Vol. II No. 3: Immigration and Privacy Rights: Undocumented Immigrants and Due Process

Yanina Villagomez, Buthaina Hattab, Mariama Mwilambwe, Eddie Ryan

Vol. 2 No. 3

I. Introduction & Background

In the current national political climate, the topic of immigration has become a particularly contentious issue of heated, partisan debate in the culmination of a decades long evolution. State and local governments have increasingly shifted towards criminal prosecutions of immigration-related offenses and away from the standard federal civil enforcement of immigration laws. This shift reflects the harmful rhetoric taking place in public discourse; though immigrants commit crimes at much lower rates than citizens and are less likely to commit crimes, they may be subject to detention or deportation for misdemeanors and other low level offenses. As immigration became deemed a threat to national security, it effectively bridged a gap between immigration law and criminal law. Many noncitizens were stripped of their rights under the guise of national security. The Department of Homeland Security was created and, in 2002, ICE was created as a branch of the DHS. Its mission is to “protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” This normalized and reinforced the criminalization of immigrants in US law. The emergence of these law enforcement agencies, spanning different jurisdictions and levels of authority, sought to streamline data distribution to effectively track immigrants in the US.

In this paper, we will be addressing various programs that have been set in place by the federal government and how they intersect with the local government. Our primary focus is the undocumented immigrants’ rights and how their privacy has been infringed upon. Within the parameters of this paper, we refer to undocumented immigrants as those who are are foreign nationals but lack proper authorization to be in the US while residents refer to people that are legally permitted to live in the US but are not US citizens. The criminalization of undocumented immigrants has a direct tie to their lack of privacy, as immigrants are denied their basic rights afforded to them in the constitution under the notion of criminality. We will also be addressing the the right to due process and where undocumented immigrants stand according to the law and in practice.

II. Terminology

Historically, undocumented immigrants have been referred to as aliens. The term “alien” was commonly used in laws, by politicians, and in the public sphere. Today, the Immigration and Nationality Act of 1952 (INA) defines an alien as an individual who does not have US citizenship and is not a US national. The term “illegal alien” was originally advocated by Chicano law students, trying to mitigate the derogatory term “wetback” from public discourse. The INA used the term “illegal alien” to broaden the scope of undocumented immigrants’ origins. In an effort to leave behind the dehumanizing stigma of the term alien, there is now a shift towards the term “undocumented immigrant” which we have chosen to use in this paper.

Such terminology is critical to determining whom, specifically, the law grants various rights and privileges. It is vital to examine who is protected under the Fourth Amendment, and when. Most commonly, this amendment is invoked in protection against “unreasonable searches and seizures primarily by preventing the admission of evidence seized illegally to be used against a defendant to prove guilt.”[1] Kansas v. Garcia aptly illustrates the Fourth Amendment’s applications to immigrant case law. As for whom it protects, legal precedent has established a general consensus that all persons residing in the United States are entitled to Fourth Amendment protections. In other words, “under established Fourth Amendment law any person, not merely any “citizen”, found within the United States who is subject to United States law enforcement efforts is protected under the Fourth Amendment.”[2]

Despite this, the term “citizen” has been used interchangeably with the term “individual” in a plethora of cases, mostly in scenarios not involving the technical issue of citizenship, a trend which may contribute to confusion and a lack of clarity regarding privacy protections for undocumented immigrants. The conflation of a citizen with an individual in privacy-related cases was most notably advanced during the 1990 United States v. Verdugo-Urquidez case, which held that the Fourth Amendment Warrant Clause did not hold “extraterritorially” for the searching of the Mexican residence of a foreign national who was imprisoned in the United States.[3] Ultimately, the most significant implication of this technicality is the  potential degradation of the human rights afforded to undocumented immigrants could occur as a function of the “identification of constitutional protections in both the civil and criminal context with citizens rather than persons, an identification that is not required by current Fourth Amendment law.”[4] Moreover, it should be noted that in cases where an individual’s Fourth Amendment rights have been violated, the option exists for vindication via pursuit of a civil remedy. Yet, barring any “substantial damage, i.e. torture or substantial destruction of property” inflicted upon the accused, civil remedies are not particularly viable or common; for “undocumented migrants facing deportation or removal from the United States, this remedy is unlikely to be realized.”[5]

Many legal scholars claim that the seemingly interchangeable use of the words “people” and “citizen” in the Constitution guarantees Constitutional rights to everyone in the US, regardless of immigration status. The Supreme Court case Reno v. Flores upheld this interpretation. The Court ruled that releasing an underage undocumented immigrant to someone in their family was permissable and that not doing so actually interfered with their right to due process of the law, even if their family did not have the proper documentation.

III. Criminalization

The criminalization of immigrants has been increasing in large part, through the creation of certain laws. In 1986, the Immigration Reform and Control Act (IRCA) made it illegal for employers to knowingly employ undocumented immigrants. This was the first US law to make the undocumented status of an individual a crime. According to a study1, the IRCA resulted in a small overall reduction in Hispanic employment. Some employers discriminated against Hispanic applicants, citing that they were more likely to be undocumented which they felt would harm the company.The process of changing the status of a crime based on immigration status is one of the many ways that the law has been able to criminalize immigration status.

