The Potential for a Rise in Wrongful Removals and Detention Under the United States Immigration and Customs Enforcement’s Secure Communities Strategy

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125

The Potential for a Rise in Wrongful

Removals and Detention Under the UnitedStates Immigration and Customs

Enforcements Secure Communities

Strategy

Laura Donohue

I.INTRODUCTION

The terrorist attacks ofSeptember 11, 2001 not only brought down NewYork Citys Twin Towers, but spurred a major reorganization of the federalgovernments approach to immigration enforcement.1 In 2002, Congresspassed the Homeland Security Act (HSA) creating the Department ofHomeland Security (DHS), abolishing the Immigration and NaturalizationService (INS), and transferring most immigration enforcementresponsibilities from the Department of Justice (DOJ) to newly createdDHS agencies.2The United States Immigration and Customs EnforcementAgency (ICE), one of two agencies charged with immigration enforcement,was established as a result of this change.3

ICE is responsible for safeguarding the interior of the country, and to

this end may conduct investigations, gather intelligence, detain noncitizens,and recommend removal.4The Enforcement and Removal Operations Unit,a subdivision within ICE, is charged with identif[ying] andapprehend[ing] removable aliens, detain[ing] these individuals when

necessary[,] and remov[ing] illegal aliens from the U.S.5In 2008, to assist

1. STEPHEN H. LEGOMSKY & CRISTINA M.RODRIGUEZ, IMMIGRATION AND REFUGEE

LAW AND POLICY 2(Robert C. Clark et al. eds., 5th ed. 2009).

2. Id.at 2-3.

3. U.S. DEPT OF HOMELAND SEC., Border Reorganization Fact Sheet, HOMELAND

SECURITY (Jan. 30 2003), http://www.dhs.gov/xnews/releases/press_release_0073.shtm. The

other agency is United States Customs and Border Protection.Id.

4. LEGOMSKY, supranote 1, at 3.

5. U.S.IMMIGRATION AND CUSTOMS ENFORCEMENT, ICE Enforcement and RemovalOperations, ICE.GOV, http://www.ice.gov/about/offices/enforcement-removal-operations/


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126 CRIMINAL AND CIVIL CONFINEMENT [Vol. 38:125

in its effort to prioritize the removal of criminal aliens,6 ICE created theSecure Communities Strategy (Strategy) to identify noncitizens in U.S. jailsthat are eligible for removal, and quickly remove those aliens convicted of

aggravated felonies.

7

The Strategy allows for data sharing between DOJand DHS.8When an individual is arrested and processed, fingerprints arechecked against criminal records of the Federal Bureau of Investigation(FBI) as well as DHSs immigration records.9While initially the Strategywas voluntary, it now appears as if the Strategy is mandatory and ICEDirector John Morton is still on track to have the Strategy present in all

states by 2013.10As of September 27, 2011, 1595 jurisdictions in forty-fourstates and territories were actively participating in the Secure CommunitiesStrategy.11

Programs aimed at removing criminal aliens have existed since the

1980s, but the most familiar method through which the federal governmenthas delegated its immigration enforcement power to states is the 287(g)Program.12Under the 287(g) Program, the Attorney General permits locallaw enforcement to carry out the duties of federal immigration officers bysigning a Memorandum of Agreement between local and federalauthorities.13Despite its voluntary nature, the 287(g) Program has proved

controversial, and critics allege it encourages racial profiling and createstension between law enforcement and immigrant populations.14The Secure

(last visited August 18, 2011).

6. Id.

7. U.S.IMMIGRATION AND CUSTOMS ENFORCEMENT,Secure Communities, ICE.GOV,

http://www.ice.gov/secure_communities/ (last visited August 18, 2011) [hereinafter Secure

Communities].

8. Id.9. Id.

10. Editorial, Using Police on Immigration is Only Justified for Criminals, BOS.

GLOBE, (Dec. 21, 2010), http://www.boston.com/bostonglobe/editorial_opinion/editorials/

articles/2010/12/21/using_police_on_immigration_is_only_justified_for_criminals/; Letter

from John Morton, Assistant Secy of ICE, to Zoe Lofgren, U.S. Representative (Apr. 28,

2011), https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B_6gbFPj

VDoxMzQxOThiMDMtM2I4Yy00NzEyLWExZjYtYjhmYjVjMGI5ZDVj&hl=en.

11. See generally U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ACTIVATED

JURISDICTIONS,1-26 (June 30, 2011), http://www.ice.gov/doclib/secure-communities/pdf/sc-

activated.pdf [hereinafter ACTIVATED JURISDICTIONS].

12. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Delegation of Immigration

Authority Section 287(g) Immigration and Nationality Act, (Aug. 18, 2008),

http://www.ice.gov/287g/.

13. Nicholas D. Michaud, From 287(g) to SB 1070: The Decline of the Federal

Immigration partnership and the Rise of State Level Immigration Enforcement, 52 ARIZ.L.

REV. 1083, 1093, 1096 (2010).

14. Id.


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2012] RISE IN WRONGFUL DETENTIONS AND REMOVALS 127

Communities Strategy is potentially as controversial because, as anenforcement tool that is used at the arrest stage, its electronic data sharingcapabilities reach a greater number of people, including United States

citizens. Furthermore, when the Strategy becomes mandatory, anunprecedented level of errors could ensue as no other ICE criminal

immigration enforcement program has ever been compulsory.

Equally unsettling is that while the Secure Communities Strategy aimsto remove criminal aliens, statistics show that nationwide, as many astwenty-seven percent of those removed through the Strategy had no

criminal convictions.15With such a grievous disparity between objectiveand result, it is likely that non-criminal aliens are mistakenly detained andremoved under the Strategy, as are other vulnerable populationsincludingU.S. citizens mistakenly believed to be noncitizens. The Strategys farreach also has the potential to influence victims of crimes who lack legalstatus to choose not to report a crime for fear of removal.

This Note will argue that while perhaps the Secure CommunitiesStrategys eventual hold across the country cannot be stopped, ICE needsto address and end the disparity between its objective and actual results andensure that wrongful removals and detention do not occur. Without an

end to these removals, the Strategy will impede law enforcement efforts tobring justice to crime victims and will create issues of unlawful detentionthat violate the Fourth Amendment. Part II of this Note will offer anintroduction to the history of local and federal immigration partnerships,cross agency collaboration, and a primer on why a noncitizen may beremoved. Part III will discuss the Secure Communities Strategy and

statistics, which show that more non-criminal than criminal aliens areremoved under the Strategy. Part IV will demonstrate how the Strategyfacilitates the wrongful removal and detention of U.S. citizens and removal

of victims of crime. This Note will conclude by suggesting that ICE shouldresolve the inconsistency between its objectives and actual results of theSecure Communities Strategy.

II.TOWARDS THE SECURE COMMUNITIES STRATEGY

A. Creation of ICE in 2003

The HSA and the subsequent reorganization of federal agencies chargedwith national security was a direct response to the September 11, 2001

15. ILL.COAL.FOR IMMIGRANT AND REFUGEE RIGHTS,IMMIGRATION ENFORCEMENT

THE DANGEROUS REALITY BEHIND SECURE COMMUNITIES4 (2011), http://icirr.org/sites/

default/files/ImmigrationEnforcementTheDangerousRealityBehindSecure%20Communities.

pdf.


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terrorist attacks on the United States.16The lack of data sharing across thenational security agencies at the time (the DOJ, the Department ofTreasury, and the Department of Agriculture) led to inconsistent

inspections and lapses of information,

17

and ultimately to the tragic eventsof that day. Recognizing the need for change, Congress, through the HSA,created two agencies under DHS: one tasked with immigration enforcementand the other with providing immigration benefits.18 The HSA furtherallowed President George W. Bush to create additional bureaus, providedthat immigration enforcement and immigration benefits did not comingle.19

President Bush used this authority to create Customs and Border Protection(CBP) to secure the border and ICE to enforce the interior.20

The creation of DHS was most directly aimed at safeguardingAmericans from the evil of terrorism,21but also attempted to instill better

oversight of a failed immigration system that allowed two of the nineteenSeptember 11 hijackers to overstay their visas while still another obtained astudent visa, but never registered for classes.22 The Congressional JointInquiry into Intelligence Community Activities Before and After theTerrorist Attacks of September 11, 2001, notes that INS did not knowabout these lapses until after the attacks.23Therefore, it came as no surprise

when in 2003 then Secretary of Homeland Security, Tom Ridge,announced improving and protecting immigration practices as a majorgoal of DHS.24 Thus, by distinguishing immigration benefits fromimmigration enforcement while linking the new agencies together under theumbrella of DHS, the HSA attempted to break down barriers tocommunication and provide a direct line of authority to the Departments

headquarters and give homeland security employees a clear mission.25Insummary, the HSA's creation was an effort to tackle threats presented bythe evil of terrorism26 and the weaknesses of a failed immigration

system.

