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U.S.A. Immigration and Customs Enforcement Process (DHS ICE. ̱ ̹ μ )
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[Title]
LIMIt use Of HOMe RAId OPeRAtIOns
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LIMIt use Of HOMe RAId OPeRAtIOns

1. home raids should be used as a tactic of last resort, and then only to make criminal arrests or civil arrests for targets who pose a real risk to national security or who have violent criminal records.

DHs secretary napolitano has repeatedly emphasized her intention to focus ICE's limited enforcement resources on apprehending the narrow class of immigrants who pose a real danger to the public.84 Home raids are extremely resource intensive and, as currently employed, an inefficient use of scarce internal enforcement resources.85 In addition, home raid operations carry with them several significant costs, including: physical danger to residents and officers, costs to local community policing efforts, significant privacy intrusions for residents, and potential legal liability for the agencies involved. in light of these factors and in light of the record of abuses during home raid operations outlined in this report, sound policing policy dictates that home raids should be a tactic of last resort reserved for truly high priority targets.






RevIse WARRAnt PRACtICe

2. ICE should obtain judicial warrants in advance of any home raid.

Federal courts possess authority to issue search and/or arrest warrants for ICE home raids.86 ICE's practice of using administrative warrants for home raids is, therefore, a policy decision presumably driven by administrative convenience, not law. unfortunately, this convenience appears to have contributed to ICE's failure to devote adequate resources to intelligence gathering. By using administrative warrants, ICE is not required to demonstrate to a neutral magistrate its probable cause to arrest a target and its basis for believing that the target will be at a given residence. too often, this has led ICE to identify target residences based on insufficient intelligence — leading to intrusions into innocent residents homes and to ICE's failure to capture targets.

the procedures for obtaining a judicial warrant would be a healthy incentive for ICE to refocus its interior enforcement teams on appropriate intelligence gathering on high priority dangerous targets. in a related arena, DHs secretary napolitano has recently issued guidelines directing ICE agents to increase their use of judicial warrants in worksite enforcement operations as part of an attempt to impose high investigative standards.87 Having recognized the power of judicial oversight to heighten investigative standards, secretary napolitano should extend that same logic and guidance to home raid operations.

obtaining judicial warrants would certainly impose some additional burden on iCe; however, it is a burden that virtually every other law enforcement agency in the nation is faced with and overcomes with relative ease. if ICE limits its use of home raids as suggested above, and refocuses its interior enforcement teams toward locating and arresting truly dangerous targets, it should have abundant resources to properly investigate its targets and obtain judicial warrants. such warrants would not only incentivize appropriate pre-raid investigations but would also elimINAte many of the problematic issues set forth in this report.


3. to the extent ICE continues to use home raids to execute administrative warrants, it should require field offices to obtain high-level centralized pre-approval in advance of any home raid operation.

While judicial review is preferable, proven and available, if ICE chooses to forego a judicial warrant, a procedure should be adopted requiring agents from ICE field offices to obtain pre-approval from ICE headquarters before conducting any home raid. the agents requesting approval should be required to justify their request by explaining the basis for their assessment of the dangerousness of the target, their determINAtion that the target is likely to be at a given residence, and their conclusion that apprehending the target outside the home is impracticable.







28 b Constitution on iC e b Cardozo i mmigration justice Clinic



RevIse COnsent PROCeduRes

4. whenever ICE conducts a home entry without a judicial warrant, it should ensure that it obtains valid consent by explicitly and clearly informing residents of their right to refuse consent and then obtaining written consent, of clear scope, before entry is made.

the Constitution does not always require officers to advise residents of their right to refuse entry when officers seek consent to enter a home.88 However, it is well established that factors such as: whether the individual understands the right to refuse to consent, whether an individual understands english, whether the individual was informed of her Miranda rights prior to the consent, whether the individual is familiar with the American legal system, and whether the police encounter occurred in a public or secluded location, are all relevant to determining whether valid consent was obtained.89 Moreover, mere acquiescence to a show of force or legal authority is not consistent with the constitutional consent requirement nor is the mere failure of an individual to object to police intrusion.90 FINAlly, permission to enter a residence does not necessarily authorize agents to search all parts of the residence — particularly in the case of multiple occupancy dwellings. Agents must clarify the scope of any consent obtained.

in light of these legal requirements and the record of non-consensual entries outlined in this report, sound policing policy dictates that ICE agents should, as a matter of policy, always explicitly and clearly inform residents of their right to refuse consent before entering a home without a judicial warrant. Many local police departments follow this practice and use standard consent forms — sometimes referred to as speed sheets — to deliver warnings and record written consent. ICE should adopt a similar practice. Moreover, ICE should always have an agent who speaks the language of the target on site for any home raid to ensure that informed consent is obtained.


5. tactical pre-dawn or nighttime home raids should only be conducted with judicial warrants.

As ICE regulations explain, in order to enter a residence [without a judicial warrant], someone who has authority to do so must grant informed consent.91 tactical pre-dawn or nighttime home entries, conducted by heavily armed seven member teams, with residents who often do not speak english and are unfamiliar with American legal norms, are simply not consistent with obtaining informed consent. Acquiescence to authority is not consent.92 Accordingly, tactical pre-dawn or nighttime home raids should only be conducted with judicial warrants.


IMPROve suPeRvIsIOn And tRAInInG Of ICE HOMe RAId teAMs

6. require a high level supervisor to be on site for all home raids.

Because of the dangerousness and level of privacy intrusion involved, many police departments require a high level supervisor to be on site to supervise any home raid operation. ICE Fots have one agent



Constitution on iC e b Cardozo i mmigration justice Clinic b 29



designated as a team Leader who is generally present during any home raid operation.93 supervisors are encouraged, but not required, to accompany teams into the field for home raid operations.94
However, as compared to the practice of many local police departments, such team leaders do not seem sufficiently senior to oversee highly sensitive home raid operations. the record of abuses occurring during home raid operations supports the conclusion that more intensive and responsible supervision is required. Accordingly, a high level supervisor should be on site for any ICE home raid operation to ensure that entry does not occur absent consent or a judicial warrant and, if consent is obtained, that the supervisor immediately notify the entire team of the bounds of the consent obtained.


