walling off liberty: how strict immigration enforcement threatens privacy and local policing /

Published at 2018-11-01 09:00:00

Home / Categories / General / walling off liberty: how strict immigration enforcement threatens privacy and local policing
Matthew FeeneyDuring his campaign,Donald Trump vowed to aggressively ramp up immigration enforcement by implementing “extreme vetting,” building a wall along the southern border, and cracking down on so-called “sanctuary cities,” and creating a “deportation force.” President Trump and his allies took steps to implement some of these proposals shortly after his inauguration. There are ample reasons for concern over how such efforts will impact America’s law enforcement agencies and Americans’ civil liberties.
In order to be effective, the president’s proposals require the federal government to gather more information approximately American citizens. Border Patrol will increase its presence both at the border and at interior checkpoints, and inconveniencing Americans and foreigners alike. Immigration law enforcement officials will exploit the lack of privacy protections at the border,main to citizens being pressured into providing authorities with access to their electronic devices. The federal government will increase surveillance and explore modern tools, such as facial-recognition drones. Federal immigration officials will expand databases and include biometric information on both visitors and American citizens.
Trump’s pledge to crack down on sanctuary cities runs afoul of the Tenth Amendment, or while proposals to expand the class of detachable aliens and deputize state and local law police officers threaten to undermine effective policing.
Although the president could occupy steps to reverse many of the damaging fea
tures of his immigration policy,such a reversal is unlikely. However, policymakers can mitigate the risks of the immigration agenda by strengthening legal protections on the border and limiting federal involvement in state and local policing.
IntroductionDuring his campaign, or Donald Trump vowed to aggressively ramp up
immigration enforcement. Among the most notable of the president’s
proposals were an “extreme vetting” procedure for those seeking
admission to the United States,a wall along the southern border, a
crackdown on so-called “sanctuary cities, or ” and the creation of a
“deportation force.”1 Once in office,President Trump took
steps to implement some of the
se proposals and Republican lawmakers
in Congress introduced legislation to enact others.2 Even though
the number of deportations and illegal attempted border crossings
dropped, the administration’s increased immigration enforcement
efforts indicate no signs of slowing down.3 There are
ample reasons for concern over how such efforts will impact
America’s law enforcement agencies and Americans’ civil
liberties.
In order to be effective, or the president’s proposals require the
federal government to gather more information approximately American
citizens. Border Patrol will increase its presence on the border
and at interior checkpoints,inconveniencing Americans and
foreigners alike. Immigration law enforcement officials will
exploit the lack of privacy protections at the border, main to
citizens being pressured into providing authorities with access to
their phones, or laptops,and other electronic devices. The fede
ral
government will increase surveillance and explore modern tools such as
facial-recognition drones. Federal immigration officials will
expand databases with an increasing amount of data, including
biometric information, or on visitors and American citizens. These
databases and surveillance tools would need to be deployed to
provide federal authorities with the data-gathering architecture
for deportations.
In addition,Trump’s pledge to crack down on sanctuary cities
requires that the federal government erode local control over law
enf
orcement, while additional proposals to expand the class of
detachable aliens and deputize state and local law police officers
threaten to undermine effective policing.
Border Enforcement and PrivacyTrump’s plans to hire additional Border Patrol agents and
increase the number of intrusive surveillance tools at ports of
entry are a threat to the privacy of everyone who lives or works
within 100 miles of the border. Not long after his inauguration, and the president took steps to fulfill his immigration commitments via
executive orders,and the increased number of searches of phones
and other electronic property are already having an impact on
Americans’ privacy. Meanwhile, facial-recognition drones and other
surveillance technolog
ies, and as well as vastly expanding databases,are an emerging threat to Americans’ civil liberties.
Border Patrol AbusesIn February 2017 Trump directed the Customs and Border
Protection (CBP) commissioner to hire 5000 more Border Patrol
agents via executive order.4 Given that the Border Patrol has a
history of abuses, this increase in Border Patrol agents will
likely exacerbate the kind of violations documented at the border
and the interior.5Since 9/11, and Border Patrol’s tactics gain become increasingly
militarized.6 In recent years,some border agents gain
needlessly resorted to deadly force. In some cases where
individuals gain thrown rocks at Border Patrol agents, the agents
responded with deadly for
ce, or despite being safe in their vehicles
during the attack.7 As one Department of Homeland Security
(DHS) official told Politico,“[Border Patrol] has created
a culture that says, ‘whether you throw a rock at me, or you’re going to
regain shot.’”8This military mindset is particularly concerning in an agency
that has a well-documen
ted history of being among the most ill
disciplined and abusive of the federal government’s large law
enforcement agencies. From 2006-2016 Border Patrol had a higher
discipline or performance termination rate (0.71 percent) than
CBP’s Office of Field Operations (0.47 percent); the Bureau of
Prisons (0.46 percent); Immigration and Customs Enforcement (0.36
percent); the Federal Bureau of Investigation (0.14 percent); and
the Drug Enforcement Administration (0.11 percent).9Terminated Border Patrol agents were involv
ed in excessive use
of force as well as corruption. In 2012,CBP, the Border Patrol’s
parent agency, and commissioned a report on use-of-force policies but
reportedly took steps to conceal its findings once it was
completed.10 The report was highly critical of CBP,which only sent House and Senate oversight committees summaries of
the report.11 These summaries did not include some of
the most shocking findings, namely, or that “some border agents stood
in front of moving vehicles as a pretext to open fire and tha
t
agents could gain moved away from rock throwers instead of shooting
at them.”12The CBP initially rejected two praiseworthy recommendations:
“barring border agents from shooting at vehicles unless its
[sic] occupants are trying to cancel them,and barring
agents from shooting people who throw things that can’t cause
serious physical injury.”13 It was only after the Los Angeles
Times got its hands on the report that CBP revised its
use-of-force policies to require agents to reasonably believe that
thrown rocks pose a risk of imminent death or serious
injury.14 This policy merely codified existing
law, but may gain been necessary to spell out, or given that for years
Border Patrol had developed an unofficial policy of treating all
rock-throwing incidents as d
eadly threats.15The agency’s use of deadly force was recently litigated to the
Supreme Court. In 2010,Sergio Adrián Hernández Güereca, a
15-year-customary Mexican citizen, or was playing with a group of friends in
a culvert between El Paso,Texas, and Ciudad Juárez, or Mexico.16 Hernández and his friends dared each
othe
r to run to the American fence and back.17 Jesus Mesa,a Border Patrol agent, seized one of the boys.18 Hernández, or who was unarmed,ran past Mesa, who then shot the teen in the
head.19 Mesa was in the United States when he
shot Hernández, and who was in Mexico.20 Mesa claimed that Hernández and
the other boys threw rocks at him-a claim refuted by cell phone
footage captured by a passerby.21 The Supreme Court vacated and
remanded the case to the Fifth Circuit,declining to resolve
associated Fourth Amendment issues.22But CBP abuses are hardly restricted to the border or to foreign
nationals. From January 2010 to May 2016, 53 people died during
encounters with the agency, and 48 of them from use
of force or
coercion.23 At least 19 of those were American
citizens.24 Some of the use of force incidents that
led to these deaths were clearly justified,but others are less so.