16. See LEGOMSKY, supranote 1, at 816.

17. U.S.DEPT.OF HOMELAND SEC., supranote 3.

18. LEGOMSKY, supranote 1, at 3.

19. Id.

20. Id.

21. U.S.DEPT.OF HOMELAND SEC., supranote 3.

22. S.REP.NO. 107-351, pt. 2, at 189-90 (2002).

23. Id.at 190.24. U.S.DEPT.OF HOMELAND SEC., supranote 3.

25. Id.

26. Id.


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B. Immigration and Nationality Act 287(g) and Earlier Initiatives toRemove Criminal Aliens

The authority for state and federal partnerships to enforce immigration

law stems from the 1996 Illegal Immigration Reform and ImmigrantResponsibility Act (IIRIRA),27 which added provision 287(g) to theImmigration and Nationality Act (INA).28The addition was the result offrustration felt on the local level about illegal immigration.29The 287(g)Program, which deputized local law enforcement officers to carry outfederal immigration law, was one of the first examples of suchcollaboration to tackle illegal immigration.30 The 287(g) Program hasalways remained voluntary, although recent changes have directed local

law enforcement to prioritize the removal of criminal aliens.31Its model ofpartnership must surely have provided the inspiration when, true to theDHS goal of streamlining and strengthening information sharing,32ICEcreated the Secure Communities Strategy in 2008.33

Prior to the 287(g) Program, INS instituted two other criminalimmigration enforcement programs: the Institutional Removal Program(IRP) and the Alien Criminal Apprehension Program (ACAP).34 Bothprograms were plagued with inefficiencies and were eventually subsumedby the Criminal Alien Program (CAP) in 2007.35 A 2009 report by theNational Immigration Law Center highlighted several concerns with CAP,

including removals of aliens with non-serious criminal offenses, violationsof a federal law that requires transfer into ICE custody forty-eight hoursupon release from federal or state custody, as well as racial profiling andpre-textual arrests.36 These are many of the same concerns the Secure

27. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.

104-208, Div. C, sec. 133, 287, 110 Stat. 3009-546 (1996).

28. Immigration and Nationality Act, ch. 477, 66 Stat. 163 (1952) (codified as

amended 8 U.S.C. 1357(g) (1996).

29. Mimi E. Tsankov & Christina J. Martin,Measured Enforcement: A Policy Shift in

the ICE 287(g) Program, 31 U.LA VERNE L.REV. 403, 413 (2010).

30. Id.at 403, 416.

31. Michaud, supra note 13, at 1083, 1096, 1103.

32. U.S.DEPT OF HOMELAND SEC., supranote 3.

33. Secure Communities,supra note 7.

34. Fact Sheet, Secure Communities, U.S. IMMIGRATION AND CUSTOMS

ENFORCEMENT, 3 (March 28, 2008), http://www.aila.org/content/default.aspx?docid=25045

[hereinafterFact Sheet, Secure Communities].

35. Id.

36. Melissa Keaney and Joan Friedland, Overview of the Key ICE ACCESS Programs

287(g), the Criminal Alien Program and Secure Communities, NATL IMMIGR.L.CENTER, 5

(Nov. 2009). Pretext as defined in Blacks Law Dictionary is an [o]stensible reason or

motive assigned or assumed as a color or cover for the real reason or motive. B LACKS LAW


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Communities Strategy presents.

C. How and Why a Criminal Noncitizen May Become Removable

Although Congress has been setting the agenda for immigrationregulation since the enactment of the INA in 1952,37 the most sweepingchanges to the modern practice of immigration law38came with the passageof IIRIRA in 1996.39The United States has for many years removed thoseconvicted of crimes in the United States, but IIRIRA drastically changed

removal qualifications.40 Post IIRIRA, more noncitizens are deemedremovable and the forms of relief available to prevent removal are likewiselimited.41 IIRIRA expanded the definition of what constitutes anaggravated felony, reducing the qualifying time served for an offensefrom five years to one, and removed all forms of relief available to thoseconvicted of aggravated felonies.42This has led to much confusion as stateconvictions for misdemeanors can now be considered aggravated felonies

for purposes of immigration law.

43

After IIRIRA, the most common crimesfor which noncitizens are removed are aggravated felonies, crimes of moralturpitude, and controlled substance offenses.44

Simple assaults that carry a term of imprisonment of one year or more

and most drug offenses are considered aggravated felonies.45A noncitizen,including a Lawful Permanent Resident (LPR), is instantly removable afteran aggravated felony conviction.46 A crime involving moral turpitude(CIMT) encompasses crimes such as theft, fraud, deceit, and propertycrimes.47Whether a noncitizen is removable based on a conviction for a

DICTIONARY1069 (5th ed. 1979). Thus, a pre-textual arrest is one that is made in order to

fulfill a motivein this case usually stopping Hispanic-looking drivers for minor traffic

violations to check their immigration status.

37. SeeImmigration and Nationality Act of 1952, 8 U.S.C. 1101 - 1537 (2006).

38. See Atilla Bogdan, Guilty Pleas by Non-Citizens in Illinois: Immigration

Consequences Reconsidered, 53 DEPAUL L.REV. 19, 26 (2003).

39. See110 Stat. 3009-546.

40. John J. Francis,Failure to Advise Non-Citizens of Immigration Consequences of

Criminal Convictions: Should this be Grounds to Withdraw a Guilty Plea?,36U.MICH.J.L.

REFORM691, 701 (2003).

41. Id.

42. Id.; Bogdan, supra note 38; Cody Harris, A Problem of Proof: How Routine

Destruction of Court Records Routinely Destroys a Statutory Remedy, 59 STAN. L. REV.

1791, 1797 (2007).

43. Francis,supra note 40, at 702.

44. Bogdan, supra note 38, at 27-28.45. Francis,supra note 40, at702.

46. Bogdan, supra note 38, at 28.

47. Id.at 32.


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CIMT depends on the length of time he has lived in the United States andthe number of CIMTs he has committed.48Because there is no statute oflimitations regarding criminal convictions used in removal proceedings, a

noncitizen could be removed as an adult for a crime he was convicted ofwhen he was a juvenile.49 A noncitizen convicted at any time of a

controlled substance violation in the United States or foreign country, isdeportable.50This includes conspiracy or attempt to violate, but excludesconvictions for a single offense involving possession for ones own use ofthirty grams or less of marijuana.51

III.ORIGIN OF THE SECURE COMMUNITIES STRATEGY AND ITS MISTAKENREMOVALS OF NON-CRIMINAL ALIENS

A. Creation of the Strategy

The Secure Communities Strategys objective to remove criminal aliens

is no different than the purpose of predecessor and concurrent ICEprograms.52However, upon its unveiling in March of 2008, ICE heraldedthe Strategy as improving community safety . . . [and] chang[ing]immigration enforcement by using technology to share informationbetween law enforcement agencies.53 In a press release issued in March2008 to announce the Strategy, ICE explained that technology wouldeventually allow it to reach its goal of finding and removing all criminalaliens and would encourage information sharing between the FBIsIntegrated Automated Fingerprint Identification System and DHSsAutomated Biometric Identification System.54 The press release citedadditional cross-agency partnerships between ICE and the Department ofState, the Bureau of Prisons, the U.S. Attorneys Office, and the U.S.

Marshal Service, to achieve the ICE goal of making enhancements to the

nations immigration strategy and providing even greater disincentives forrecidivists.55 The Secure Communities Strategy is but one piece of thiscomprehensive initiative by ICE to create an infallible system ofimmigration enforcement.

48. 8 U.S.C. 1227(a)(2)(A)(i) - (ii) (2006).

49. Francis,supra note 40, at 704.

50. 8 U.S.C. 1227(a)(2)(B)(i) (2006).