7. videotape home raids.

increasingly, police departments are videotaping sensitive situations that may involve even allegations that officers failed to observe constitutional rights.95 Given the sensitivity of home raid operations and the record of ICE abuses in such operations, ICE should institute a policy of videotaping home raids. such a policy would both incentivize agents to comply with constitutional norms and would protect ICE against unfounded allegations of misconduct.


8. retrain relevant agents on home raid procedures. require periodic refresher training on such procedures.

At minimum, the findings of this report should be a strong indication to ICE that its interior enforcement teams are in need of additional training on home raid procedures. this includes additional training for ICE supervisors. Moreover, periodic refresher trainings should be a regular and ongoing part of agents professional development.


MInIMIze HARM tO LOCAL police AGenCIes COMMunIty POLICInG effORts

9. local police agencies should, at all times, be notified of the planning and results of ICE operations within their jurisdictions.

too often, ICE has failed to adequately collaborate with local police agencies. police agencies need adequate advance warning of such operations to permit them time to collaborate with ICE on ways to mitigate harm to local community policing efforts. Moreover, ICE needs to share information in a timely fashion on the results of an operation, including the details of any individuals taken into custody. such information is necessary to allow local police to respond to common community inquiries after an ICE operation.


10. ICE should not request assistance of local police for the purpose of deceiving residents as to the identity of the agency conducting a home raid operation.

As a general matter, local police should be called upon to assist ICE when such assistance is necessary to ensure community or officer safety or when ICE anticipates that it will encounter individuals involved in local criminal activity. However, ICE's routine practice of requesting a marked local police cruiser to accompany ICE agents on home raids often produces the effect of deceiving residents about which agency is conducting a home raid — an outcome which significantly undermines local police agencies community policing efforts. such deception is likely to make residents less willing to open the door for local police in the future and may deter some immigrant victims and witnesses of crimes from contacting local police. to guard against the misimpression that ICE agents are local law enforcement, agents should be trained to stop identifying themselves as police and instead identify themselves as immigration, ICE, or federal agents. ICE must assure that those impacted by the raid clearly understand that those conducting the raid are federal agents, and the agencies involved are clearly identified.


MInIMIze IntRusIOn tO nOn-tARGets enCOunteRed

11. ensure that performance targets for ICE interior enforcement teams set realistic goals, provide incentives for teams to focus on dangerous targets, and award teams no incentive to divert scarce resources to collateral arrests of mere civil immigration violators.

the detrimental effects of ICE's 2006 Performance Policy are plain to see. the new policies precipitated both the increase in constitutional violations outlined in this report and the decrease in efficiency of interior enforcement teams at capturing dangerous high priority targets.96 the 2006 policy should be abandoned and replaced with a policy that sets realistic goals for interior enforcement teams and creates incentives for teams to focus efforts exclusively on high priority targets.

DHs should be credited for the steps it has already taken to revise the 2006 policies.97 However, without full details on the new policy, it is impossible to determine if the policy requires teams to focus on high priority targets. specifically, ICE should make clear that teams get no additional performance credit for making collateral arrests and should focus their limited resources exclusively on violent crimINAls and national security threats.


12. clear guidance should be issued that the sole objective of a home raid is to apprehend the target — agents should not generally question non- targets encountered in or around the residence about matters other than the location of the target.

too often since 2006, ICE agents have used home raid operations, purportedly seeking an individual target, as an opportunity to seize and question non-targets in and around the target residence for the purpose of random investigatory questioning. Revision of the performance targets discussed above and elimINAting credit for collateral arrests should help curb this type of behavior. However, In addition to the revised performance goals, ICE should issue clear guidance that the privacy of non-target individuals encountered during home raids should be respected and that such raids should not be used as opportunities to question collaterals on subjects other than the location of the target. the sole objective of a home raid should be to apprehend the target.

When agents are lawfully inside a home, they are permitted to briefly seize individuals to conduct a protective sweep when they reasonably believe that the premises harbor a person who poses a danger to the agents. However, the temptation is for officers to improperly use such seizures as an opportunity to conduct baseless investigatory interviews of non-target individuals. if non-targets need to be temporarily seized for a protective sweep, such temporary detention should not be used as an opportunity for investigatory questions regarding non-targets immigration status.


13. A new regulation should be issued to require officers to note the reason why they initially seized and questioned any individual in their arrest report.

Federal regulations already require ICE agents to note whether consent to enter a residence was obtained and, if so, from whom.98 the apparent purpose of this regulation is to remind officers of their constitutional requirement to obtain consent and to hold them accountable for their behavior. the same rationale applies with equal force to the physical seizure of individuals by ICE agents
— especially in light of the record set forth above regarding a pattern of unlawful seizures of non-target individuals. Accordingly, ICE should require its agents to note the basis for their initial seizure of individuals in their arrest reports.


14. clear guidance should be issued that neither racial nor ethnic appearance nor limited english proficiency is ever a sufficient sole basis for seizing or questioning an individual.

ICE officers must have, at minimum, reasonable suspicion that a person has violated the law in order to seize the individual, even for investigatory questioning.99 in no situation is racial or ethnic appearance or limited english proficiency ever a sufficient basis for seizing and questioning an individual.100 the empirical data above, suggestive of racial profiling by ICE agents, warrants additional clear guidance on this settled point of law. Current ICE policy undoubtedly forbids this illegal behavior but additional guidance and training on this point is necessary to protect non-target individuals during ICE home raids.


