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«The Fourth Amendment and Immigration Enforcement in the Home: Can ICE Target the Utmost Sphere of Privacy? Marisa Antos-Fallon∗ ∗ Copyright c ...»

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Fordham Urban Law Journal

Volume 35, Issue 5 2007 Article 1

The Fourth Amendment and Immigration

Enforcement in the Home: Can ICE Target the

Utmost Sphere of Privacy?

Marisa Antos-Fallon∗

Copyright c 2007 by the authors. Fordham Urban Law Journal is produced by The Berkeley

Electronic Press (bepress). http://ir.lawnet.fordham.edu/ulj

The Fourth Amendment and Immigration

Enforcement in the Home: Can ICE Target the

Utmost Sphere of Privacy?

Marisa Antos-Fallon Abstract This Note discusses whether targeting and entering homes of non-citizens without courtordered warrants raises problems under the Fourth Amendment’s prohibition of “unreasonable searches and seizures.” Specifically, this note argues that additional protections are necessary to ensure that ICE does not violate the Fourth Amendment rights of those they target and those who get swept up in their enforcement effort. This is particularly true with initiatives such as ”Operation Return to Sender” and ”Operation Community Shield” because they are carried out in private homes, the traditional sphere of greatest Fourth Amendment protection. Part I of this Note details the particular ICE practices that individuals, community groups, and scholars have questioned on Fourth Amendment groups. Part II examines the legal framework through which this behavior can be analyzed to evaluate its compliance with the Fourth Amendment. In Part II, the Note evaluates the distinction between criminal and immigration contexts of the Fourth Amendment. Part III applies the standards set forth in the vehicle and workplace contexts to the home, arguing that because the Fourth Amendment interests at stake in the home are greater than in workplaces or vehicles, the standards set forth in those contexts are the minimal standards that should be applied to homes. This note conclues that by enforcing standards already in place in the immigration enforcement scheme, ICE could significantly curb Fourth Amendment violations in the home.

THE FOURTH AMENDMENT AND

IMMIGRATION ENFORCEMENT IN THE

HOME: CAN ICE TARGET THE UTMOST

SPHERE OF PRIVACY?

By Marisa Antos-Fallon* Introduction................................................... 1000 I. ICE’s Current Practices............................... 1004

II. Searching for a Standard for Home Enforcement:

Fourth Amendment Requirements in Other Contexts............................................... 1007 A. Standards for Home Entry in the Criminal Contex

–  –  –

On February 20th, 2007, Adriana Leon was awakened at 5:00 a.m. when armed agents burst into her room and pulled the blankets off her and her four-year-old son.1 The agents gathered Adriana’s family in an office space, blocked the exits to the area, and threatened her with their weapons when she attempted to contact a lawyer.2 On September 27th, 2007, Peggy Delarosa-Delgado was asleep in her bed at 6:00 a.m. when more than a dozen agents pushed past her high-school aged son to enter her home.3 Ms. Delarosa-Delgado awoke to find her family frightened and distraught after U.S.

Immigration and Customs Enforcement (“ICE”)4 agents had gathered her three children into the living room and threatened a houseguest with a gun.5

1. Nina Bernstein, U.S. Raid on an Immigrant Household Deepens Anger and Mistrust, N. Y. TIMES, Apr. 10, 2007, at B1 [hereinafter Bernstein, U.S. Raid].

2. Amended Complaint 116-17, 120-22, 124-25, Aguilar v. Immigration & Customs Enforcement, No. 07-8224 (S.D.N.Y. filed Oct. 4, 2007) [hereinafter Aguilar Amended Complaint].

3. Nina Bernstein, Citizens Caught up in Immigration Raid, N.Y. TIMES, Oct. 4, 2007, at B5 [hereinafter Bernstein, Citizens].

4. U.S. Immigration and Customs Enforcement (“ICE”), part of the Department of Homeland Security (“DHS”), took over the interior enforcement responsibilities of the Immigration and Naturalization Service (“INS”) in March 2003. U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, ICE FISCAL YEAR 2006 ANNUAL REPORT: PROTECTING NATIONAL SECURITY AND UPHOLDING PUBLIC SAFETY 1-2 (2006); April McKenzie, A Nation of Immigrants or a Nation of Suspects? State and Local Enforcement of Federal Immigration Laws Since 9/11, 55 ALA. L. REV. 1149, 1150 (2004).

5. Bernstein, Citizens, supra note 3.

2008] PRIVACY AND IMMIGRATION ENFORCEMENT 1001 These women were not criminals, nor were they living in a totalitarian state. Rather, they were U.S. citizens whose homes were mistakenly targeted in raids by ICE.

