The Natural Persistence of Racial Disparities in Crime-Based Removals
Carrie L. Rosenbaum, Th e Natural Persistance of Racial Disparities in Crime-Based Removals
hTe N atural Persistence of Racial Disparities in Crime-Based Removals
Carrie L. Rosenbaum
CARRIE L. ROSENBAUM*
This Article† suggests that the replacement of Secure Communities
with the Priority Enforcement Program (PEP) did not, and would not have
ameliorated the problem of disparate criminal immigration deportation of
Latina/o noncitizens. It explores the implications of de-coupling criminal
and immigration enforcement and gives theoretical consideration to the
value of equality principles in criminal immigration enforcement.
One of Secure Communities’ many critiques was that it resulted in
disproportionate removal of minor offenders—minor offenders who were
disproportionately Latina/o noncitizens. PEP created procedural fixes, but
the latent, deeper substantive problems of Secure Communities, its
predecessor, remained. Intractable racial disparity persisted within criminal
immigration policing, in spite of PEP’s changes. PEP’s failure in addressing
this problem in fact shed light on the deeper, more fundamental problem of
criminal-immigration enforcement itself. In a time where race-based “stop
and frisk” policing may be resurrected, grappling with the failures of the
Obama Administration’s changes, namely PEP, illustrate the need for consideration of systematic change.
This Article helps initiate the next generation of criminal immigration enforcement discussion by considering whether PEP’s failure necessitates an equality principles analysis that moves from procedural to deeper, more
* Adjunct Professor, Golden Gate University School of Law. I am grateful to those who
have supported my work and reviewed drafts or discussed ideas, including Kevin R. Johnson,
David Rubenstein, Yolanda Va´zquez, Ingrid Eagly, and my symposium co-panelists Caitlin Barry,
Kristina Campbell, Christopher Lasch, Huyen Pham, Sirine Shebaya, and Virgil Wiebe. All errors
are my own.
† Carrie L. Rosenbaum, The Natural Persistence of Racial Disparities in Crime-Based
Removals, 13 ST. THOMAS L.J. (forthcoming 2017) (originally presented for the University of St.
Thomas Law Journal’s Sanctuary Cities Symposium). Search terms: immigration, deportation,
critical race, criminal justice system, profiling.
systemic, substantive considerations. Rather than confining discussion to
narrow questions such as preemption, equality principles reach the roots of
racially-biased criminal immigration policing. This deeper understanding
allows better crafting of methods to prevent and counteract such practices.
Immigrants and immigrant rights advocates have criticized the
Department of Homeland Security’s (DHS) and Immigration and Customs
Enforcement’s (ICE) Secure Communities program for multiple reasons,
including the problem of racially disparate criminal immigration
enforcement. The Obama Administration acknowledged the potential for a
perception of bias or actual bias with respect to Secure Communities. It replaced
Secure Communities with the Priority Enforcement Program (PEP), but this
move was more symbolic, and did not end disparate criminal immigration
Communities and immigrant rights advocates’ argument that the
burden of criminal immigration policing falls most heavily on the Latina/o
community is borne out, at least in part, by the DHS’s own data—over
ninety percent of those deported through criminal immigration policing are
Latina/o, whereas Latina/o immigrants make up only fifty percent of the
United States’ immigrant population.1
While PEP may have resulted in procedural reforms, deeper,
substantive challenges were exposed as a result of the relationship between
immigration enforcement and the criminal justice system. The similarity between
PEP’s persistent problems and the well-established problems with the war
on drugs, namely, disparate impact on minor offenders of color, may be
more apparent. Along the same lines, the reforms proposed to address the
problem of racial disparities in the criminal justice system had implications
for shortcomings in changes to criminal immigration enforcement vis-a`-vis
This Article will make three contributions to existing scholarship.
First, it will consider the likely shortcomings of PEP in reversing the trend
of disproportionate removals of noncitizen Latina/os. Second, it will
explore the deeper, substantive reasons why PEP continued to mirror the
criminal justice system’s failure to address racial disparities and historical
racial bias in policing. Third, and perhaps the most novel contribution to
1. Specifically, people from Mexico and the Northern Triangle (Guatemala, Honduras, and
El Salvador) accounted for 92.5% of all Criminal Alien Program removals between 2010 and
2013, even though, collectively, nationals of those countries account for forty-eight percent of the
noncitizen population in the United States. Guillermo Cantor, Mark Noferi & Daniel E. Mart´ınez,
Enforcement Overdrive: A Comprehensive Assessment of ICE’s Criminal Alien Program, AM.
IMMIGR. COUNCIL 3 (Nov. 2015), https://www.americanimmigrationcouncil.org/sites/default/files/
existing scholarship, this Article will consider the role of equality principles
in addressing criminal immigration policing in an attempt to break the
perpetuation of inherently racialized but colorblind rhetoric of exclusion,
difference, and demonization.
Specifically, Part I will provide a brief overview of Secure
Communities, including critiques as well as the changes made by PEP. Part II will
consider the substantive problems revealed by the attempts at reform. Part
III will outline the systemic nature of criminal immigration bias and
underscore the significance of bias in criminal law in criminal immigration
outcomes. Part IV will consider the potential relevance of immigrant equality
in addressing the problem of disparate criminal immigration enforcement.
ICE launched Secure Communities in 2008 to help facilitate the use of
state and local law enforcement agents (LEAs) as force multipliers in
immigration enforcement.2 While the program may have accomplished this goal
by significantly increasing deportations, it also resulted in the
disproportionate deportation of noncitizens with minor or no criminal offenses. As is
the concern of this Article, Secure Communities came with specific racial
or ethnic implications. Enforcement fell most heavily on Latina/o
Secure Communities was designed primarily as an information-sharing
system in which the fingerprints obtained as a result of criminal arrests by
state or local police were transmitted to ICE.4 ICE agents could then check
2. See Secure Communities, U.S. IMMIGR. & CUSTOMS ENF’T,
http://www.ice.gov/securecommunities (last visited Apr. 5, 2015); U.S. IMMIGR. & CUSTOMS ENF’T, FACT SHEET: SECURE
COMMUNITIES (2008), www.aila.org/content/default.aspx?docid=25045 [hereinafter SECURE
COMMUNITIES FACT SHEET] ; see also MICHELE WASLIN, AM. IMMIGR. COUNCIL, THE SECURE
COMMUNITIES PROGRAM: UNANSWERED QUESTIONS AND CONTINUING CONCERNS (Nov. 2011), https://
3. AARTI KOHLI ET AL., CHIEF JUST. EARL WARREN INST. ON L. AND SOC. POL’Y, SECURE
COMMUNITIES BY THE NUMBERS: AN ANALYSIS OF DEMOGRAPHICS AND DUE PROCESS (Oct.
2011), http://www.mygreencard.com/downloads/SecureCommunities_February2012.pdf (noting a
significant increase in prosecutions and deportations since the Obama Administration’s
implementation of Secure Communities); AM. IMMIGR. COUNCIL, THE GROWTH OF THE U.S. DEPORTATION
MACHINE: MORE IMMIGRANTS ARE BEING “REMOVED” FROM THE UNITED STATES THAN EVER
BEFORE 6 (Mar. 2014), https://www.americanimmigrationcouncil.org/ sites/default/files/research/
(citing the U.S. Government Accountability
Office, which stated that “from October 2008 through March 2012, Secure Communities led to the
removal of about 183,000 aliens.” In the first three years of the program, from 2008–2011,
ninetythree percent of removable noncitizens apprehended via Secure Communities were Latino, while
only seventy-seven percent of the undocumented population was Latino. One scholar, however,
has characterized critiques of Secure Communities as the result of the bad timing of its launch and
“mistakes in implementation,” but those explanations do not respond to the specific critiques of
; David A. Martin, Resolute Enforcement is Not Just for Restrictionists:
Building a Stable and Efficient Immigration Enforcement System, 30 J.L. & POL. 411, 438 (2015).
4. SECURE COMMUNITIES FACT SHEET, supra note 2, at 5.
immigration databases to determine whether a particular individual was
potentially subject to adverse immigration action.5 The information-sharing
component of Secure Communities remained in place under its replacement
The detainer component of Secure Communities permitted ICE to
instruct local law enforcement agents to hold or further detain a noncitizen
after completion of any authorized criminal confinement, to facilitate ICE’s
assumption of custody.7 After the noncitizen was transferred to ICE
custody, an ICE agent would consider initiation of immigration removal
Critiques of Secure Communities
Secure Communities was examined by scholars8 and criticized by
communities and immigrant rights advocates. Both advocates and scholars
criticized the program for further eroding the relationship between
communities and sub-federal law enforcement agents,9 for promoting racial
profiling in criminal arrests and relatedly, racially skewed deportations,10 and for
casting too wide a net, manifesting in a disproportionate number of
deportations stemming from minor offenses such as traffic violations.11
Secure Communities, as a part of the criminal immigration system,
uses law enforcement agents at multiple levels (street-level police officers,
criminal prosecutors, jail administrators) as de facto immigration agents.12
Criminality has long been used as a determiner of desirability for
noncitizens seeking integration into the United States polity, one that has
somewhat successfully masked racialization.13 Despite criticism of Democratic
presidential candidate Hillary Clinton’s use of the term “super predator,”14
and President Donald Trump’s blatant racism when talking about Latina/o
immigrants as criminals,15 the myth of the interconnectedness between race,
criminality, and immigrants persists. More concretely than the metaphoric
criminalization of communities of color and immigrants, Secure
Communities and criminal immigration enforcement necessarily perpetuates racially
disparate policing by replicating the systemic racial bias endemic in the
criminal justice system.16
The federal government’s marketing of Secure Communities suggested
concerns about fairness, racial neutrality, and protecting communities from
dangerous individuals.17 However, implementation, including
commence13. See, e.g., Ce´sar Cuauhte´moc Garc´ıa Herna´ndez, The Perverse Logic of Immigration
Detention: Unraveling the Rationality of Imprisoning Immigrants Based on Markers of Race and
Class Otherness, 1 COLUM. J. RACE & L. 353, 354–56 (2012) (discussing the use of race, class,
and criminal records in immigration law enforcement to delineate between desirable and
undesirable immigrants); Rebecca Sharpless, “Immigrants Are Not Criminals”: Respectability,
Immigration Reform, and Hyperincarceration, 53 HOUS. L. REV. 691, 732–
) (citing MICHELLE
ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 57–58,
217–24 (2010)) (explaining in part by reference to Michelle Alexander’s work that incarceration
has created a racialized caste system that claims to be colorblind); Marc Mauer & Meda
ChesneyLind, Introduction, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUNCES OF MASS
INCARCERATION 1, 5 (Marc Mauer & Meda Chesney-Lind eds., 2002) (“[I]t is understood that crime has
become a code word for race in American political life, and therefore ‘tough’ talk on crime is a
proxy for criminal justice policies that disproportionately control and police African-American
communities.”); see also MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME, AND PUNISHMENT IN
AMERICA 167–70 (1995) (considering the socio-cultural consequences of imprisonment of African
Americans); Carroll Seron & Frank Munger, Law and Inequality: Race, Gender . . . and, of
Course, Class, 22 ANN. REV. SOC. 187 (1996) (discussing relevance of class and its potential use
in contemporary socio-legal research about race and gender).
14. Michelle Alexander, Why Hillary Clinton Doesn’t Deserve the Black Vote, THE NATION,
(Feb. 29, 2016),
15. See, e.g., ‘Drug dealers, criminals, rapists’: What Trump thinks of Mexicans, BBC
NEWS, (Aug. 31, 2016), http://www.bbc.com/news/world-us-canada-37230916.
16. See infra Part III.
17. See Secure Communities, U.S. IMMIGR. & CUSTOMS ENF’T,
https://www.ice.gov/securecommunities#tab1 (“FACT: Secure Communities was designed to reduce the potential for racial
profiling”). Note that among the broader concerns about Secure Communities included the fact
that approximately seventy-nine percent of deportees identified pursuant to Secure Communities
had no criminal record or entered the immigration removal system as a result of arrests for
lowlevel offenses. “ICE reports that, in 2014, roughly half of the convicted noncitizens who were
deported were Level 2 (one felony or three or more misdemeanors) or Level 3 (one misdemeanor)
offenders, and about half of this group had only been convicted of a single misdemeanor.”
Sharpless, supra note 13, at 730. ICE reported that 43,897 of the convicted criminals removed were
Level 1 offenders, 22,191 were Level 2 offenders, and 20,835 were Level 3 offenders. U.S.
IMMIGR. AND CUSTOMS ENF’T, ICE ENFORCEMENT AND REMOVAL OPERATIONS REPORT: FISCAL
YEAR 2014 10 (2014), https://ice.gov/doclib/about/offices/ero/pdf/2014-ice-immigration-removals
.pdf. Level 2 offenders include any person convicted of a felony or three or more misdemeanors
and Level 3 offenders include any person convicted of any crime punishable by less than a year
ment in heavily Latina/o communities rather than in those with higher
crime, was viewed as inconsistent with policies intended to avoid racial
bias.18 This method of implementation and the outcome of the policy itself
substantiated concerns about profiling of Latina/os and a betrayal of stated
Secure Communities was also criticized for diminishing trust and
undermining the relationship between community and police. As scholar
Ange´lica Cha´zaro explains, the community-police relationship in low-income
communities of color—those most heavily policed—has historically been
problematic.20 A trust deficit is not new, as has been highlighted by the
increased attention to police killings of people of color.21 The roots of
community distrust in police hint at the more substantive nature of the problem
of racial bias, a problem left unsolved by PEP.22
imprisonment. MICHELE WALSIN, ICE’S ENFORCEMENT PRIORITIES AND THE FACTORS THAT
UNDERMINE THEM 9 (2010), http://immigrationpolicy.org/sites/default/files/docs/ICE_Enforcement_
18. See, e.g., Adam B. Cox & Thomas J. Miles, Policing Immigration, 80 U. CHI. L. REV. 87,
115 (2013) (explaining that “the selection of counties appears more consistent with the desire to
target immigration violators generally—rather than just those engaged in serious criminal
activity—because early activations targeted counties close to the border and counties with a high
proportion of noncitizen and Hispanic persons in the population.”); Thomas J. Miles & Adam B. Cox,
Does Immigration Enforcement Reduce Crime? Evidence from Secure Communities, 57 J.L. &
ECON. 937 (2014) (discussing empirical data demonstrating that immigrants do not commit crimes
more than native-born people).