IMPROve ACCOuntABILIty

15. the dhs offICE of the inspector general (oig) should undertake an investigation of the pattern of misconduct established in this report to better assess the national scope of the problem.

the data from Long island and new Jersey are strong indicators of pervasive problems in the new York and new Jersey ICE field offices and the other evidence set forth above is suggestive of a national trend. the publics ability to fully assess the scope of this problem is, however, limited



32 b Constitution on iC e b Cardozo i mmigration justice Clinic



by incomplete access to relevant ICE records and by our INAbility to interview ICE employees and arrestees. oiG does not suffer from these same limitations and, based upon the record of misconduct set forth in this report, should undertake a broader national investigation of ICE misconduct during home raid operations. such a report should be followed up by periodic spot checks of arrest records and interviews with agents and arrestees at various field offices to monitor the problem over time.101


16. establish a revised clear public complaint procedure, managed by oig, for allegations involving violations of constitutional rights by ICE agents.

Currently ICE's offICE of Professional Responsibility (oPR) generally handles any investigation of ICE constitutional violations occurring during home raid or other operations. unfortunately, oPR has been unresponsive to many such complaints and appears to lack the independence necessary to properly scrutinize ICE conduct. in contrast, oiG is more removed from ICE field offices and has, in the past, demonstrated its ability to provide effective oversight to ICE operations.102
Accordingly, DHs should establish an oversight unit in oiG to handle community complaints of ICE misconduct. oiG should make its complaint procedure widely known and easily available to local law enforcement and political leaders, immigrant advocates, and the general public. oiG should ensure that complaints are thoroughly investigated and that complaINAnts receive timely responses. oiG should, of course, receive such additional funding and staffing as is necessary to accomplish these tasks.


17. enact regulations disallowing the use of evidence that has been obtained through violation of the constitution in removal proceedings.

in 1984, the supreme Court held that constitutional violations do not require suppression of evidence in immigration removal proceedings; at least in the absence of egregious or widespread constitutional violations.103 However, nothing prohibits DHs or the Department of justice (which oversees the immigration courts) from excluding constitutionally tainted evidence as a matter of policy. Moreover, the rationale of the supreme Courts 1984 decision is in some tension with the findings of this report. Most importantly, the Court placed significant reliance upon ICE's ability to develop its own comprehensive scheme for deterring Fourth Amendment violations by its officers. 104 this report strongly suggests that ICE's comprehensive scheme has broken down. Local police officials recognize the power of the exclusionary rule to help conform officers behavior to the strictures of the Constitution. in light of the record of misconduct set forth in this report, imposing this common rule of law enforcement in the immigration realm would be an important step toward ensuring that ICE home raid operations, and all ICE operations, are conducted in accordance with the Constitution.