51. Id.

52. See discussion supraPart II.B.53. Fact Sheet, Secure Communities, supranote 34, at 1.

54. Id.

55. Id. at 2.


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B. The Function and Structure of the Strategy

When an individual is arrested and booked in a jurisdiction that haschosen to enroll in the Secure Communities Strategy, his fingerprints are

checked not only against DOJ criminal records, but also against DHSimmigration records, including the U.S. Visitor and Immigrant StatusIndicator Technology Program (US-VISIT) database.56 If a DHSimmigration record match is found, indicating that the individual arrested isa noncitizen, local ICE officers are notified and may take any of thefollowing actions as deemed appropriate: (a) transferring the noncitizen to

ICE custody to avoid release; (b) conducting personal interviews to gatheradditional information from the noncitizen; and (c) issuing detainers orcharging documents.57

At its inception in 2008, the Strategy removed criminal aliens according

to a three tiered risk based approach.58Level One offenders included thosewho had serious drug convictions and those who had committed murder,

manslaughter, rape, robbery, or kidnapping.59Level Two identified thosewith minor drug convictions and those with convictions for burglary,larceny, fraud, and money laundering.60 Level Three targeted those whohad been convicted of any other offense.61

ICE appears to have abandoned the three tiered approach in favor of aprioritization of criminal aliens, public safety threats and repeatimmigration offenders.62A memo issued by ICE Director John Morton inMarch 2011 seems to merge these two methods.63Priority One removals

now include aliens who pose a danger to national security or a risk topublic safety.64 Within Priority One there are three levels of criminalaliens: Level One includes aliens convicted of aggravated felonies or atleast two felonies, Level Two includes aliens convicted of any felony or at

least three misdemeanors, and Level Three is comprised of aliens convicted

56. Secure Communities, supranote 7; Secure Communities: A Fact Sheet, IMMIGR.

POLY CTR., 1 http://www.immigrationpolicy.org/just-facts/secure-communities-fact-sheet

(last updated Nov. 4, 2010); LEGOMSKY, supra note 1, at 828 (explaining US-VISIT is a

DHS program created in 2003 which logs the arrivals and departures of noncitizens as well

as their contacts with DHS and other government agencies).

57. Fact Sheet, Secure Communities, supranote 34, at 2.

58. Keaney & Friedland, supra note 36, at 6.

59. Fact Sheet, Secure Communities, supranote 34, at 2.

60. Id.

61. Id.

62. Secure Communities, supranote 7, at 1-2.

63. Memorandum from John Morton to All ICE Employees, Dir., U.S. Immigrationand Customs Enforcement (Mar. 2, 2011), http://www.ice.gov/doclib/news/releases/2011/

110302washingtondc.pdf.

64. Id.


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of crimes punishable by less than one year.65 Priority Two consists ofaliens who recently entered illegally and Priority Three are fugitive aliensor aliens who otherwise obstruct immigration controls.66 It should be

noted that individuals ICE considers fugitive aliens include those who havenot been convicted of a crime.67 Whatever form ICEs immigration

enforcement priorities take, throughout the years its stated objective hasremained the same: to identify and remove all criminal aliens, improvedetention capabilities, shorten the removal process, and reducerecidivism.68

C. ICE Reported Success Stories

ICE records successful removals on its webpage.69One story relaysthe arrest of three illegal aliens wanted for rape, kidnapping, and robbery.70A similar story tells of an illegal immigrant who killed his nephew.71Another success story recounts a visa overstay with an outstanding warrant

for attempting to murder a police officer.

72

There is little room forargument that such individuals should be removed for committing crimesin the United States; however, ICEs website undoubtedly highlights themost successful of its stories yet leaves out instances in which the prioritiesof the Secure Communities Strategy were forgotten or neglected.73

The Strategys objectives are more questionable when individuals like

Susana Ramirez of Illinois face removal after an arrest for a minor trafficviolation.74 Ramirez, who had no criminal convictions, was arrested forfailure to possess a license, at which point it was discovered she hadoverstayed her visa,75 all thanks to the Strategys ability to data-sharebetween agencies. She now faces removal,76 which does not seem to

comply with any of the four strategic goals of the Secure Communities

65. Id.at 2.

66. Id.

67. Id.at 3.

68. Fact Sheet, Secure Communities,supranote 34, at 2.

69. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Secure Communities: Success

Stories, ICE, http://www.ice.gov/secure_communities/success-stories.htm (last visited Oct.

13, 2011).

70. Id.

71. Id.

72. Id.

73. But see id.

74. Antonio Olivio, Report Criticizes Immigration Enforcement, CHI.TRIB., Jan. 13,

2011, http://www.chicagotribune.com/news/local/ct-met-immigration-arrests-report-20110

113,0,204830.story.

75. Id.

76. Id.


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Strategy.77

D. Actual Statistics on Those Removed Under the Strategy

Despite the success stories set out on ICEs website, statistics regardingthe number of high-risk criminals actually removed under the Strategypaint a different picture. Nationally, as many as twenty-seven percent ofthose arrested under the Strategy through July 2010 had no criminal record,while seventy-seven percent of noncitizens arrested in Illinois under the

Strategy through July 2010 had no criminal convictions.78An examinationof county specific arrest records from the same time period showed that inat least three Illinois counties, not a single person arrested under the SecureCommunities Strategy had a criminal record.79

Similarly, a report by DOJs National Institute of Corrections stated thatdata collected in March 2009 showed that the Strategy had analyzed morethan 170,000 fingerprints of arrestees, finding an immigration match for

19,495 people.80

Of all the matches, only 1436 were for Level One typeoffenders, while more than 17,000 of the remaining individuals had beenarrested for less serious crimes.81Although ICE claims that the intent of the

Secure Communities Strategy is not to deport law-abiding workingpersons,82 it is hard to reconcile these alarming statistics which indicatethat ICE may instead be disrupting families and wasting law enforcementresources.83

Under the Secure Communities Strategy, local officers arrest noncitizen

offenders and yet have neither knowledge of immigration law or status oftheir family members, concern for the immigration consequences of thesearrests, nor do they operate under any memoranda of agreement from ICE,which would outline their level of participation in the Strategy.84This is a

77. Fact Sheet, Secure Communities,supranote 34, at 2.

78. ILL.COAL.FOR IMMIGRANT AND REFUGEE RIGHTS, supranote 15, at 1.

79. Id.

80. U.S. DEPT OF JUSTICE, NATL INST. OF CORR., LARGE JAIL NETWORK

PROCEEDINGS7 (2009).

81. Id.

82. Id.

83. ILL.COAL.FOR IMMIGRANT AND REFUGEE RIGHTS, supranote 15, at 1.

84. RANDY CAPPS ET AL., MIGRATION POLICY INST.,Delegation and Divergence: A

Study of 287(G) State and Local Immigration Enforcement 48 (2011),

http://www.migrationpolicy.org/pubs/287g-divergence.pdf. It appears that at least in some

instances, ICE did enter into memoranda of agreement with states but as of August 5, 2011,

ICE has suspended all operating memoranda and has decided it does not need one to

activate Secure Communities in a state. Letter from John Morton, Director of ICE, to Jack

Markell, Governor of Delaware 1 (Aug. 5, 2011), http://www.latimes.com/media/acrobat/

2011-08/158828360-05134319.pdf [hereinafter Letter to Jack Markell].


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recipe for disaster and can serve as a basis for arrests by officers who, byway of racial profiling, suspect someone to be an illegal immigrant.