19. See Cox & Miles, Policing Immigration, supra note 18, at 102, 118 (2013) (presenting
empirical evidence on how immigration enforcement officials use their wide discretion); see also
Eagly, Immigrant Protective Policies in Criminal Justice, supra note 9, at 285; see also SECURE
COMMUNITIES FACT SHEET, supra note 2.
20. See Cha´zaro, supra note 9, at 652–53.
21. Bill Ong Hing, From Ferguson to Palestine: Disrupting Race-Based Policing, 59 HOW.
L.J. 559 (2016). Reports of police killings of people of color seem to come on a very regular basis
with the most recent report on the Immigration Professor Blog, impacting a refugee from Uganda.
See, e.g., Black Man Shot Dead By Police Near San Diego Identified as Ugandan Refugee, LAW
PROFESSOR BLOGS NETWORK: IMMIGR. PROF BLOG (Oct. 2, 2016), http://lawprofessors.typepad
.com/immigration/2016/10/black-man-shot-dead-by-police-near-san-diego-identified-as-ugandanrefugee.html; see also Maritza Perez, Los Lazos Viven: California’s Death Row and Systematic
Latino Lynching, 37 WHITTIER L. REV. 377, 378 (2016) (comparing the modern-day state
sanctioned killing of Latinos to extrajudicial lynching in 1830–1935, this is indicative of law
enforcement and criminal justice system bias against Latinos, which is related to the historic trust deficit
between the Latino community and law enforcement); Aura Bogado, Death of 14-Year-Old Latino
Killed by Chicago Police Kill Labeled ‘Suicide’, COLORLINES (Apr. 3, 2015, 2:30 PM), http://
(police killing of civilians impacts African Americans and Latinos). Immigrants of color have also
been subject to abuse by local law enforcement officers. See Kevin R. Johnson, Doubling Down
on Racial Discrimination: The Racially Disparate Impacts of Crime-Based Removals, 66 CASE W.
RES. L. REV. 993, 994 (2016) (addressing racial profiling in criminal enforcement, impact on
Latino noncitizens, and proposing solutions).
22. While not the subject of this paper, the author would like to speculate that while under a
new or different presidential administration, the permissibility of use of racial or ethnic
appearance in enforcing criminal law remains equally invalid and illegal, sub-federal measures like
Arizona’s SB1070 could again proliferate incentivizing criminal policing that relies on subtle
forms of racial bias.
Distrust may not be the result of rogue officers abusing their power by
actively engaging in racial profiling, regardless of whether or not a killing is
involved, but instead the result of implicit bias and the way in which the
criminal justice system has perpetuated criminalization and incarceration of
low-income communities of color.23 The “Blue Lives Matter” movement’s
de-legitimization and demonization of communities of color, sanctioned by
the then president-elect,24 will likely continue the distrust and implicate the
need for heightened attention to racial bias and equality concerns.
Resistance to Secure Communities arose in part from concerns about
biased criminal immigration policing. Communities and immigrant rights
advocates worked with state and local leaders to pass and implement
measures to minimize sub-federal law enforcement agents’ ability to participate
in enforcing immigration law pursuant to Secure Communities.
Sub-Federal Resistance to Secure Communities Because of Racially
Biased Criminal Immigration Outcomes
Sub-federal resistance to Secure Communities manifested itself in state
laws and local ordinances, such as the California and Connecticut TRUST
Acts, and California’s newer TRUTH Act.25 More measures to limit the
federal government’s ability to enlist states and municipalities in criminal
immigration enforcement may be implemented in the near future in
response to the presidential election results.26 Such measures limit
cooperation with federal invitation to collaborate in enforcing immigration law.
They attempt to add transparency to the relationship between federal
immigration law enforcement and local criminal law enforcement agencies.
These measures arose and continue to arise in part out of criticisms that
PEP seemed to result in higher rates of deportations of minor offenders—
minor offenders who were also disproportionately Latina/o.27
Specifically, state and local resistance to Secure Communities began to
manifest itself in about 2012.28 By 2014, at least 259 localities including 26
cities and 233 counties had implemented policies in response to Secure
Communities, primarily in the form of limitations or restrictions on ICE
holds or transfers after initial contact with state or local law enforcement
For example, California and Connecticut passed statewide resistance to
Secure Communities in 2013, establishing more limited parameters for
cooperation with federal immigration enforcement efforts.30 The state laws
were entitled “TRUST” Acts,31 presumably signifying intent to restore the
community’s trust in local law enforcement, though they did not explicitly
set forth specific ways the racially-biased impacts of criminal immigration
enforcement would be alleviated.32
In California, Governor Brown signed the Transparent Review of
Unjust Transfers and Holds, or “TRUTH Act,”33 which intended to establish
more transparency and community engagement in influencing when and
how localities cooperate with ICE.34 The Act encourages local law
enforcement to work with local elected leaders to specify the extent to which local
law enforcement may collaborate with ICE in enforcing immigration law.35
The TRUTH Act also includes a component to help ensure that sub-federal
law enforcement are otherwise in compliance with existing state law, such
as the TRUST Act.36
Aside from calls to end Secure Communities entirely,37 proposals to
fix it focused on procedural defects related to implementation and
enforcement, that resulted in deportation contrary to stated
priorities—apprehension and deportation of more “serious” criminals, and without racial bias,
and even wrongful removals and detentions.38 PEP in some respects
responded to the superficial procedural concerns but left unresolved the
problem of racially disparate criminal immigration enforcement.
PRIORITY ENFORCEMENT PROGRAM AND DISPARATE IMPACTS OF
CRIMINAL IMMIGRATION POLICING ON LATINA/O NONCITIZENS
There has been no clear indication that PEP eliminated or significantly
decreased racially and ethnically disparate criminal immigration
enforcement. Instead, PEP may have made the raced and classed nature of the
criminal-removal system more apparent. While scholars have considered
PEP,39 this Part will specifically attempt to consider PEP through a critical
race lens after briefly outlining how it differs from Secure Communities.
36. CAL. GOV’T CODE § 7283.2 (“Nothing in this chapter shall be construed to provide,
expand, or ratify the legal authority of any state or local law enforcement agency to detain an
individual based upon an ICE hold request.”) See also Yvette Cabrera & Nick Gerda, Sheriff’s
Department Acknowledges Trust Act Violation, VOICE OF OC (July 8, 2014), http://voiceofoc.org/
37. Professor Eagly highlights the way in which these groups call for such a policy builds on
the immigrant equality principles and framework. Eagly, Immigrant Protective Policies in
Criminal Justice, supra note 9, at 299. See also ICE out of California, ICEOUTOFCA.ORG (last visited
Oct. 2, 2016) (immigrant rights groups urging an end to sub-federal criminal law enforcement’s
involvement in immigration enforcement, particularly by asking that ICE not be permitted to have
access to noncitizens detained in local jails, and further that the relationship between sub-federal
criminal law enforcement and immigration enforcement end entirely—effectively ending the
criminal alien model); Silicon Valley De-Bug, No ICE, ICE, Baby! Keeping PEP COMM Out of
Santa Clara County, YOUTUBE (Aug. 25, 2015), https://www.youtube.com/watch?v=pAyr1Dygv
K8. For more background on the ICE Out of LA coalition and how its efforts are leading the
national movement against local collaboration with ICE, see Victor Narro, Should LA County’s
Sheriff Stop Helping Deport Undocumented Angelenos?, LA PROGRESSIVE (Sept. 11, 2015),
38. Chen, supra note 29, at 28 (citing TOM R. TYLER, WHY PEOPLE OBEY THE LAW (2006)).
Restrictionist critics had the opposite critique—that the federal government still was not doing
enough to identify and deport potential noncitizens—and their resistance, too, manifested in
subfederal measures, such as Arizona’s S.B. 1070; See Laura Donohue, The Potential for a Rise in
Wrongful Removals and Detention Under the United States Immigration and Customs
Enforcement’s Secure Communities Strategy, 38 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 125,
132–35, 144–52 (2012) (noting differences between stated objectives of Secure Communities
program and results). This Article, however, is concerned with the overlap in disproportionate impact
of sub-federal immigration policing on communities of color and the significance of failure of
legal remedies and deterrents to racial profiling in reforms in both the criminal justice and
criminal immigration systems.
39. Chen, supra note 29; Martin, supra note 2; Barbara E. Armacost, The Enforcement
Pathologies of Immigration Policing (Va. Pub. L. & Legal Theory, Paper No. 19, Mar. 1, 2015),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584713 (considering racial profiling in
PEP replaced Secure Communities in July 2015.40 The notification
component of Secure Communities remained in place under the PEP, while
the detainer policy changed.41 Under the PEP, noncitizens were only
subject to detainers and transfer to ICE custody after conviction, rather than
just after an arrest or filing of a criminal charge.42 In theory, convictions
rather than arrests were intended to trigger immigration enforcement action.
However, even absent an immigration detainer, an arrest still resulted in
transmission of an individual’s information to ICE. Accordingly, to the
extent that arrests of noncitizens of color, particularly Latina/os, are more
likely to be arrested and convicted for criminal conduct,43 it appears that the
change to the detainer policy did not reverse disparate criminal immigration
criminal immigration enforcement and disputing claims that local police can act as immigration
enforcement multipliers without adverse impacts on federal or state law enforcement priorities, in
part because police will continue to use “pretextual” street and traffic stops to investigate other
crimes absent probable cause, to attempt to identify immigration violators); Stumpf, D(e)volving
Discretion, supra note 8 (considering the potential for PEP to have reduced low-level discretion
which resulted in lack of compliance with federal immigration priorities).
40. Press Release, U.S. Immigr. and Customs Enf’t., DHS Releases End of Fiscal Year 2015
Statistics (Dec. 22, 2015),
https://www.ice.gov/news/releases/dhs-releases-end-fiscal-year-2015statistics. The Obama Administration announced the end of Secure Communities pursuant to a
memo. See Nov. 2014 Secure Communities Memo, supra note 27; see also Priority Enforcement
Program, U.S. IMMIGR. AND CUSTOMS ENF’T, https://www.ice.gov/pep#wcm-survey-target-id
(“PEP begins at the state and local level when an individual is arrested and booked by a law
enforcement officer for a criminal violation and his or her fingerprints are submitted to the FBI for
criminal history and warrant checks. This same biometric data is also sent to [ICE] so that ICE can
determine whether the individual is a priority for removal, consistent with the DHS enforcement
priorities described in former Secretary Johnson’s November 20, 2014 Secure Communities
Memorandum. Under PEP, ICE will seek the transfer of a removable individual when that individual
has been convicted of an offense listed under the DHS civil immigration enforcement priorities,
has intentionally participated in an organized criminal gang to further the illegal activity of the
gang, or poses a danger to national security.”)
. As of a leaked February 21, 2017 DHS
Memorandum, the November 20, 2014 Memo ending Secure Communities was rescinded. See
Memorandum from John Kelly, Sec’y, U.S. Dep’t of Homeland Sec., Enf’t of the Immigr. Laws to Serve
the Nat’l Interest (Feb. 21, 2017),
41. See Priority Enforcement Program, supra note 6.
42. OFFICE OF ENFORCEMENT AND REMOVAL OPERATIONS, U.S. IMMIGR. & CUSTOMS ENF’T,
PRIORITY ENFORCEMENT PROGRAM (PEP) 1, https://www.ice.gov/sites/default/files/documents/
43. See, e.g., Anthony E. Mucchetti, Driving While Brown: A Proposal for Ending Racial
Profiling in Emerging Latino Communities, 8 HARV. LATINO L. REV. 1 (2005) (describing
problem of racial profiling and criminalization of Latinos); Katherine Culliton, How Racial Profiling
and Other Unnecessary Post-9/11 Anti-Immigrant Measures Have Exacerbated Long-Standing
Discrimination Against Latino Citizens and Immigrants, 8 UDC L. REV. 141 (2004) (discussing
post 9/11 racial profiling of Latinos, including citizens and noncitizens); Kevin R. Johnson, Racial
Profiling in the War on Drugs Meets the Immigration Removal Process: The Case of Moncrieffe
v. Holder, 48 U. MICH. J.L. REFORM 967 (2015) (describing problem of racially disparate policing
with racially disparate impacts on Latinos, by examination of Moncrieffe v. Holder).
UNIVERSITY OF ST. THOMAS LAW JOURNAL
Under PEP, ICE holds and requests for notification focused on
socalled “priority noncitizens,” including: (1) gang members,44 convicted
felons, and national security suspects; (2) persons convicted for significant
misdemeanors including driving under the influence, domestic violence,
guns, drug sale, sexual abuse, burglary, other convictions carrying
ninetyday jail sentence, or three or more misdemeanor convictions of any kind
(except minor traffic or juvenile offenses); and (3) persons with other
immigration violations where there was a final order of removal issued on or
after January 1, 2014.45
Following implementation of PEP in 2015, of the 235,413 people
deported, fifty-nine percent were “convicted criminals” and ninety-eight
percent otherwise corresponded to the DHS priorities.46 To some extent,
particularly if racial profiling concerns are omitted and it is accepted that
the definition of “convicted criminals” includes those guilty of only
immigration-related offenses, the program could be considered a success based
on DHS’s criteria.47 However, these superficial representations of the
Program’s success mask the program’s failures, including racial profiling.