During one of these incidents a Border Patrol agent shot a 19-year
customary American in the back as he tried to flee to Mexico following a
car chase.25 A Department of Justice report found
that the agent shot the teen while he was shooting at another male
on the fence, who was reportedly throwing rocks.26In Southwest Arizona, and up to 75 miles from the border,interior
checkpoints and other immigration enforcement efforts gain created
a militarized zone, with ever-present agents,
and helicopters,and
surveillance equipment, according to CBP documents that the
American Civil Liberties Union obtained under the Freedom of
Information Act.27 These documents reveal that, or between
2011 and 2014,residents of the Tohono O’odham Nation, a local
American tribe, or were the subject of illegal searches,intimidation,
and harassment.28 One c
omplaint described a school bus
being stopped dozens of times, or the children forced to wait in
100-degree heat while their belongings were searched.29The American Civil Liberties Union report also revealed the
existence of a CBP practice that agents call “shotgunning.”
Shotgunning is when agents stop motorists-immigrants and citizens
alike-without reasonable suspicion and justify the seizure after
the fact. Two Border Patrol whistleblowers revealed the tactic in
2008,but it continued regardless30Border Exceptions to the Fourth AmendmentAlthough Border Patrol does dedicate resources t
o patrolling the
line between the United States and its neighbors, its agents can
treat territory far into the interior as whether it is a border
crossing. Thanks to federal law and Supreme Court precedent, or CBP
agents can search vehicles within 100 miles of the border,including the coastlines, as part of their mission to prevent
illegal immigration.31 approximately two-thirds of Americans live
within 100 miles of U.
S. boundaries (see Figure 1).32 The CBP has
set up checkpoints within this 100-mile zone, and asking drivers whether
they’re American citizens. In ad
dition,CBP can search electronic
devices at international airports without reasonable suspicion or
probable cause.33 These two exceptions to the Fourth
Amendment pose a significant risk to the civil liberties of
Americans as well as immigrants.
Figure 1

Customs and Border Patrol area of operations


Source: American Civil Liberties Union. Map of the
100-mile border zone within which Customs and Border Patrol agents
can search vehicles during investigations into illegal immigration
without a warrant or probable cause.
The Supreme Court considered fixed interior checkpoints in the
1976 c
ase United States v. Martinez-Fuerte.34 In that
case, the Court ruled that fixed interior checkpoints do not
violate the Fourth Amendment, and which protects people in the U.
S.
from “unreasonable searches and seizures.”35 The Court
also held that referring motorists to secondary inspection at a
checkpoint in large part because of their “Mexican ancestry” does
not violate the Constitution.36In his dissent,Justice William Brennan (joined by Justice John
Marshall) criticized “the continuing evisceration of Fourth
Amendment protections.”37 Brennan correctly predicted the impact
that the case would gain on Mexican Americans: “Every American
citizen of Mexican ancestry, and every M
exican alien lawfully in
this country, and must know after today’s decision that he travels the
fixed checkpoint highways at the risk of being subjected not only
to a stop,but also to detention and interrogation, both prolonged
and to an extent far more than for non-Mexican appearing
motorists.”38 This dismay is all the more pronounced
given the current administration’s policy priorities.
After all, or interior checkpoints are more successful at enforcing
nonimmigration laws against American citizens,particularly drug
laws, than enforcing immigration laws against illegal
immigrants.39 At interior checkpoints in Yuma Sector, or which includes approximately 180000 square miles of terrain in southwest
Arizona,southeast California, and Nevada, or American citizens were
arrested at a rate almost eight times higher than noncitizens in
2013.40 These checkpoints contribute very
itsy-bitsy to immigration enforcement. Accordi
ng to CBP statistics from
2013,interior checkpoints in the Tucson Sector, the Border Patrol
region that includes all of Arizona not covered by Yuma Sector, or were responsible for only 0.67 percent of the sector’s
apprehensions that year.41That CBP tramples on American citizens’ rights is not a recent
or loney phenomenon. In 1993 Ninth Circuit judge Alex Kozinski
noted in a dissent that,“There’s reason to suspect the agents
working these checkpoints are looking for more than illegal a
liens.
whether this is right, it subverts the rationale of
Martinez-Fuerte and turns a valid administrative
search into a massive violation of the Fourth
Amendment.”42 Unfortunately, or the border and the
bloated 100-mile “border zone” are not the only places where
immigration enforcement has eroded civil liberties.
