Group 13:
Immigration Enforcement
Immigrants’
Fourth Amendment Rights
Juan P. Caballero, University of Florida
Fredric G. Levin College of Law
Today in the United States, nearly 200,000 non-citizens are subjected
to the Department of Homeland Security’s Alternatives to Detention (“ATD”)
program. The ATD program, which places participants under a variety of
surveillance mechanisms, has grown exponentially in recently years as it
surveils an ever-growing population of non-citizens.
While the recent Fourth Amendment precedent has been subject to
substantial litigation in the context of criminal investigations, the
implications of these cases on surveillance in the civil, immigration context
remains largely unexplored. This article seeks to bridge that gap. As
immigration policies evolve, the utilization of these surveillance tools raises
critical questions about the balance between national security imperatives and
individual constitutional rights. This article will explore the Fourth Amendment's
protection against unreasonable searches and seizures as it applies to
noncitizens.
This article reviews the ATD under a Fourth Amendment framework to
better assess the constitutional dimensions of the program. The goal of the
research is to develop an understanding of the proper application of the Fourth
Amendment to noncitizen populations. The paper seeks to foster informed
discourse and propose recommendations for safeguarding individual liberties
while addressing the imperatives of national security within the evolving
landscape of ICE Alternatives to Detention Programs.
Immigration
Status Federalism
David Chen, New York University School of Law
In the last decade, states and localities have asserted an
increasingly active role in setting immigration policy, including by refusing
to cooperate in the enforcement of immigration law and extending state benefits
to undocumented individuals. But one domain still widely considered to be
within the exclusive authority of the federal government is the regulation of
immigration status: the law of alienage classifications, including whether an
individual is deportable, a permanent resident, or a citizen. This article
challenges that conventional understanding and argues that state and local
integration into the immigration adjudication bureaucracy gives them important
leverage over immigration status. I identify three avenues through which such
influence is wielded: (1) federal reliance on state and local fact-finding; (2)
federal incorporation of state law; and (3) procedural gaps in immigration
adjudications that states can fill.
Recognizing that there is a federalism of immigration status expands
our understanding of how state and local participation shapes national
immigration policy. It reveals how federal-state interactions play out on the
terrain of administrative adjudications, a subject largely overlooked in
federalism scholarship. And it anticipates a likely new front in federal-state
contestation over immigration policy. As my article documents, state and local
actors are already exercising their influence over immigration adjudications to
shape immigration policy. As the politics around immigration become
increasingly more polarized, these actors may push the boundaries of their
influence further.
The
Externalization of U.S. Refugee Protection to Mexico and The Imperative for
Cross-Border Clinic Collaboration
David Baluarte, City University of
New York School of Law
Salvador Guerrero, Universidad Iberoamericana
Cuidad de Mexico
Over the
last decade, the United States has taken decisive steps to stem the flow of
migration across its southern border with Mexico. While tactics have varied
between the Obama, Trump, and Biden administrations, a marked trend towards the
externalization of U.S. immigration controls to Mexico has developed. Because
these migratory flows include large numbers of asylum seekers fleeing endemic
violence in their home countries, this process of externalization has shifted
U.S. refugee protection obligations to Mexico, either because asylum seekers
are stranded in southern Mexico or stuck on the Mexican side of the U.S.-Mexico
border. Refugee rights advocates on both sides of the border have responded in
force. Law clinics at U.S. law schools that specialize in immigrant rights and
refugee protection have been very visible in the response to the legal needs of
individuals trapped on the U.S.-Mexico border, and some have begun to include
this work as a core part of their clinic experience. At the same time, Mexican
law schools have expanded their legal services to refugees, and new law clinics
have been established with support from the UN High Commissioner for Refugees
(UNHCR). However, transnational legal services organized collaboratively by
U.S. and Mexican law clinics are still in an early stage of development. This
article examines the need for such collaborative work and the potential for law
clinics to train the next generation of refugee rights advocates in the United
States and Mexico to confront the trend towards U.S. externalization of refugee
protection to Mexico.
Discussants: Sabrineh Ardalan, Harvard Law School and Julie Dahlstrom,
Boston University School of Law