Thus, even if PEP represented change, the categories and definitions may
44. But see ALEXANDER, supra note 13, at 137 (succinctly explaining that “the criterion for
inclusion in the [gang] database is notoriously vague and discriminatory”); see generally Rebecca
A. Hufstader, Immigration Reliance on Gang Databases: Unchecked Discretion and Undesirable
Consequences, 90 N.Y.U. L. REV. 671 (2015) (gang databases managed by state and local law
enforcement lack procedural safeguards to prevent police discretion influenced by racial bias).
When DHS relies on these databases they import the “racial bias inherent in the criminal justice
system to the immigration system.” Id. at 671. See also Joshua D. Wright, The Constitutional
Failure of Gang Databases, 2 STAN. J. CIV. RTS. & CIV. LIBERTIES 115 (2005); K. Babe Howell,
Gang Policing: The Post Stop-And-Frisk Justification for Profile-Based Policing, 5 U. DENV.
CRIM. L. REV. 1 (2015) (considering the problem of the replacement of biased “stop and frisk”
policies with gang databases).
45. Memorandum from Jeh Charles Johnson, Sec’y, U.S. Dep’t Homeland Sec., Policies for
the Apprehension, Detention and Removal of Undocumented Immigrants
(Nov. 20, 2014)
[hereinafter Jeh Johnson Apprehension Memo].
47. The category for people with “serious criminal records,” includes “any migrant caught
entering the country illegally after Jan. 1, 2014.” See Memorandum from John Kelly, supra note
40; Nov. 2014 Secure Communities Memo, supra note 27 (setting forth three descending levels of
enforcement priorities: Priority 1 (threats to national security, U.S. border security, and public
safety), Priority 2 (certain misdemeanants and new immigration violators), and Priority 3
(noncitizens with a final order of removal)); see also Julia Preston, Low-Priority Immigrants Still Swept
Up in Net of Deportation, N.Y. TIMES (June
low-priority-immigrants-still-swept-up-in-net-of-deportation.html. Additionally, it is worth noting
that PEP still designated individuals as priorities for immigration enforcement action even where
the offense triggering “priority” status would not have made the individual subject to adverse
immigration action. In other words, PEP priorities remain broader and more expansive than the
criminal grounds of removability and inadmissibility themselves. See Immigration and Nationality
Act, 8 U.S.C. § 1182 (2012). Thanks to Yolanda Va´zquez for highlighting this incongruity
between PEP priorities for criminal immigration enforcement and the criminal removability and
inadmissibility grounds in the Immigration and Nationality Act.
have obscured practices that continued to fall disproportionately on minor
offenders from Latina/o communities.
Other changes to PEP that may not have minimized or eliminated
racial profiling include: (A) the attempt to shift the “devolution of
discretion”48 from sub-federal law enforcement agents and local ICE officers to
the macro-policy level to help ensure compliance with articulated removal
priorities, (B) the curtailing the detainer provisions, and (C) the increased
transparency of PEP.
Reversal of “Devolution of Discretion”—A Disincentive to Sub
federal Criminal Law Enforcement Agents Engagement in
First, PEP may not have disincentivized racial profiling by reversing
the discretionary role of sub-federal criminal law enforcement agents and
field-level ICE agents. PEP has been characterized as potentially undoing
the “devolution of discretion,” which under Secure Communities, led
subfederal criminal law enforcement agents and low-level ICE agents to
deviate from macro-policy objectives and federal immigration authorities.49
Scholar Juliet Stumpf suggested that PEP might have allowed federal
immigration authorities to regain discretion, taking it back from line-level ICE
officers and sub-federal police, which could re-affirm macro-level
discretion.50 PEP’s macro-level directive requires immigration enforcement
agents to “obtain clearance from a higher level of authority, such as the ICE
Field Office Director” before departing from the still extensive list of
prioritized categories of noncitizens who should be subject to deportation.51
However, PEP did not prevent an ICE agent’s willful violation of
immigration enforcement priorities.52 Nor did it prevent engagement in
unlawful collusion with sub-federal law enforcement agents, for example, an ICE
agent who learns a noncitizen is in local criminal custody may seek to
UNIVERSITY OF ST. THOMAS LAW JOURNAL
fer that noncitizen to ICE custody rather than wait for a conviction.53
Additionally, even assuming adherence to PEP’s policies, PEP maintained
Secure Communities’ extensive list of offenses subjecting noncitizens to
“priority” categorization for deportation, such that the net was not
More importantly, by virtue of the implicit and explicit bias in
policing,55 criminal immigration removals remained subject to ethnic and racial
bias. Even if approval was required before an ICE agent could depart from
PEP’s priorities, and in turn decrease the incentive for police to use racial
profiling to act as de facto immigration agents, a criminal arrest still
remained the gateway to immigration enforcement.
Driving under the influence is an offense-specific example because it
remained a significant misdemeanor for immigration purposes; thus under
PEP, a noncitizen with a significant misdemeanor is still a “criminal alien,”
and ICE agents remain empowered to detain and initiate deportation
proceedings.56 In this scenario, compliance with deportation priorities would
have been superficial57 and would likely fail at disincentivizing the abuses
of authority that result in the racial profiling by sub-federal law
enforcement agents.58 Even under PEP, because of the well-documented
phenomena of “driving while black or brown,”59 driving-related stops still created
the context for racially disparate criminal immigration policing.
All criminal policing is potentially affected by racial profiling. For this
reason, even given more time, PEP likely would still have failed to reverse
the disparate impacts of criminal immigration policing. Its failure in
addressing the problem of racial bias underscores the need for deeper, more
substantial systemic reforms. It is particularly telling that an administration
considered to be relatively immigrant friendly, and cognizant of the
continuing harms of racial bias in the criminal justice system, was unable to
DISPARATE IMPACTS IN CRIMINAL IMMIGRATION POLICING
dress this problem of criminal-immigration racial bias and disparate
Priority Enforcement Program’s Information-Sharing Component
Fails to Disrupt the Causal Chain of Potentially Biased
PEP’s potential to decrease incentives to engage in racially-biased
criminal immigration policing was compromised by maintaining the
information-sharing component of Secure Communities.60 Under PEP, an
arrestee’s information was still transferred to ICE at the time of arrest.61 This
link between a criminal arrest and ICE notification, which prompted
criminal immigration enforcement, failed to break the chain of biased policing
which most heavily impacts Latina/o immigrants. PEP arrests still alerted
ICE to a noncitizen’s interaction with the criminal justice system, and a
majority of criminal arrests still were likely to become convictions,62 as is
particularly true in the context of misdemeanors.63
PEP also lacked mechanisms to counter a purported culture of
collusion between sub-federal criminal prosecution and ICE to maximize
chances of deportation. For example, in some jurisdictions, particularly
those lacking immigrant-protective policies,64 ICE reportedly facilitated or
participated in the training of local prosecutors to charge and plead criminal
cases to maximize ICE’s chance of obtaining removal, regardless of
whether the initial crime deems the individual a priority for criminal
immigration removal.65 In jurisdictions lacking immigrant-protective policies,
these practices are consistent with and an extension of those jurisdiction’s
attitudes and policies toward immigrants. However, if the information
sharing component of Secure Communities is uninterrupted, PEP-like changes
undermine the notion that requiring convictions, and not just arrests will
UNIVERSITY OF ST. THOMAS LAW JOURNAL
have a significant impact on
experiences adverse immigration
Data Collection Measures May Not Discourage Profiling in
Criminal Immigration Enforcement
Under PEP, DHS was to track data showing compliance with
enforcement priorities and, to ensure transparency, was to make the data publicly
available.66 However, past measures to increase transparency and
accountability have not been particularly successful. They neither created
transparency nor dissuaded racially-biased practices.
Previously, in response to concerns about racial profiling resulting
from Secure Communities, the Office of Civil Rights Civil Liberties
(“CRCL”) was created to track and provide data to the public to
demonstrate compliance with immigration enforcement priorities.67 However, the
CRCL did not make its data publicly available. An immigrant rights
organization filed a Freedom of Information Act request for the data, and sued the
CRCL to obtain the records, after the CRCL refused to release the data.68
Yet, if the purpose of collecting data and making it available is to
discourage unlawful racial bias in criminal policing, when data is not made
publicly available, racial profiling fails to be identified, and fails to be
deterred.69 In fact, in February 2016, a nonprofit organization sued to obtain
66. Stumpf, D(e)volving Discretion, supra note 8, at 1262 n.11 (citing Jeh Johnson
Apprehension Memo, supra note 45, at 5–6).
67. See CRCL Immigration Section, DEP’T OF HOMELAND SEC., OFF. FOR CIV. RIGHTS &
CIV. LIBERTIES, https://www.dhs.gov/crcl-immigration-section.
68. Daniel M. Kowalski, NJIC Sues DHS, ICE for PEP FOIA Disclosure, LEXISNEXIS (Feb.
9, 2016, 7:42 PM), https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/
69. There has been a resurgence in nationalism and racist attacks against immigrants and
persons of color in the United States in conjunction with the presidential campaign of Donald
Trump. See, e.g., Mirren Gidda, How Donald Trump’s Nationalism Won Over White Americans,
NEWSWEEK (Nov. 15, 2016, 3:00 AM),
http://www.newsweek.com/donald-trump-nationalism-racism-make-america-great-again-521083; Jamelle Bouie, What We Have Unleashed, This Year’s
String of Brutal Hate Crimes is Intrinsically Connected to the Rise of Trump, SLATE (June 1,
brutal_hate_crimes_is_intrinsically_connected_to_the.html; Alexis Okeowo, Hate on the Rise
After Trump’s Election, THE NEW YORKER (Nov. 17, 2016),
http://www.newyorker.com/news/newsdesk/hate-on-the-rise-after-trumps-election; Charlotte England, Donald Trump Blamed for
Massive Spike in Islamophobic Hate Crime, THE INDEPENDENT (Feb. 16, 2017, 11:57), http://www
.independent.co.uk/news/world/americas/donald-trump-blame-islamophobic-anti-muslim-banhate-crime-numbers-southern-poverty-law-center-a7582846.html; Ben Jacobs & Warren Murray,
Donald Trump Under Fire After Failing to Denounce Virginia White Supremacists, THE
GUARDIAN (Aug. 12, 2017, 4:07 PM),
https://www.theguardian.com/us-news/2017/aug/12/charlottesvilleprotest-trump-condemns-violence-many-sides; Clare Foran, Donald Trump and the Rise of
AntiMuslim Violence, THE ATLANTIC (Sept. 22, 2016), https://www.theatlantic.com/politics/archive/
2016/09/trump-muslims-islamophobia-hate-crime/500840/ (linking extreme political rhetoric of
Donald Trump with increase in hate crimes); Katie Reilly, Racist Incidents Are Up Since Donald
Trump’s Election, TIME (Nov. 13, 2016),
http://time.com/4569129/racist-anti-semitic-incidentsdonald-trump/. It may be worth noting that conscious, not just subconscious racial bias, is so
DISPARATE IMPACTS IN CRIMINAL IMMIGRATION POLICING
racial profiling data related to criminal immigration enforcement under
PEP, alleging that racial profiling continued.70 The current administration
has indicated reduced tendency towards transparency and has been
particularly selective regarding transparency corresponding with political
If an administration headed by leaders who voiced concerns about
racial profiling in criminal law enforcement72 could not make a significant
dent in such practices,73 presumably because it failed to see the criminal
immigration connection, it may be imperative to begin to look more
proactively at the underlying systemic causes of racially-biased criminal
immigration deportations. In an environment where racial profiling could
become a driving factor in criminal immigration enforcement,74
examinainsidious that the kinds of civil rights measures enacted after the Civil Rights movement of the
1960s did not create sufficient protections, and in this context of criminal immigration
enforcement, and others, stronger protections yet are still required. See, e.g., Kenrya Rankin, Activists,
Law Enforcement Condemn Trump’s Call for Police Violence, COLORLINES (July 31, 2017, 1:36
https://www.colorlines.com/articles/activists-law-enforcement-condemn-trumps-call-policeviolence (Representative Maxine Waters quoted as saying, “Freddie Gray’s family probably wants
to know if officers will protect Trump’s head when he is thrown into the back of a paddy wagon,”
highlighting the implicitly racialized nature of policing); Roque Planas, Why the Media Pays Less
Attention to Police Killings of Latinos, HUFFINGTON POST (Feb. 24, 2015, 5:15 PM), http://www
.huffingtonpost.com/2015/02/24/police-killings-latinos_n_6739448.html (comparing media
coverage of police killings of African Americans and Latinos and attributing the cause to Columbia
University Center for Ethnicity and Race conclusion that Americans perceive Latinos as
immigrants or foreigners and instead perceive them as criminals, more readily than victims of state
violence); Brandon Ellington Patterson, The Police Department Cheering on Trump’s Call for
Excessive Force is Already Under Federal Oversight for Discrimination, MOTHER JONES (July 28,
2017, 8:36 PM),
70. See Press Release, Nat’l Immigr. Just. Ctr., NIJC Sues Federal Government To Release
Data On Racial Profiling in Immigration Enforcement (Feb. 8, 2016),
71. See Geoffrey A. Hoffman, Scrubbing Away Transparency and Our Immigration
Resources, LAW PROFESSOR BLOGS NETWORK: IMMIGR. PROF BLOG (July 5, 2017),
http://lawprofessors.typepad.com/immigration/2017/07/scrubbing-away-transparency-and-our-immigrationresources-by-geoffrey-a-hoffman.html; Chris Cillizza, Donald Trump Isn’t Big on the Whole
Transparency Thing, CNN (Apr. 17, 2017, 8:32 PM), http://www.cnn.com/2017/04/17/politics/
donald-trump-transparency-visitor-logs-taxes/index.html; Nolan D. McCaskill, Trump’s White
House on Defensive Over Transparency, POLITICO (Apr. 17, 2017, 7:09 PM), http://www.politico
.com/story/2017/04/donald-trump-transparency-privacy-237297; Jeremy Venook, The Trouble
with Trump’s Uneven Approach to Transparency, THE ATLANTIC (May 25, 2017), https://www
72. See Transcript: Obama’s immigration speech, WASH. POST
(Nov. 20, 2014)