The Illegal Immigration Reform and Immigrant Responsibilty Act (IIRIRA) of 1996 mandated that any noncitizen convicted of an “aggrevated felony” was to be held in detention and deported. The Antiterrorism and Effective Death Penalty Act (AEDPA) then expanded the criteria of an “aggevated felony” to include minor offenses, and applied retroactively. Therefore, undocumented immigrants who had pled guilty or were convicted of minor offenses years ago were faced with deportation and detention. In regards to law enforcement, the IIRIRA created the 287(g) program which allowed state and local law enforcement officers to do the work of federal immigration agents and granted access to federal databases and interrogating and arresting noncitizens. While the 287(g) program is now deemed inefficient and too costly, states have tried to create laws that allow their local police the same authority as the federal government in immigration. Arizona v. United States is a key example. The state of Arizona sought to create state laws enforcing deportation orders, determine people’s legal status, and deem them able to work. Due to the Supremacy Clause, the Supreme Court ruled that Arizona had superseded federal immigration powers. However, the case itself highlighted the growing issue of immigration law enforcement on a federal and local level.

IV. Due Process

A highly relevant facet of immigration law pertains to the interactions between law enforcement, immigrant agents and undocumented immigrants. In many scenarios involving this type of interaction, including traffic stops conducted by law enforcement officials, undocumented immigrants share certain constitutional rights with citizens and documented immigrants. However, in other cases, they are beholden to laws requiring their disclosure of personal information, whether merely their name or their immigrant status. According to the American Civil Liberties Union, all persons residing within the United States possess the right to remain silent under the Fifth Amendment of the Constitution. Any statements made by the arrestee in such a situation can be used against them in immigration court; therefore, undocumented immigrants are protected from self-incrimination in this particular case as well as during interactions with immigrant agents and other officials. In the case of a traffic stop, law enforcement officers can legally request one’s driver’s license, proof of insurance, and vehicle registration, and the person in question must provide these documents. Citizens, documented immigrants, and undocumented immigrants, however, all are legally entitled to decline to answer questions concerning immigration status during a traffic stop.[6] Thus, any questions concerning one’s citizenship, birthplace, or manner of entry into the United States do not require an answer from the person who has been stopped.

Though some states afford citizens, documented immigrants, and undocumented immigrants the right to withhold their name from an officer upon being stopped and asked to self-identify, not all states have this provision. For example, while a stop and identify statute (italics) mandating that all persons identify their name to questioning law enforcement upon detainment exists in Nevada, no such statute exists in California.[7] In 2004, the validity of this Nevada statute was upheld in Hiibel vs. Sixth Judicial District Court of Nevada. According to the Immigration Legal Resource Center (ILRC), “the Court reasoned that a state statute can require a suspect to disclose his or her name in the course of a brief stop, if the detention was based on reasonable suspicion of a crime”.[8] While this ruling suggests that in a case in which sufficient suspicion of crime precipitates a police stop the individual in question would be required to disclose their name, it is also somewhat limited. First, the statute does not explicitly require the individual to disclose any documents or to answer any other questions; second, the court acknowledged that, should the disclosure of one’s name constitute self-incrimination, one would not be required to do so[9] Given these constraints, as well as the fact that not all states possess this type of statute, it appears that in certain states and situations one could lawfully refuse to provide their name to the officer. However, in the case of a traffic stop, the officer could still legally request a driver’s license, proof of insurance, and vehicle registration, any of which would reveal the name of the stopped civilian. Since law enforcement operates by local laws, immigrants encounter a gap in the rights afforded to them. The discrepancies in policy and privacy put the immigrant at a disadvantage when dealing with various law enforcement agents.

Encounters with immigrant agents, such as Immigration and Customs Enforcement officials, entail slightly different rights and requirements for undocumented immigrants. First, if an immigrant agent requests an undocumented immigrant’s immigration papers, and the undocumented immigrant has such papers in their possession at that time, the undocumented immigrant is required to provide the papers to the immigration agent.[10] While required to provide immigration papers in this scenario, however, undocumented immigrants retain the right to refuse an arbitrary search made by an immigration agent. Without the consent of the searched or probable cause, an immigration agent is legally prohibited from conducting a search of any individual residing in the United States.[11]

Additionally, immigration officials and Border Patrol agents do not possess equivalent capabilities of law enforcement officers; namely, the former cannot enforce state law. Thus, in the case of questioning by a Border Patrol agent or immigration official, the statute upheld in Hiibel vs. Sixth Judicial District Court of Nevada could not be enforced and the official could not demand the individual in question to provide their name (National Immigration Law Center). In fact, according to the ILRC, “No federal statute requires identifying oneself to federal law enforcement officers”.[12] ICE agents do hold the authority to make arrests on the basis of individual failure to carry and produce alien registration documents; this type of detainment is also predicated on probable cause, however, meaning that an ICE agent would need prior knowledge regarding the nationality and immigrant status of the individual in order to legally arrest them for failure to carry such documents.[13] A further distinction between dealings with law enforcement and immigration agents relates to the right of a detained individual to counsel. When one is arrested and detained by a law enforcement official, i.e. a police officer, one is constitutionally entitled to government-provided counsel, regardless of immigrantion status. Moreover, an individual is granted a local phone call to which police cannot listen.[14] In the case of detainment by an immigration agency such as ICE, however, while an individual retains the right to consult with a lawyer before answering any questions, including those related to immigrant-status, the government is not required to provide counsel.[15]

Dealings with Customs officials and Border Patrol agents while entering and exiting the country entail a different set of rules and regulations. According to the ACLU, lawful permanent residents (LPRs) need only answer questions regarding their personal identity and where they live within the United States; refusal to answer these questions can only delay and not prevent one’s entry into the country.[16] However, if a non citizen visa holder refuses to answer such questions when posed by customs officials at, for instance, an airport, the officials can deny that individual’s entrance.

