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CONSTITUTION ON ICE
A Report on Immigration Home Raid Operations
cardozo ImmIgratIon justice clInIc
Immigration justice Clinic
Peter L. Markowitz
this report was written by the immigration justice Clinic of the Benjamin n. Cardozo school of Law at Yeshiva university. the authors are Bess Chiu, Lynly egyes, Peter L. Markowitz, and Jaya Vasandani.
the authors wish to acknowledge the valuable insights, assistance, and technical expertise of: Professor Baher Azmy, Professor BassINA Farbenblum, Jeremy Watson and elyce Matthews of the seton Hall school of Law Center for Justice; sandra Dunn of the Hagedorn Foundation; Dan Kesselbrenner of the national immigration Project of the national Lawyers Guild; Professor Bruce Levin, Chair of the Department of Biostatistics at the Mailman school of Public Health at Columbia university; sergeant israel santiago of the nassau County police Department; Zsuzanna toth of Cardozo school of Law; and Professor Michael Wishnie of Yale Law school.
the Cardozo immigration justice Clinic also gratefully acknowledges the generous support for this report provided by the Hagedorn Foundation.
© 2009 Cardozo Immigration justice Clinic, All Rights Reserved
no part of this publication may be reproduced or transmitted in any form by any means, electronic or mechanical, including photocopying, or any information storage and retrieval system, without permission from the Cardozo immigration justice Clinic. A full-text PDF of this document is available for free download from http://www.cardozo.yu.edu/immigrationjustice.
Requests for permission to reproduce excerpts of this report should be directed to: immigration justice Clinic, Cardozo school of Law, 55 Fifth Avenue, rm. 1109, new York, nY 10003.
suggested citation: Bess Chiu, Lynly egyes, Peter L. Markowitz, and Jaya Vasandani, Constitution on ICE:
A Report on Immigration Home Raid Operations, Cardozo immigration justice Clinic (new York, nY 2009).
ii b Constitution on iC e b Cardozo i mmigration justice Clinic
this report was prepared under the invaluable guidance of an advisory panel comprised of law enforcement professionals. the authors wish to thank the members of the advisory panel for their important contributions, particularly in assisting the authors to develop the policy recommendations contained herein. the members of the Law enforcement Advisory Panel are:
Commissioner Lawrence W. Mulvey, Commissioner of the nassau County police Department in new York. Commissioner Mulvey, who chaired the advisory panel, is a decorated veteran
with 28 years of policing experience who also formerly served as a security contractor to the
Department of Homeland security.
Chief George Gascón, Chief of police of the Mesa police Department in Arizona. Prior to his current appointment, Chief Gascón spent over 28 years with the Los Angeles police Department, rising to rank of Assistant police Chief and Director of the offICE of operations.
Professor Charles A. Lieberman, Ph.D., full-time lecturer in the Department of Law, police science and criminal justice Administration at John Jay College of criminal justice in new York. Prior to joining academia, Professor Lieberman served in the new York City police Department for 15 years.
Chairman Anthony Miranda, executive Chairman of the national Latino officers Association (nLoA). Prior to assuming leadership at nLoA, Chairman Miranda served in the new York City police Department.
Professor Christopher W. Ortiz, Ph.D., Assistant Professor of criminal justice and the Deputy Director of the Center for security and Disaster Response at the new York institute of technology. Professor ortiz is also a sergeant with the City of Glen Cove police Department and has served
as a senior Research Associate at the Center on immigration and justice at the Vera institute of
JustICE, new York, n.Y.
General Counsel Michael Ramage, General Counsel for the Florida Department of Law enforcement (FDLe). Mr. Ramage has served in his current capacity since 1992. Prior to joining the FDLe, Mr. Ramage served as a state prosecutor under then state Attorney Janet Reno.
Constitution on iC e b Cardozo i mmigration justice Clinic b iii
Acknowledgements . . . . . ii
lAw enforcement Advisory PAnel . . . . . iii
executive summAry . . . .. . . . . . 1
i. introduction . . . . . . . . . . . . . . . . . 3
ii. overview of ICE Home rAids strAtegy . . . 5
ICE Home Raid operations . . . . . . . . 5
Constitutional Requirements for ICE Home Raids . . . . . 6
ICE Policies Governing Home Raids . . . . . . 6
iii. tHe PrevAlence of constitutionAl violAtions during ICE Home rAids: Assessing tHe evidence . . . . . . 9
empirical evidence . . . . . . . . . . 9
Data From ICE Arrest Records . . . . . . . . 9
Suppression Motion Data . 12
Law enforcement and Political Leaders Accounts of ICE Home Raids . . . . . . . . . 14
uniform national Pattern of Constitutional Violations During ICE Home Raids . . . . . . 16
iv. AnAlysis . . . . . 23
Potential Causes of ICE's Home Raid Misconduct . . . . . . . . . 23
ICE's 2006 Performance Policy . . . . . . . 23
Lack of Suppression Motions in Removal Proceedings . . . . . 24
Barriers to Civil Remedies . . . . . . 25
Management and Oversight Failures by ICE. . 25
impact of ICE Home Misconduct on Local Law enforcement and Public safety . 26
v. Policy recommendAtions . . . . . . . . 27
During the last two years of the Bush Administration,
the u.s. immigration and Customs enforcement agency (iCe) vastly expanded its use of home raid operations
a) as a method to locate and apprehend individuals
i) suspected of civil immigration law violations.