1. the other two DHs agencies principally involved in immigration matters are The U.S. Customs and Border Protection agency (CBP), charged with securing the nations borders, and The U.S. Citizenship and immigration services agency (usCis), charged with administrating immigration benefits such as citizenship and permanent residence.
these three agencies were created to replace the former u.s. immigration and naturalization servICE (ins) and The U.S. Customs service. For a recent assessment of these three agencies, see generally Doris Meissner and Donald Kerwin, Migration Policy institute, DHS and Immigration: Taking Stock and Correcting Course (2009), available at http://www. migrationpolicy.org/pubs/DHs_Feb09.pdf.
2. immigration and nationality Act, 8 u.s.C. 1101 et seq. the INA is the federal statute that governs naturalization and deportation law.
3. the most common civil immigration status violations are overstaying the time permitted by ones visa and having entered the country without inspection.
4. See DHs Fact sheet, Worksite enforcement strategy (Apr.
30, 2009), available at http://www.ice.gov/doclib/pi/news/ factsheets/worksite_strategy.pdf; see, e.g., Julia Preston, U.S. Shifts Strategy on Illicit Work by Immigrants, n.y. timeS, July 3,
2009.
5. u.S. conSt. amend. iV; see also INS v. Lopez-Mendoza, 468 u.s. 1032, 1047 (1984) (majority assuming that all persons in the united states, including undocumented immigrants, have Fourth Amendment rights); Au Yi Lau v. U.S. INS, 445 F.2d
217, 223 (D.C. Cir. 1971) ([A]liens in this country are sheltered
by the Fourth Amendment in common with citizens.).
6. ICE has five operational components, four of which are domestic law enforcement divisions: 1) offICE of investigations, 2) Detention and Removal operations, 3) Federal Protective servICE, 4) offICE of intelligence. See About u.s. immigrations and Customs enforcement (iCe), http:// www.ice.gov/about/index.htm. See generally Department
of Homeland security offICE of inspector General, An
Assessment of immigration and Customs enforcements Fugitive operations teams, oiG-07-34 (Mar. 5, 2007), available at http://www.dhs.gov/xoig/assets/mgmtrpts/ oiG_07-34_Mar07.pdf [hereINAfter oiG Fot Report].
7. See generally u.s. immigration and Customs enforcement Website, http://www.ice.gov/index.htm; oiG Fot Report supra note 6.
8. Declaration of Darren Williams, supervisory Detention and Deportation officer with the nYC Fot in the new York Field offICE of ICE's DRo (Dec. 2007), submitted in Aguilar v.
ICE, no. 07 Civ. 1782 (s.D.n.Y. 2007) [hereINAfter Williams
Declaration].
9. See discussion infra at note 41 & 71 and accompanying text.
10. oiG Fot Report supra note 6, p. 4.
11. ICE Fugitive operations Program Fact sheet, http://www.ice. gov/pi/news/factsheets/nFoP_Fs.htm.
12. See discussion infra at note 71-74 and accompanying text.
13. Margot Mendelson, shayna strom & Michael Wishnie, Migration Policy institute, Collateral Damage: An examINAtion of ICE's Fugitive operations Program 8 (Feb. 2009), available at http:// www.migrationpolicy.org/pubs/nFoP_Feb09.pdf [hereINAfter MPi Collateral Damage Report].
14. Payton v. New York, 445 u.s. 573, 585 (1980) (quoting United States v. United States District Court, 407 u.s. 297, 313 (1972)).15. United States v. Matlock, 415 u.s. 164, 171 (1974).
16. Michigan v. Tyler, 436 u.s. 499, 509 (1978) (citing Warden v.
Hayden, 387 u.s. 294, 298-99 (1967)).
17. Katz v. United States, 389 u.s. 347, 357 (1967).
18. See generally See v. City of Seattle, 387 u.s. 541 (1963); Camara v. Municipal Court of City and County of San Francisco, 387 u.s. 523 (1963).
19. Payton, 445 u.s. at 587.
20. DHs incorporates this constitutional requirement in its regulations. See 8 C.F.R. 287.8(f )(2); see also note 17.
21. Brown v. Texas, 443 u.s. 47, 50 (u.s. 1979).
22. Payton, 445 u.s. at 587.
23. Terry v. Ohio, 392 u.s. 1 (1968).
24. See United States v. Brignoni-Ponce, 422 u.s. 873, 886-87 (1975) (the likelihood that any given person of Mexican ancestry
is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.); United States v. Manzo-Jurado, 457 F.3d 928, 937 (9th Cir. 2006) (By itself, however, an individuals INAbility to understand english will not justify an investigatory stop because the same characteristic applies to a sizable portion of individuals lawfully present in this country.); Gonzales-Rivera v. INS, 22 F.3d 1441, 1443 (9th Cir. 1994) (We conclude that the stop, which resulted solely from Gonzalez Hispanic appearance, constituted a bad faith and egregious violation of the Fourth Amendment.)
25. Letter from Michael Chertoff, Former secy of Homeland security, to u.s. sen. Christopher Dodd (June 14, 2007), available at http://www.nytimes.com/packages/html/ nyregion/20070723Chertoff.pdf [hereINAfter Chertoff Letter, June 2007]; nINA Bernstein, Hunts for Fugitive Aliens Lead to Collateral Arrests, ny timeS, July 23, 2007, at B5; see also 8
C.F.R. 287.5(e)(1) (2008).
26. 8 C.F.R. 287.5(e)(2) (2008); see also INA 287(a)(3), 8 u.s.C.
1357(a)(3); discussion supra at note 18 and accompanying text.
27. Revisions of Chapter 10 title and Realignment of the section titles of the Detention and Deportation officers Field Manual, August 21, 2008 (emphasis added); see also Chertoff Letter, June 2007 supra note 25.
28. the conduct of ICE agents in oi operations is governed by policies and procedures set out in Chapter 42 of the special Agents Handbook entitled search and seizure [hereINAfter special Agents Handbook] and the Law of Arrest, search and seizure Manual, commonly referred to as the M-69. similarly, the conduct of ICE agents in DRo Fugitive operations Program are governed by policies and procedures set out in Chapter 19
of the Detention and Removal operations Policy and Procedure
Manual [hereINAfter DRoPPM]. See also 8 C.F.R 287.8(b) (2). information about DRoPPM and the special Agents Handbook was obtained from the Declaration of Jeffrey Knopf, Group supervisor in the nY special Agent-in-Charge (sAC) offICE of ICE's offICE of investigations (Dec. 2007) [hereINAfter Knopf Declaration], submitted in Aguilar v. ICE, no. 07 Civ. 8224 (s.D.n.Y. 2007) and the Williams Declaration supra note 8.
29. DRoPPM supra note 28, as quoted in paragraph 21 of Williams Declaration supra note 8 (emphasis in origINAl); Voluntary and effective consent to search obviates the need for a warrant or probable cause. to justify a search without a warrant on this ground, there must be a volitional [sic], duress-free permission to enter and make the kind of search agreed to. special Agents Handbook supra note