Also adding to the disparity between ICEs objective of catching and

removing serious noncitizen offenders and actual results is that ICE seemsto have widened the net of the Strategy over time. Initial statements by ICEemphasized removing convicted criminals, yet the Strategy operated byrunning fingerprint checks on anyone booked at a local police station andplacing immigration holds on those who had an immigration recordmatch.85 In response to immigration advocates who condemned this

approach, ICE issued a statement in 2009 clarifying its approach to the typeof noncitizen criminals the Strategy aimed to target: ICE is focusingefforts first and foremost on the most dangerous criminal aliens currentlycharged with, or previously convicted of, the most serious criminaloffenses.86

E. Is the Strategy Mandatory or Not?

There is confusion not only about whether ICE is achieving its objectiveof removing criminal aliens, but also as to whether the Strategy will trulybecome mandatory in every state by 2013.87Only recently has ICE takensteps to clarify this confusion.88In April 2011, ICE Director Morton wrote

a letter to California Congresswoman Zoe Lofgren in which he stated that,federal law requires information sharing between federal agenciesexpressly for purposes of immigration enforcement. As a result, state andlocal jurisdictions cannot prohibit the information sharing between theDepartments of Justice and Homeland Security upon which the SecureCommunities Program rests.89 Yet, in September 2010, DHS Secretary

Janet Napolitano indicated in a letter to Congresswoman Lofgren that localjurisdictions could opt-out of the Strategy.90 A month later, in October2010, Secretary Napolitano and ICE Director Morton issued a statement

85. Keaney & Friedland, supra note 36, at 6.

86. Michele Waslin, THE SECURE COMMUNITIES PROGRAM:UNANSWERED QUESTIONS

AND CONTINUING CONCERNS 10 (2010), available at http://www.immigrationpolicy.org/site

s/default/files/docs/Secure_Communities_updated_110410.pdf.

87. Lena Graber, Secure Communities: Do We Know Anything For Certain?,

IMMPOLITIC BLOGpara. 14 (Mar. 2, 2011), http://www.immigrationforum.org/blog/display/

secure-communities-do-we-know-anything-for-certain/.

88. See Letter from John Morton, Director of ICE, to Zoe Lofgren, U.S.

Representative (Apr. 28, 2011), https://docs.google.com/viewer?a=v&pid=explorer&

chrome=true&srcid=0B_6gbFPjVDoxMzQxOThiMDMtM2I4Yy00NzEyLWExZjYtYjhm

YjVjMGI5ZDVj&hl=en.

89. Id.

90. Letter from Janet Napolitano, Secy of Dept of Homeland Security, to Zoe

Lofgren, U.S. Representative (Sept. 7, 2010), available at http://crocodoc.com/yzmmKP.


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confirming that the Secure Communities Strategy was not an opt-outprogram.91

Most recently, as a result of a Freedom of Information Act (FOIA)

request by the National Day Laborer Organizing Network, Center forConstitutional Rights and Cardozo Immigrant Justice Clinic, which wasreleased in February 2011, it seems that despite what Director Morton says,the Strategy may not be mandatory after all.92The FOIA request produced

documents including emails and internal memos which show that despiteICEs stance that Secure Communities is a mandatory program, states canopt-out.93 However, one of the ICE documents from the FOIA request,titled Tactical Approach to Sensitive Jurisdictions suggested that ICEcreate a ring of inoperability around the resistant site94to target hold outareas that refuse to implement the Strategy. Furthermore, additional

documents and emails show that as the Obama administration encounteredpush-back from jurisdictions that did not want the Strategy, such as SantaClara and San Francisco in California, it considered withholding federalfunding and FBI information from resisters and eventually dug up case lawto justify requiring cooperation.95Thus, while officially it seems as if theSecure Communities Strategy will be mandatory in a few years, it does

appear certain that ICE will strive boldly in the meantime to ensureparticipation.

On ICEs website, a map of the U.S. accompanies enrollment statisticsshowing activated jurisdictions in green.96The majority appear to be inthe South, Southwest, California, the Mid-Atlantic, and Wisconsin.97Currently there are more states with one hundred percent compliance,sixteen in total,98 than states with zero jurisdictions enrolled, eight in

91. Graber, supra note 87.

92. Press Release, Uncover the Truth, ICE and Police Collaborations, Newly Released

Secure Communities Documents Signal Opening for Local Opt-out (Feb. 17, 2011),

http://uncoverthetruth.org/featured/newly-released-secure-communities-documents-signal-

opening-for-local-opt-out/.

93. Id.

94. Id.

95. While Santa Clara and San Francisco did initially resist participation in the

Strategy, both were enrolled in 2010. ACTIVATED JURISDICTIONS, supranote 11, at 2; Rina

Palta, Secure Communities: ICE Documents Show Policy Change, Push Back, UNCOVER

THE TRUTH (Feb. 16, 2011), http://uncoverthetruth.org/secure-communities-ice-documents-

show-policy-change-push-back.

96. ACTIVATED JURISDICTIONS, supranote 11.

97. Id. The ICE website contains statistics for U.S. territories, but I have not included

those as part of this discussion.

98. These states are Ariz., Cal., Del., Fla., Haw., Mich., N.M., N.C., Ohio, Or., R.I.,

S.C., Tex., Va., W. Va., and Wis. ACTIVATED JURISDICTIONS, supra note 11, at 1-4, 6, 11,


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total.99

The states with full compliance have led rallying cries against illegalimmigration, and since most share a border with Mexico, it comes as little

surprise that these states have agreed to participate in the Strategy.

100

Forthe states included in the zero-compliance category, the lack ofparticipation in the Strategy may or may not be intentional. Although thereare pockets of illegal immigrants in New England States such as Vermont,New Hampshire, and Maine,101 until Secure Communities becomesmandatory, it may not be a priority for ICE to have these states participate

in the Strategy. Other states, like New Jersey, have actively resistedparticipation in the Strategy,102 while Rhode Islands Attorney Generalonly recently agreed, in January 2011, to bring Secure Communities to thestate.103As a result, Rhode Island is currently listed as fully participating inthe Strategy on ICEs website.104

Rhode Island presents a good example of the struggle a state may face as

it attempts to implement the Strategy. Although the states AttorneyGeneral has recently agreed that Rhode Island will enroll in SecureCommunities, the city of Providence sent a letter to DHS in February 2011,asking how to opt-out.105Meanwhile, in the same month that the Attorney

General enlisted Rhode Island in the Secure Communities Strategy, RhodeIslands Governor, Lincoln Chafee, rescinded an executive orderimplemented by former Governor Carcieri which allowed for a 287(g)Program in the state.106 By April 2011, Providence was reluctantlyparticipating in the Strategy.107

More recently, other states such as Massachusetts, Illinois, and New

15-19, 18, 21, 23-24.

99. These states are Alaska, D.C., Me., Minn., N.H., N.J., N.D., and Vt. ACTIVATED

JURISDICTIONS, supra note 11, at 1, 4, 10-11, 14, 16, 22.

100. PEW HISPANIC CENTER,UNAUTHORIZED IMMIGRANT POPULATION:NATIONAL AND

STATE TRENDS, 2010 at 14 (2011), http://pewhispanic.org/reports/report.php?ReportID=133.

101. Id.at 23.

102. Confusion Helped Spread of Secure Communities, Even as Resistance Remains

Strong, DEPORTATION NATION(Feb. 17, 2011), http://www.deportationnation.org/2011/02/

confusion-helped-spread-of-secure-communities-even-as-resistance-remains-strong/.

103. Karen Lee Ziner, Kilmartin Signs Secure Communities Agreement,

PROVIDENCE J. (Jan. 11, 2011), http://news.providencejournal.com/breaking-

news/2011/01/kilmartin-signs-secure-communi.html.

104. ACTIVATED JURISDICTIONS, supra note 11, at 18.

105. Letter from Steven Par, Public Safety Commissioner, Providence, Rhode Island,

to David Venturella, Assistant Director, Secure Communities Program (Feb. 10, 2011).

106. Ziner, supra note 103.

107. Gregory Smith, Secure Communities Active in RI; Providence Included,

PROVIDENCE J. (April 5, 2011), http://news.providencejournal.com/breaking-news/2011/04/

secure-communities-active-in-r.html.


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York have either refused to join the Strategy or have chosen to pull outafter initially enrolling because of concerns that the Strategy was removingthe wrong type of individual.108 In Massachusetts, a day after Governor

Deval Patrick publicly announced that the state would not enroll in theStrategy, DHS officials reminded the Governor that the Strategy would bemandatory in all states by 2013.109

In response to growing criticism of the Strategy, on June 17, 2011, ICE

issued a memo urging prosecutorial discretion in certain removal cases.110In deciding whether to prosecute, ICE agents, attorneys, and field officedirectors should look to factors such as how and when the alien arrived inthe United States, if an individual is currently pursuing a higher educationdegree, an individuals criminal history, age and cooperation with federalauthorities.111Critics say the notion of prosecutorial discretion is nothing

new and have labeled this a public relations campaign that is too late toundo the wrongs of the Secure Communities Strategy.112

Until DHS follows through with its promise to make the Strategymandatory, states or jurisdictions that do not wish to comply may resort to

a number of strategies to avoid compliance. Immigration advocates areurged to focus efforts on states and counties not currently enrolled toprevent implementation of the Strategy and to help counties that wish toopt-out to that end.113 Additionally, perhaps foreseeing the futureimplementation of the Strategy nationwide, the Coalition furtherencourages reform of the Strategy itself, including requiring moretransparency regarding what type of criminal noncitizens are actuallyremoved under the Strategy, and encouraging similar reporting at a locallevel.114

108. Jason Buch, States Diverging on Secure Communities, SAN ANTONIO EXPRESS

NEWS, June 13, 2011, http://www.mysanantonio.com/default/article/States-diverging-on-

Secure-Communities-1421266.php.