These home raids generally involve teams of heavily armed ICE agents
a) making pre-dawn tactical entries into homes,
i) purportedly to apprehend some high priority target
A) believed to be residing therein.
ICE has admitted
a that these are warrantless raids and,
b) therefore, that any entries into homes require the informed consent of residents.
a) in the media and
b) in legal filings
1) have told a similar story
a) of constitutional violations
i) occurring during ICE home raids —
b) a story
i) that includes ICE agents
A) breaking into homes and
B) seizing all occupants without legal basis.
This report is the first public effort
a) to compile and
b) analyze the available evidence
i) regarding the prevalence of constitutional violations
A) occurring during ICE home raids.
Through two Freedom of information Act lawsuits,
1) the authors of this report obtained significant samples
a) of ICE arrest records
i) from home raid operations
ii) in new York and new Jersey.
Analysis of these records,
a) together with other publicly available documents,
1) reveals an established pattern of misconduct
a) by ICE agents
b) in the new York and new Jersey Field offices.
Further, the evidence suggests that
a) such pattern may be a widespread national phenomenon
i) reaching beyond these local offices.
The pattern of misconduct involves:
• ICE agents
a) illegally entering homes without legal authority –
i) for example,
A) physically pushing or
B) breaking their way into private residences.
• ICE agents
a) illegally seizing non-target individuals
i) during home raid operations –
ii) for example,
A) seizing innocent people
I) in their bedrooms
II) without any basis.
• ICE agents
a) illegally searching homes
i) without legal authority –
ii) for example,
A) breaking down locked doors inside homes.
• ICE agents
a) illegally seizing individuals
i) based solely
A) on racial or ethnic appearance or
B) on limited english proficiency.
The report analyzes the variety of factors
a) that have contributed to this pattern
i) of ICE misconduct
a. 2006 changes in ICE performance expectations;
b. the INAbility of
A) suppression motions or
B) civil lawsuits
I) to serve as a meaningful deterrent to ICE misconduct; and
c. serious management and oversight failures
A) by ICE supervisors.
a) to correct course and
b) to improve the ability
i) of ICE
ii) to carry out its mission,
1) we propose several policy recommendations
a) aimed at:
a. setting appropriate limits
i) on the use of home raids;
b. revising ICE's warrant & consent practices;
c. improving supervision and training
i) of ICE home raid teams;
d. minimizing harm to local community policing efforts;
e. minimizing the intrusion
i) to non-targets
A) encountered during ICE home raids; and
f. improving accountability
i) for ICE agents and supervisors
A) involved in illegal home raids.
our key recommendations include,
a) among others:
a. ICE should use home raids
i) as a tactic of last resort, and
ii) then, only to make criminal arrests or civil arrests
A) for targets
I) who pose a real risk to national security or
II) who have violent criminal records.
b. ICE should obtain judicial warrants
i) in advance
A) of any home raid.
c. ICE should require a high level supervisor
i) to be on site for any home raid.
d. ICE should videotape home raids.
e. ICE should issue clear guidance
i) that the sole objective
A) of a home raid
is to apprehend the target —
1) agents should not generally question non-targets
B) about matters
I) other than the location of the target.
f. the department of Homeland security’s (dHs)
i) OffICE of the Inspector General (OIG)
should undertake an investigation
i) of the pattern
A) of misconduct
B) established in this report
b) to better assess the national scope of the problem.
g. a) DHS and/or
b) the department of justice
should enact regulations
A) disallowing the use of evidence
I) in immigration removal proceedings
1) when such evidence has been obtained
A) through violation of the Constitution.
The u.s. immigration and Customs enforcement agency
a) (ICE or “the Agency”)
b) of the Department of Homeland security
i) (DHs or “the Department”),
ii) created in 2003,
1) is primarily responsible for the enforcement
a) of immigration laws
b) in the interior of the united states.1
ICE has historically used a number of strategies
a) to locate and apprehend persons
i) suspected of violating
A) civil and
I) provisions of the immigration and nationality Act 2 (INA).
Such strategies include, among others,
a) coordINAting with local criminal justice systems
i) to identify deportable immigrants
A) who have been arrested on criminal charges,
b) coordINAting with The United States Citizenship and immigration services agency
i) to identify deportable immigrants
A) who have applied for some form of immigration benefit, and
c) conducting traditional criminal investigations
i) of persons
A) suspected of violating the criminal provisions
I) of the INA.