28; Warrants of Deportation or Removal are administrative
rather than crimINAl, and do[] not grant the authority to breach doors. thus informed consent must be obtained from the occupant of the residence prior to entering. DRoPPM supra note 28.
30. Knopf Declaration supra note 28, para. 9.
31. Id., para. 10.
32. 8 C.F.R 287.8(b)(2).
33. INA 287(a)(2), 8 u.s.C. 1357(a)(2). section 287(a)(2) of the immigration and nationality Act states that any officer or employee of the servICE authorized under regulations prescribed by the Attorney General shall have power without warrant . . . to arrest any alien in the united states, if he has reason to believe that the alien so arrested is in the united
states in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest . . . .
34. Id.
35. Id.
36. Id.
37. Id.
38. 8 C.F.R. 287.8(f )(2) (emphasis added).
39. See Families for Freedom v. ICE, 08-cv-5566 (sept. 24, 2008 s.D.n.Y.) (Amended stipulation and order). the standard ICE arrest report is an i-1213, Record of Deportable Alien. However, in the Families for Freedom litigation ICE identified two other documents which could contain information
regarding the legal basis of entry, including Fugitive operation Worksheets (FoW) and significant incident Reports (siR), though these documents are not generated in every arrest. Pursuant to a court ordered stipulation, ICE agreed to hand over the 100 randomly selected i-213s and any related FoWs and siRs.
40. stipulation of Partial settlement and Revised scheduling order, Seton Hall School of Law Center for justice and Evicao El Brasileira v. DHS et al., no. 08 Civ. 00521 (D.n.J. oct. 29,
2008). ICE actually handed over 885 arrest records pursuant
to this stipulation but only 600 or 68% involved home raid operations. the analysis of the new Jersey data set was performed by the seton Hall school of Law Center for Justice.
41. indeed, the 2006 performance policy changes permitting collateral arrests to count toward performance expectations encouraged this pretextual behavior by allowing collaterals
to count but only where these arrests are made as part of a DRo Headquarters-approved operation. DRo Memorandum, Fugitive Case Management System Reporting and the 1,000
Arrests Annual Goal for Fugitive Operations Teams (sept. 29,
2006), available at http://cardozo.yu.edu/uploadedFiles/ Cardozo/Profiles/immigrationlaw-741/memos%20and%20 data.pdf .
42. INS v. Lopez-Mendoza, 468 u.s. 1032, 1050 (1984).
43. Id. at 1050; Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir.
2008); Almeida-Amaral v. Gonzalez, 461 F.3d 231, 235 (2d Cir. 2006).
44. See discussion infra at note 75-76 and accompanying text.
45. See Westlaw Database, Federal immigration - Board of immigration Appeals Administrative Decisions, available at https://web2.westlaw.com/scope/default. wl?rs=WLW9.05&ifm=notset&fn=_top&sv=split&tc=1101&tf=770&db=FiM-BiA&vr=2.0&rp=%2fscope%2fdefault. wl&mt=immigration.
46. See, e.g., spencer Hsu, DHS Signals Policy Changes Ahead for Immigration Raids, WaSh. PoSt, Mar. 29, 2009 (quoting House speaker nancy Pelosis statement that immigration raids break up families in that way, just kick down the door in the middle of the night, taking [a] father, a parent away, thats just not the American way. it must stop.); Letter from sen.
Kirstin Gillibrand (D-nY) to Janet napolitano, DHs secy (Feb. 5,
2009), available at http://gillibrand.senate.gov/imo/media/doc/ napolitano_Raids1.pdf (i have been appalled by some of the practices i have heard about and i would like to work with your Department to end the practice of allowing immigration officers to forcefully enter peoples homes with nothing more than an administrative warrant, and incarcerate anyone that can not immediately produce their immigration papers.); Will oremus, P.A. Sends Message On Federal Raids, Immigrants, San JoSe mercury neWS, oct. 23, 2008 (reporting on Palo Alto resolution decrying improper and unlawful law enforcement tactics by
the u.s. immigration and Customs enforcement agents and asking federal agents to respect its residents constitutional rights); Broken Borders Need More Than Lip ServICE, uSa toDay, June 27, 2008 (reporting on senator Robert Menendezs (D-nJ) speech condemning the way u.s. citizens and lawful permanent residents have been denied their constitutional rights during ICE home raids); Fernando Quintero, Greeley Mayors Call For End To Raids Ignites Firestorm, DenVer rocky mountain neWS,
May 17, 2007 (reporting on Mayors call for end of immigration
raids in his community); Jesse McKinley, San Francisco Bay Area
Reacts Angrily to Series of Immigration Raids, n.y. timeS, Apr.
28, 2007 (Mayor Al Boro of san Rafael explained that following recent ICE home raids [c]alls to the local police have decreased in recent weeks; he attributed the drop-off to the immigration raids chilling effect because people think our police were involved.); Press Release, senator John Kerry (D-Mass.) (Mar.
17, 2007) (the recent raids conducted by the immigration and Customs enforcement (iCe) across the country have exposed for all to see the horrific enforcement tactics and reprehensible treatment of families.); Letter from sen. Joe Lieberman (ind- Ct), sen. Chris Dodd (D-Ct), and Rep. Rosa DeLauro (D-Ct)
to Michael Chertoff, former DHs secy (June 11, 2007), available at http://dodd.senate.gov/index.php?q=node/3936 [hereINAfter Leiberman, Dodd, DeLauro Letter] (seeking clarification about
the way in which a new Haven immigration raid was conducted, its timing, and if violations of protocol may have occurred);
Letter from thomas R. suozzi, nassau County executive to Michael Chertoff, former DHs secretary (oct. 2, 2007) available at http://www.nassaucountyny.gov/agencies/countyexecutive/ newsrelease/2007/10-2-2007.html [hereINAfter suozzi Letter] (calling for a federal investigation into the tactics and practices used in ICE raids in nassau County communities); Letter from Lawrence W. Mulvey, nassau County police Commissioner, to Joseph A. Palmese, Resident Agent-in-Charge, ICE offICE of investigation, Bohemia n.Y. (sept. 27, 2007) (on file with author) [hereINAfter Mulvey Letter]; senators Menendez (D-n.J.) and Kennedy (D-Mass) have introduced legislation that, among
other things, would enforce the protection of fundamental constitutional rights of persons wrongfully swept up in immigration raids. A Bill to Protect united states Citizens From unlawful Arrest And Detention, s. 3594, 110th Cong. (2008).