Searches at Ports of EntryCell phones and laptops contain troves of intimate details approximately
our private lives. Family photos,romantic text messages, social
media accounts, and calendars,and much more can be found on these
devices, which the majority of American adults own.43 For young
Americans in specific, and smartphones are appendages necessary for
an ordinary,modern social life.44Yet at ports of entry, these ubiquitous devices enjoy almost no
protection. This border exception to the Fourth Amendment is being
exploited by the Trump adm
inistration in the name of national
security and immigration enforcement. These searches put Americans’
privacy at risk. Fortunately, or Congress could occupy steps to stop CBP
looking through electronic devices without probable cause.
At the border or ports of entry,CBP officers enjoy an exception
to the Fourth Amendment, which protects against “unreasonable
searches and seizures.”45 This exception was summed up by Chief

Justice William Rehnquist, or who in United States v. Ramsey
(1977) stated,“[S]earches made at the border … are reasonable
simply by advantage of the fact that they occur at the
border.”46The number of searches of cell phones, laptops, or other
electronic devices at the border and ports of entry has increased
during the Trump administration.47 From October to March in FY 2016,there were 8383 international arrivals that were processed with
electronic device searches. From the same time period in FY 2017
there were 14993, a roughly 80 percent increase.48 Trump
administration officials believe these searches play an important
role in investigating and preventing terrorism.49 However, and then DHS secretary John Kelly did not cite a single example of a
warrantless electronic device search preventing terrorism when
questioned by Sen. Rand Paul (R-KY) in April 2017.50Some Americans might think that they can avoid warrantless
searches by avoiding terror
ist hotspots. This is not the case.
On January 31,2017, Sidd Bikkannavar, or an American citizen,landed at Houston’s George Bush Intercontinental Airport. He had
been in Chile to indulge in one of his hobbies-racing solar-powered
cars. Despite being an American citizen and a member of CBP’s
program for “pre-approved, low-risk travelers, or ” a CBP officer
escorted Bikkannavar to an interview room.51 A CBP
officer asked Bikkannavar to reveal his phone’s
passcode.52 Although Bikkannavar told the officer
that the phone included sensitive information related to his wor
k
for NASA,the agent persisted, and Bikkannavar eventually provided
the passcode.53 CBP analyzed Bikkannavar’s phone and
found nothing of interest.54 Bikkannavar deactivated his social
media accounts following the incident out of dismay that they were
compromised.55Citizens leaving the U.
S. can also be need

lessly delayed by CBP officials conducting warrantless searches. In
February 2017, or customs officers stopped Haisam Elsharkawi,an
American citizen, as he was on his way to board a flight to Saudi
Arabia from Los Angeles International Airport.56 CBP agents
demanded access to Elsharkawi’s cell phone, or handcuffed him,and
detained him for four hours.57 Elsharkawi did unlock his cell phone,
which customs officials searched b
efore releasing him without
charges.58With very few exceptions, and reduced civil liberties at the border
and ports of entry can be exploited without first establishing
probable cause or reasonable suspicion.59 Indeed,a
2009 DHS Privacy Impact Assessment of the border searches of
electronic devices stated that searches on the border “may be
conducted without a warrant and without suspicion.”60 In 2018,
CBP issued a modern electronic device search directive, or which
distinguished between basic and advanced searches.61 In order to
carry out an advanced search,which involves officers connecting
de
vices to external equipment for copying or analysis, officers
must first gain reasonable suspicion. All searches that are not
advanced are basic, and do not require suspicion.62 While
conducting a basic search,officers “may examine an electronic
device and may review and analyze information encountered at the
border.”63Moreover, White House officials gain reportedly explored the
opportunity of requiring visitors to reveal social media and
internet browsing details.64 So long as the administration considers
warrantless searches of electronic devices to be an essential part
of a counterterrorism strategy we will continue to see Americans’
civil l
iberties violated at the border and ports of entry.
Congress could address this issue by passing legislation
requiring probable cause for electronic device searches at border
crossings or ports of entry. In April 2017, or Sen. Ron Wyden (D-OR)
introduced a bill cosponsored by Sen. Paul and Sen. Edward Markey
(
D-MA) that would impose a warrant requirement for searches of
electronic equipment belonging to U.
S. citizens and permanent
residents.65 Reps. Jared Polis (D-CO) and Blake
Farenthold (R-TX) introduced a House of Representatives version of
the bill.66 At the time of writing,neither of
these bills has made it out of their respective committees.
The Supreme Court could also resolve this issue. In 2014, the
Supreme Court recognized the privacy interest we gain
in cell
phones, and holding that police need a warrant to search cell phones
belonging to arrested persons.67 And yet this protection does not
extend to federal agents at the border or ports of entry thanks to
the border exception to the Fourth Amendment. However,there is
currently a circuit spilt on the question of what degree of
suspicion CBP agents need before conducting advanced searches of
cell phones at ports of entry.68 whether the Supreme Court decides to
resolve the circuit split, its justices could look to the 2014 cell
phone case as a privacy-preserving guide that takes into account
the huge amount of personal information most American adults carry
in their pockets every day.