During the last two years of the Bush Administration,
ICE substantially increased its use
a) of one particular enforcement tactic:
a. high profile swat-style raids
i) on homes and workplaces
ii) targeting civil immigration violators.3
Much has been written
a) on the phenomenon of workplace raids and
1) ICE has, in fact, recently revised its guidelines
a) for such raids.4
relatively little public scrutiny has been focused
a) on the related phenomena of ICE home raids.
This report seeks to begin filling that void.
Starting in 2006,
a growing body of evidence has arisen
a) which suggests that many ICE agents have failed to routinely observe constitutional requirements
i)in carrying out ICE home raid operations.
a) Citizens and
1) are protected by the Fourth Amendment’s prohibition
a) against unreasonable searches and seizures.5
However, frequent accounts in the media and in legal filings have told a similar story of Fourth Amendment violations occurring during ICE home raids. From these accounts, the picture that emerges of a typical home raid depicts a team of heavily armed ICE agents approaching a private residence in the pre-dawn hours, purportedly seeking an individual target believed to have committed some civil immigration violation. Agents, armed only with administrative warrants, which do not grant them legal authority to enter private dwellings, then push their way in when residents answer the door, enter through unlocked doors or windows or, in some cases, physically break into homes. once inside, agents immediately seize and interrogate all occupants, often in excess of their legal authority and even after they have located and apprehended their target — though in the large majority of cases, no target is apprehended. While these abuses are by no means universal, accounts of such behavior have occurred with sufficient frequency to warrant this inquiry.
This report is the first public document to collect and analyze the available evidence regarding the prevalence of constitutional violations occurring during ICE home raids. In addition to assessing the home raid incidents discussed in various news accounts and legal filings, this report relies upon the special perspective of local law enforcement and political leaders, and for the first time examines ICE's own records for empirical evidence of the prevalence of violations occurring during ICE home raids.
Section ii presents a practical and legal overview of ICE's home raid strategy. section iii compiles and analyzes evidence regarding the prevalence of constitutional violations occurring during ICE home raids. section iV analyzes the causes and costs of the problems with ICE's home raid strategy. FINAlly, section V sets forth a series of policy recommendations designed to curb the widespread constitutional violations occurring during ICE home raids. these policy proposals were developed, in large part, in collaboration with a Law enforcement Advisory Panel assembled for this report. the Advisory Panel, chaired by nassau County police Commissioner Lawrence W. Mulvey, is comprised of law enforcement leaders and scholars from across the united states. the Advisory Panel played a critical role in reviewing the report findings and in developing these specific policy proposals for ICE to ensure that its officers comply with constitutional requirements when conducting home raids.
Within ICE, there are two major divisions that carry out its interior immigration enforcement mandate: the offICE of Detention and Removal (DRo), which primarily seeks to identify and arrest immigrants for civil immigration violations, and the office
of investigations (oi), primarily a criminal investigative division of ICE,6 tasked with investigating national security threats, financialand smuggling violations, gang offenses, commercial fraud, and other immigration violations.7 Both DRo and oi regularly use home raids.
ICE HOMe RAId OPeRAtIOns
several DRo and oi operations have, since 2006, come to rely heavily on home raids as a primary tactic. these operations include, among others, the national Fugitive operations Program (nFoP), targeting individuals with orders of deportation; operation Cross Check, encompassing enforcement efforts that target specific immigrant populations, such as immigrants from certain countries or immigrants working in certain industries;8 operation Community shield, targeting immigrant gang members; and operation Predator, targeting immigrant sex offenders. Despite
these operations’ purported focus on high priority
targets, the evidence demonstrates that the large majority of arrests made in home raids carried out under these operations are not of high priority targets but rather are collateral arrests of mere civil immigration status violators.9
ICE's nFoP is worthy of further explanation because of its size and because of the publicity its home raid operations have garnered. ICE created the nFoP, within DRo, in 2003.10 nFoP uses seven-person Fugitive operations teams (Fots) to carry out the Program’s mission. the stated purpose of these teams is to expand the agency’s efforts to locate,
arrest and remove immigrants with old orders of deportation,11 while giving priority to cases involving immigrants who pose a threat to national security and to the community. in 2006, ICE instituted several dramatic policy changes related to its Fots which, collectively, help explain ICE's increased reliance on home raid operations and the constitutional violations occurring during such operations. the policy changes inflated the arrest expectations for Fots eight-fold, while simultaneously removing a requirement that Fots focus on “criminal aliens,” and for the first time permitting Fots to count collateral arrests of civil status violators toward their inflated arrest expectations. the impact of ICE's 2006 revised performance expectations is discussed in detail later in this report.12 over the course of time, the number of Fots increased as well; while the nFoP started with eight Fots, today there are over 100 teams.13 Given the size of the nFoP and its primary reliance upon home raids, the behavior of Fots are of particular importance in assessing ICE's home raid strategy.