Immigration Law’s Looming Fourth Amendment Problem
Citation: 104 Geo L.J. 125 (2015)
Among the many executive actions to reform immigration enforcement taken by President Obama on November 20, 2014, one measure was not like the others. Homeland Security Secretary Jeh Johnson directed Immigration and Customs Enforcement (ICE) to discontinue the Secure Communities program, under which noncitizens arrested by local law enforcement could be detained and eventually transferred to federal custody to process their deportations. This action differed substantively from the other forms of prosecutorial discretion utilized by the Obama Administration because it benefits immigrants who have a criminal record. This conflicts with the general Obama strategy on immigration enforcement, which prioritizes noncitizens with criminal records for apprehension and deportation. In the President’s words: “Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.”
Given the President’s expressed “felons, not families” policy, it is peculiar that ICE would be asked to shut down a program that specifically targets noncitizens who are arrested on suspicion of criminal activity. Although the Obama Administration has used its discretion to grant reprieves from deportation for millions of unauthorized immigrants, it has also deported noncitizens at a record rate. This dual approach depends in large part on ICE’s ability to find immigrants with criminal records so that the government may target its apprehension, detention, and deportation resources accordingly. Secure Communities was a critical tool in carrying out this policy because it made it easy for ICE to make sure that immigrants arrested by local authorities would not be released back into the community. But the critical link in Secure Communities was the use of ICE detainers, through which ICE asked local police to detain people longer than they would be permitted to on purely criminal grounds so that ICE agents could easily take them into federal custody. . . .