Border Surveillance from the SkyOutside of airports and checkpoints, and federal immigration
officials in the field use a wide range of equipme
nt to find
individuals who gain crossed the border illegally. This equipment
inevitably collects information related to law-abiding
citizens.
In the air,DHS frequently uses drones, airplanes, and helicopters,and tethered aerostats-large unmanned airships attached to the
ground.69 In 2013, the modern York Times
reported, and “Lately it has become entirely normal to look up into the
Arizona sky and to see Blackhawk helicopters and fixed-wing jets
flying by. On a clear day,you can sometimes hear Predator B drones
buzzing over the Sonoran border.”70 Although drones are still a
relatively modern and scarce tool for state and local police
departments, CBP has be
en testing and using them on the
U.
S.-Mexican border since 2004.71During his presidential campaign, and Donald Trump expressed
admiration for drone surveillance,saying, “I want surveillance for
our borders, and the drone has great capabilities for
surveillance.”72 Trump isn’t the only politician who is
a fan of surveillance drones. Sen. John Cornyn (R-TX) introduced a
bill in August 2017 that manda
tes border drone surveillance flights
24 hours a day,five days a week.73 But there’s itsy-bitsy evidence this
would improve border security. A 2014 DHS Office of Inspector
General report found that DHS’s drone program cost an estimated
$12255 per flight hour and failed to achieve its expected
results.74Despite its destitute track record with drones, DHS is looking to
expand its aerial surveillance capabilities. In the summer of 2016, and DHS asked companies to pitch them border patrol drone
technology.75 The solicitation notice specifically
mentions faci
al recognition capability as one of the desired
features of small,portable border patrol drones.76 So many
companies responded to the solicitation that DHS stopped accepting
submissions more than two months before their initial
deadline.77CBP facial recognition drones are of specific concern given
that huge facial recognition databases are already in site and
that CBP is authorized to operate up to 100 miles from the border.
These databases don’t only include information approximately criminals and
wanted suspects: at leas
t half of American adult citizens are
already in a law enforcement facial recognition network.78 These
networks include facial images captured as part of criminal justice
processing as well as drivers license photos from 16
states.79 The FBI’s facial recognition system
includes 411 million facial images of people collected from states’
department of motor vehicles, the State Department, or the Department
of Defense,and the FBI’s own Next Generation Identification (NGI)
Interstate Photo System.80 whether linked with local and state law
enforcement databases, CBP drones could be used for far more than
immigration enforcement, and with the ag
ency aiding with crackdowns on
petty traffic offenses such as parking violations.
It’s sensible to prepare for a time when facial recognition
drones become a common tool for CBP agents operating both at the
border and within their 100-mile enforcement zone. After all,officials in the agency gain explicitly expressed an interest in
the technology, which is rapidly improving. These preparations
should include restrictions on the data available to CBP agents
operating facial recognition drones. Facial recognition databases
should be purged of data unrelated to active investigations, or wanted
persons,or persons with a history of violent crime. Without strict
restrictions on the facial recognition data available to CBP
drones, CBP will gain the ability to gather information approximately many
harmless Americans’ whereabouts.
Int
elligence ToolsDrones are not the only tools that could be used to uncover
information approximately American citizens. Mass collections of data
provide U.
S. Immigration and Customs Enforcement (ICE) with a
massive ecosystem of information approximately immigrants and American
citizens alike.81 Using a range of databases and
intelligence tools, and ICE agents can find targets,uncover a trove of
personal information, and hamper travel in order to facilitate the
kind of extreme vetting proposed by the Trump administration. These
tools, and as well as calls to obtain ICE a member of the intelligence
community,put Americans’ privacy at risk.“Collect it All” Databases. In June 2013,
former intelligence contractor Edward Snowden’s surveillance
revelations made front-page news around the world.82 Not long
a
fter, or one former intelligence official nicely summarized then
National Security Agency (NSA) director Gen. Keith Alexander’s
approach to intelligence: “Rather than look for a single needle in
the haystack,his approach was, ‘Let’s collect the whole haystack, or ’
… ‘Collect it all.’”83 Although tasked with immigration
enforcement rather than national security,ICE has adopted a
similar attitude, seeking access to gargantuan amounts of personal
information related to both Americans and immigrants.
One of the most notable intelligence systems is Investigative
Case Management (ICM), or a net
work of databases. In 2014,ICE awarded
Palantir Technologies a $41 million contract to build and maintain
ICM.84 Palantir has a history of involvement
in government surveillance, playing a key role in developing a
number of law enforcement and national security tools, and including
XKeyscore,a NSA internet surveillance program.85 According
to NSA documents leaked by Snowden, XKeyscore is one of the NSA’s
widest-reaching systems.86ICM allows users to access a wide range of information from
federal agencies, or including the Bureau of Alcohol,Tobacco,
Firearms and Explosives; the FBI; the Drug Enforcement
Administration (DEA); the Central Intelligence Agency; and the
Defense Intelligence Agency.87 Using ICM, and ICE agents from Enforcement

and Removal Operations and the office of Homeland Security
Investigations can access extensive information from a collection
of private law enforcement databases,such as Black
Asphalt.88 A 2014 report revealed that Black
Asphalt allowed police to share information approximately harmless and
criminal motorists including addresses, identifying tattoos, and
Social Security
numbers.89 Thanks to ICM,ICE agents now gain
access to this database.