V. Recent Court Rulings on Privacy Rights

The United States Supreme Court recently addressed a 2017 ruling by the Kansas Supreme Court in Kansas vs. Garcia, which dealt with the right of a state to prosecute a defendant on the grounds of invalid worker authorization. On March 3, 2020, the Supreme Court overturned the ruling of the Kansas Supreme Court, which stated that the prosecution did indeed “unlawfully encroach on federal authority over immigration policy” by nullifying the convictions of Ramiro Garica, Donaldo Morales, and Guadalupe Ochoa-Lara.[17] These three men were undocumented workers who had provided fraudulent social security numbers to their employers and were accused of identity theft; given their undocumented status, these workers had not been given social security numbers by the federal government and were thus not authorized to work in the United States.[18]

The Supreme Court decision offers a current assessment of the respective roles states and the federal government play in immigrant related prosecutions. As reported by US News and World Report, the majority opinion held that the Kansas prosecution had been justified in convicting the three men, largely because their use of false information had extended to several documents used to withhold wages for tax purposes.[19] In his decision statement, Justice Samuel Alito alluded to this key distinction. Although the use of invalid identification information on an I9 form – part of the employment verification process – may only be prosecuted by the federal government, Alito held that the state’s prosecution was justified because of the presence of these separate wage-withholding tax documents: “The submission of tax-withholding forms is fundamentally unrelated to the federal employment verification system.”[20] Kansas itself argued that the 2017 ruling had hamstrung its efforts to counteract identity theft, contending that its prosecutions “were not immigration-related and did not conflict with federal immigration law.”[21]

Because state taxes were withheld, Kansas was able to prosecute the use of fraudulent identities, which can only be prosecuted by the federal government. The liberal dissenting opinion argued instead that Kansas’ prosecution did infringe on the jurisdiction of the federal government to prosecute in areas of immigrant-related employment fraud. A key component of the dissenting argument is the IRCA of 1986. Though the law does not explicitly forbid states from issuing convictions on the basis of fraudulent employee-authorization, Justice Stephen Breyer argued that its most important function was to provide the federal government with the sole authority to police such matters. In his dissenting opinion, Justice Breyer noted that permitting states like Kansas to pursue these types of prosecutions “opens a colossal loophole” for other states to rule on federal work authorization in the future.[22]

In light of this contested decision, the current consensus allows for states to prosecute individuals for their usage of illegitimate personal identifiers, such as social security numbers, when the usage of such information extends beyond I9 documents. As in states like Kansas, “one of several conservative states that have sought to crack down on illegal immigrants” in recent years with backing from the Trump administration in Kansas vs. Garcia, this flexibility could precipitate increased prosecutions of illegal immigrants for unauthorized employment at the state level.[23] To many immigrant rights groups, granting states jurisdiction over matters of employment fraud would allow them excessive authority in matters of immigration policy.[24]

VI. Privacy Rights and Federal Programs

By addressing a notable and recent case in Kansas v. Garcia, the privacy rights of undocumented immigrant’s may be examined in view of the Immigration Reform and Control Act (IRCA), which “limits the use of I-9 and ‘any information contained in or appended to such form’ to the enforcement of specific federal immigration and criminal laws.”[25] In 2012, Ramiero Garcia was pulled over for speeding in Kansas City on his way to work; after conducting a routine record check, the police officer contacted a detective who eventually collected Garcia’s I-9 and W-2 from his place of employment. A Social Security Office of the Inspector General special agent then determined that Garcia had used another individual’s social security number to apply for employment, leading to Garcia being charged with identity theft.[26] Garcia argued that his I-9 form could not be used against him, given that the IRCA “expressly preempted his prosecution for identity theft under Kansas state law”, based on the Constitution’s Supremacy Clause, which grants the federal government the ability to preempt state law with federal law.[27] The Kansas Supreme Court ruled in favor of Garcia, thus protecting undocumented immigrants from the use of illegally obtained evidence – the I-9 in this case – to prove their guilt, as stipulated by the Fourth Amendment.

According to US Citizenship and Immigration Services (USCIS), the Privacy Act of 1974 “provides that federal agencies must protect against the unauthorized disclosure of personally Identifiable Information (PII) that it collects, disseminates, uses, or maintains.[28] The Privacy Act requires that personal information belonging to US Citizens and lawful permanent residents (LPRs) be protected from unauthorized disclosures. Though the act ostensibly applies protections exclusively to US Citizens and LPRs, presumably including legal immigrants who have not naturalized, there are additional stipulations within the act that offer protections to all people residing in America.

As such, “DHS treats all persons, regardless of immigration status, consistent with the Fair Information Practice Principles (FIPPs).”[30] The FIPPs refer to a set of guidelines that have sprung from the principles behind the Privacy Act of 1974, encompassing eight major commitments of the Department of Homeland Security regarding privacy. These include: transparency when handling sensitive information through mechanisms like the Freedom of Information Act (FOIA); individual participation, meaning that the DHS should “involve persons in the process of using their personal information” whenever practicable; purpose specification, such that the specific authorities collecting information and the reasons for doing so are clearly articulated and that the “DHS’ default action should not be to collect information”; data minimization, especially concerning limiting the collection of sensitive personal data; use limitation, particularly outside of the original agency; data quality and integrity, i.e. accuracy; security against the loss, unintended use, modification or destruction of personal data; and, accountability and auditing for review of DHS operations. The DHS professes to adhere to these principles while handling the sensitive personal information of all US residents, including undocumented immigrants. The FIPPs thus appear to provide a legal base for protection to this group.