73. Johnson, Doubling Down on Racial Discrimination, supra note 21, at 1010.
74. See Udi Ofer, Attorney General Jeff Sessions Has Just Doubled Down on the Immoral,
Racist, and Counterproductive War on Drugs, ACLU (May 12, 2017, 4:30 PM), https://www.aclu
Jelani Cobb, Will Jeff Sessions Police the Police?, THE NEW YORKER (Apr. 24, 2017), http://www
.newyorker.com/magazine/2017/04/24/will-jeff-sessions-police-the-police (criticizing Sessions’
UNIVERSITY OF ST. THOMAS LAW JOURNAL
tion of the underlying causes of disparate impacts on Latina/o noncitizens is
SYSTEMIC CRIMINAL IMMIGRATION BIAS
Both criminal and immigration law have a history of racially disparate
enforcement in spite of facial colorblindness.76 Even when criminal and
immigration law are not explicitly connected, the two systems “generate
mutually reinforcing enforcement efforts” that have a disparate impact on
“disfavored minority groups.”77 When criminal and immigration policing
are merged, the practices are mutually reinforcing, the consequences
compounded, and a consistently racially disparate outcome for noncitizen
Latina/os is all but guaranteed. Following the first wave of “crimmigration”
scholarship,78 scholars have begun to explore racially disparate impacts in
announcement regarding reinvigorating the drug war and ceasing Justice Department review of
police misconduct); Eric Lichtblau, Sessions Indicates Justice Department Will Stop Monitoring
Troubled Police Agencies, N.Y. TIMES (Feb. 28, 2017), https://www.nytimes.com/2017/02/28/us/
politics/jeff-sessions-crime.html; Matt Zapotosky, Trump Wants to Empower Local Police to
Enforce Immigration Law, Raising Fears of Racial Profiling, WASH. POST (Jan. 26, 2017), https://
75. Emily Schltheis, Donald Trump: U.S. Must “Start Thinking About” Racial Profiling,
FACE THE NATION (June 19, 2016, 10:14 AM),
http://www.cbsnews.com/news/donald-trump-after-orlando-racial-profiling-not-the-worst-thing-to-do/; see also Letter from Christopher Lasch,
Assoc. Professor, Univ. of Denver Sturm College of Law, to Honorable Bob Goodlatte, Chairman,
Comm. on the Judiciary, U.S. House of Representatives, and Honorable Zoe Lofgren, Ranking
Member, Subcomm. on Immigr. and Border Sec. (Sept.
) (on file with author) (citing
TREVOR GARDNER II & AARTI KOHLI, BERKELEY LAW CTR. FOR RESEARCH & ADMIN., THE
C.A.P. EFFECT: RACIAL PROFILING IN THE ICE CRIMINAL ALIEN PROGRAM 4–6 (Sept. 2009),
https://www.law.berkeley.edu/files/policybrief_irving_0909_v9.pdf) (identifying the correlation
between detainers and profiling of Latinos in Irving, Texas); SARAH WHITE & SALMUN
KAZEROUNIAN, TENN. IMMIGR. & REFUGEE RTS. COAL., THE FORGOTTEN CONSTITUTION: RACIAL
PROFILING AND IMMIGR. ENFORCEMENT IN BEDFORD COUNTY, TENNESSEE 6 (2011), http://www
.tnimmigrant.org/storage/The%20Forgotten%20Constitution.pdf (recounting how Bedford County
law enforcement agents engaged in racial profiling related to perceived immigration status using
criminal allegations and arrests as pretext to make “arrests that will enable jailers to contact ICE”).
76. See Kevin R. Johnson, Doubling Down on Racial Discrimination, supra note 21, at
1025–26 (citing Mary Fan, Post-Racial Proxy Battles over Immigration, in STRANGE NEIGHBORS:
THE ROLE OF STATES IN IMMIGR. POL’Y 229–58 (Carissa Byrne Hessick & Gabriel J. Chin eds.,
2014)) (arguing that state immigration enforcement measures are a “proxy to vent resurgent
anxieties.”) See generally Kevin R. Johnson, A Case Study of Color-blindness: The Racially Disparate
Impacts of Arizona’s S.B. 1070 and the Failures of Comprehensive Immigration Reform, 2 U.C.
IRVINE L. REV. 313 (2012) (analyzing racially disparate impacts of color-blind immigration laws).
77. Jennifer M. Chaco´n, Producing Liminal Legality, 92 DENV. U.L. REV. 709, 742 n.163
(2015) (citing TANYA MARIA GOLASH-BOZA, DEPORTED: POLICING IMMIGRANTS, DISPOSABLE
LABOR AND GLOBAL CAPITALISM 132 (2015); Yolanda Va´zquez, Constructing Crimmigration:
Latino Subordination in a “Post-Racial” World, 76 OHIO ST. L.J. 599 (2015)).
78. HIROSHI MOTOMURA, IMMIGRATION OUTSIDE THE LAW 57–61 (2014); Jason A. Cade,
The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court, 34 CARDAZO L. REV. 1751,
1754–55 (2013); Gabriel J. Chin & Margaret Love, Status as Punishment: A Critical Guide to
Padilla v. Kentucky, 25 CRIM. JUST. 21, 25 (2010); Gabriel J. Chin & Marc L. Miller, The
Unconstitutionality of State Regulation of Immigration Through Criminal Law, 61 DUKE L.J. 251,
253–55 (2011); Cox & Miles, Policing Immigration, supra note 18, at 88; Ingrid V. Eagly,
DISPARATE IMPACTS IN CRIMINAL IMMIGRATION POLICING
criminal immigration enforcement.79 This Part will outline the systemic
UNIVERSITY OF ST. THOMAS LAW JOURNAL
ture of criminal immigration bias and underscore the significance of bias in
criminal law in criminal immigration outcomes.
In the context of renewed yet potentially short-lived criminal justice
reform,80 increased attention has been paid to the history and persistence of
bias in the criminal justice system.81 However, there is little evidence to
suggest that criminal justice reforms have decreased disparate impacts on
communities of color. Because criminal immigration enforcement,
including Secure Communities and PEP, target noncitizens deemed “criminal,”
racial profiling in the criminal justice system remains relevant to addressing
disparate impacts of criminal immigration enforcement. Despite PEP’s
changes, including its attempt to shift discretion back to a macro-level
policy agenda (that still targets “criminal” aliens), its revised detainer policy,
Johnson, Doubling Down on Racial Discrimination, supra note 21; Johnson, A Case Study of
Color-blindness, supra note 76; Kevin R. Johnson, The Intersection of Race and Class in U.S.
Immigration Law and Enforcement, 72 LAW & CONTEMP. PROBS. 1 (2009); Fan, The Case for
Crimmigration Reform, supra note 78, at 89–100 (outlining the case for crimmigration reform and
discussing how the increase in the Asian and Hispanic populations in the United States
transformed the nature of the debate over immigration reform); Katarina Ramos, Criminalizing Race in
the Name of Secure Communities, 48 CAL. W.L. REV. 317, 338–39 (2012) (criticizing the role of
race in the operation of the Secure Communities program); Maureen A. Sweeney, Shadow
Immigration Enforcement and its Constitutional Dangers, 104 J. CRIM. L. & CRIMINOLOGY 2
(analyzing increasingly common phenomenon of state and local law enforcement involvement in
federal immigration enforcement and the resulting negative impacts on minority communities);
Va´zquez, Constructing Crimmigration, supra note 77 (addressing the consequences of a
colorblind approach of crimmigration which has racially disparate impacts on Latina/os); Alia
AlKhatib, Comment, Putting a Hold on ICE: Why Law Enforcement Should Refuse to Honor
Immigration Detainers, 64 AM. U.L. REV. 109, 161 (2014); Rosenbaum, supra note 58 (describing
historic bias in criminal, particularly marijuana law enforcement, and immigration law).
80. See Criminal Justice Reform: What You Need to Know About President Obama’s Plans
for Criminal Justice Reform, THE WHITE HOUSE, https://obamawhitehouse.archives.gov/issues/
criminal-justice-reform; Jamiles Lartey, ‘Justice for Some’: Advocates Worry Jeff Sessions Could
Halt Criminal Justice Reform, THE GUARDIAN (Nov. 18, 2016),
https://www.theguardian.com/usnews/2016/nov/18/jeff-sessions-trump-attorney-general-criminal-justice-reform; see also Nicholas
Espiritu, (E)racing Youth: The Racialized Construction of California’s Proposition 21 and the
Development of Alternate Contestations, 52 CLEV. ST. L. REV. 189 (2005) (addressing the
racialized nature of criminal justice reform in California).
81. There is an extensive body of scholarship addressing racial bias in the criminal justice
system. A very modest and not comprehensive sampling includes: ALEXANDER, supra note 13;
Bryan A. Stevenson & Ruth E. Friedman, Deliberate Indifference: Judicial Tolerance of Racial
Bias in Criminal Justice, 51 WASH. & LEE L. REV. 509 (1994); Kevin R. Johnson, Taking the
“Garbage” Out in Tulia, Texas: The Taboo on Black-White Romance and Racial Profiling in the
“War on Drugs”, 2007 WIS. L. REV. 283 (2007); Devon W. Carbado & Cheryl I. Harris,
Undocumented Criminal Procedure, 58 UCLA L. REV. 1543 (2011); RICHARD DELGADO & JEAN
STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION (2d ed. 2011); Yolanda Va´zquez,
Perpetuating the Marginalization of Latinos: A Collateral Consequence of the Incorporation of
Immigration Law into the Criminal Justice System, 54 HOW. L.J. 639, 667 (2011) (reviewing Angela J.
Davis, Benign Neglect of Racism in the Criminal Justice System: Malign Neglect: Race, Crime,
and Punishment in America, 94 MICH. L. REV. 1660 (1996)); RACE AND EQUALITY LAW (Angela
P. Harris ed., 2013); Mary Romero & Gabriella Sa´nchez, Critical Issues Facing Hispanic
Defendants: From Detection to Arrest, in HISPANICS IN THE U.S. CRIMINAL JUSTICE SYSTEM 63 (Martin
Guevara Urbina ed., 2012).
DISPARATE IMPACTS IN CRIMINAL IMMIGRATION POLICING
and its measures to increase transparency, PEP failed to minimize the
disparate impact of criminal immigration enforcement on Latina/os.82
Particularly with increased interior enforcement,83 criminal
immigration policing has both relied on and simultaneously reinforced existing
criminological, carceral, and penal institutional structures, in spite of an
increasing awareness and acknowledgment of the problems of overbreadth
and racialization, even at the level of the Executive.84 By relying on
“criminality” as defined by the criminal justice system, the immigration
enforcement system is tainted by the flaws of the criminal justice system.85 Latina/
o noncitizens have specifically suffered from narratives characterizing
noncitizens (and Latina/o citizens) as criminals.86 This rhetoric falsely
characterizing immigrants, and particularly Latina/o immigrants, as criminals
feeds policies like Secure Communities and PEP.87 State laws that create
colorblind, presumably immigration-status neutral criminal sanctions for
activities engaged in by immigrants, like driving, are particularly
82. Aura Bogado, Goodbye, Secure Communities. Hello, Priority Enforcement Program,
(Nov. 21, 2014, 8:57 PM)
http://www.colorlines.com/articles/goodbye-secure-communities-hello-priority-enforcement-program. Other scholars, particularly Kevin R. Johnson, have
explored racially disparate impacts, falling heaviest on Latina/os, of crimmigration law. See, e.g.,
Johnson, Doubling Down on Racial Discrimination, supra note 21; Johnson, A Case Study of
Color-blindness, supra note 76.
83. See generally STEPHEN H. LEGOMSKY & CRISTINA M. RODR´IGUEZ, IMMIGR. AND
REFUGEE LAW AND POL’Y 1148–52 (5th ed. 2009) (describing the increased resources devoted to
increased interior enforcement).
84. Sari Horwitz & Wesley Lowery, Obama’s Crusade Against a Criminal Justice System
Devoid of ‘Second Chances’, WASH. POST (April 22, 2016), https://www.washingtonpost.com/
85. Exploration of the harms of racial profiling will be even more necessary as the pendulum
potentially swings back towards heightened policing of communities of color; increase in mass
incarceration is feared. Ali Younes, Black Americans Fear Racism, Police Violence Post-Trump,
AL JAZEERA (Nov. 11, 2016),
http://www.aljazeera.com/news/2016/11/black-americans-fear-racism-police-violence-post-trump-161111113721530.html; Cristina Silva, Will Trump Put More
Black People in Prison? Law and Order Plan Will Increase Police Presence in African-American
Neighborhoods, INT’L BUSN. TIMES (N.Y.C.) (Nov. 14, 2016, 1:28 PM), http://www.ibtimes.com/
86. See generally Deborah Weissman, The Politics of Narrative: Law and the Representation
of Mexican Criminality, 38 FORDHAM INT’L L.J. 141 (2015). Racially disparate impacts of
immigration enforcement are longstanding. See Johnson, Doubling Down on Racial Discrimination,
supra note 21, at 998 (citing generally ALFREDO MIRAND E´, GRINGO JUSTICE (1987)) (exploring
the history of racial disparities in U.S. immigration law).