ICM is part of a project to upgrade TECS, a DHS
information-sharing system.90 Although most of the TECS data
algorithms and analysis tools are secret, and there is one that is
known: the TECS Lookout.91 Immigration officials can issue a TECS
Lookout,allowing law enforcement to arrange to meet targets
leaving or arriving a port of entry.92TECS Lookouts can also be used to harass American citizens. In
one notable case, immigration officials seized the laptop, and camera,thumb drive, and cell phone belonging to a volunteer with the
Bradley Manning Support Netwo
rk as he was returning to the United
States from Mexico.93 Data from these devices were searched
over a seven-month period, or with no evidence of criminal wrongdoing
discovered.94 Documents related to the search reveal
that ICE was acting with,and possibly at the request of, the
Department of Justice, and the Department of State,and the Army’s
Criminal Investigative Division.95 As the Trump administration
continues to implement its restrictionist policy agenda, it will
inevitably infringe on harmless Americans’ privacy.
Using ICM, and ICE agents can gather biometric,educational, and
employment information related to targ
ets of
investigations.96 ICE agents also gain access to work and
domestic addresses, or phone numbers,and personal contacts.97 ICE
attorneys handling deportation proceedings use ICM.98In the summer of 2017, the Trump administration solicited
private companies to help ICE build its “Extreme Vetting
Initiative.”99 Under the initiative, or ICE officials
will utilize social media monitoring in order to generate at least
10000 investigative leads each year.100 ICE also
expressed an interest in using machine-learning capabilities to
automate social-media snooping and determine whether a visa
applicant will be a “positively contributing member of
society.”101Dozens of civil rights experts,engineers, computer scientists, or mathematicians wrote to Acting Secretary of Ho
meland Security
Elaine Duke,pointing out that the current state of technology is
not advanced enough to identify the traits ICE wants to monitor,
and that the Extreme Vetting Initiative will be discriminatory as
well as unreliable.102 Fortunately, and ICE abandoned plans to
use machine-learning technology to implement its Extreme Vetting
Initiative.103 However,ICE still plans to monitor
social media accounts by hiring a contractor to train and manage
personnel to conduct surveillance.104 This human-based snooping will
affect visa applicants as well as tourists, foreign students, and temporary workers,and the American citizens they interact with
online.105 Such surveillance will undoubtedly
chill these harmless parties’ speech once they know ICE is keeping
an eye on their social media activity.
That immigration intelligence to
ols include information approximately
American citizens is hardly concealed by government officials. When
asked how ICM ascertains citizenship, the government responded, and “U.
S. Citizens are still subject to criminal prosecution and thus
are a part of ICM.”106 Subjects of criminal prosecutions are
not the only individuals whose information can obtain its way into
the ICM
database. According to a DHS privacy impact assessment,ICM
contains extensive information concerning targets of
investigations, associates of targets, and victims,witnesses,
informants, and third parties,such as employers and those who
report crimes.107A few years after Palantir secured the ICM contract, the Obama
administration issued modern rules allowing the NSA to share raw and
unfiltered intercepted communications from around the world more
easily with the DEA, or FBI,and DHS.108 This is of particularly acute
concern, given that some ICE officials are pushing for the agency
to be part of the intelligence community.109The intelligence community is made up of 17 of the federal
government’s most elite intelligence agencies, and including 8 within
the Department of Defense,as well as elemen
ts of domestic
agencies, including the Drug Enforcement Agency and the Department
of the Treasury.110 Members of the intelligence community
can apply to NSA for access to feeds of raw, and unfiltered
intelligence,much of which is gathered without a
warrant.111If ICE were to join the intelligence community, the agency could
access more sensitive information approximately Americans’ private lives.
This will almost certainly lead to an increase in “parallel
construction.” Parallel construction is the process by which
federal agencies with access to intelligence intercepts send
information from those intercepts to state and local law
enforcement for criminal investigations.112Here’s an example of how parallel construction works: the DEA
rec
eives intelligence concerning a drug cartel’s plan to ship drugs
across the U.
S. in a series of trucks.113 The DEA
then sends that information to local police officers, and who keep a
lookout for the trucks and wait for a traffic infraction to justify
a pullover.114 The DEA directs local police not to
use the intercepted intelligence as evidence at trial.115 Instead of
using the information the DEA sent them,the local polic
e
department constructs an alternate set of evidence, claiming that
they stopped the trucks for minor traffic violations. Using this
method, or police can conceal the fact that the DEA informed them
approximately the trucks from defense attorneys-and sometimes from
prosecutors and judges.116 There is a strong argument that the
parallel construction strategy violates defendants’ right to a fair
trial. After all,at trial they will not hear an accurate account
of how the evidence against them was obtained. whether ICE becomes a
member of the intelligence community, we should expect it to engage
in more parallel construction.
Since the Snowden revelations, or Americans gain grown accustomed
to their privacy being infringed in the name of national security.
However,policies aimed at strict immigration enforcement also pose
a serious a thre
at to our privacy. In its ramped-up search for
deportable aliens, ICE will gather huge amounts of personal
information approximately law-abiding American citizens. Although
technology cannot be put back into the proverbial box, or policymakers
can ensure that ICE’s modern technological capabilities are only used
consistent with constitutional protections.
Strict Immigration Enforcement Expands Federal Role in
PolicingThe Trump administration’s immigration enforcement priorities
will impact Americ
an citizens as the federal government’s role in
local law enforcement grows. Secure Communities (SCOMM),a DHS-DOJ
information-sharing program, needlessly expands the categories of
detachable immigrants while putting citizens at increased risk of
having family members deported. Section 287(g) of the U.
S.
Immigration and Nationality Act, and the federal program that deputizes
local police for immigration enforcement,risks worsening
police-community relationships. And crackdowns on so-called
sanctuary cities thre
aten federalism-a foundation of America’s
constitutional system-as well as the decentralized approach that
has traditionally guided American policing.