109. Maria Sacchetti and Noah Bierman, US Overrules Patrick on Immigration, BOS.

GLOBE, June 7, 2011, http://articles.boston.com/2011-06-07/news/29630407_1_immigrant-

advocates-illegal-immigrants-federal-immigration.

110. Memorandum from John Morton to All Field Office Directors, All Special Agents

in Charge and All Chief Counsel (June 17, 2011), http://www.ice.gov/doclib/secure-

communities/pdf/prosecutorial-discretion-memo.pdf [hereinafter Prosecutorial Discretion

Memo].

111. Id.at 4.

112. Press Release, Rights Groups Say Proposed Tweaks to Secure Communities

Program are Too Little, Too Late, CENTER FOR CONSTITUTIONAL RIGHTS(June 17, 2011),

http://ccrjustice.org/newsroom/press-releases/rights-groups-say-proposed-tweaks-secure-communities-program-are-too-little-too-late.

113. ILL.COAL FOR IMMIGRANT AND REFUGEE RIGHTS, supranote 15, at 9.

114. Id. at 9-10.


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F. The Criticism Continues

The Secure Communities Strategy has endured continued criticismthrough the summer and early fall of 2011 despite ICEs issuance of its

memo on prosecutorial discretion in June 2011.115 On July 11, 2011, adistrict court judge in New York ordered DHS and ICE to reproducepreviously redacted documents produced from the FOIA request by theCardozo Immigrant Justice Clinic, which could highlight if and how ajurisdiction might opt-out of the Strategy.116On August 5, in response tostates withdrawing from the Strategy or refusing to join altogether, ICEcancelled all existing Memoranda of Agreement with states and explainedthat a Memorandum is not required to activate or operate Secure

Communities for any jurisdiction.117In a letter from John Morton to theGovernor of Delaware, Morton wrote, Once a state or local lawenforcement agency voluntarily submits fingerprint data to the federalgovernment, no agreement with the state is legally necessary for one part of

the federal government to share it with another part.118

On August 18, 2011, the Obama Administration announced that it would

work with DHS to prioritize the removal of individuals convicted of crimesinstead of targeting people who are low priorities for deportation.119Thisincludes those who were brought here at a young age and consider theUnited States their home and military veterans and the spouses of active-

duty military personnel.120The White House indicated it would considerthe recommendations of John Mortons Prosecutorial Discretion Memo inprioritizing the deportation caseload.121

In September 2011, the Task Force on Secure Communities issued itsfinal report regarding the strengths and weaknesses of the Strategy.122DHScreated the Task Force on Secure Communities to make recommendations

115. Prosecutorial Discretion Memo, supranote 110.

116. District Court Rejects DHS and ICE FOIA Withholdings That Conceal

Misrepresentations and Embarrassment, CENTER FOR CONSTITUTIONAL RIGHTS (July 11,

2011), http://ccrjustice.org/newsroom/press-releases/district-court-rejects-dhs-and-ice-foia-

withholdings-conceal-misrepresentations-and-embarrassment (last visited Oct. 13, 2011).

117. Letter to Jack Markell, supranote 84.

118. Id.

119. See Cecilia Munoz, Immigration Update: Maximizing Public Safety and Better

Focusing Resources, THE WHITE HOUSE BLOG (Aug. 18, 2011, 2:00 PM),

http://www.whitehouse.gov/blog/2011/08/18/immigration-update-maximizing-public-

safety-and-better-focusing-resources.

120. Id.

121. Munoz, supranote 119.

122. See HOMELAND AND SEC. ADVISORY COUNCIL, TASK FORCE ON SECURE

COMMUNITIES FINDINGS AND RECOMMENDATIONS (2011), http://www.aila.org/content/

default.aspx?docid=37003.


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on how the Strategy could be improved and on how ICE [could] adjust theSecure Communities program to mitigate potential impacts on communitypolicing practices, including whether and how to implement policy

regarding the removals of individuals charged with, but not convicted of,minor traffic offenses who have no other criminal history.123 The TaskForce grouped its findings and recommendations into five sections:Misunderstandings Regarding the Secure Communities Program and theRole of Local Law Enforcement Agencies; Perceived InconsistenciesBetween Secure Communities Stated Goals and Outcomes; Minor Traffic

Offenses and Misdemeanors; Unintended Consequences of SecureCommunities on Community Policing and Community Impact; and TheQuestion of Whether to Suspend Secure Communities.124

To remedy the flaws of the Secure Communities Strategy, the Task

Force stressed that [t]he systematic and professional use of prosecutorialdiscretion is the key to regaining public support and to making the best useof limited resources.125 It further urged that ICE proceed withtransparency, clarify the stated objectives of the Strategy, and adhere toremoving only serious criminal offenders all while closely collaboratingwith immigrant communities and the police that patrol these

communities.126 One of the Task Forces most significantrecommendations was that ICE not issue immigration detainers forindividuals arrested for minor traffic offenses and other minormisdemeanors.127The group also suggested that should ICE not embracethis recommendation, it should consider issuing conditional immigrationdetainers to individuals arrested for misdemeanors that would only be

enforced if and when that individual is actually convicted of the offense.128

In closing, the Task Force asked that DHS and ICE respond in writing toits requests and identify which Task Force recommendations it wouldaccept, and for those recommendations it does not accept, to explain the

rationale as to why not.129As another measure of oversight of the Strategy,the DHS Office of Inspector General and the Government AccountabilityOffice are performing their own analysis of the Secure Communities

123. Id.at 4.

124. Id.at 9.

125. Id.at 29.

126. Id.at 9-10.

127. Id. at 22. The Task Force suggested that a minor traffic offense does not include

driving under the influence, hit-and-run, or reckless driving resulting in injury to persons,

or other violations that have the potential of causing serious injury or harm to the public.Id.

128. Id.

129. Id.at 29.


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Strategy.130

With the exception of ICEs suspension of existing Memorandums ofAgreement and its assertion that states have no choice but to participate in

the Strategy, the recent happenings regarding the Strategy are steps in theright direction. This oversight is integral to the reformation of the Strategywhich the Task Force on Secure Communities highlighted several times inits report, emphasizing that its criticism is not of ICEs authority to removehigh risk criminals, but rather its application thus far of the SecureCommunities Strategy.131

IV.THE POTENTIAL FOR FOURTH AMENDMENT VIOLATIONS WITH THEWRONGFUL REMOVAL AND DETENTION OF U.S.CITIZENS AND CRIME

VICTIMS

A. The Wrongful Removal of U.S. Citizens Under the 287(g)

Program and Continued Potential Under the Secure Communities

Strategy

The Secure Communities Strategy and similar ICE initiatives have beencriticized not only for removing noncitizens with no criminal record, but

also, surprisingly enough, for removing U.S. citizens.132Since the 287(g)Program has existed for longer, there are more stories of wrongfuldetention and removal of U.S. citizens under this Program than under theSecure Communities Strategy.133 However, given the Strategys greatpotential to repeat the mistakes of the 287(g) Program, the Strategy couldvery easily replicate a number of the following tragic events.

Pedro Guzman, a mentally ill U.S. citizen who was serving time in jailfor a misdemeanor offense was removed to Mexico in 2007 after a jailemployee had Guzman sign a form which allowed for his removal withouta hearing.134Even though legal documents verified that Guzman had been

born in California, as he had indicated when asked by jail officials, he spentthree months in Mexico before he was found by his family and was allowedto re-enter the U.S.135

130. Id.

131. Id.at 8.

132. The Secure Communities Program: Unanswered Questions and Continuing

Concerns, IMMIGRATION POLICY CENTER(Nov. 4, 2010), http://www.immigrationpolicy.org/

special-reports/secure-communities-program-nanswered-questions-and-continuing-

concerns.