87. See WALTER EWING, DANIEL E. MART´INEZ & RUB E´N G. RUMBAUT, THE
CRIMINALIZATION OF IMMIGRATION IN THE UNITED STATES (2015), https://www.americanimmigrationcouncil
.org/research/criminalization-immigration-united-states (study that confirms that immigrants are
less likely to engage in criminal activity than citizens); see also Emily Ryo, Less Enforcement,
More Compliance: Rethinking Unauthorized Migration, 62 UCLA L. REV. 622, 624–2
(deconstructing the unsupportable contentions that immigrants are more likely to be criminals than
88. See Annie Lai, Confronting Proxy Criminalization, 92 DENV. U. L. REV. 879, 881 (2015)
(addressing the problem of state criminal penalties for conduct in which immigrants habitually
engage, like driving).
UNIVERSITY OF ST. THOMAS LAW JOURNAL
Use of racial or ethnic appearance in immigration policing continues to
implicitly condone racial profiling in criminal immigration enforcement.89
The Supreme Court’s rulings in the civil immigration case Brignoni-Ponce,
authorizing use of “Mexican appearance” as a “relevant factor” in enforcing
immigration law,90 combined with the Court’s ruling in Whren, failing to
find an officer’s racial bias in a criminal traffic stop,91 seem to have tacitly
condoned racial profiling in criminal immigration enforcement.92 Similarly,
the Court’s ruling in Lopez Mendoza curtailed consideration of racial bias in
a stop challenged in the immigration removal context.93 Thus, Fourteenth
Amendment Equal Protection and the Fourth Amendment provide limited
means to address racially-biased exercises of police discretion that impact
The immigration removal system has increasingly relied on criminality
as a means of designating noncitizens as priorities for deportation.95
Regardless of political party affiliation, policymakers employ the “criminal
alien” classification as a convenient, seemingly neutral means of defining
“desirable” as opposed to “undesirable” noncitizens. The “criminal alien”
89. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975); see also Johnson, How
Racial Profiling Became the Law of the Land, supra note 58, at 1021–23, 1060–63 (examining the
way in which the Supreme Court’s ruling on use of racial profiling in criminal and immigration
matters reinforces the practice in both).
90. United States v. Brignoni-Ponce, 422 U.S. at 886–87.
91. Whren v. United States, 517 U.S. 806, 813 (1996).
92. See also Johnson, Doubling Down on Racial Discrimination, supra note 21, at 1010 n.71
(citing Ce´sar Cuauhte´moc Garc´ıa Herna´ndez, La Migra in the Mirror: Immigration Enforcement
and Racial Profiling on the Texas Border, 23 NOTRE DAME J.L. ETHICS & PUB. POL’Y 147, 184
(2009)) (“The significance of the language in Brignoni-Ponce—‘Mexican appearance’—and
Martinez-Fuerte—‘of apparent Mexican ancestry’—cannot be overstated.”); see also Lupe S. Salinas
& Fernando Colon-Navarro, Racial Profiling as a Means of Thwarting the Alleged Latino Security
Threat, 37 T. MARSHALL L. REV. 5, 13 (2011) (analyzing adverse impacts of racial profiling on
93. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984); see also Stella B. Elias, ‘Good
Reason to Believe’: Widespread Constitutional Violations in the Course of Immigration
Enforcement and the Case for Revising Lopez-Mendoza, 2008 WIS. L. REV. 1109, 1151–54 (2013)
(discussing the need for Court to reconsider the widespread nature of constitutional violations).
94. See Lopez-Mendoza, 468 U.S. 1032 at 1050 (asserting that exclusionary rule applies in
immigration court to suppress only “egregious” violations of the Fourth Amendment); see also
Carrie L. Rosenbaum, The Role of Equality Principles in Preemption Analysis of Sub-federal
Immigration Laws: The California TRUST Act, 18 CHAP. L. REV. 481, 499–502 (2015) (making
the case why the immigrant protective California TRUST Act should not be deemed preempted
because of the necessary role of equality principles in the constitutional analysis and discussing
shortcomings of existing measures, such as Equal Protection and the Fourth Amendment, to
provide meaningful protection to noncitizens challenging criminal immigration enforcement effected
by racially biased stops); see also Jennifer M. Chaco´n, A Diversion of Attention? Immigration
Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 DUKE L.J. 1563, 1614
95. See, e.g., Jennifer Chaco´n, Managing Migration Through Crime, 109 COLUM. L. REV.
135, 143 (2009); Va´zquez, Perpetuating the Marginalization of Latinos, supra note 81, at 644
(discussing portrayal of Latinos as threats to national security and criminals to justify
disproportionate enforcement of criminal and immigration laws against Latinos).
DISPARATE IMPACTS IN CRIMINAL IMMIGRATION POLICING
classification remains an “ideologically, and politically expedient” means of
President Obama’s announcement of PEP was superficially
represented as the solution to the failures of Secure Communities, highlighting
“felons not families”97 as the priority for immigration enforcement.
However, this characterization erased the raced nature of criminal justice
policing, perpetuating the equally racialized characterization he employed
previously of “gang bangers.”98 Both labels are reminiscent of the “tough
on crime”99 rhetoric of prior decades used to justify mass incarceration of
people of color, all while appearing colorblind.100 In spite of some
recognition of racial injustice in the criminal justice system in recent years, even
the administration of the first African-American president did not attempt to
rhetorically undo the characterization of Latina/os immigrants as criminals,
or otherwise address racial bias in the crimmigration pipeline.
Scholar Yolanda Va´zquez aptly described the merging of criminal and
immigration law as having restructured social categories, further
diminishing Latina/o economic and political power, and exacerbating Latina/o
marginalization.101 Va´zquez suggests that “hyper-incarceration ‘finely
96. Garc´ıa Herna´ndez, The Perverse Logic of Immigration Detention, supra note 13, at 361;
see also Cha´zaro, supra note 9, at 599 (explaining how the Executive Action benefits from
recasting immigrants as “criminal aliens” because the term denotes a “more ideologically acceptable set
of targets”); Sean Bauer, My Four Months as a Private Prison Guard, MOTHER JONES (July/Aug.
http://www.motherjones.com/politics/2016/06/cca-private-prisons-corrections-corporationinmates-investigation-bauer (explaining how conflation of refugee or immigrant with criminal is
enhanced by DHS policy of incarcerating refugees as if they were criminals when they arrive at
the border asking for safe haven). Bauer’s article adds new complexity, suggesting it is possible
that in the public imagination, the label of “immigrant” or even “refugee” may be surpassing
“criminal” (or “criminal alien”) in the category of the most disdained members of society where
prisoners stated that guards beat them so brutally it was “like they were refugees.”
97. President Barack Obama, Remarks by the President in Address to the Nation on
(Nov. 20, 2014)
98. John Arit, Obama Isn’t Deporting “Gangbanger” Immigrants, But Ones Who Run Red
Lights, THE ATLANTIC (April 7, 2014), http://www.theatlantic.com/politics/archive/2014/04/
Obama’s use of the term “gangbanger” in discussing who should be deported from the U.S. and
explaining the vast and biased reach of the criminal immigration system).
99. See STEVEN BENDER, MEA CULPA: LESSONS ON LAW AND REGRET FROM U.S. HISTORY
82 n.40 (2015) (discussing the criminalization of poverty); see also Miriam Zoila Pe´rez, ‘Crack
Baby’ Hysteria Returns, COLORLINES (July 18, 2014, 7:00 AM),
http://www.colorlines.com/articles/crack-baby-hysteria-returns (explaining term “crack babies” became synonymous with the
racist characterization of babies of African-American mothers who used crack akin to Obama’s
use of “gang banger” to describe young inner-city, black mothers).
100. See generally ALEXANDER, supra note 13 (arguing that the criminal justice system has
contributed to a new caste system that has maintained the subordination of African Americans in
the United States); DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN
CONTEMPORARY SOCIETY (2001) (discussing mass incarceration as a phenomenon that has become
the “systematic imprisonment of whole groups of the population”); MAY LOUISE FRAMPTON ET
AL., AFTER THE WAR ON CRIME: RACE, DEMOCRACY, AND A NEW RECONSTRUCTION 1 (2008).
101. Va´zquez, Perpetuating the Marginalization of Latinos, supra note 81, at 650.
UNIVERSITY OF ST. THOMAS LAW JOURNAL
targets’ poor black US citizen males;” while here, “crimmigration ‘finely
targets’ poor noncitizen Latina/os.”102 Scholars such as Ange´lica Cha´zaro
have urged a new approach to immigration enforcement that ceases to rely
on “criminality” as a means of prioritizing individuals for deportation.103
Cha´zaro suggests that the criminal justice system produces “ ‘criminal
aliens’ . . . along lines of race, class, and other vectors of social
vulnerability.”104 The immigration system reinforces and re-produces raced and
classed marginalization, and answers the perceived social challenge of
migration with incarceration and deportation.105 Disavowing criminality rather
than recognizing the inherent flaws in the criminal system, particularly with
respect to racial disparities, does not challenge the logic of crime but
substantiates it.106 As a part of the paradigm of “respectability,” the system
demonizes alleged “criminal” noncitizens and encourages retrenchment of
biases and flaws of the system.107
In spite of designated immigration priorities allegedly focusing on
people who have been convicted of violent or dangerous crimes as enforcement
priorities, in practice, crimes that are neither serious, nor violent, including
“repeat misdemeanors,” contribute to the manufacturing of “ ‘criminals’
based on race, class and social vulnerability,” and funnel individuals into
the immigration removal system.108 Immigration authorities reliance on
sub-federal arrests can mask local law enforcement agents’ racial and ethnic
preferences and prejudices. As the criminal justice system continues to
manufacture criminals along lines of race and class, criminal-immigration
102. Yolanda Va´zquez, Crimmigration: The Missing Piece of Criminal Justice Reform, 51 U.
RICH. L. REV. 1093 (2017).
103. See Cha´zaro, supra note 9, at 651.
104. Id. at 598.
105. See, e.g., Cha´zaro, supra note 9, at 637–38.
106. Id. at 651 (citing Lisa Marie Cacho, The Rights of Respectability: Ambivalent Allies,
Reluctant Rivals, and Disavowed Deviants, in IMMIGRATION RIGHTS IN THE SHADOWS OF
CITIZENSHIP 190, 199 (Rachel Ida Buff ed., 2008)). Just as past presidents trumpeted “tough on crime”
rhetoric, President Obama has sounded the alarm of the “criminal alien.” By calling for a focus on
identifying, apprehending, and deporting so-called “criminal aliens,” his administration
contributed to the characterization of immigrants as criminals, implying that the morally correct answer
to the problem of unauthorized immigration is to target “felons not families.” See Obama’s
immigration speech, supra note 72. This rhetoric erases the multidimensionality of reality—a
noncitizen may be both a parent and a worker yet subject to the “criminal” label due to the flawed
nature of the criminal justice system. Yet at the same time as the criminal justice system is
experiencing a crisis of legitimacy, state-level and even national calls for reform and actual reforms due
to recognition of over-criminalization and racial bias, the immigration system has not yet
questioned reliance on this system, which has increasingly become acknowledged as a failure.
107. See Sharpless, supra note 13, at 731.
108. Cha´zaro, supra note 9, at 610–11 (2016) (“With ten million misdemeanor cases filed
annually, as compared to the one million felony convictions entered in the United States each
year, the misdemeanor process represents ‘the concrete mechanism by which the system is able to
generate ‘criminals’ based on race, class, and social vulnerability. . . .”) (citing Alexandra
Natapoff, Misdemeanors, 85 S. CAL. L. REV. 1313,1314–15, 1368 (2012).
DISPARATE IMPACTS IN CRIMINAL IMMIGRATION POLICING
law will continue to entrench disparate outcomes and impacts on Latina/o
The disproportionate criminal immigration deportation of noncitizens
of Central American and Mexican origin reflects the racial and ethnic
disparities of the criminal justice system.109 More than ninety-five percent of
noncitizens removed annually are from Mexico and Central America—far
out of proportion to those groups’ representation in the U.S. immigrant
population.110 The possibility of incarceration or deportation, or the
incarceration or deportation of family members, is ever-present in the lives of Latina/
os, not unlike the threat of police violence in all communities of color.111
Racial bias in criminal sub-federal law enforcement begins at least in
part with arresting officers’ discretion to arrest.112 Sub-federal
racially-biased abuse of discretion can occur in the context of using arrests to
“control” the streets.113 Along these lines, the Supreme Court’s allowance of
warrantless arrests for minor offenses seems to sanction such practices,114
despite the fact that such tactics fall disproportionately on communities of
color.115 Crime “control” arrests often lack probable cause and mask
As Angelica Cha´zaro explains, in the context of addressing the
problem of the “criminal alien paradigm,” misdemeanor prosecutions are a
fre109. See Rosenbaum, supra note 58, at 13; see also Johnson, Racial Profiling in the War on
Drugs Meets the Immigration Removal Process, supra note 43, at 976–77 (citing sources).
110. See Johnson, Racial Profiling in the War on Drugs Meets the Immigration Removal
Process, supra note 43, at 969, 976–77.
