Aguilar and Kebin are suing ICE for violating their Fourth Amendment rights; in all, civil rights lawsuits against ICE are pending in at least 10 states. The government may not constitutionally detain anyone without a reasonable suspicion that they have violated the law. Suspicion founded on race alone, the Supreme Court has emphasized, can never be "reasonable." The Fourth Amendment also prohibits government agents from entering a home without a warrant unless they have the occupant's consent. Shoving the occupant into the door to get him to open it—as ICE agents did in a New Jersey raid last month—doesn't count. Nor does bursting into a home while claiming to be the local police.
The agency's failure to abide by basic procedural rules threatens not only individual rights but also public safety. During a recent raid in Nassau County, N.Y., ICE agents twice drew their guns on local police officers by mistake. More generally, in the aftermath of raids in which ICE agents pretend to be local police, immigrant communities become fearful of law enforcement, making the work of actual police officers more difficult. Some cities, including Richmond, Calif., and Hightstown, N.J., have even passed resolutions calling for ICE agents to identify themselves as federal immigration officers rather than police.
The government's guidelines for immigration enforcement prohibit these kinds of abuses. Why aren't they being enforced? Theories abound. ICE attorneys have suggested that because most of the rules governing officer conduct were instituted before the Department of Homeland Security took over immigration enforcement, they don't apply to ICE at all. Another explanation is that in the wake of Sept. 11, stepped-up immigration enforcement may have taken priority over careful procedures. Whatever the reason, it's clear that rampant abuses continue So what's to be done? Although Congress could enact legislation to rein in ICE's conduct, it's unlikely to do so anytime soon. Lawmakers have been deadlocked on immigration reform for years.
But courts, too, have tremendous power. The rules judges set for immigration proceedings largely determine how ICE officers do their work. In a criminal trial, the government can't use evidence obtained from an unreasonable search or seizure, and this means that an officer who enters a home without a warrant or detains a defendant because of her race risks the entire case being thrown out. But illegal immigration is a civil, not a criminal, violation, so while immigration judges occasionally exclude evidence obtained through particularly egregious searches, in general these rules don't apply. This lax judicial treatment combined with their stringent arrest quota leaves ICE agents with little incentive to reform.
Twenty-five years ago, in the case of INS v. Lopez-Mendoza, the Supreme Court declined to extend the Fourth Amendment's guarantees to immigration proceedings. But Justice Sandra Day O'Connor recognized that if in the future there were "good reason to believe" that constitutional violations in immigration enforcement were "widespread," the way judges handled these cases would have to change. That time has come. If Congress won't, the courts should force ICE to follow the standard rules of American law enforcement.