133. Seediscussion infraPart IV.A.

134. Suzanne Gamboa, Citizens Held as Illegal Immigrants, THE NEWS VIRGINIAN,

Apr. 13, 2009, http://www2.newsvirginian.com/news/2009/apr/13/citizens_held_as_

illegal_immigrants-ar-303399/.

135. Id.


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Another mentally ill U.S. citizen, Mark Lyttle, was also removed toMexico in December 2008, even though he did not speak Spanish andrecord searches conducted by ICE indicated that Lyttle was a U.S.

citizen.

136

Criminal records checks indicating his nationality as American,his social security card, and information pertaining to his parents supportedLyttles sworn statement that he was an American.137 However, whendeciding to proceed with his removal, ICE agents did not give any credenceto this documentation because Lyttle had told ICE that he was Mexican ontwo prior occasions.138 Nonetheless, when Lyttle revoked his previous

statements regarding his nationality and asserted instead that he was a U.S.citizen by birth, ICE was legally obligated to investigate this claim.139Procedurally, when a detainee in ICE custody makes a credible claim toU.S. citizenship, ICE officers will ask the detainee whether he or she canproduce supporting evidence. In addition, the officer will review thedetainees files and query all relevant databases to support the detainees

claims.140Lyttle provided the names of family members, who presumablycould have produced a U.S. birth certificate, but this lead was not followedand there was no ICE attempt to locate Lyttles birth certificate after aninitial search did not produce anything.141Thus, despite the fact that ICEwas aware that Lyttle suffered from bipolar disorder, and the legalobligation ICE was under after Lyttle had made a credible claim to U.S.citizenship (which was subsequently verified by FBI background checks),an immigration judge ordered him removed to Mexico.142

When Lyttle tried to re-enter the U.S. ten days later, he was refusedentry and sent by Mexican immigration authorities to Honduras and then

Guatemala.143Finally, after almost five months outside the country, Lyttlefound the U.S. Embassy in Guatemala City.144An employee there calledLyttles brother, received his adoption papers, and issued him a passport so

136. Kristin Collins,N.C. Native Wrongly Removed to Mexico, CHARLOTTE OBSERVER,

Aug. 30, 2009, http://www.charlotteobserver.com/2009/08/30/917007/nc-native-wrongly-

removed-to.html.

137. Id.

138. Id.

139. See Problems with ICE Interrogation, Detention, and Removal Procedures:

Hearing Before the Subcommittee on Immigration, Citizenship, Refugees, Border Security

and International Law of the Committee on the Judiciary House of Representatives, 110th

Cong. 5 (2008) [hereinafter Problems with ICE Interrogation].

140. Id.

141. Collins, supra note 136.142. Id.

143. Id.

144. Id.


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Lyttle could return to the U.S.145

Guzman and Lyttles stories are extreme, but not rare examples of whatcan go wrong in an overburdened immigration system. Statistics vary as to

how many U.S. citizens are mistakenly removed each year mostly becauseit is considered a phenomenon, not a regularity, and therefore is not trackedin the annually published USCIS Yearbook of Immigration Statistics.146Intestimony before the House of Representatives Subcommittee onImmigration, Citizenship, Refugees, Border Security and International Lawin 2008, Gary Mead, Assistant Director for Detention and Removal (an ICE

unit now called Enforcement and Removal Operations) stated that out of280,000 individuals removed in the four years prior, only one had been aU.S. citizen.147Throughout the testimony Mead asserted that ICE does notknowingly or willfully detain or remove U.S. citizens148and insisted thatthe one instance in which it happened, to Pedro Guzman, was not the faultof ICE.149

However, after Meads remarks in February 2008, at least two moreremovals of U.S. citizens occurred: that of Mark Lyttle in December of2008 and of Alberto Delgado in 2010.150 One controversial studyconducted by the Vera Institute in 2007 indicated that as many as 125

individuals were eligible for removal who had legitimate claims of U.S.citizenship.151Thus, however one looks at these statistics, the removal ofU.S. citizens is not so rare when it appears to occur on average at least oncea year and has been the subject of a House of Representatives Hearing.This is alarming not only because it occurs outside of ICEs mandate butalso because it poses a severe constitutional violation.

B. The Wrongful Detention of U.S. Citizens

The wrongful detention of U.S. citizens has also been too frequent of an

145. Id.

146. OFFICE OF IMMIGRATION STATISTICS,2009YEARBOOK OF IMMIGRATION STATISTICS

(2009), available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_yb_

2009.pdf.

147. Problems with ICE Interrogation, supra note 139, at 17. That citizen was

Guzman.Id.

148. Id. at 28.

149. Id.

150. Collins, supra note 136; Susan Carroll,Houston Native Wrongly Removed for 85

Days, HOUS.CHRON., Sept. 13, 2010, http://www.chron.com/disp/story.mpl/special

/immigration/7199653.html. Delgado was removed to Mexico even though he was able to

produce a U.S. birth certificate, an identity card from Texas and a social security card after

signing papers agreeing to removal because he mistakenly believed that by signing the

papers he would be staying in Houston and fighting removal from there. Id.

151. Problems with ICE Interrogation, supra note 139, at 17.


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occurrence in ICEs various enforcement strategies for rooting out criminalnoncitizens. When ICE arrests or issues a detainer on an individual, officershave forty-eight hours to decide whether to institute removal proceedings

or keep the individual in ICE custody, unless extreme circumstancesprovide for an exception to the time requirement.152Illegal detention canoccur either when a U.S. citizen is wrongfully detained, since ICE has nojurisdiction over U.S. citizens,153or when an individual is held by ICE withno decision made on his case for longer than forty-eight hours.154

For instance, Daniel Renteria-Villegas was arrested for aggravated

assault in August 2010 in Nashville, Tennessee and was immediatelymarked by an ICE detention hold because his arresting officer hadidentified his birthplace as Mexico.155 However, when Renteria-Villegaswas cleared of his charges on September 3 after a judge found no probable

cause in his case, he remained in ICE custody for another nine hours andwas only released from jail twelve hours after charges against him had beendismissed.156 Renteria-Villegas has filed a lawsuit against the city ofNashville, his arresting officer and the sheriff of the county in whichNashville is located alleging that he was wrongfully detained despitehaving made a credible claim of U.S. citizenship and providing adequate

documentation to show it.157

C. Why are U.S. Citizens Being Detained and Removed?

The simple answer to why U.S. citizens are being detained and removedis that the immigration enforcement system in the United States is

overwhelmed and inefficient. Although the agencies charged withimmigration enforcement have become more streamlined since 2003, theprograms these agencies have implemented to carry out this enforcement

lack efficiency.

158

The 287(g) Program and Secure Communities Strategyhave similar objectivesto remove high risk criminal noncitizens159yet,

152. Id. at16.

153. Id. at 15.

154. Id.at16.

155. Brantley Hargrove, Will an Arcane Legal Challenge Bring Down Nashville's

Controversial 287(g) Program?, NASHVILLE SCENE, Jan. 13, 2011,

http://www.nashvillescene.com/gyrobase/will-an-arcane-legal-challenge-bring-down-

nashvilles-controversial-287gprogram/Content?oid=2156751&storyPage=1.

156. Id.

157. Id. Renteria-Villegas provided officers with a Tennessee identification card,

which is proof of residency or citizenship, a valid social security number, and could name

the hospital in which he had been born.Id.

158. See The Secure Communities Program: Unanswered Questions and Continuing

Concerns, supra note 132.

159. Seeid.


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in implementing the Strategy, ICE did not attempt to improve it by learningfrom the mistakes of the 287(g) Program.160For this reason, the Strategyhas serious potential to repeat the same errors of the 287(g) Program.

One reason a U.S. citizen might get lost in the system and be subject todetention or removal is because he might not even know his status. Manyyoung adults discover only upon arrest that they are not citizens or lawfulpermanent residents.161On the other end of the spectrum, detainees whoare not citizens claim citizenship, perhaps thinking they will fool ICE,tainting those who have legitimate claims.162Similarly, some U.S. citizens

claim to be noncitizens to avoid further jail time.163 Whether a detaineemakes a credible claim of citizenship is up to an ICE agent to decide, 164soafter seeing many false claims of U.S. citizenship, any detainee who makesa citizenship claim may seem as if he is crying wolf. ICE maintains thateven if U.S. citizenship is not proven at this stage, any removableindividual must, before leaving the country, be approved for a travel

document from the country to which they are being removed.165 This ismeant to ensure that the individual is truly a citizen of the country to whichthey are removed.