111. See Hing, From Ferguson to Palestine, supra note 21, at 574 (addressing police abuse of
power in a racist manner, discussing the “broken windows” model of policing, and considering
whether the Black Lives Matter movement offers alternatives that ensure equal access to
protection and public safety while eliminating the ever present fear of police brutality in communities of
color); Sam P.K. Collins, How the Breakdown of Trust with the Police Impacts Black Lives, THINK
PROGRESS (July 31, 2015),
112. See Motomura, supra note 49, at 1853 (explaining that the “discretion that matters” for
noncitizens fearing deportation “is the discretion by local law enforcement to arrest” them and that
once noncitizens are put into removal proceedings, there is a “very high likelihood that they will
be ordered and actually removed.”)
113. David Alan Sklansky, Crime, Immigration, and Ad Hoc Instrumentalism, 15 NEW CRIM.
L. REV. 157, 157–223 (2012) (explaining federal immigration enforcement’s merging with
subfederal criminal enforcement induces police to view the two—criminal and immigration law—as
different tools to access in achieving their ultimate goal; use whichever best suits the
114. See Terry v. Ohio, 392 U.S. 1 (1968).
115. Atwater v. Lago Vista, 532 U.S. 318 (2000); see also Utah v. Strieff, 136 S. Ct. 2056,
2070–71 (2016) (Sotomayor, J., dissenting) (citing scholars Michelle Alexander, Ta-Nehisi
Coates, Lani Guinier and Gerald Torres, suggesting “[i]t is no secret that people of color are
disproportionate victims of this type of scrutiny,” referring to racially-biased policing, and “you
are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued.”)
Had this case concerned a noncitizen subject to this same arguably unconstitutional policing, the
implications would be more severe, but the legal remedies even more curtailed/circumscribed.
UNIVERSITY OF ST. THOMAS LAW JOURNAL
quent outcome of pretextual crime control arrests.116 Nationwide, annually,
there are approximately ten-million misdemeanor prosecutions, which is ten
times the number of felony cases.117 Misdemeanor arrests often result in
misdemeanor convictions, in part because most indigent arrestees lack
appointed counsel for misdemeanor charges. Young Latino men bear the
disproportionate burden of misdemeanor arrests without probable cause,
particularly when they live in low-income communities,118 and accordingly,
when they are noncitizens, similarly, they are disproportionately deported.
Indicative of the more fundamental problem of the “criminal alien”
paradigm, because of the data transmission component of PEP, sub-federal
law enforcement agents used misdemeanors as a pretext in identifying
potential noncitizens.119 Because PEP designated “serious,” that is, repeat,
misdemeanants as an immigration enforcement priority, the problems of
biased criminal policing continue to migrate to the immigration removal
system.120 This is particularly true in the case of noncitizens identified by
criminal law enforcement agents as a result of conduct constituting a
misdemeanor offense. Because immigration enforcement can result from criminal
law enforcement action, arrests can be used as regulation with
racially-biased screening used to detect suspected noncitizens, all while evading
barriers intended to prevent racial bias in criminal policing.121
116. Cha´zaro, supra note 9, at 608 (citing Natapoff, supra note 108, at 1314–15) (arguing that
informal and deregulated processing, weak prosecutorial screening, poor defense bar, and high
plea rates contribute to mass conviction of petty misdemeanor offenses, which carry harsh
consequences and implicate due process concerns).
117. Id. at 670 n.71 (“The lack of procedure during the plea or trial phase of the misdemeanor
process transfers the legal authority as to who will be convicted to police officers. This transfer
means that a misdemeanor arrest is overwhelmingly likely to result in a misdemeanor conviction.
Because racial profiling is a reality in urban policing, the increased legal authority given to police
officers translate into the mass criminalization of young men of color.”); see also Sharpless, supra
note 13, at 727–28 (arguing traffic violations, historically subject to pre-textual practices, are
frequently the gateway offense leading to adverse immigration consequences).
118. Cha´zaro, supra note 9, at 610 (citing Ice Deportations: Gender, Age, and Country of
Citizenship, TRAC IMMIGR. (Apr. 9, 2014), http://trac.syr.edu/immigration/reports/350/
that, between 2012 and 2013, more than ninety percent of ICE deportees were male)
; see also
Natapoff, supra note 108, at 1330–31.
119. Cha´zaro, supra note 9, at 617.
120. Id. at 624; see also Johnson, Doubling Down on Racial Discrimination, supra note 21, at
998–1000 (critiquing the lack of adequate attention by the scholarly community to address the
relevance of racial profiling in criminal policing and its relatedness to criminal immigration
121. See Eisha Jain, Arrests as Regulation, 67 STAN. L. REV. 809, 854–55 (2015); Elina
Treyger, Collateral Incentives to Arrest, 63 U. KAN. L. REV. 557, 559 (2015); Michael J. Wishnie,
State and Local Police Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084, 1102–15
(2004) (explaining how state and local enforcement of immigration law may increase racial
profiling in criminal policing); see also Letter from Thomas E. Perez, Assistant Att’y Gen., U.S. Dep’t
of Just., Civ. Rts. Div., to Clyde B. Albright, Cty. Att’y, Alamance Cty. & Chuck Kitchen,
Turrentine Law Firm 5 (Sept. 18, 2012), http://goo.gl/vovKgM; Melendres v. Arpaio, 989 F. Supp. 2d
822, 827 (D. Ariz. 2013) (providing specific examples in Alamance County, North Carolina where
police were more likely to stop Latino drivers, and Phoenix, Arizona, where former Sheriff Joe
Arpaio of Maricopa County directed or allowed officers to rely on race to conduct traffic stops in
DISPARATE IMPACTS IN CRIMINAL IMMIGRATION POLICING
Even with PEP’s requirement of a conviction for a “significant”
misdemeanor, the realities of policing of criminal misdemeanors meant that the
Program was unlikely to have minimized disparate impact on noncitizen
Latina/os. Individuals arrested for low-level criminal offenses are likely to
enter the criminal justice system as a result of racial profiling, compounding
the problem of racial and ethnic bias in the criminal immigration removal
system. Absent an undoing of racially-biased criminal policing, PEP’s
attempt to shift discretion to macro-level priorities and its requirement of
convictions rather than just arrests were unlikely to have solved the problem.
Professor Cha´zaro has stated that while criminal justice policy
experienced a period where mass incarceration was recognized as a problem and
thus became less punitive, the same was not true in immigration
enforcement where “the unprecedented resources applied to both border and
interior enforcement and the growth in detention have not yet reached
politically unpalatable levels.”122 The Obama administration was criticized
for incarceration of immigrants and refugees and mass deportations,123 and
President Trump and his appointees have expressed intent to dedicate even
more resources to incarcerating and deporting noncitizens, with fewer
protections than existed previously.124 Thus, there may not be such thing as a
express violation of the Equal Protection Clause ); Alexandra Natapoff, Misdemeanor
Decriminalization, 68 VAND. L. REV. 1055, 1057 (2015) (exploring misdemeanor decriminalization, in part
arguing that the “misdemeanor machinery is a major source of overcriminalization” and “produces
much of the racial skew of the U.S. criminal population.”)
122. Cha´zaro supra note 9, at 643 nn.227–28.
123. Editorial Board, Mr. Obama’s Dubious Detention Centers, N.Y. TIMES (Jul. 18, 2016),
Julianne Hing, For Immigrants, the Obama Era Has Been Long and Maddening, NATION MAG.
(Jun. 27, 2016)
https://www.thenation.com/article/for-immigrants-the-obama-era-has-been-longand-maddening/; Philip L. Torrey, Immigration Detention’s Unfounded Bed Mandate, 15-04
IMMIGR. BRIEFINGS 1, Apr. 2015, (calling out the immigration detention “bed mandate” or “bed
quota,” as “poor public policy at best and unconstitutional at worst”); Anita Sinha, Arbitrary
Detention? The Immigration Detention Bed Quota, 12 DUKE J. CONST. L. & PUB. POL’Y 77 (2017)
(examining the detention bed quota and providing a due process and human rights critique); Bill
Ong Hing, Ethics, Morality, and Disruption of U.S. Immigration Laws, 63 U. KAN. L. REV. 981,
983 (2015) (critiquing Obama era mass deportation and disruptive enforcement tools creating a
culture of impunity for rights violations); Jason A. Cade, Enforcing Immigration Equity, 84
FORDHAM L. REV. 661, 668–69 (2015) (describing enforcement and lack of sufficient discretion in
immigration enforcement under the Obama administration and suggesting that Congress address
immigration reform by scaling back removal provisions, create opportunity for judicial discretion
and legalization for undocumented persons); Muzaffar Chishti, Sarah Pierce & Jessica Bolter, The
Obama Record on Deportations: Deporter in Chief or Not?, MIGRATION POL’Y INST. (Jan. 26,
2017) (analyzing the Obama record and legacy on deportations and acknowledging the complexity
of the immigration system),
124. Chris Hayes & Brian Montopoli, Trump Admin. Plans Expanded Immigration Detention,
MSNBC (Mar. 3, 2017),
http://www.msnbc.com/all-in/exclusive-trump-admin-plans-expandedimmigrant-detention; Caitlin Dickerson, Trump Plan Would Curtail Protections for Detained
Immigrants, N.Y. TIMES (Apr. 13, 2017),
UNIVERSITY OF ST. THOMAS LAW JOURNAL
politically unpalatable level of criminal and/or criminal immigration
While Secure Communities resulted in disproportionate deportation of
Latina/os with minor criminal convictions (or none at all), the focus on
procedural failures rather than substantive challenges and the premise that
criminality is an indicator of undesirability validated PEP’s immigration
enforcement regime in spite of continuing racial disparities.125 Even if
resistance to criminal immigration enforcement via renewed vows to honor
sanctuary policies persists, the foundational and substantive problem of
criminal immigration enforcement remain.
Additionally, misplaced focus on procedural failures, including those
advanced by a relatively pro-immigrant, rather than restrictionist
administration, erases structural factors that manufacture a “criminal alien” out of a
noncitizen—race, class, and factors like local policing practices.”126 As
Ingrid Eagly highlights, the variance amongst immigrant protective policies
within even one state can suggest vastly different outcomes for immigrants
who have come into contact with the criminal justice system.127 Cha´zaro’s
central claim is that the “criminal alien” paradigm should be dispensed
with, in part because it is “an unnatural category for the distribution of the
harms of detention and deportation.”128
The mismatched response of manufacturing “criminal aliens” instead
of addressing systemic causes of the perceived problem of migration is
reminiscent of the war on drugs of the 1980s. The drug-war policies resulted in
what are now widely recognized as excessively punitive mass incarceration
without a corresponding decrease in crime,129 and has been characterized as
a misplaced response to the social problem of poverty.130
In recent years, drug policy measures had begun to shift with
reframing of drug abuse as a public health rather than criminal justice problem.131
However, a parallel shift has yet to occur in criminal immigration law, and
the two systems have yet to make meaningful change to decrease racially
disparate impacts in the context of criminal immigration enforcement in
general. As draconian drug policy measures are likely to be resurrected in
DISPARATE IMPACTS IN CRIMINAL IMMIGRATION POLICING
the coming years,132 the rhetoric about crime and safety will include the
same veiled and structural racism of the past.
THE ROLE OF EQUALITY CONSIDERATIONS IN CRIMINAL
Whether the mechanism connecting criminal and immigration
enforcement is Secure Communities or PEP, systemic and persistent racial bias
pervades criminal law enforcement and migrates into criminal immigration
policing.133 In discussions of counteracting or ending the racial harms of the
criminal immigration system, scholars have focused primarily on immigrant
“protective policies” at the sub-federal level and proposals for immigration
reform.134 To contribute to these conversations, this Part will propose
further incorporation of discussions of equality principles in the context of
decoupling criminal and immigration enforcement.135 This Part will also
suggest that eliminating the criminalization of noncitizens via the “criminal
alien” profile might counteract the harms done by racially-biased criminal
immigration policing. Shaping immigration policy with an emphasis on
equality and with an eye toward integration may bring other collateral
social and socio-legal benefits that come from substantively and meaningfully
valuing the notion of equality.
Scholar Ingrid Eagly is one of the first criminal immigration scholars
to explore the concept of immigrant equality in the context of criminal
immigration enforcement and immigrant protective policies.136 Eagly
considers the way in which advocates have advanced the notion of equality
principles as a justification for sub-federal immigrant protective policies,
specifically with respect to the problem of unequal treatment of noncitizens
accused of crimes.137 Particularly in the face of a new administration led by
UNIVERSITY OF ST. THOMAS LAW JOURNAL
a president who has expressly made rhetorical connections between Latina/
o identity and criminality,138 suggested return to stop-and-frisk policing in
spite of studies indicating racial profiling,139 and an Attorney General who
indicated an interest in returning to failed drug war policies known to have
racially disparate impacts,140 it may be appropriate to explore the relevance
of equality principles even more broadly, rather than, as this Article has
done thus far, merely address the failures of the PEP with respect to
reinforcing racial profiling.141
Accordingly, this Part will plant the seeds for a fuller discussion of
equality principles as a rationale, as a step, towards immigrant integration
138. David Nakamura, Blame Game: Trump casts immigrants as dangerous criminals, but the
evidence shows otherwise, WASH. POST (Mar. 24, 2017),
Desjardins, Every moment in Donald Trump’s long and complicated history with race, PBS
NEWSHOUR (August 23, 2017, 10:56 AM),
140. See Graham Vyse, Jeff Sessions is bringing back the War on Drugs, NEW REPUBLIC,
https://newrepublic.com/minutes/142678/jeff-sessions-bringing-back-war-drugs; see also Jeffrey
Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder in New York
City, 28 FORDHAM URB. L.J. 457, 462–63 (2000) (analyzing stop and frisk as a part of “broken
windows” policing to assess whether broken windows reflected “place-based” strategies of what
Broken Windows theory purports to be, or instead, targets people for arrest based on race and
class); BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS
POLICING, 59-78 (2001). In the most comprehensive study of the “Broken Windows” theory to
date, Robert Sampson and Stephen Raudenbush could find no relationship between observed
physical disorder and crime in subject neighborhoods in Chicago, Illinois, finding instead that
indicia of concentrated disadvantage within a community best predicted crime rates. See Robert J.