Constitution on iC e b Cardozo i mmigration justice Clinic b 35



47. See generally Anita Khashu, police Foundation, The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties (Apr. 2009), available at http://www.policefoundation.org/; see generally nicole J. Henderson, Christopher W. ortiz, naomi F. sugie, Joel Miller, Vera institute of JustICE, Law enforcement and Arab American community relations after september 11, 2001: technical report (June 2006), available at http://www.vera.org/content. law-enforcement-and-arab-american-community-relations- after-september-11-2001-technical-repo; see, e.g., Damien
Cave, Big-City police Chiefs Urge Overhaul of Immigration
Policy, n.y. timeS, July 2, 2009 (Miami police Department Chief timoney explained, the problem for us is they dont discern between federal authorities and local authorities. As far as theyre concerned its all law enforcement.).
48. Id.; see, e.g., Damien Cave, Big-City police Chiefs Urge Overhaul of Immigration Policy, n.y. timeS, July 2, 2009 ([Miami police Department] Chief timoney, Chief Art Acevedo of the Austin police Department in texas and former Chief Art Venegas of the sacramento police Department said local law enforcement had been undermined by the blurred line between crimes and violations of immigration law, which are civil. those who call illegal immigrants crimINAls are misreading the law and hurting their own communities by scaring neighbors who could identify crimINAls.); Kareem Fahim, Should Immigration Be a police Issue?, n.y. timeS,
Apr. 29, 2007, at Cn14 (Former new Haven police Chief
Francisco ortiz explained, i have two undocumented individuals who are murder victims . . . . You need people to tell you about the lives of the victims. if his officers were also charged with enforcing immigration policy -- no matter how small the role -- witnesses would say, Youre on your own.); nINA Bernstein, Raids Were a Shambles, Nassau Complains to U.S., n.y. timeS, oct. 3, 2007 (nassau County police Commissioner Lawrence Mulvey explains that the reason nassau has the lowest crime rate in the nation for
a county of its size is in part because the police have good cooperation from the community. the conduct of the raids could undermine that relationship, he added. i was misled, Mr. Mulvey said. in good conscience, i cant continue to cooperate unless these problems are ironed out.); Craig
e. Ferrell Jr., Deputy Director and Administration General Counsel, Chiefs Command Legal services, Houston police Department, international Association of Chiefs of PolICE, immigration enforcement: is it a Local issue?, (Feb. 2004) (Deputy Director Ferrell writes, immigration enforcement by state and local police could have a chilling effect in immigrant communities and could limit cooperation with police by members of those communities. Local police agencies
depend on the cooperation of immigrants, legal and illegal, in solving all sorts of crimes and in the maintenance of public order. Without assurances that they will not be subject to an immigration investigation and possible deportation, many immigrants with critical information would not come forward, even when heinous crimes are committed against them or their families. Because many families with undocumented family members also include legal immigrant members,
this would drive a potential wedge between police and
huge portions of the legal immigrant community as well.). See also national immigration Law Center Fact sheet, immigration enforcement, Know Your Rights at Home and at Work (revised May 2008), available at www.nilc.org.
49. Leiberman, Dodd, DeLauro Letter supra note 46.50. New Haven Urges End To Federal Immigration Raids,
aSSociateD PreSS, June 12, 2007.
51. Leiberman, Dodd, DeLauro Letter supra note 46.
52. Chertoff Letter, June 2007 supra note 25.
53. Jennifer MedINA, Arrests of 31 In U.S. Sweep Bring Fear In New
Haven, n.y. timeS, June 8, 2007, p. B1.
54. New Haven Urges End To Federal Immigration Raids, aSSociateD PreSS, June 12, 2007; Mark spencer, U.S. Defends Raids In New Haven: Chertoff Letter Says Sweep Was Not In Retaliation, hartforD courant, June 18, 2007.
55. Joelle Fishman & Dorothy Johnson, New Haven Unites To
Stop Immigrant Raids, PeoPleS Weekly WorlD, June 20, 2007.
56. See generally suozzi Letter supra note 46; Mulvey Letter supra
note 46.
57. Affidavit of Lawrence Mulvey, nassau County police Commissioner, Ң 5-7 (signed on sept. 9, 2008) (on file with authors) [hereINAfter Mulvey Aff.]
58. suozzi Letter supra note 46; suevon Lee, Gang Members
Illegally in U.S. Are Arrested in Federal Sweep, n.y. timeS (oct.
10, 2007).
59. nINA Bernstein, Raids Were a Shambles, Nassau Complains to
U.S., n.y. timeS, p. B1 (oct. 3, 2007).
60. editorial, Stop the Raids, n.y. timeS, p. A28 (oct. 4, 2007); nINA Bernstein, Raids Were a Shambles, Nassau Complains to U.S., n.y. timeS, oct. 3, 2007, p. B1. Commissioner Mulvey, reported a slightly different number of targets and target arrests: 131 targets sought, 9 targets arrested. Mulvey Aff. supra note 57, Ң 5-6, 9. the difference is insignificant, however, since both reports have ICE arresting only 6-7% of the targets they sought.
61. suozzi Letter supra note 46.
62. Mulvey Letter supra note 46; Mulvey Aff. supra note 57, 8.
63. Peter J. smith, the special Agent in Charge (sAC) denied suozzis allegations, but conceded, We didnt have warrantsWe dont need warrants to make the arrests. these are illegal immigrants. nINA Bernstein, Raids Were a
Shambles, Nassau Complains to U.S., n.y. timeS, oct. 3, 2007, p. B1.
64. Mulvey Aff. supra note 57, 10.
65. Id. (emphasis added).
66. See discussion supra at notes 46 & 48.
67. ICE agents may have the authority to perform a protective sweep of a residence when there is a reasonable basis to believe an individual posing a danger to the officers is hiding in the premises. See Maryland v. Buie, 494 u.s. 325, 327 (1990). such searches, however, are only justified if an officer has legally entered a premises and must be limited to looking in places where dangerous people may be hiding. Id.
68. nINA Bernstein, Raids Were a Shambles, Nassau Complains to
U.S., n.y. timeS, oct. 3, 2007.
69. email on file with author.
70. organizations from all over the country have gotten involved in the discussion of these Fourth Amendment violations. Resources have been created and distributed regarding ways to prepare for home raids, how to respond to home raids, what
to do in the event of home raids and community education and training regarding safety plans and legal rights. See, e.g., Jen smyers, Church World servICE, Community Responses to immigration Raids: A Collection of Resources, www.nclr.org/ files/54953_file_Comprehensive_Raids_Resources.pdf; Bay Area immigrant Rights Coalition, toolkit for Community Response