However, a travel document is not needed for removals to Canada or

Mexico.166Of 580,107 total removals in 2009, 490,581 individuals wereremoved to Canada and Mexico.167Of the few documented cases of U.S.citizens who were mistakenly removed, all were removed to Mexico.168Inhis statement before the House of Representatives Subcommittee onImmigration, Citizenship, Refugees, Border Security and International Lawin 2008, Gary Mead stated that a review of ICE policies was being

conducted to determine if even greater safeguards can be put in place toprevent the rare instance when this event might potentially occur.169Given these statistics, this policy should indeed be reviewed.

Nationally, 2010 was a record year for removals with 3000 more

removals than those occurring in fiscal year 2009.170As the U.S. continues

160. Seeid.

161. See Problems with ICE Interrogation, supra note 139, at 10.

162. Id.

163. Id.

164. Id.at 9.

165. Id.at 10-11.

166. Id.at 10.

167. OFFICE OF IMMIGRATION STATISTICS, supranote 146, at 96.

168. SeeGamboa, supra note 134;Collins, supra note 136; Carroll, supra note 150.

169. Problems with ICE Interrogation, supra note 139.

170. Brian Bennett, U.S. Deported Record Number of Illegal Immigrants, L.A. TIMES,

Oct. 6, 2010, http://articles.latimes.com/2010/oct/06/nation/la-na-illegal-immigration-

20101007.


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to refuse to implement solutions to a burgeoning problem of immigrationand instead ramps up enforcement, wrongful removals and detentions willrise as well.

D. Detentions and Removals of U.S. Citizens are a Violation of theFourth Amendment

The Fourth Amendment to the Constitution protects against unlawfularrest and detention.171Since ICE has no jurisdiction over U.S. citizens172

any arrest or detention by an ICE officer of a U.S. citizen is in violation ofthe Fourth Amendment.173 Section 287(a) of the Immigration andNationality Act gives immigration officers extremely broad powers tointerrogate and arrest individuals without a warrant as to their right to be inthe United States.174 However, this power to question ones status andarrest is extended only to any alien or person believed to be an alien.175

The burden of proving citizenship at the border is different than it is in

the interior.176

Any individual entering the United States must provecitizenship or that they have a right to enter the country.177However, oncein the interior, the burden of proving citizenship falls on the ICE officer

and the officer may question an individual in this pursuit.178 If donepursuant to federal regulations, once an individual credibly identifieshimself as a U.S. citizen, all questions regarding legal status must stop.179However, once again, this determination of credibility is a subjective one,left to the ICE officer to conclude. Credibility is measured by a reasonablesuspicion standard, a standard lower than that of probable cause.180

To understand the scope of the immigration enforcement power it isnecessary to understand how the Fourth Amendment rights of a U.S. citizencould become implicated by an unlawful detention or arrest. In United

States v. Brignoni-Ponce, the Supreme Court held that in the context ofstopping cars, border guards could use Hispanic heritage as a reason to stopsomeone, but only if combined with specific articulable facts, togetherwith rational inferences from those facts, that reasonably warrant suspicion

171. U.S. CONST. amend. IV.

172. Problems with ICE Interrogation, supra note 139, at 15.

173. See U.S. CONST. amend. IV.

174. 8 U.S.C. 1357 (2006).

175. Id.

176. Problems with ICE Interrogation, supra note 139.

177. Id.178. Id.

179. Id.at 15.

180. Id.


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that the vehicles contain aliens who may be illegally in the country.181Aslimiting as this holding already was to illegal immigrants, any protectiveelement it offered was practically stripped away by a 2005 decision of the

Court in Muehler v. Mena.

182

In Mena, the Court held that local lawenforcement can question an individuals immigration status so long as the

person has been lawfully stopped or detained for another purpose, [e]venwhen officers have no basis for suspecting a particular individual, becausethis type of questioning is not a seizure or violation of the FourthAmendment.183

The way in which a U.S. citizens Fourth Amendment rights may

become implicated by an ICE officers authority to question him is bestunderstood by an analogy. As one critic of Brignoni-Ponces holdingstated, [c]ould we imagine the Supreme Court stating that [t]he likelihoodthat any given person of African American ancestry is a criminal is highenough to make African American appearance a relevant factor in a

criminal stop?184As this critic went on to point out, such criteria wouldcreate public outrage,185and rightly so. Therefore, the question becomes:why are federal immigration officials and even local law enforcementallowed to discriminate on the basis of ethnic origin, particularly that ofHispanic origin?

At least in 1975 when Brignoni-Ponce was decided, the Court reliedheavily on a government figure that concluded that eighty-five percent ofthe illegal alien population in the United States was Mexican and thatundocumented immigrants take a toll on our countrys economic and socialresources.186Given that in 2010 at fifty-eight percent, Mexicans made up

the largest number of undocumented individuals living in the U.S.,187andthere is a persistent national debate about how illegal immigrationcontributes to crime and other social ills, the Courts justification for ethnic

profiling in 1975 remains strong today. Thus, the potential for abuse of thisauthority to question can become a reality for any U.S. citizen who happensto fit the profile of an illegal alien, thereby giving the police a pretext by

which to detain the individual. It is at this point, when an interrogation goeswrong and results in ICE detention or arrest of a U.S. citizen, the FourthAmendment is violated.

181. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975).

182. SeeMuehler v. Mena, 544 U.S. 93, 100-01 (2005).

183. Id. (quoting Florida v. Bostick, 501 U.S. 429, 434-35 (1991)).

184. Kevin R. Johnson, The Case Against Race Profiling in Immigration Enforcement,

78 WASH.U.L.QUARTERLY. 675, 694 (2000).

185. Id.

186. Brignoni-Ponce, 422 U.S. at 878-79.

187. Unauthorized Immigrant Population: National and State Trends, 2010, PEW

HISPANIC CENTER,(Feb. 1, 2011), http://pewhispanic.org/reports/report.php?ReportID=133.


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E. The Secure Communities Strategy has Potential to Impede LawEnforcements Effort to Bring Justice to Undocumented CrimeVictims

The Secure Communities Strategy not only has implications for U.S.citizens, but also serious implications for undocumented noncitizens.Illegal aliens are commonly vulnerable to police presence on the roadways,but may also become vulnerable when they are the victims of crime.188Forfear of being removed themselves or that their attacker may be removed,illegal aliens who are crime victims may fail to report the crime.189This not

only impedes law enforcement efforts to deter present and future crime, butalso results in an injustice to the victim.

Statistically, the typical harmed victim is a female victim of domesticviolence.190 Approximately fifty-five percent of women in the U.S. who

have been victims of domestic violence report their attacker.191However,only thirty percent of immigrant women lawfully present in the U.S. report

their attackers and only fourteen percent of undocumented womenofficially report instances of domestic abuse.192

The near removal of Rita Cote provides a good example of why an

undocumented woman might not call the police.193 In February of 2009,Cote called local police to report that her sisters boyfriend had assaultedher sister, but when the police arrived, they interrogated Cote as to herstatus in the country.194As she was unable to produce any proof of legalstatus, she was arrested by the police, but her sisters boyfriend was not

arrested for the attack.195As a response to this unfairness of the criminaljustice system, some cities and localities across the U.S. have attempted tobecome sanctuary cities which limit the ability of local police to questionan individuals immigration status to encourage successful community

policing.196

However, as the Secure Communities Strategy continues totake hold across America, sanctuary cities will likely have to battle to

188. SeeOrde F. Kittrie, Federalism, Deportation and Crime Victims Afraid to Call the

Police, 91 IOWA L.REV. 1449, 1454 (2006).

189. Id.

190. Ajmel Quereshi, 287(g) and Women: The Family Values of Local Enforcement of

Federal Immigration Law, 25 WIS.J.L.GENDER &SOCY261, 282 (2010).