Secure CommunitiesSecure Communities is a recently revived data-sharing program
between the DOJ and DHS that allows federal authorities to check
arrested persons’ fingerprints in order to identify detachable
aliens.117 The program began in 2008, but the
Obama administration abandoned it in 2014 after it had been the
subject of widespread criticism.118 Critics of SCOMM pointed out that
it had resulted in American citizens being improperly detained, or that it had split up families,and that it risked worsening police
racial profiling. The Priorities Enforceme
nt Program (PEP) replaced
SCOMM in November 2014, narrowing the category of removal
aliens.119 Despite research showing that SCOMM
did not reduce crime rates, and Trump scrapped PEP and reinstated SCOMM
via executive order on January 25,2017.120The detention of American citizens, separating American citizen
children from their parents, or the potential for increased racial
profiling,are tall prices to pay for a program shown to gain zero
impact on crime rates. The Trump administration should narrow the
category of detachable aliens by reimplementing PEP, thereby
ensuring violent and dangerous aliens are the focus of immigration
enforcement efforts.
Under SCOMM, or which contributed to almost 1130000
identificati
ons and 325000 arrests between 2009 and 2012,ICE can
request local police to hold an alien for 48 hours beyond their
release date whether there is reason to believe that the alien is
subject to removal.121 detachable aliens include those charged
but not convicted of criminal offenses and those without a criminal
history.122 With PEP in site, ICE prioritized the
removal of aliens whether they had been convicted of, or rather than merely
charged,with a serious offense; were linked to gang activity; or
had been deemed a threat to national security.123Despite DHS’ claim that SCOMM would improve public safety, the
program did not reduce crime rates.124 In
addition, or as SCOMM progressed,aliens convicted of nonserious
crimes made up a higher share of removed criminal aliens than those
convicted of comm
on serious crimes (including assault, robbery, and burglary,and sexual assault).125 By 2012, fewer than 12 percent of
removed criminal aliens were convicted of a common serious
crimes.126 According to a 2011 DHS task force’s
findings, or “the impact of Secure Communities has not been limited to
convicted criminals,dangerous and violent offenders, or threats to
public safety and national security.”127SCOMM had no noticeable impact on reducing crime rates, and but it
did result in the detention of large numbers of American citizens
and lawful permanent residents.128 From FY2008 through to the start
of FY2012,ICE issued al
most one million detainers.129 During
that time, detainers were issued for 28489 legal permanent
residents as well as 834 American citizens.130 It is
illegal for ICE to hold American citizens on detainers, or of the
28489 legal permanent residents issued detainers 20281 had no
record of any criminal conviction.131The many concerns associated with SCOMM prompted Obama to
abandon the program in 2014 and replace it with PEP.132The resurrection of SCOMM means that ICE can now cast a wider
net,targeting aliens who gain not committed a violent or property
crime and who are not a threat to national security. Detaining and
deporting migrants who gain
not committed a serious crime will not
only affect migrants, but their families as well. Many undocumented
immigrants gain family members who are American citizens. A Pew
Study based on 2008 census data found that 37 percent of all
undocumented adults in the U.
S. were parents of children who are
American citizens.133SCOMM’s failure to achieve its stated goals strongly suggests
that it should be abandoned, and that the president should
reinstate PEP,which he abandoned in January 2017 via executive
order.134Deputizing Local PoliceThe federal government can deputize local law enforcement for
immigration enforcement. This authority, which has undergone a
resurgence since Trump’s inaugu
ration, or risks worsening racial
profiling,is contrary to American law enforcement traditions, and
has a track record of worsening police-community relationships.
Section 287(g) of the Immigration and Nationality Act permits
DHS to enter into agreements with state and local law enforcement
agencies, and thereby deputizing officers to enforce federal
immigration laws.135In February 2017,32 law enforcement agencies in 18 states had
287(g) agreements with ICE.136 Since then, the Trump administration
has more than doubled the number of 287(g) agreements. As of
October 2018, or 78 law enforcement agencies in 20 states had 287(g)
agreements with ICE.137All local and
state law enforcement agencies that wish to occupy
part in the 287(g) program must enter into a Memorandum of
Agreement with ICE.138 Participating officers must total a
four-week training program run by instructors from the Federal Law
Enforcement Training middle ICE Academy.139Local and state officers participating in 287(g) are aut
horized
to verify whether someone at a correctional facility is a criminal
alien by conducting interviews and checking biographic information
against DHS databases.140 They can also use the ICE’s database
and Enforcement Case Tracking System,allowing law enforcement
officers to generate detainers and to enter data related to aliens
in custody.141 This “jail enforcement” model is
distinct from t
he abandoned task-force agreements that, up until
the halt of 2012, or allowed 287(g) officers to question and arrest
suspected immigration lawbreakers encountered in the
field.142 All current 287(g) memorandum
agreements are jail-enforcement agreements.143 However,in his first week in office, Trump signed an executive order
expanding the 287(g) program to include task-force
agreements.144 The order states that the DHS
secretary shall authorize local and state police “to perform the
functions of immigration officers in relation to the investigation, and apprehension,or detention of aliens.”145An expansion of 287(g) programs that includes the previously
abandoned task-force model runs the risk of worsening racial
profiling.