In recent years, the Department of Homeland Security (“DHS”) has increasingly expanded its enforcement focus from patrol of the border to efforts to apprehend illegal immigrants already within the United States.6 The Leons and the Delarosa-Delgados were targets of such interior enforcement efforts. DHS targeted the Leon home pursuant to “Operation Return to Sender.” The purpose of this initiative, which began in May 2006, is to apprehend “immigration fugitives”: people who remain in this country despite a final order of deportation.7 The Delarosa-Delgado home was a target of “Operation Community Shield,” a program that began in February, 2005 and seeks to remove illegal immigrants who are also gang members.8 These enforcement programs have been the subject of criticism and multiple federal lawsuits9 because ICE agents are instructed to carry out these initiatives by targeting private homes without judicial warrants.10 ICE claimed authority to target the Leon and Delarosa-Delgado homes based on administrative arrest warrants.11 Such warrants need not be issued by a judge, but rather can be issued by fortynine different officials within DHS.12 In order to secure a standard administrative warrant, an ICE officer must present such an official





6. See Anil Kalhan, The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement, 41 U.C. DAVIS L. REV. 1137, 1139 (2008).

7. Press Release, Immigration & Customs Enforcement, ICE Arrests 128 Immigration Violators in Statewide Enforcement Operation (Apr. 2, 2007), available at http://www.ice.gov/pi/news/newsreleases/articles/070402newark.htm.

8. Nina Bernstein, Immigrant Workers Caught in a Net Cast for Gangs, N.Y.

TIMES, Nov. 25, 2007, at 41 [hereinafter Bernstein, Immigrant Workers]; see U.S. Immigration & Customs Enforcement, Operation Community Shield, http://www.ice.gov/ pi/investigations/comshield/index.htm (last visited Oct. 1, 2008).

9. See, e.g., Arias v. Immigration & Customs Enforcement, No. 07-1959, 2008 WL 1827604 (D. Minn. Apr. 23, 2008); Mancha v. Immigration & Customs Enforcement, No. 06-2650, 2007 WL 4287766 (N.D. Ga. Oct. 24, 2007); Aguilar v. Immigration & Customs Enforcement, No. 07-8224 (S.D.N.Y. filed Sept. 20, 2007); Editorial, Stop the Raids, N.Y. TIMES, Oct. 4, 2007, at A28; Tyche Hendricks, The Human Face of Immigration Raids in Bay Area: Arrests of Parents Can Deeply Traumatize Children Caught in the Fray, Experts Argue, S.F. CHRON., Apr. 27, 2007, at A1.

10. See Memorandum of Law in Support of the Government’s Motion to Dismiss at 12, Aguilar, No. 07-8224 [hereinafter Aguilar Memorandum of Law]; Bernstein, Immigrant Workers, supra note 8, at 41; Bernstein, U.S. Raid, supra note 1; Elliot Spagat, Immigrants Are ‘Collateral Arrests’, S. FLA. SUN-SENTINEL, Apr. 6, 2007, at 3A.

11. See Nina Bernstein, Raids Were a Shambles, Nassau Complains to U.S., N.Y.

TIMES, Oct. 3, 2007, at B1; Bernstein, U.S. Raid, supra note 1.

12. See 8 C.F.R. § 287.5(e)(2) (2008).

1002 FORDHAM URB. L.J. [Vol. XXXV with a Notice to Appear for the person sought, a document that sets forth the facts and law justifying an arrest for a violation of immigration law.13 ICE came to the Leon household with a warrant to arrest Adriana’s estranged ex-husband.14 Despite the five years since their divorce, the order of protection she had against him, and her subsequent marriage, ICE agents sought to execute the warrant at the Leon home.15 For her part, Ms. Delarosa-Delgado had never seen or heard of the person who ICE sought to arrest in her home.16 However, during the summer of 2006, Ms.