To narrow the scope of what is considered sensitive personal data, it is useful to examine Personally Identifiable Information (PII). This seems to cover the most relevant types of data both in the sphere of immigrant rights and in the context of the heightening presence of data within the national consciousness. According to the US Citizenship and Immigration Services Policy Manual, the DHS considers PII as “any information that permits the identity of a person to be directly or indirectly inferred, including any information which is linked or linkable to that person regardless of whether the person is a US Citizen, lawful permanent resident (LPR), visitor to the United States, or a DHS employee or contractor”[31] (Chapter 7 Volume 1). Once more, the DHS states that its considerations regarding sensitive personal data like PII include all residents of the United States, regardless of their immigrant status. PII specifically refers to information with the potential, if not properly secured from improper compromise or disclosure, to result in inconvenience, harm, embarrassment, or unfairness to a person, and examples include one’s name, address, date of birth, certificate of naturalization or citizenship number, alien number, social security number, driver’s license or state ID number, passport number, and biometric identifiers. Therefore, while DHS can collect such data, it states that it aims to minimize this practice and is additionally required to prevent the unauthorized dissemination or alteration of PII. Likewise, the US Citizenship and Immigration Services policy manual outlines the responsibilities of its employees when handling PII as follows: “USCIS employees must: collect PII only when authorized; limit the access and use of PII; secure PII when not in use; share PII, only as authorized, with persons who have a need to know; and, complete and remain current with all privacy, computer security, and special protected class training mandates”[32] (Chapter 7 Volume 1).

VII. The Private Sector

In a society that is increasingly shaped and dictated by technological capabilities, personal data is readily available to third parties. According to a Vox analysis of a report by the Wall Street Journal, the federal government is engaged in purchasing cell phone location data from third-party sellers as a means to more effectively track and detain undocumented immigrants.[33] Specifically, the report implicates the Department of Homeland Security (DHS) and its Immigration and Customs Enforcement agency (ICE) in these activities, noting that they “have been using location information for ‘millions’ of cellphones bought from marketers to track down and arrest undocumented immigrants at the US-Mexico border.”[34] Published in February of 2020, the Wall Street Journal article notes that little previous reporting exists on this subject and that the breadth of the data acquired and utilized by the DHS and ICE is quite significant. Namely, the data gathered to assist with locating undocumented immigrants constitutes the “largest known troves of bulk data being deployed by law enforcement in the US.”[35] One of the companies selling this data to the DHS and ICE is Venntel, which specializes in licensing cell phone location data and is affiliated with another data company, Gravy Analytics. As recorded in federal spending documents, Venntel has been awarded $250,000 in contracts with the DHS within the past two years.[36]

This trend underscores the intersection of the private and public sectors in dealing with federal matters like immigration enforcement and also raises legal questions regarding consumer protection and privacy. The Electronic Frontier Foundation (EFF), an international nonprofit aimed at protecting Internet civil liberties which was founded in part by Apple owner Steve Wozniak, has expressed concerns regarding the purchasing of cell phone location data by federal immigration agencies. To Adam Schwartz, senior staff attorney at the EFF, this activity is “one more reason why we need strong consumer data protection laws.”[37]

To evaluate the legality of DHS and ICE usage of personal cell phone location data to track and detain undocumented immigrants, it is necessary to examine both current DHS policy and existent case law. In a document released in August of 2018 entitled “Privacy Impact Assessment Update for the Border Surveillance Systems (BSS) DHS-CBP-PIA-022(a)”, the DHS accounts for this type of spending. This document pertains to the Department of Homeland Security and US Customs and Border Protection (CBP). In this Privacy Impact Assessment (PIA) Update, the DHS holds that it “ provides notice of CBP’s use of new surveillance technologies, including commercially available location data”, a clear reference to the sort of cell phone location data monetized by Venntel, and notes that the data is often “originally obtained from users who consent to the collection of their location data to a third party provider, per the provider’s terms of service”.[38] According to the DHS, location data can legally be obtained from third parties whose privacy policy agreements specify that a user’s data could “be sold to a customer base that includes public sector customers” like the federal government.[39] In other words, federal immigration agencies are authorized to purchase location data for users who have agreed to privacy policies which state that such location data may be used for law enforcement purposes (DHS-CBP-PIA, page 12).[40] The DHS does note that although users who agree to such privacy policies may know that their data is eligible to be sold, they may be unaware of who, or what entity, may receive it ((DHS-CBP-PIA, page 12). This DHS update follows a US Supreme Court decision in June of 2018 which ruled in favor of increased protection for personal data, especially in relation to government usage.

