Operation Return to SenderThe government's immigration enforcers run amok.
Posted Friday, May 30, 2008, at 7:15 AM ET
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StumbleUponAguilar 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.
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Remarks from the Fray:
The immigration debate in this country is badly flawed, and this article does nothing but contribute to the flaw. The illegal immigration debate is flawed in that most people fail to see the heart of the issue. We waste a lot of time arguing about illegal immigrants' civil rights, contribution to crime, use of public services, and impact on our culture. We waste a lot of money sending federal agents on house-to-house searches, building ridiculous border fences, and slogging through endless deportation hearings. But the heart of the illegal immigration issue is that the private sector continues to hire these people.
If we were serious about controlling illegal immigration, we would place the burden on employers: be able to prove that every one of your employees is here legally, or pay a stiff fine. Instead of smashing down the doors of private homes, ICE should be visiting offices, interviewing managers and reviewing personnel records.
Illegal immigrants aren't coming here for fun; they're coming here for work. American companies, from family farms to meat-packing plants to Wal-Mart, are giving them jobs. They can afford to do it because (1) there's no significant penalty for them if they get caught employing illegals, and (2) there's always another illegal to do the work if the first one gets caught and deported.
Those who employ illegal immigrants, knowingly or not, should be punished severely for it. If they were, they would stop employing illegals. If there were no more job for illegals here, the illegals would stop coming.
--misterben
(To reply, click here.)
At the end of the piece, I wish the author provided more detail on the procedural safeguards she has in mind for the courts to impose, because it is not immediately clear what would fix the problem--and I agree that there is a problem.
ICE is trying to find people who are not here legally. Even if every constitutional right is violated in finding those people, it doesn't change the fact that they are not here legally. The important evidence in immigration proceedings is merely the identity of the immigrant. Once you know who the person is, then you can determine if he or she is here legally. Even in criminal trials, the identity of the person is never suppressed. So imposing criminal procedure rights on immigration proceedings doesn't get you very far--it wouldn't seem to address the systemic problem identified in the article.
Suppressing identity would also create a strange situation where the government may not be able to stop a known continuing violation of law, such as remaining in this country without authorization.
This doesn't mean that immigrants cannot assert rights against unconstitutional investigations. If certain rights are violated, then the immigrant can bring a civil rights suit seeking damages, just like everyone else. But immigrants can do that now, so I'm not sure that changes need to be made. I'm just not sure what courts can do differently to address this issue.
--Analang
(To reply, click here.)
Arrests are not taking place based on skin color. ICE officers are tasked with returning fugitive aliens to their nation of origin. Because the overwhelming amount of illegal aliens are from hispanic nations south of the US, most fugitive aliens are going to be hispanic. I am absolutely positive that if the person on the alien fugitive warrant is from Russia they will be looking for a Russian person.
ICE agents I am sure receive warrants for fugitive aliens and sort them into batches by neighborhood therefore I would not expect Raids to be limited to one house when they can raid 5 with not much more effort.
The citizens who were detained and are suing the government for violation of their 4th amendment rights may or may not have a legitimate case. The fact they have filed suit does not mean their cases have merit. I am sure that a fugitive warrant was issued for a person in that household with the same name and general description as the citizen detained perhaps this was even by design.
The fact we are enforcing laws now that have not been enforced since their passage in the Reagan Administration and Americans are insisting we start before we even consider another amnesty bill means the press who opposes enforcement and supports amnesty will simply report things that are not true or they will fail to report certain facts in order to support their POV.
--TexasPete
(To reply, click here.)
(5/30)