Delarosa-Delgado had been the victim of another pre-dawn raid searching for the same person.17 Unfortunately, the experiences of the Leons and the DelarosaDelgados are not isolated incidents. In fact, the Delarosa-Delgado raid was part of a series of raids conducted in Nassau County during the last week of September 2007.18 During the course of these raids, ICE agents’ behavior prompted Nassau County Executive Thomas Suozzi to write a letter to Department of Homeland Security Secretary Michael Chertoff calling for an investigation of the enforcement operation.19 One of the major complaints in the letter was that ICE agents targeted homes without “current intel[ligence]” as to whether the people they were seeking could actually be found in those homes.20 Specifically, although the purpose of the raid was allegedly to apprehend illegal aliens who were also gang members,21 on several occasions ICE agents neglected to verify the names and addresses of their targets with the local police department’s Gang Intelligence Files.22 ICE agents also used other unreliable information. For example, ICE agents used a childhood photograph in their attempts to locate one twenty-eight-year-old suspect.23 As a result of this lack of current

13. United States v. Abdi, 463 F.3d 547, 551 (6th Cir. 2006).

14. Aguilar Amended Complaint, supra note 2, 127-28.

15. Id. 129-30; Bernstein, U.S. Raid, supra note 1.

16. Bernstein, Citizens, supra note 3.

17. See id.

18. See id.

19. Letter from Thomas Suozzi, Executive, Nassau County, to Michael Chertoff, Sec’y, Dept. of Homeland Sec. (Oct. 2, 2007), available at http://www.nassaucountyny.

gov/agencies/CountyExecutive/NewsRelease/2007/10-2-2007.html.

20. Id.

21. Letter from Lawrence W. Mulvey, Police Comm’r, Nassau County, to Joseph A. Palmese, Resident Agent-in-Charge, ICE Office of Investigation, Bohemia N.Y.

(Sept. 27, 2007) (attached as exhibit to Aguilar Amended Complaint, supra note 2) (on file with author).

22. Letter from Thomas Suozzi to Michael Chertoff, supra note 19.

23. See id.

2008] PRIVACY AND IMMIGRATION ENFORCEMENT 1003 information, ICE agents raided many homes that, like Ms. Delarosa-Delgado’s, should not have been targets of the investigation.

In fact, of the eighty-two people arrested, only nine were targets of the operation.24 The ICE agents’ aggressive attitude in the Delarosa-Delgado home was not unique. Suozzi’s letter complains that ICE agents maintained a “cowboy” attitude and even drew guns on local police during the course of the raids.25 One question raised by these raids is whether targeting and entering homes without court-ordered warrants raises problems under the Fourth Amendment’s prohibition of “unreasonable searches and seizures.”26 The Fourth Amendment applies to civil as well as criminal law enforcement, and courts recognize that both citizens and non-citizens are entitled to some degree of Fourth Amendment protection in the immigration enforcement context.27 Furthermore, entry of the home is characterized as the “chief evil against which the wording of the Fourth Amendment is directed.”28 Therefore, interior enforcement efforts that target the home without judicial warrants raise serious concerns, especially in light of anecdotal evidence of indiscriminate targeting of homes and coerced consent.

This Note argues that additional protections are necessary to ensure that ICE does not violate the Fourth Amendment rights of those they target and those who get swept up in their enforcement efforts. This is particularly true with initiatives such as “Operation Return to Sender” and “Operation Community Shield” because they are carried out in private homes, the traditional sphere of greatest Fourth Amendment protection. The experiences of the Leons, the Delarosa-Delgados, and many others like them, as well as official reports of ICE misconduct, indicate that there are insufficient safeguards in place to ensure that ICE’s enforcement efforts comply with the Fourth Amendment.

Part I of this Note details the particular ICE practices that individuals, community groups, and scholars have questioned on Fourth Amendment grounds. Part II then examines the legal framework through which this behavior can be analyzed to evaluate its compliance with the Fourth Amendment. Part II first de

–  –  –

scribes the special protections for the home afforded in the criminal context, then outlines the distinctions courts draw between the criminal and immigration contexts for Fourth Amendment purposes. Because of these distinctions, Fourth Amendment standards for ICE conduct must be independently evaluated based on the particular privacy interests at stake in the immigration enforcement context. Part II then reviews the case law that establishes Fourth Amendment standards in the immigration enforcement context. Because there have been few cases challenging immigration enforcement behavior in the home, the discussion centers around standards for workplace raids and vehicle stops and searches. Part III applies the standards set forth in the vehicle and workplace contexts to the home, arguing that because the Fourth Amendment interests at stake in the home are greater than in workplaces or vehicles, the standards set forth in those contexts are the minimal standards that should be applied to the home. This argument finds further support in ICE’s own internal guidelines, which contain similar requirements. Application of vehicle and workplace standards and ICE’s own guidelines to ICE’s current home enforcement scheme reveals that these minimal standards are not respected. Finally, Part III concludes that by enforcing standards already in place in the immigration enforcement scheme, ICE could significantly curb Fourth Amendment violations in the home.

I. ICE’S CURRENT PRACTICES



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