Sampson & Stephen W. Raudenbush, Systematic Social Observation of Public Spaces: A New
Look at Disorder in Urban Neighborhoods, 105 AM. J. SOC. 603, 637–39 (1999); see also
Jonathan Oberman & Kendea Johnson, Broken Windows: Restoring Social Order or Damaging
and Depleting New York’s Poor Communities of Color?, 37 CARDOZO L. REV. 931, 950 (2016)
(“Broken Windows policing has flooded the criminal justice system with a volume of low-level
offenses that dramatically exceeds the system’s capacity for nuanced, due process based,
adversarially-tested resolution.”); Lawrence Rosenthal, The Crime Drop and the Fourth Amendment:
Toward an Empirical Jurisprudence of Search and Seizure, 29 N.Y.U. REV. L. & SOC. CHANGE
641, 682 (2005); Hope Corman & Naci Mocan, Carrots, Sticks and Broken Windows (Nat’l
Bureau of Econ. Res., Working Paper No. 9061, 2002) (finding that arrest rates explained New York
City’s crime reductions to a far greater extent than did economic conditions or Broken
Windowsrelated factors); Gary Stewart, Black Codes and Broken Windows: The Legacy of Racial
Hegemony in Anti-Gang Civil Injunctions, 107 YALE L.J. 2249, 2251 (1998) (suggesting that contrary to
claims that “broken windows” policing using broad discretion for effective crime prevention is
fallacious and results in civil rights violations and oppression of minority communities).
141. The Author will acknowledge more fully, in a subsequent work, the strategic and
logistical reasons that advocates have come to rely less on the Equal Protection clause in litigation. Here,
the Author intends to propose that despite challenges in using the Clause to advocate for equal
justice, reasserting the relevance of equality and equal protection still play a critical role in the
public perception of the value of equality. Eventually, that public perception may have the
potential to shape the ability to resurrect, and see vindicated, equality claims in the courts.
DISPARATE IMPACTS IN CRIMINAL IMMIGRATION POLICING
and equality outside of the confines of immigration status.142 Recognizing
and valuing equality principles is essential to countering systemic racism
perpetuated through the criminal and criminal immigration systems,
resulting in racially disparate deportations, and deepening socioeconomic and
other longstanding racial divides that impact noncitizens and citizens
alike.143 Studies on race, ethnicity, and their proxies144 suggest that
prohibiting racial discrimination in the context of criminal immigration
enforcement would have relevance and reverberations beyond the confines of
There are several ways in which equality principles and the different
but related principle of immigrant integration have been discussed in
academic literature. Hiroshi Motomura has explored the significance of the
Court’s ruling in Plyler v. Doe146 in the context of immigrant integration,
where the “Plyler majority evidently saw immigrant integration not just as
formal status but also as functional participation in American society.”147
Integration presumably suggests great social and economic mobility,148
142. Cf. Eagly, Immigrant Protective Policies in Criminal Justice, supra note 9, at 288
(explaining that Linda Bosniak is one of the first to discuss the concept of “immigrant integration,”
and has written extensively on the idea of immigrant integration); see Linda S. Bosniak,
Immigrants, Preemption and Equality, 35 VA. J. INT’L L. 179, 186 n.25 (1994).
143. See, e.g., Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State
Prisons, The Sentencing Project (June 14, 2016),
http://www.sentencingproject.org/publications/colorof-justice-racial-and-ethnic-disparity-in-state-prisons/ (in the context of incarceration); Timothy
Williams, Study Supports Suspicion that Police Are More Likely to Use Force on Blacks, N.Y.
Times (July 14, 2016),
https://www.nytimes.com/2016/07/08/us/study-supports-suspicion-that-police-use-of-force-is-more-likely-for-blacks.html (in the context of policing); On Views of Race and
Inequality, Blacks and Whites Are Worlds Apart, Pew Research Ctr. (June 27, 2016), http://www
.pewsocialtrends.org/2016/06/27/on-views-of-race-and-inequality-blacks-and-whites-are-worldsapart/ (in the context of racial equality); Joshua Holland, The Average Black Family Would Need
228 Years to Build the Wealth of a White Family Today, The Nation (August 8, 2016), https://
www.thenation.com/article/the-average-black-family-would-need-228-years-to-build-the-wealthof-a-white-family-today/ (in the context of socioeconomic equality).
144. See, e.g., Khaled A. Beydoun, ‘Muslim Bans’ and the (Re)Making of Political
Islamophobia, U. ILL. L. REV. (forthcoming 2017), https://ssrn.com/abstract=2742857 (discussing
Islamophobia and how Islam is constructed not only as a religion but also on racial terms equated
with “otherness,” and tracing the history of the Muslim naturalization ban to the modern day
145. See, e.g., Kevin R. Johnson, Melting Pot or Ring of Fire: Assimilation and the
MexicanAmerican, 85 CAL. L. REV. 1259 (1997) (poignantly examining the ways in which the elevated
status of “Whiteness” exacts a steep toll on not only Mexican nationals who lack legal status in the
U.S. but on all Mexican-Americans). The Author hopes to explore the significance of elevating
equality principles, chip away at Whiteness’ hegemonic power, and decrease the harms of racial
bias for both noncitizen Latina/os and all present in the United States.
146. Plyler v. Doe, 457 U.S. 202, 230 (1982) (striking down a Texas statute requiring
unauthorized immigrant children to pay for or be denied public education from kindergarten through
147. Motomura, Immigration Outside the Law, supra note 135, at 2072 (explaining that while
the Plyler decision focused on integration and education, the same principles are relevant in this
context and merit a fuller discussion, which the Author hopes to address in an upcoming work).
148. See Eagly, Immigrant Protective Policies in Criminal Justice, supra note 9, at 289 (citing
Cristina M. Rodr´ıguez, The Significance of the Local in Immigration Regulation, 106 MICH. L.
UNIVERSITY OF ST. THOMAS LAW JOURNAL
which can correspond with decreased interaction with the criminal justice
One form of “immigrant equality” is informed by the idea of “equal
treatment along racial and ethnic lines.”150 Eagly explains, “An immigrant
equality approach calls for attention to the ways in which immigration
policing can shift the priorities and practices of the criminal law in ways that
promote and mask profiling of Latinos and ethnically disparate treatment in
prosecution and punishment practices.”151 In other words, criminal
immigration enforcement necessarily creates a potential incentive to attempt
immigration law enforcement via criminal policing. That alone, even absent
already systemic racial bias in criminal policing, adds another dimension to
the racial bias persistent in criminal law enforcement efforts.
Therefore, if connecting criminal and immigration enforcement adds
more incentive to engage in racial profiling, and criminal enforcement is
already infected by such bias, equal treatment along racial and ethnic lines
may implicate not just policing of noncitizen “criminals,” but any and all
who come into contact with the criminal dragnet. Because perceived race
and ethnicity have historically been used lawfully to enforce immigration
law,152 and unlawfully to police alleged criminals and
criminal-immiREV. 567, 581–82 (2008)) (describing “programs adopted by various states and localities to
integrate immigrants affirmatively into local institutions and networks”); see also Immigrant
Integration, MIGRATION POL’Y INST., http://www.migrationpolicy.org/topics/immigrant-integration (last
visited Feb. 7, 2017) (defining immigrant integration as “the process of economic mobility and
social inclusion for newcomers and their children including early childhood care, educational
opportunities, workforce development, and healthcare”); Rube´n G. Rumbaut, Assimilation’s Bumpy
Road, in AMERICAN DEMOCRACY AND THE PURSUIT OF EQUALITY 184–219 (M. Chowkwanyn &
R. Serhan eds., 2011) (considering the problematic nature of the term “assimilation,” that it masks
and minimizes structural inequities; addressing language acquisition and social mobility in
immigrant integration); see generally Lauren Gilbert, Citizenship, Civic Virtue and Immigrant
Integration: The Enduring Power of Community-Based Norms, 27 YALE L. & POL’Y REV. 335 (2009)
(evaluating the merits of, exploring approaches to, and critically assessing different models of
immigrant integration, including multicultural accommodation).
149. While increased socio-economic success can help facilitate, or be an indicator of
integration (irrespective of immigration status), and racial-biased policing usually focuses on low-income
communities, socio-economic status does not necessarily create immunity from racially-biased
policing. See, e.g., Abby Goodnough, Harvard Professor Jailed; Officer is Accused of Bias, N.Y.
TIMES (July 20, 2009), http://www.nytimes.com/2009/07/21/us/21gates.html (describing how
prominent African-American Harvard scholar was arrested in his home as a suspect in robbing his
own house). The Author would also like to explore the possibility that an elevation of equality
principles—that is, the integration of all persons, citizen and noncitizen—could lead to
disassociation in the public imagination and socio-political infrastructure that facilitate racial oppression.
150. See Eagly, Immigrant Protective Policies in Criminal Justice, supra note 9, at 300 (citing
Carbado & Harris, supra note 81, at 1545–47) (arguing the apparatus of immigration-enforcement
and criminal procedure laws have only further enabled and legitimized race-based immigration
151. Eagly, Immigrant Protective Policies in Criminal Justice, supra note 9, at 296.
152. See Brigoni-Ponce, 422 U.S. at 885–87 (suggesting in dicta that Mexican appearance
could be a relevant factor in the reasonable suspicion determination); but see United States v.
Montero-Camargo, 208 F.3d 1122, 1131–33 (9th Cir. 2000) (en banc) (Mexican appearance not
sufficient to satisfy the reasonable suspicion standard in the border region where a significant
DISPARATE IMPACTS IN CRIMINAL IMMIGRATION POLICING
grants,153 equal treatment of noncitizens along racial and ethnic lines may
be a worthwhile goal to also help decrease disparate treatment of all persons
of color, irrespective of immigration status.
Along these lines, as Eagly described the decades-prior sanctuary
policies which excluded those with criminal records, San Francisco is now
struggling with creating effective sanctuary polices.154 In response to
President Trump’s statements on enforcing immigration, states like California
and cities like San Francisco are aggressively pursuing measures to protect
immigrants who benefited from the prior administration’s DACA program,
and to protect immigrants from potential immigration raids known to
drastically disrupt communities on every level.155
However, even in these nascent sanctuary discussions, lines have been
drawn between the “good” and “bad,” the immigrant and the “criminal”
immigrant, reinforcing the Obama administration rhetoric that creates a
false binary between “family” and “felon,” and disregards the racial bias
inherent in criminal and criminal immigration enforcement.156
While the earlier 1980s sanctuary policies were not designed to help
protect noncitizens who had come into contact with the criminal justice
system, not only were realizations of the racially-biased drug war resulting
in mass incarceration just surfacing, but Secure Communities and similar
programs linking criminal and immigration enforcement did not yet exist.
The metaphorical and literal labeling of immigrants as “criminals” had yet
to take on the legal significance it took following Secure Communities. Just
as the drug war resulted in mass incarceration of people of color, criminal
immigration policing, caused primarily by Secure Communities, has
reportion of citizens and lawfully present noncitizens are Hispanic); see also Carbado & Harris,
supra note 81, at 1568–78 (discussing the ways in which criminal immigration enforcement, and
criminal procedure itself, have reinforced race-based immigration enforcement practices).
153. See Johnson, Racial Profiling in the “War on Drugs” Meets the Immigration Removal
Process, supra note 43.
154. Eagly, Immigrant Protective Policies in Criminal Justice, supra note 9, at 301 (“these
early municipal laws assisting migrants in finding refuge were never designed to provide a
sanctuary for those immigrants charged with criminal conduct”).
155. See White & Koseff, supra note 26.
156. At the time of writing, San Francisco Board of Supervisors and Mayor Ed Lee are
divided on whether to support the public defender’s office in aiding noncitizens accused of crimes
as a part of an intended sanctuary policy. The City is asked to allocate funds to community-based
organizations and to the public defender’s office to help provide representation to immigrants in
removal proceedings. See, e.g., Tim Redmond, The Agenda: Why Breed and Lee are Blocking
Sanctuary City legislation, 48 HILLS (December 5, 2016), http://48hills.org/2016/12/05/17361/
(“[T]he public defender . . . represents, by definition, people who are accused of crimes. And the
Mayor’ [sic] Men want to make the distinction between ‘good immigrants’ and ‘bad
immigrants’—that is, they don’t want to defend people who, rightly or wrongly, are charged with a
crime.”). The Author also concludes that this position is inappropriate, since immigrants and
nonimmigrants both often end up with charges being dismissed. See Elizabeth Keyes, Beyond Saints
and Sinners: Discretion and the Need for New Narratives in the U.S. Immigration System, 26
GEO. IMMIGR. L.J. 207, 226–31 (2013) (discussing problems inherent in the
good-versus-badimmigrant paradigm and ways to change the narrative).
UNIVERSITY OF ST. THOMAS LAW JOURNAL
sulted in disproportionate criminalization and deportation of Latina/os and
persons of color.