In Carpenter vs. US, the United States Supreme Court ruled that government searches or collections of cell phone data constitute a Fourth Amendment search; hence, the government  needs a warrant to conduct them because cell phone data is protected under the Fourth Amendment.[41] It appears that the updated DHS policy has taken this ruling into account in determining its new border surveillance protocols. According to the Wall Street Journal report, federal immigration agencies have essentially found a “workaround” to the Carpenter ruling: because cell phone location data is available through “commercial ad exchanges”, a case for which government lawyers argue the “Carpenter ruling doesn’t apply”, they can access location data through marketing firms without directly appealing to the courts.[42] Ultimately, the data accessed by the DHS and immigration agencies like ICE does not qualify as Personally Identifiable Information (PII), which would include items like a person’s name or nationality. However, location data, in conjunction with other government-held data, can reveal factors that could be used to identify a person fairly easily, such as one’s place of work, one’s home, or the place in which most of one’s time is spent.[43]

VIII. ICE – Immigration and Customs Enforcement

Recently, immigrant privacy rights have been more directly addressed. One of the first executive orders issued by the Trump Administration in 2017, which, though mainly focused on domestic immigration also had privacy rights implications for the EU, essentially “stripped federal privacy protections from many immigrants”(Chicago Tribune).[44] Breaking from the general policy of his two most recent predecessors, which had extended some Privacy Act rights to undocumented immigrants including “students, foreign workers, asylum seekers, and undocumented people such as those known as ‘dreamers’ who were brought to the United States as children”, this order raises the concern that data collected by the Obama administration to help dreamers avoid deportation could be used by ICE to “target them or their families for this or other enforcement actions” (Chicago Tribune).[45]

Under ICE, there are three departments that have different tasks: The Office of the Principal Legal Advisor (OPLA), Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI). OPLA is a legal program within the DHS which is responsible for litigating immigrant removal cases. The ERO is responsible for detaining and removing immigrants. And HSI investigates cross-border crimes. Under the Obama administration, ICE used a program called Secure Communities structured around cooperation between agencies. The FBI and DHS would automatically send fingerprints of incarcerated people to ICE to check if they matched with anyone that was in the country illegally. According to the American Immigration Council, “Unlike the 287(g) program, no local law-enforcement agents are deputized to enforce immigration laws through Secure Communities.”[46] Obama only withdrew its use in 2014-16.[47] It was discontinued after much criticism but was in effect for several years and later reinstated under President Trump.[48] According to The Migration Policy Institute, secure communities databases are often incomplete. They show a person’s status within the law but not whether they have been apprehended at the border or if they have been removed before.[49] Cooperation with ICE through the criminal justice system changes the scale at which ICE operates. From 2013 to 2017, laws passed in California lessened the cooperation with ICE and dropped the national average of deportation from 23% to 14%.[50]

With Secure Communities often looking at basic encounters of minor crimes and looking into particular neighborhoods, its data sharing often targets men of color more than any other demographic (without having to even share the racial demographic information.[51] These programs tend to be disruptive to the lives of the community because of mistrust in the police.[52] Since Secure Communities has certain jurisdiction, not everywhere in the US was affected.[53] It was believed to be relatively effective in finding undocumented immigrants but there were many issues with it. As of 2011, approximately 3,600 citizens had been apprehended through Secure Communities indicating a large failure of the program.[54] According to Kohli et al, “DHS checks the fingerprints against the Automated Biometric Identification System, also known as IDENT, a fingerprint repository containing information on over 91 million individuals, including travelers, applicants for immigration benefits, and immigrants who have previously violated immigration laws.”[55] This system sends matches of people who are undocumented to ICE, who reviews the information and determines whether deportation is appropriate. Issues with IDENT led to the arrest of many US citizens, which means that they “were not officially booked into an ICE detention facility, but were arrested, held in custody for some period and presumably subject to questioning regarding their immigration status.”[56] This is as a result of data that has not been updated or people that have a criminal charge but are not undocumented. The amount of information that ICE receives is based on a very extensive database. IDENT contains the information of everyone that has contact with the DHS and matches with ICE databases may include people who obtained a tourist visa and naturalized citizens who have not yet been removed from the database.[57]

IX. Sanctuary Cities

Due to problems stemming from controversial laws and agencies like ICE, sanctuary cities have become a symbol of hope in immigrant communities. In examining how the rights of undocumented immigrants are actually afforded across the US, it is vital to analyze the purpose and function of sanctuary cities. A formal definition for sanctuary cities has never been written into law, though most sanctuary jurisdictions have a few common trends between them. Generally the title is applied to places that seek to limit compliance with federal immigration policy and authorities. A few examples include: attempting to limit local cooperation with ICE and DHS officials, refusing to supply information about an individual’s immigrant status, and changing the amount of time on immigrant detainers.[58] Often, sanctuary jurisdictions will take other measures to prove their specific stance on immigration policy and action. Other policies may include allowing undocumented migrants access to city services like libraries and parks, as well as allowing undocumented immigrants to obtain driver’s licenses which would limit unnecessary detention of undocumented immigrants. Some of these policies surround the ideal that communities will experience increased safety if each member feels minimized reluctance to report crime to authorities, regardless of immigrant status. Many sanctuary jurisdictions have declared it necessary for them to be mindful of and responsive to social issues that affect community members. Although law enforcement is an entity separate from those working to resolve social justice issues, many areas are finding it necessary to develop literacy in these areas in order to better protect the community. Specifically, the Los Angeles Police Department has established a policy designed to cooperate with the community, while also still committing to strict law enforcement that is available to every community member. The department emphasizes the need to serve the public with a high degree of cooperation and recognizes the Constitutional right of equal protection application to all persons regardless of legal status. According to the Office of the Chief of Police in Los Angeles, “It is, therefore, incumbent upon all employees of this Department to make a personal commitment to equal enforcement of the law and service to the public, regardless of alien status.”[59] Many sanctuary cities have also taken this stance, although not all of them are synonymous in policy and procedure. The resource of the police force has been made available to every community member, regardless of citizenship status. This is all part of the cumulative effort (shared by every sanctuary jurisdiction) to make immigrants feel safe and welcome, even at the cost of violating federal law.[60]