191. Id. at 287.

192. Id.

193. Ralph De La Cruz, The Police Took Mommy: How Reporting a Crime Nearly

Resulted in Deportation for Florida Woman, FLA.CENTER FOR INVESTIGATIVE REPORTING

(Jan. 31, 2011), http://fcir.org/2011/01/31/the-police-took-mommy-how-reporting-a-crime-

nearly-resulted-in-deportation-for-florida-woman/.194. Id.

195. Id.

196. Kittrie, supra note 188, at 1455.


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maintain that status.

A factor contributing to the trend of making criminals out of victims isthat in marriage-based immigration benefits, the success of the petition lies

in the hands of the U.S. citizen or legally-present spouse.

197

A noncitizencan become a lawful permanent resident (LPR) and eventually a U.S.citizen by virtue of being married to an LPR or American.198However, theability of a noncitizen to adjust to LPR status is technically conditionedupon the filing of certain applications that are rendered void unless the in-status spouse submits them.199This traditionally has given great power to

the in-status spouse, which exacerbates the vulnerability of the noncitizenspouse in domestic violence riddled marriages.200A noncitizen who doesnot adjust status is removable201and thus for fear of discovery, a noncitizenwho is suffering abuse may not report to avoid possible removal.

Recognizing the vulnerable position of an abused noncitizen spouse who

is dependent on her in-status spouse to file her application for permanentresidency, Congress in 1994, passed the Violence Against Women Act(VAWA)202 as part of the Violent Crime Control and Law EnforcementAct of 1994.203 VAWA allows a battered spouse to self-petition forpermanent residency if she can prove a prima facie case of domestic

violence, battery and extreme cruelty.204Similar concerns for the plight ofabused noncitizen women spurred Congress to authorize legislationenacting U Visas in 2000 as part of the reauthorization of VAWA.205

A U Visa is a path to permanent residency for a noncitizen crimevictim who meets the following criteria: the individual must have sufferedsubstantial physical or mental abuse from criminal activity; haveinformation regarding the criminal activity; assist government officials inthe investigation or prosecution of such criminal activity; and the crime ofwhich he or she is a victim must have occurred in the United States.206Anadditional filing requirement to a U Visa is that the applicant obtain a

certification from the police department or agency responsible for the

197. See 8 U.S.C. 1153(a)(2), 1186a(c)(1) (2006).

198. See id.

199. Id.; see also infranote 204 and accompanying text.

200. SeeQuereshi, supra note 190, at 285.

201. 8 U.S.C. 1186a(c)(2)(A).

202. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108

Stat. 1796, 1902.

203. Id.at 1796.

204. USCIS Issues Guidance For Approved Violence Against Women Act (VAWA) Self-

Petitioners, U.S.CITIZENSHIP AND IMMIGR.SERVICES, (Apr. 11, 2008), http://www.uscis.

gov/portal/site/uscis (search Fact Sheet VAWA; click first hyperlink).

205. Quereshi, supra note 190, at261, 292.

206. Id.


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investigation for which she is helping or may be of some help.207

However, despite the best efforts of Congress to help undocumentedvictims of crime or domestic abuse, VAWA and U Visas are no match

for immigration enforcement programs like Secure Communities. In fact,the Secure Communities Strategy impedes Congresss intent in creatingsuch visa categories: delivering justice to an already marginalized portionof society. How do we reconcile recognizing a need to help undocumented

victims of crime with a policy that supports the arrest and subsequentremoval of these undocumented victims? The Strategys data sharingcapability only speeds up the removal of these victims even if they maybenefit from one of these specially created visas.208

The paradox between enforcement initiatives and attempts at protecting

victims of crime209has been identified and despite its visibility, ICE doesnot actively use the list of beneficiaries of programs such as VAWA andU Visas created by DHS and distributed to immigration authorities.

Furthermore, it is common for both the victim and the attacker to bearrested in domestic violence incidents when one partner calls the police,

particularly in situations where neither party speaks English and there areinconsistencies about the incident.210

The same day ICE Director Morton issued a memo on exercisingprosecutorial discretion,211he also issued a memo addressing the removalsof crime victims.212The memo reminded its recipients that it is against ICEpolicy to initiate removal proceedings against victims of or witnesses to acrime.213 More broadly, it directed agents, attorneys, and field officedirectors to exercise their prosecutorial discretion regarding anyindividuals pursuing legitimate civil rights complaints.214 The memoexplained that any individual granted some form of victim based

immigration relief would now appear with a special notation in the CentralIndex System (CIS).215

207. Id.

208. See Pilar Merrero, Abused and Deported: Immigrant Women Face Double

Disgrace, LA OPINION, Mar. 14, 2011, translated in NEW AMERICAN MEDIA,

http://newamericamedia.org/2011/03/abused-and-removed-immigrant-women-face-double-

disgrace.php (indicating that undocumented immigrants may still be removed even if they

have been awarded VAWA or U visa status).

209. Id.

210. Id.

211. Prosecutorial Discretion Memo, supranote 110.

212. Id.

213. Id.

214. Id.at 2.

215. Id.at 3. The CIS is a database with information on individuals who have sought

immigration benefits. U.S. DEPT OF HOMELAND SEC., PRIVACY IMPACT ASSESSMENT FOR


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However, until this memo takes full effect, it is likely that the SecureCommunities Strategy will continue to remove many more undocumentedimmigrants than high risk offenders. It is equally likely that a victim of a

crime or domestic violence incident will not be helped by reporting thecrime to the police, but rather indefinitely harmed. This will result in a fear

of reporting crimes which leaves society far more vulnerable than anythreat posed by a non-criminal illegal alien.

V.CONCLUSION

States such as Arizona and Georgia have recognized that the federal

government is incapable of effectively enforcing immigration laws at alocal level.216At the same time, this local resistance to illegal immigrationin particular fuels the governments response to the overburdenedimmigration system in our country.217The Secure Communities Strategy isone such response, created to eliminate communication failures of the

magnitude that led to the attack on September 11.

218

As such, the Strategyis noble in its objective to work across agencies to share valuable dataabout arrestees and remove serious criminal offenders. However, to date,the Strategy has fallen short of its objectives and has proven ascontroversial as its predecessor programs.219The Strategy has continued toperpetuate the mistakes of the 287(g) Program, instead of learning fromthem, by continuing to arrest, detain, and remove non-criminal aliens, U.S.

citizens, and undocumented victims of crimes under the guise of enforcingour nations security, all while violating the U.S. Constitution.220 TheStrategy further lacks credibility when those in the upper echelon of itsadministration cannot seem to find a constitutional basis for makingparticipation mandatory throughout the country.221

The Secure Communities Strategy casts a wide net because the data

sharing that the Strategy encourages occurs at the moment of an arrest ofany U.S. citizen, LPR, non-citizen, or undocumented alien.222Yet, for theStrategy to be implemented in a particular jurisdiction, no memorandum of

THE CENTRAL INDEX SYSTEM2 (June 22, 2007), http://www.dhs.gov/xlibrary/assets/privacy/

privacy_pia_uscis_cis.pdf.

216. Richard Fausset, Georgia Passes Immigration Bill Similar to Arizonas, L.A.

TIMES, Apr. 14, 2011, http://articles.latimes.com/2011/apr/14/nation/la-na-georgia-

immigration-20110415.

217. Seediscussion supraPart IV.C.

218. Seediscussion supra Part II.A.

219. Seediscussion supra PartII.B, Part IV.A-C.220. U.S. CONST. amend. IV.

221. Seediscussion supra Part III.E.

222. Secure Communities, supranote 7.


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agreement is required between ICE and officials in the state or locality.223Therefore, no memorialized agreement exists to define the scope of theparticipating jurisdiction. As ICE intends to make the Strategy mandatory,

this lack of guidelines and standard operating procedures, combined withthe Strategys potential for error, could prove costly to ICEs ability toeffectively enforce immigration law.

To ease the tension in immigrant communities and among immigrant

advocates, ICE must clarify the parameters of the Strategy andacknowledge its shortcomings. It has taken that first step with its June 17,2011 memos, but it must not just encourage prosecutorial discretion, butrather actually implement it. For a program that has potential to make ourcountry safer if used correctly and efficiently, the Secure CommunitiesStrategy will be forever disgraced if it allows for the removal of non-

criminal aliens, the unconstitutional detentions and removal of U.S.citizens, and the inhumane policy of removing victims of crime.

223. See CAPPS ET AL., supranote 84.