- Aug. 3, 2010, http://www.washingtonpost.com/wpdyn/ customs-enforcement-(ice)-agency-foia-lawsuit. content/article/2010/08/02/AR2010080205229. 125 U.S. Const. art. I, § 8. html?hpid%3Dtopnews&sub=AR. 126 U.S. Const. amend. X. 136 James Madison, The Federalist No. 10, DAILY ADVISER, Nov. 127 United States v. Arizona, No. CV 10-1413-PHX-SRB, 22, 1787, http://www.constitution.org/ 2010 WL 2926157, at *22 (D. Ariz. July 28, 2010). fed/federa10.htm.

See Rachel Zoghlin’s “Inside the Authors’ Studio” interview on our website to learn more about her inspiration for the article, and her thoughts about the issues and questions emerging from the article.

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