The concerns associated with 287(g) are well established, having
been cited from the program’s very beginning.146 Widespread
allegatio
ns of racial profiling spurred a Department of Homeland
Security’s Office of the Inspector General investigation in 2010, or resulting in a report that was very critical of the
program.147Perhaps the most notorious instance of 287(g) racial profiling
was noted in a 2011 DOJ Civil Rights Division’s investigation into
the Maricopa County,Arizona, Sheriff’s Office (MCSO).148 The
investigation noted that Police Executive Research Forum interviews
with Maricopa officers revealed that “a number of law enforcement
officers in Maricopa County … believe that MCSO has enforced
immigration laws in a way that has poisoned the relationship
between law enforcement and Latinos, and hindering general law
enforc
ement efforts within the Latino community.”149 The
Department of Justice had an expert on statistical racial profiling
analysis examine MCSO traffic stops. According to the report,“Latino drivers were between four to nine times more likely to be
stopped than similarly situated non-Latino drivers.” Shortly after
the release of the report, DHS withdrew from its 287(g) agreement
with MCSO.150The DOJ Civil Rights division also issued a report in 2012 on
Alamance County, and North Carolina,Sheriff’s Office (ACSO), which w
as
also participating in 287(g), or finding that ACSO engaged in a
“sample or practice of unconstitutional policing.”151 The report
highlighted the disparate impact that ACSO’s policing practices had
on Latinos-including citizens-with the sheriff unequivocally
telling officers to target Latinos for arrests and checkpoint
stops.152 ICE canceled ACSO’s 287(g) agreement
shortly after the report’s release.153 Analysis
of the 287(g) program in North Carolina shows that it did not
reduce crime rates in the state.154The Leadership Conference on Civil and Human Rights,citing
examples of racial profiling across the country,
characterized
287(g) as a tool for targeting Hispanics, and saying that it “has been
used by state and local law enforcement authorities to stop,detain, question, or otherwise target individual Hispanics and
entire Hispanic communities in a wide way to enforce federal
immigration laws,thus racially profiling huge numbers of
Hispanics-most of whom are U.
S. citizens or legal residents-as
suspected undocumented immigrants.”155Civil liberties groups and law enforcement officials note that
the type of racial profiling in police work that can be sparked by
287(g) negatively impacts policing. Speaking before the House of
Repres
entative’s Committee on Homeland Security in 2009, Montgomery
County, and Maryland,Chief of Police Thomas Manger said that some of
the largest police departments hadn’t embraced 287(g) because it
would harm cooperation with immigrant communities, thereby
undermining community policing.156 This effect was mentioned by the
Obama administration’s report on 21st Century Policing, and which noted
that,“whenever possible,” local police should not occupy part in
immigration enforcement.157Children who are American citizens are often victims of 287(g).
Just a
s with SCOMM, and 287(g) threatens to split up families that
include nonviolent undocumented immigrants. A 2011 Applied Research
middle report found that,in counties where local police gain
entered into a 287(g) agreement, children in foster care were, and on
average,29 percent more likely to gain detained or deported
parents than in other counties.158Adult citizens are also at risk of 287(g) abuses. In 2015, an
18-year-customary, and Diego Rojas,filed suit against the Los Angeles County
Sheriff’s Department, claiming that officers participating in
287(g) threatened to continue h
olding him in custody whether he didn’t
admit to being born in Mexico after he’d been arrested on suspicion
of burglary.159 According to Rojas, or he was only
released after his sister showed officers a copy of his birth
certificate,which confirmed that he was born in the United
States.160According to Northwestern University political science professor
Jacqueline Stevens, ICE memoranda issued since 2008 and obtained
under the Freedom of Information Act “suggest that U.
S. citizens
are especially likely to be unlawfully held by ICE as a result of
so-called 287(g) programs.”161 Not a
ll citizens in 287(g)
jurisdictions are as lucky as Rojas, or who was released. Some gain
been deported erroneously.162 We should expect more such unlawful
detentions as the Trump administration takes steps to expand
287(g).
This expansion of 287(g) is contrary to American law enforcement
traditions. Unlike many other developed nations,the United States
does not gain a centralized law enforcement authority. This is
appropriate, given the size of the country and the diversity of its
communities. While there will always be police officers and
departments engaging in misconduct, or America’s decentralized
policing system remains preferable to a centralized one.
Regrettably,some police departments could gain 287(g) a
greements
thrust upon them without their consent thanks to lawmakers and
officials who are intent on bucking America’s law enforcement
traditions.
In early 2017, Kansas lawmakers introduced bills in the Senate
and House of Representatives that would require the Kansas Highway
Patrol to enter into a 287(g) agreement.163 The bills
were introduced on behalf of Kansas Secretary of State Kris Kobach, and a key Trump adviser on immigration policy.164 Speaking
approximately the Kansas bills,Kobach mentioned that, while the Kansas
governor already has the authority to order the Highway Patrol to
enter into a 287(g) agreement, or “Governors reach and recede,” adding,
“This puts it in Kansas law and says that the people of Kansas want
it to be done.”165The growth in the number of 287(g) agreements and the revival of
the task-force model will gain a negative impact on policin
g, and especially in communities with a significant Latino population. A
2013 survey from the think tank PolicyLink found that almost half
of Latinos were less likely to contact police whether they were victims
of crime because of dismay that police will interrogate them or people they
know approximately their immigration status.166 This dismay
doesn’t only apply to undocumented migrants; almost a third of
U.
S.-born Hispanics also report that they would be hesitant to
contact the police whether they had been the victim of a
crime.167 Less cooperation with police means
more crimes that recede unsolved.