to ICE Raids, section 3: Additional Resources, Attachments and Handouts, http://www.immigrantrights.org/toolkit/toolkit_ section3_pg20-24%20-%20Documentation%20Forms%20 eng%20and%20spn.pdf. these resources document the expansion of the issue of home raids and Fourth Amendment violations from a simple community issue to an issue that reaches inside the homes of people throughout the country. evidence of a growing concern of Fourth Amendment violations during home raids is also showing up in local, state and national organizing campaigns. organizations have created Action
toolkits to allow people all over the country to take part in actions to end home raids. one organization created a night of 1,000
Conversations which allows people from all over the country to gather in homes, offices, coffee shops, and places of worship to talk about how to work together to ensure that the Department of Homeland security no longer undermines the civil liberties
and human rights of people living in America. See, e.g., night of
1,000 Conversations Website, www.nightof1000conversations. org (encouraging website visitors to host conversations about ICE raids). they have also organized rallies, protests and petitions aimed at ending immigration home raids. support groups for victims of Fourth Amendment violations during home raids have been created throughout the country. See, e.g., Bob McCobbin, Immigrants, supporters say: End ICE raids
international Action Center Website, May 28, 2008, http://www.
iacenter.org/immigrants/ice_iowa0530008 (noting public protest of ICE raids in iowa, northern California, and san Diego). Blogs, Facebook and twitter have also been an important organizing
tool that have brought the issue of home raids into the homes of young and old alike. See, e.g., stop ICE Raids on twitter, http://twitter.com/stop_iCe_Raids; Demand an end to the
ICE Raids and support Comprehensive immigration Reform Facebook Group, http://www.facebook.com/home.php?#/group. php?gid=41007976096.
71. See nINA Bernstein, Target of Immigrant Raids Shifted, n.y. timeS, Feb. 4, 2009, at A1; spencer s. Hsu, Immigration Priorities Questioned, Report Says Focus on Deporting CrimINAls Apparently Shifted, WaSh. PoSt, Feb. 5, 2009, at A2; see also MPi Collateral Damage Report supra note 13; Memorandum from John P. torres, Acting Director, ICE offICE of Detention and Removal operations to All Filed offICE Directors, Fugitive operations Case Priority and Annual Goals (Jan. 31, 2006), available at http://cardozo.
yu.edu/uploadedFiles/Cardozo/Profiles/immigrationlaw-741/
memos%20and%20data.pdf.; Memorandum from John P. torres, Acting Director, ICE offICE of Detention and Removal operations to Assistant Directors, Deputy Assistant Directors and Field officers, ICE offICE of Detention and Removal operations, Fugitive Case Management system Reporting and the 1,000 Arrests Goal for Fugitive operations teams (sept.
29, 2006) [hereINAfter DRo sept. 29, 2006 Memo], available at http://cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/ immigrationlaw-741/memos%20and%20data.pdf.
72. the DRo sept. 29, 2006 Memo supra note 71 provides that
[i]n calculating Field offices success in reaching the goal
of 1,000 arrests . . . non-fugitive arrests may now be included in that total. However, each Field offICE must nonetheless average at least 500 fugitive arrests per Fugitive operation team.
73. DHs offICE of inspector General, Department of Homeland security, An Assessment of united states immigration and Customs enforcements Fugitive operations teams, p.5 (March 4, 2007) (discussing how targets are identified using internal government databases that are rife with well- documented INAccuracies); suozzi Letter supra note 46.
See generally MPi Collateral Damage Report supra note 13;
Marisa Antos-Fallon, The Fourth Amendment and Immigration
Enforcement in the Home: Can ICE Target the Utmost Sphere of Privacy, 35 forDham urb. l.J. 999 (2008).
74. See MPi Collateral Damage Report supra note 13; Cardozo immigration justice Clinic Press Release, Previously Secret Memos And Data Show Bush-Era Immigration Raids Were Law Enforcement Failure, available at http://www.cardozo. yu.edu/immigrationnews (explaining how since the 2006 expectations were implemented, the number of criminal aliens arrested per Fot has dropped 62% and Fots have become 23% less efficient at capturing fugitives and that between 2005 and 2008 ICE arrested only one fugitive that posed a threat to national security).
75. INS v. Lopez-Mendoza, 468 u.s. 1032 (1984).
76. in fact, ICE's standard litigation position is that immigration courts lack the power to suppress evidence even in the face of egregious constitutional violations. See, e.g., In re I., A#XXX XX XXX , DHs Brief in opp. to Mot. to suppress (n.Y. immigr. Ct.) (on file with author).
77. Press Release, u.s. Census Bureau, Census Bureau Data show Characteristics of The U.S. Foreign Born Population (Feb. 19, 2009), available at http://www.census.gov/Press- Release/www/releases/archives/american_community_ survey_acs/013308.html (stating that 68% of the foreign- born population has high school degrees, compared to
88% of native born. Also noting that 52% of the foreign born population say they speak english less than very well compared to 2% of the native born).
78. While there are no statistics available on the economic status of respondents in removal proceedings, census statistics
on the foreign born population generally demonstrate that foreign born individuals are more likely to live in poverty and have lower median household incomes than the native born population. See id.
79. See discussion supra at notes 25-37 and accompanying text.
80. In addition, there is some indication that ICE's offICE of Professional Responsibility (oPR) has failed to adequately investigate allegations of misconduct. For example, oPR concluded that every report of misconduct it reviewed arising out of the highly publicized 2007 Long island Community shield operation was unsubstantiated. e-mail from ICE Counsel in Families for Freedom v. U.S. Bureau of Immigration and Customs Enforcement, no. 08 Civ. 5566 (s.D.n.Y.
filed June 20, 2008) to author (Apr. 9, 2009) (on file with
author). While it is possible that all allegations were in fact unsubstantiated, the uniformity of oPRs self-serving outcome is somewhat suspect in light of the eyewitness accounts of nassau County police officers. See generally Mulvey Aff. supra note 57.