Sanctuary cities have long been a barrier between undocumented immigrants and deportation, beginning in the United States with Berkley in 1971.[61] Though sanctuary cities are unable to legally enforce each officer’s noncompliance with DHS or to restrict communication significantly, they are susceptible to a serious loss of funding. The typical understanding of a sanctuary city entails local or state governments refusing to comply with federal immigration laws by offering safe spaces open to undocumented immigrants. In an article about Los Angeles California’s symbolic sanctuary policies, a spokesperson for former State Senator Cedilla said the following: “This declaration is not legally binding, meaning it does not create or amend any existing city laws or policies concerning immigration. So, it’s essentially a symbolic welcome sign, though it could “open the door for additional immigrant friendly policies.”[62]

Sanctuary cities are a generally fluid ideal. While a sanctuary city may operate as a symbolic safe haven, the federal repercussions for harboring undocumented immigrants are very real. In many cases, sanctuary cities have been victim to a lack of federal funding, with real divides in their police forces between state and local government. Federal law prohibits local or state jurisdictions from blocking their officers’ compliance with the DHS policy. While ICE detainers are considered violations of the 4th and 5th amendment, the concern surrounding compliance with federal policy still stands. Sanctuary policies often embody a movement that takes a welcoming stance on immigration law and policy. Legislators across the United States have advocated that immigrants (whether undocumented or not) should have full access to city resources and the ability to obtain a drivers license. Their basis for this was to foster trust between community members and law enforcement which is essential in preventing crime. In many ways the debate about sanctuary policy has been theoretical, made real only when the threat of lost funding was proposed. Now that it has been deemed legal to withhold grants and evaluate the state applicants based on immigration policy, sanctuary cities have become more than symbolic and have created a larger divide among applicants vying for federal funding. According to the National Conference of State Legislatures, some statutes address these goals by having policies “that limit cooperation in civil investigations to support public safety and community policing goals, such as encouraging witnesses and victims of crime to come forward.”[63]

State and local governments are eligible for federal funding based on a grant system. In May of 2017, the U.S. attorney general notified the public that sanctuary jurisdictions are not eligible for federal grants from the DHS or DOJ, specifically the Edward Byrne Memorial Justice Assistance Grant Programs. General Sessions took an inherently political stance in agreement with the new requirements, describing sanctuary policies as “undermining laws” and “protecting illegal aliens who have committed crimes.”[64] General Sessions declared that “the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities.”[65] Following this declaration, a group of seven states including New York, Connecticut, New Jersey, Washington, Massachusetts, Virginia and Rhode Island sued the United States Government.[66] In 2018 California passed three state laws, Assembly Bill 450, Senate Bill 54, and Assembly Bill 103, which maintain California as a sanctuary jurisdiction.[67] President Trump filed a lawsuit against California on the grounds that if the state did not comply with federal immigration laws, they are ineligible for federal financial assistance. The three conditions that may disqualify a jurisdiction for funding are as follows: violates federal law by prohibiting its officials from communicating with the Department of Homeland Security (DHS) about the immigration status of any individual, restricts compliance with DHS detainer requests, or has any laws or policies that violate immigration laws.[68]

As of February 2020, President Trump has won the federal case in the 2nd Circuit Court of Appeals in Manhattan.[69] The results of the case declared that the DOJ can withhold funding from cities and states that do not comply with the federal immigration policy.

X. Conclusion

As mentioned in our introduction, a pivotal moment in immigration enforcement in American law began when the status of the immigrant became a crime, rather than the actions of the immigrant. The legal basis for ICE’s existence is that the mere status of an immigrant is a crime. As an agency, it does not focus on a crime that an individual commits, but rather posits the individual as a crime. It uses program that disportionately affect minority communities to find and detain immigrants, which has lead to inefficiencies and, more importantly, discrimination. Though symbolic gestures like sanctuary cities have helped combat such criminalization, there continues to be opposition in political discourse. By criminalizing immigrants, agencies are able to justify asking immigrants for documentation, seeking to search their homes, and eventually arresting and detaining them. However, to reduce a person to their immigration status, and then to criminalize it, denies them the rights afforded to them in the constitution.

The differences in rights afforded to undocumented immigrants and citizens stems, in part, from the terminology. Often, terms are what determines whether a right is to be afforded to undocumented immigrants. Even if the terminology is inclusive, stances on the political issue, reflect the interpretation. Until the terminology changes or clarified, there will continue to be discriminatory practices in affording rights to undocumented immigrants, and, by extension, minority communities suspected of not having documentation. Mistrust in law enforcement becomes prevalent and crimes are reported less, leading to devaluing of an institution.

In view of the data sharing activities of DHS and ICE with third party sellers, certain measures should be implemented to protect the privacy rights of undocumented immigrants. Despite the Supreme Court’s ruling in Carpenter vs. US which classified unauthorized cellphone searches as unwarranted search and seizure, DHS has essentially circumvented this ruling by purchasing cell phone location data from companies whose privacy term agreements specifically permit the sale of such data to public entities and law enforcement. Based on an undocumented immigrant’s right to privacy under the Fourth Amendment, the FIPPs guidelines followed by DHS, and the Carpenter ruling, we find the data sharing practices of DHS and ICE to constitute a violation of undocumented immigrant privacy. Of course, these practices are currently legal on a DHS policy technicality. However, the onus is on the federal government to protect the rights of its people and the integrity of its own policy, and most Americans are largely unaware of the location sharing clause of their cell phone privacy terms agreements. Since the Carpenter ruling requires court supervision of government data purchasing, the court could perhaps restrict government data purchases to companies that explicitly specify DHS’s and ICE’s eligibility to buy alphanumeric location code data.