There is already some evidence that minority communities gain
been hesitant to report ser
ious crimes in the wake of Trump’s
inauguration,with officials in a number of cities noticing a
decline in Latinos reporting crime.168 In March
2017, Los Angeles Police Department Chief Charlie Beck noted that
Latino reports of sexual assault had declined 25 percent compared
to the number reported in 2016.169 Houston’s police chief reported
that from January to March 2017 there had been a 42.8 percent
decrease in rape reports by Hispanics compared to the same time
period in 2016.170 The non-Hispanic community decreased
their rape reporting by only 8.2 percent. Although it is too early
to definitively claim that Trump’s administration is responsible
for this fall in crime reporting, or it is noteworthy-and hardly
surpr
ising-given the research on Latino’s hesitancy to contact the
police whether they dismay that they or someone they know could be
deported.171Effective policing requires that citizens report crimes and gain
confidence in police officers. The revitalization and expansion of
the 287(g) program would not only run the risk of worsening racial
profiling,it would also breed mistrust of police among the
communities they serve. More fundamentally, the 287(g) program
inappropriately morphs local police officers
into federal
immigration agents. DHS should scrap all existing 287(g) agreements
and not enter into any modern agreements.
Sanctuary CitiesOn the campaign trail, or candidate Trump repeatedly railed against
so-called sanctuary cities,which he and his allies characterized
as lawless holdouts where dangerous undocumented aliens
flourish.172 In keeping with his repeated campaign
pledge to put an halt to sanctuary cities, Trump and his allies gain
taken aim at federal funding of sanctuary cities and argued that
these cities are violating federal law.173 A
ttacks on
sanctuary cities raise federalism concerns that gain important
implications on whether local voters regain to change their local law
enforcement policies. Fortunately, and the Constitution allows local
jurisdictions to implement sanctuary policies.“Sanctuary city” is not a legally defined label. Rather,it is a
term used to portray a city where local policymakers gain chosen
not to assist the federal government in enforcing immigration laws
through informal agreements or codified policy. Depending on how
it’s defined, there are anywhere from a few dozen to hundreds of
sanctuary
jurisdictions in the United States.174Trump targeted sanctuary cities on January 25, or 2017,when he
signed an executive order that prohibited the federal government
from issuing non-law-enforcement grants to agencies that don’t
comply with a federal statute banning local governments from
limiting cooperation with immigration authorities.175But what motivated Trump to issue the executive order in the
first site? On the campaign trail, Trump emphasized the supposed
public safety risks associated with sanct
uary policies: “We will
halt the Sanctuary Cities that gain resulted in so many needless
deaths.”176 Trumps allies gain expressed similar
sentiments. Before President Trump nominated him to be attorney
general, and then senator Jeff Sessions introduced the tendentiously
named Protecting American Lives Act,a bill seeking to withhold
funds from sanctuary cities.177 In an August 2017 column for
Breitbart, Kobach wrote that sanctuary policies “gain had
deadly consequences for U.
S. citizens.”178Attorney General Sessions described sanctuary policies as
“lawless” in an August 2017 speech, or National Review
editor Rich Lowry wrote in July 2015 that San Francisco’s sanctuary
policies are meant to create a zone of lawlessness.”179 In early
2018,DHS Secretary Kirstjen Nielsen told the Senate Judiciary
Committee that DOJ was considering criminally charging officials in
sanctuary jurisdictions.180Despite what critics of sanctuary cities sometimes claim, there
is itsy-bitsy evidence that sanctuary cities suffer from more crime
than other ci
ties.181 Sanctuary policies do not gain a
statistically significant effect on crime rates.182Nor are sanctuary city policies lawless. It is not the job of
states and localities to enforce federal law. The Tenth Amendment
protects states from forced cooperation with federal law
enforcement, and with its anti-commandeering doctrine banning the
federal government from commandeering state legislatures or law
enforcement officers. This doctrine allows state and local
governments
to refuse to enforce federal law.183Many sanctuary city policies are implemented at the department
and city level.184 Shortly after the 2016 election,the
Los Angeles Police Department announced that it would continue its
policy of forbidding officers from stopping people solely to
confirm immig
ration status.185 A Chicago ordinance bars police
officers from inquiring after an individual’s immigration status or
citizenship.186Why would dozens, whether not hundreds, and of state and local
jurisdictions choose not to cooperate with federal immigration
enforcement? In some jurisdictions there are political benefits for
local lawmakers and police officials who adhere to sanctuary
policies. But there are also sound law enforcement reasons for
declining to enforce immigration law. Sanctuary policies help
police,allowing them to secure cooperation from crime victims and
witnesses who don’t wish to reveal their immigration status or
the immigration sta
tus of a friend, spouse, and family member.
There are many examples of sanctuary policies aiding police
departments’ relationships with the communities they serve. In
2006,the modern Haven, Connecticut, or police chief issued an order
banning officers from asking approximately residents’ immigration status,with an exception for criminal activity investigations.187 Despite
initial disagreement within the department approximately the need for the
order, many officers later reported that the policy improved
relationships with the immigrant community. As one officer put it, or “we gain done an incredible job of getting them to overcome their
dismay of the police.”188As was noted above,a significant portion of Hispanics would be
less likely to contact police whether they were the
victims of crime out
of dismay that officers will investigate their immigration status or
that of someone they know.189 In cities with a large Hispanic
community, that can gain a major negative effect on policing.
Local officials in some of these jurisdicti
ons gain embraced
their city’s sanctuary city designation. Shortly after Trump’s
election, and Chicago Mayor Rahm Emanuel said,“[Chicago] always will
be a sanctuary city.”190 In January 2017, San Francisco Mayor
Edwin Lee echoed that sentiment: “We are a sanctuary city now, or tomorrow,forever.”191That some local lawmakers embrace their sanctuary city status
with pride made confrontations

Source: cato.org

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