81. the police Foundation, the Role of Local Police: striking a Balance Between immigration enforcement and Civil Liberties, pp. 23-25 (April 2009); international Association of Chiefs of PolICE, police Chiefs Guide to immigration issues, pp. 24, 35 (July 2007); Major Cities Chiefs (MCC), immigration Committee Recommendations For enforcement of immigration Laws By Local police Agencies, pp. 5-6 (June
2006).
82. DHs Press Release, Secretary Napolitano Issues Immigration and Border Security Action Directive (Jan. 30, 2009), available at http://www.dhs.gov/ynews/releases/pr_1233353528835. shtm.
83. n.C. Aizenman, Conflicting Accounts of an ICE Raid in Md.,
WaSh. PoSt, p. A1 (Feb. 18, 2009).
84. See, e.g., Josh Meyer and Anna Gorman, Napolitano Shifts
Focus to Employers of Illegal Workers, loS angeleS timeS (Mar.
31, 2009) (a DHs spokesperson explained that napolitano is focused on using our limited resources to the greatest effect, targeting criminal aliens . . . ); spencer s. Hsu, Immigration Priorities Questioned. Report Says Focus on Deporting CrimINAls Apparently Shifted, WaShington PoSt, p.A2 (Feb. 5, 2009) (napolitano rejecting the assertion that focusing on criminal fugitives is equivalent to amnesty for civil immigration violators and explaining no, its a matter of where you put
your emphasis.).
85. For example, according to Commission Mulvey, ICE's nassau County Community shield operation in september
2007, involved ICE flying in and housing approximately 80 agents from other jurisdiction who worked together with approximately 150 agents from the local new York field office. over the course of three days these agents apprehended
only thirteen targets in nassau County, and fifteen targets in suffolk County, nY, according to ICE. See also MPi Collateral Damage Report supra note 13 at p. 1 (in 2007, Congress appropriated $183 million for nFoP. With those funds, ICE reported that in 2007 its fugitive operations teams arrested only 672 fugitive aliens who either had a violent criminal history or were considered dangerous to the community.).
86. See 8 C.F.R 287.8(f )(2); see generally Fed. R. Crim Pro. 41; 28 u.s.C. 1651; see Kotler Industries, Inc. v. I.N.S., 586 F. supp.
72, 74 (D.C. ill., 1984) (Kotler argues first that the magistrate had no authority to issue civil warrants permitting the ins
to search for illegal aliens. this contention is meritless. As the District of Columbia Circuit Court of Appeals has explained, the power of the ins to obtain search warrants for commercial premises may be inferred from its general statutory power to seek out and question suspected illegal
aliens); see also INS v. Delgado, 466 u.s. 210, 217 n.5 (1984); Blackies House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1219-22 (D.C.Cir.1981), cert. denied, 455 u.s. 940 (1982).
87. DHs Worksite enforcement strategy Fact sheet (Apr. 30,
2009), available at http://www.ice.gov/doclib/pi/news/
factsheets/worksite_strategy.pdf .
88. See generally Schneckloth v. Bustamonte, 412 u.s. 218, 234 (1973); see also United States v. Drayton, 536 u.s. 194, 206 (2002).
89. See, e.g., United States v. Alcantar, 271 F.3d 731, 737 (8th Cir.
2001); United States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998); United States v. Jerez, 108 F.3d 684, 720 (7th Cir. 1997); United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990).
90. See Bumper v. North CarolINA, 391 u.s. 543, 548-49 (1968) (governments burden to show consent cannot be discharged by showing no more than acquiescence to a claim of lawful authority); United States v. Jaras, 86 F.3d 383, 390 (5th Cir.1996) ([i]t is well established that a defendants mere acquiescence to a show of lawful authority is insufficient to establish voluntary consent.); MacKenzie v. Robbins, 248 F. supp. 496, 501 (D.Me.1965) (stating that all of the cases found by the court have held that mere acquiescence in the entry to private living quarters by police officers acting under color of their offICE is insufficient to constitute the type of consent required to validate a search). As a federal appellate court recently explained:the purpose of a knock and talk is not to create a show of force, nor to make demands on occupants, nor to raid a residence. instead, the purpose of a knock and talk approach is to make investigatory inquiry or, if officers reasonably suspect criminal activity, to gain the occupants consent to search. . . . to have conducted a valid, reasonable knock and talk, the officers could have knocked on the front door to the front house and awaited a response; they might have then knocked on the back door or the door to the back house. When no one answered, the officers should have ended the knock and talk and changed their strategy by retreating cautiously, seeking a search warrant, or conducting further surveillance. Here, however, the officers made a show of force, demanded entrance, and raided the residence, all in the name of a knock and talk. the officers knock and talk strategy was unreasonable. . . United States v. Gomez-Moreno,
479 F.3d 350, 355-56 (5th Cir., 2007).
91. Id. (emphasis in origINAl). See generally discussion supra at notes 25-37 and accompanying text.
92. See discussion supra at note 90 and accompanying text.
93. ICE Memorandum from Anthony s. tangeman, Director DRo
, Addition to Chapter 19, Section 5 (Field Operations/Tactics) of Detention and Deportation Field Officers Manual, p. 4 (undated or date redacted) (on file with author).
94. Id. at p. 6.
95. See generally Jim oHara, Fitzpatrick Wants Confessions
On Tape: District Attorney Expects police To Balk At Having Suspects Statements On Video, PoSt StanDarD, Mar. 16, 2009; Laura Cadiz, Questions On Video Assisting justice police Policy In Md. Varies; Legislation On Tap In Assembly, baltimore Sun, Feb. 20, 2006; P.L. Wyckoff, Where Trooper Video Cams Roam, Questions Arise: Many Policy Decisions Loom For State PolICE, the neWark Star-leDger, July 1, 1998.
96. See generally MPi Collateral Damage Report supra note 13.
97. See discussion supra at note 83 and accompanying text.
98. 8 C.F.R. 287.8(f )(2).
99. United States v. Brignoni-Ponce, 422 u.s. 873, 881-83 (1975).
100. See discussion supra at note 24.
101. these spot checks should include, among other things: review of whether consent is being noted on arrest reports; examINAtions of whether the reason for initial seizures are being noted on arrest reports; examINAtion of the ethnic composition of non-targets arrested; examINAtion of the ratio of targets to non-targets arrested; and a comparison of the number of home raid operations conducted where a target was arrested versus those home raids where no targets were apprehended.
102. See, e.g., oiG Fot Report supra note 6.
103. INS v. Lopez-Mendoza, 468 u.s. 1032 (1984).
104. Id. at 1044-45.  
← End



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