Alternatively, the Supreme Court could (if given the chance) require a warrant for any purchase of private cell phone data. Given that it has already classified such data as a special category of evidence because of its potential to reveal so much about an individual, particularly in the hands of a government agency as opposed to a typical private sector entity, the entry of government agencies into the free market for personal location data as commercial entities is questionable. Overall, the legality of these data sharing practices derives from a technicality that subverts a recent Supreme Court ruling; these practices are unethical and in violation of undocumented immigrant privacy rights.

 

Acronyms
BSS–Border Surveillance System
CBP–Customs and Border Protection
PIA–Privacy Impact Assessment
PII–Personally Identifiable Information
LPR–Lawful Permanent Residents
ICE–Immigration Customs Enforcement
DHS–Department of Homeland Security
INA–Immigration National Act of 1957
EFF–Electronic Frontier Foundation
FOIA–Freedom of Information Act
FIPP– Fair Information Practice Principles
HSI–Homeland Security Investigations
FSLTT–Federal, State, Local, Tribal, Territorial

 

Notable Court Cases
Hiibel vs. Sixth Judicial District Court of Nevada
Carpenter vs. US
Kansas v. Garcia
United States v. Verdugo-Urquidez
Reno v. Flores

 

Works Cited

[1] M. Isabel Medina, Ruminations on the Fourth Amendment: Case Law, Commentary, and the Word Citizen, 11 Harv. Latino L. Rev. 189 (2008). https://heinonline.org/HOL/P?h=hein.journals/hllr11&i=191 at 194

[2]  M. Isabel Medina, Ruminations on the Fourth Amendment: Case Law, Commentary, and the Word Citizen, 11 Harv. Latino L. Rev. 189 (2008). https://heinonline.org/HOL/P?h=hein.journals/hllr11&i=191 at 193

[3]  M. Isabel Medina, Ruminations on the Fourth Amendment: Case Law, Commentary, and the Word Citizen, 11 Harv. Latino L. Rev. 189 (2008). https://heinonline.org/HOL/P?h=hein.journals/hllr11&i=191 at 192

[4]  M. Isabel Medina, Ruminations on the Fourth Amendment: Case Law, Commentary, and the Word Citizen, 11 Harv. Latino L. Rev. 189 (2008). https://heinonline.org/HOL/P?h=hein.journals/hllr11&i=191 at 192

[5]  M. Isabel Medina, Ruminations on the Fourth Amendment: Case Law, Commentary, and the Word Citizen, 11 Harv. Latino L. Rev. 189 (2008). https://heinonline.org/HOL/P?h=hein.journals/hllr11&i=191 at 194

[6] American Civil Liberties Union, Immigrants’ Rights, Know Your Rights (2020). https://www.aclu.org/know-your-rights/immigrants-rights/

[7] Immigrant Legal Resource Center, Stop and Identify Statutes in the United States, (Feb. 1, 2018). https://www.ilrc.org/sites/default/files/resources/stop_identify_statutes_in_us-lg-20180201v3.pdf

[8] Immigrant Legal Resource Center, Stop and Identify Statutes in the United States, (Feb. 1, 2018). https://www.ilrc.org/sites/default/files/resources/stop_identify_statutes_in_us-lg-20180201v3.pdf

[9] National Immigration Law Center, The U.S. Supreme Court has upheld a Nevada law that requires individuals to identify themselves to police when asked, Know-Your-Rights-Alert!, (June 30, 2004). https://www.nilc.org/get-involved/community-education-resources/know-your-rights/kyr-nevada/

[10] American Civil Liberties Union, Immigrants’ Rights, Know Your Rights (2020). https://www.aclu.org/know-your-rights/immigrants-rights/

[11]Id.

[12] Immigrant Legal Resource Center, Stop and Identify Statutes in the United States, (Feb. 1, 2018). https://www.ilrc.org/sites/default/files/resources/stop_identify_statutes_in_us-lg-20180201v3.pdf

[13] Immigrant Legal Resource Center, Stop and Identify Statutes in the United States, (Feb. 1, 2018). https://www.ilrc.org/sites/default/files/resources/stop_identify_statutes_in_us-lg-20180201v3.pdf

[14] American Civil Liberties Union, Immigrants’ Rights, Know Your Rights (2020). https://www.aclu.org/know-your-rights/immigrants-rights/

[15]Id.

[16]Id.

[17] Andrew Chung. U.S. Supreme Court Gives States Latitude to Prosecute Illegal Immigrants, US News and World Report (Mar. 3, 2020, 10:49 am), https://www.usnews.com/news/world/articles/2020-03-03/us-supreme-court-lets-states-prosecute-immigrants-for-identity-theft

[18]id.

[19]Id.

[20]id

[21]id

[22]Id

[23]id

[24]id

[25] Lachanda Reid and Gabriela Markolovic, Kansas v. Garcia, Cornell Law School Legal Information Institute: Supreme Court Bulletin (2019). https://www.law.cornell.edu/supct/cert/17-834

[26]Id.

[27]Id.

[28]

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Rani Molla. Law Enforcement is now buying cell phone location data from marketers, Vox: Recode (Feb. 7, 2020, 11:40 am), https://www.vox.com/recode/2020/2/7/21127911/ice-border-cellphone-data-tracking-department-homeland-security-immigration

[34]Id.

[35]Id.

[36]USA Spending, Spending by Prime Award for Venntel, Inc., (2020). https://www.usaspending.gov/#/search/8b30ff5a2e301a463b93ed0efaef7b04

[37] Rani Molla. Law Enforcement is now buying cell phone location data from marketers, Vox: Recode (Feb. 7, 2020, 11:40 am), https://www.vox.com/recode/2020/2/7/21127911/ice-border-cellphone-data-tracking-department-homeland-security-immigration

[38]Scott Luck and Philip Kaplan, Privacy Impact Assessment Update for the Border Surveillance Systems (BSS) DHS/CBP/PIA-022(a), U.S. Department of Homeland Security (Aug. 21, 2018). https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp022-bss-september2018.pdf

[39] Id, at 12.

[40] Id, at 12.

[41]  Rani Molla. Law Enforcement is now buying cell phone location data from marketers, Vox: Recode (Feb. 7, 2020, 11:40 am), https://www.vox.com/recode/2020/2/7/21127911/ice-border-cellphone-data-tracking-department-homeland-security-immigration

[42] Id.

[43] Id.

[44] Washington post

[45] Washington post

[46] Secure Communities: A Fact Sheet, AMERICAN IMMIGRATION COUNCIL, (Nov. 29, 2011), https://www.americanimmigrationcouncil.org/research/secure-communities-fact-sheet

[47] Randy Capps, Muzaffar Chishti, Julia Gelat, Jessica Bolter, and Ariel G. Ruiz Soto. Revving up the Deportation Machinery Enforcement and Pushback under Trump, MIGRATION POLICY INSTITUTE, (May 2018)

[48] Jeh Charles Johnson, Secure Communities, U.S. Department of homeland Security (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf

[49] Id, at 76.

[50] Secure Communities. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, (last updated/reviewed Mar. 20, 2018) https://www.ice.gov/secure-communities

[51] Ramiro Martinez Jr. and Janice Iwama. The Reality of the Secure Communities Program. Are Our Communities Really Becoming Safe?, 13, Criminology and Public Policy, 341, (2014)

[52] Id at 342.

[53] Aarti Kohli, Peter L. Markowitz and Lisa Chavez. Secure Communities by the Numbers: An Analysis of Demographics and Due Process. (Oct. 2011), https://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf

[54] Id.

[55] Id, at 9.

[56] Id, at 4.

[57] Id, at 14.

[58] George Skelton. Capitol Journal: What does ‘sanctuary state’ actually mean? It’s time for lawmakers to figure it out, Los Angeles Times (Mar. 16, 2017, 12:05 AM), https://www.latimes.com/politics/la-pol-sac-skelton-sanctuary-state-compromise-20170316-story.html

[59] Daryl Gates. Special Order No. 40, Office of the Chief of Police (Nov. 27, 1979), http://assets.lapdonline.org/assets/pdf/SO_40.pdf

[60] Ann Morse, Chesterfield Polkey, Lydia Deatherage, Veronica Ibarra. What’s a Sanctuary Policy? FAQ on Federal, State and Local Action on Immigration Enforcement, National Conference of State Legislatures (June 20, 2019), https://www.ncsl.org/research/immigration/sanctuary-policy-faq635991795.aspx

[61] Emily Busse. How Berkeley Became America’s First Sanctuary City, The Bold Italic (April 15, 2019), https://thebolditalic.com/how-berkeley-became-americas-first-sanctuary-city-520bc6a836f1

[62] Ryan Fonseca. LA Is Set To Officially Be A Sanctuary City, But That Won’t Officially Change Anything, LAist (February 8, 2019), https://laist.com/2019/02/08/city_council_declares_los_angeles_a_sanctuary_city.php

[63] Ann Morse, Chesterfield Polkey, Lydia Deatherage, Veronica Ibarra. What’s a Sanctuary Policy? FAQ on Federal, State and Local Action on Immigration Enforcement, National Conference of State Legislatures (June 20, 2019), https://www.ncsl.org/research/immigration/sanctuary-policy-faq635991795.aspx

[64] CITATION NEEDED

[65]Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs, Department of Justice Office of Public Affairs, (Updated Nov. 8, 2017), https://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-compliance-requirements-edward-byrne-memorial

[66] Larry Neumeister. Court Sides With Trump in ‘Sanctuary Cities’ Grant Fight With NYC, 7 States, NBC Bay Area (Feb. 26, 2020, 9:12 PM), https://www.nbcbayarea.com/news/national-international/court-sides-with-trump-in-sanctuary-cities-grant-fight-with-nyc-7-states/2242457/

[67]Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs, Department of Justice Office of Public Affairs, (Nov. 8, 2017), https://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-compliance-requirements-edward-byrne-memorial

[68] Ann Morse, Chesterfield Polkey, Lydia Deatherage, Veronica Ibarra. What’s a Sanctuary Policy? FAQ on Federal, State and Local Action on Immigration Enforcement, National Conference of State Legislatures (June 20, 2019), https://www.ncsl.org/research/immigration/sanctuary-policy-faq635991795.aspx

[69] Larry Neumeister. Court Sides With Trump in ‘Sanctuary Cities’ Grant Fight With NYC, 7 States, NBC Bay Area (Feb. 26, 2020, 9:12 PM), https://www.nbcbayarea.com/news/national-international/court-sides-with-trump-in-sanctuary-cities-grant-fight-with-nyc-7-states/2242457/

footnotes for USCIS Chapter 7