Along the lines of discussions considering immigrant integration,
scholar Stella Elias Burch explores the notion of what she characterizes as
“immigrant covering,” an example of which includes state grants of driver’s
licenses to persons with Deferred Action for Childhood Arrivals (DACA),
or in the alternative, to all residents including those with no immigration
status.157 Burch sets forth the theoretical framework of “immigrant
covering,” where “covering” is a way in which “immigration laws operate to
promote immigration status ‘conversion,’ and ‘passing’. . . .”158 Burch
carefully considers the advantages and disadvantages of covering. To the extent
that immigrant covering may be inspired by or indicative of recognition of
the importance of equality principles and favors incorporation into the
socio-political framework, it is worth considering whether covering could
decrease incentives to engage in racial profiling.
However, Burch is careful to note that covering has its limitations and
in some respects could backfire by “reinforcing the underlying stigma” of
noncitizens.159 Thus, in order to truly promote equality and immigrant
integration, more formal legal and socio-legal measures may be required to
avoid continuing marginalization and race-based discrimination against
Eagly, like other scholars such as Geoffrey Heeren, emphasizes that
the equality norm should be central in discussions of sub-federal
immigration enforcement where racial or ethnic discrimination is the central issue in
order to avoid mismatching remedies that do not directly address
discrimination, thereby doing an injustice to the importance of racial justice.160
157. Stella B. Elias, Immigrant Covering, 58 WM. & MARY L. REV. 765, 835 (2017) (noting
that ten states and the District of Columbia permitted all residents to obtain drivers licenses at the
time of her writing).
158. Id. at 765.
159. Id. at 856 (asserting that covering, in place of immigration reform and a path to legal
status, could also do a disservice to noncitizens and could make it easier for “the majority to
disattend to the realities of the everyday struggles of unauthorized immigrants, while
simultaneously perpetuating, and reinforcing the underlying stigma of being undocumented”); id. at 834
(recognizing that expanding this form of immigrant covering, by granting driver’s licenses to
individuals with DACA, and extending that covering to others with no immigrant status, is
160. See Eagly, Immigrant Protective Policies in Criminal Justice, supra note 9, at 296
(discussing the ideas of community policing, immigrant integration, and fiscal prioritization); id. at
297 (“[B]y failing to put the norm of equality front and center, these alternative frameworks also
have a tendency to overlook and mask equality concerns, particularly for those immigrants who
find themselves within the criminal system.”); see also Geofrey Heeren, Persons Who Are Not the
People: The Changing Rights of Immigrants in the United States, 44 Colum. Hum. Rts. L. Rev.
367, 400 (2012) (discussing Senate Bill 1070 litigation and the importance of litigation strategy
that highlights the equal protection clause and discrimination, as compared to the strategy used in
Arizona v. United States, 132 S. Ct. 2492 (2012), which undermined the importance of the Equal
Eagly’s discussion of equality-inspired sub-federal immigrant
protective policies references activist and scholar Angela Davis’ proposals for
reform to systemically-biased criminal justice prosecutions.161 Davis has
suggested an approach, implemented in at least one district attorney’s office
in the United States, that is the opposite of colorblind, and exemplifies
substantive adherence to equality principles. In that office, prosecutors analyze
the racial impact of their decisions and then tailor their decision-making to
minimize racial disparities.162 Eagly suggests that Davis’ proposals are
instructive for ensuring immigrant communities do not continue to experience
racially-biased, disproportionate criminal justice and criminal immigration
In a time when explicit racial bias has seeped back into the mainstream
and has become more prevalent with regular displays of white nationalist
rallies,163 and national leaders may attack civil rights gains, whether
defensively addressing laws with racially disparate impacts, or proactively
crafting state or local measures to protect immigrants, equality concerns should
be at the forefront. In spite of, or perhaps because of, the extensive history
of characterizing immigrants as criminals, and racially- and
ethnically-biased criminal and immigration policing, it is particularly important that
critiques of criminal immigration enforcement consider the role of equality
principles, and even introduce the rationale for considering immigrant
integration. Failing to create sanctuary or other immigrant protective policies
and immigration enforcement mechanisms that counteract the role of race
in policing, may further mask and entrench racial bias and its harms.
Instead of mythologizing immigrants as criminals, finding creative ways to
encourage consideration of immigrant equality may decrease the
persistence of racial segregation and bias irrespective of immigration status.
6. Priority Enforcement Program , U.S. IMMIGR. & CUSTOMS ENF' T , https://www.ice. gov/ pep#tab0 (last visited June 11 , 2017 ).
7. To initiate the process of taking someone into immigration custody, ICE lodges a detainer by sending a completed Form I-247 to a prison or jail . See Christopher N. Lasch, Rendition Resistance , 92 N.C. L. REV. 149 ( 2013 ) (providing an overview of detainer program and Tenth Amendment issues); Christopher N. Lasch, Litigating Immigration Detainer Issues, in 2 IMMIGR. LAW FOR THE COLORADO PRAC . § 34 ( Nancy B. Elkind et al. eds., 2013 ); Christopher N. Lasch, Federal Immigration Detainers After Arizona v . United States , 46 LOY. L. A. L. REV . 629 ( 2013 ) (considering the implications of Arizona v. United States for the legal constitutional viability of immigration detainers).
8. Juliet Stumpf , D( e)volving Discretion: Lessons from the Life and Times of Secure Communities, 64 AM. U. L. REV. 1259 , nn. 15 - 18 ( 2015 ) (citing scholars' studies of Secure Communities addressing the program's legality amongst other concerns).
9. For a thoughtful analysis of the relationship between the community and police , see Ingrid V. Eagly , Immigrant Protective Policies in Criminal Justice, 95 TEX. L. REV. 245 , 281 - 87 ( 2016 ) (specifically looking, in part, at the possible contradiction between community and community policing) . See also Ange´lica Cha´zaro, Challenging the “Criminal Alien” Paradigm, 63 UCLA L . REV. 594 ( 2016 ) (questioning whether there was ever trust and taking a deeper, broader approach to the question of community trust in police); Maurice R . Dyson, Excessive Force, Bias, and Criminal Justice Reform: Proposals for Congressional Action, 63 LOY. L. REV. 27 ( 2017 ) (describing a “national epidemic of targeted harassment and killings” by police of people of color, including Blacks and Latinos).
10. See , e.g., sources cited infra note 121.
11. See Cha´zaro, supra note 9 , at 644-47.
12. Eagly , Immigrant Protective Policies in Criminal Justice, supra note 9 , at 247 ( citing Ingrid V. Eagly , Prosecuting Immigration, 104 NW. U. L. REV. 1281 , 1350 ( 2010 )).
23. Cha´zaro, supra note 9 , at 610-11.
24. Perry Bacon , Jr., Trump and Other Conservatives Embrace 'Blue Lives Matter' Movement, NBC NEWS ( July 23 , 2016 , 4 :46 PM), http://www.nbcnews.com/storyline/2016-conventions/trump-other -conservatives-embrace-blue-lives-matter-movement-n615156.
25. Governor Brown signed the California TRUTH Act into law on September 29 , 2016 . The law requires that undocumented immigrants be told of their right to an attorney (at no expense to the government) before answering federal immigration authorities' questions, and requires annual public forums where local law enforcement are to explain their role in federal immigration policy with communities . See TRUTH Act, A.B . 2792 , 2015 -2016 Reg. Sess. (Cal. Sept. 28 , 2016 ) (codified at CAL . GOV'T CODE § 7283 ).
26. Jeremy B. White & Alexei Koseff , California lawmakers to Trump: 'if you want to get to (immigrants), you have to go through us' , SACRAMENTO BEE (Dec. 5 , 2016 , 2 :12 PM), http://www .sacbee.com/news/politics-government/capitol-alert/article119026153.html.
27. See Christine N. Cimini , Hands Off Our Fingerprints: State, Local, and Individual Defiance of Federal Immigration Enforcement, 47 CONN. L. REV. 101 , 137 - 47 ( 2014 ) (contending that Secure Communities created a conflict between state police power and federal plenary power to regulate immigration undermining rights); Rachel Zoghlin, Insecure Communities: How Increased Localization of Immigration Enforcement Under President Obama through the Secure Communities Program Makes Us Less Safe, and May Violate the Constitution, 6 THE MOD . AM . 20 , 27 - 29 ( making the case for potential Equal Protection violations as a result of Secure Communities enforcement techniques); see also Memorandum from Jeh Charles Johnson , Secretary, U.S. Dep't of Homeland Sec., Secure Communities (Nov. 20 , 2014 ), https://www.dhs.gov/sites/default/ files/publications/14_1120_memo_secure_communities. pdf [hereinafter Nov . 2014 Secure Communities Memo] (describing criticism of Secure Communities as “hav[ing] attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation” and that “its very name has become a symbol for general hostility toward the enforcement of our immigration laws”).
28. In 2012, there were a few dozen sanctuary cities, and now there are about 550. See Alex Kotlowitz, The Limits of Sanctuary Cities, THE NEW YORKER (Nov . 23, 2016 ), http://www.newyorker.com/news/news -desk/the-limits-of-sanctuary-cities.
29. Ming H. Chen , Trust in Immigration Enforcement: State Noncooperation and Sanctuary Cities After Secure Communities , 91 CHI. -KENT L. REV . 13 , 25 - 26 ( 2016 ). Chen cites two sources of information about state responses to ICE requests, the ILRC map, Immigration Enforcement, IMMIGR . LEGAL RES. CTR ., http://www.ilrc.org/enforcement (last visited Sept . 21 , 2015 ) and the Catholic Immigrant Legal Network Report, States and Localities that Limit Compliance with ICE Detainer Requests, CATHOLIC LEGAL IMMIGR . NETWORK (Oct . 2014 ), https://cliniclegal.org/resources/articles-clinic/states-and -localities-limit-compliance-ice-detainer-requests-jan-2014 (listing states and counties that limited compliance with ICE detainers as of Oct. 2014 ).
30. San Francisco Officials Take Up Immigrant Sanctuary Policy, LAW PROFESSOR BLOGS NETWORK: IMMIGR . PROF BLOG (May 10 , 2016 ), http://lawprofessors.typepad.com/immigration/ 2016/05/san-francisco-officials -take-up-immigrant-sanctuary-policy .html.
31. See CAL. GOV'T CODE §§ 7282 - 7282 .5 ( 2014 ) ; CONN . GEN. STAT. § 54 - 192h ( 2014 ).
32. Lack of legitimacy because high numbers of detained immigrants had no serious criminal convictions . See Chen, supra note 29 , at 29 ( regarding whether there ever was trust between communities and criminal law enforcement); Cha´zaro, supra note 9 , at 618.
33. CAL. GOV'T CODE § 7283 ; Jon Rodney , TRUTH Act sails through committee after emotional testimony from families hurt by deportation , CAIMMIGRANT.ORG (Apr. 21 , 2016 ), http:// www.caimmigrant. org/truth-act-sails-through-committee/.
34. Chen , supra note 29, at 18-19.
35. See CAL. GOV'T CODE § 7283 .1( d ). 46. DHS Releases End of Fiscal Year 2015 Statistics, supra note 40.
48. Stumpf , D (e)volving Discretion, supra note 8.
49. Id . at 1262-63, 1263 n.12 (citing Hiroshi Motomura, The Discretion that Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line, 58 UCLA L . REV. 1819 , 1842 ( 2011 )) (suggesting Secure Communities “devolved the discretion” of enforcing immigration law from federal policymakers to “the lowest common denominator: nonfederal police officer” and optimistically proposing PEP could reverse that trend); see also Jennifer M. Chaco´n, The Transformation of Immigration Federalism, 21 WM . & MARY BILL RTS . J. 577 , 606 ( 2012 ) (noting that “with the explosion of sub-federal involvement in immigration policing, it seems that states and localities are, in many cases, actually exercising the discretion that definitively shapes federal enforcement .”).
50. Stumpf , D (e)volving Discretion, supra note 8 , at 1282.
51. Id .
52. One such immigration officer reportedly stated, “If you don't have enough evidence to charge someone criminally but you think he's illegal, we [ICE] can make him disappear . ” Sharpless, supra note 13 , 729 n.167; see also DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM 22- 35 ( 2003 ) (discussing how law enforcement authorities targeted Muslim noncitizens after 9/11, alleging visa violations as a proxy for national security grounds).
53. Cha´zaro, supra note 9 , at 625.
54. See id.
55. See , e.g., Johnson, Doubling Down on Racial Discrimination, supra note 21.
56. Cha´zaro, supra note 9 , at 623, 657 - 58 .
57. Nov . 2014 Secure Communities Memo, supra note 27 (emphasizing enforcement and removal priority of “threats to national security, public safety, and border security” and detailing Priority Levels 1-3 ).
58. See Johnson , Doubling Down on Racial Discrimination, supra note 21 , at 994; Kevin R. Johnson , The Case Against Racial Profiling in Immigration Enforcement , 78 WASH. U. L.Q. 675 ( 2000 ); Kevin R. Johnson, How Racial Profiling in America Became the 'Law of the Land': United States v. Brignoni-Ponce and Whren v. United States and the Need for Rebellious Lawyering , 98 GEO. L.J. 1005 ( 2010 ) ; Carrie L. Rosenbaum, What (and Whom) State Marijuana Reformers Forgot: Crimmigration Law and Noncitizens, 9 DEPAUL J . FOR SOC. JUST., Summer 2016 , at 1.
59. See generally Mucchetti, supra note 43; DAVID A. HARRIS, PROFILES IN INJUSTICE: WHY RACIAL PROFILING CANNOT WORK 224 (New Press 2002); Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 CAL. L. REV. 125 ( 2017 ).
60. Notably, in response to the election of Donald Trump, cities such as San Francisco have resurrected efforts to go farther than just resisting federal immigration enforcement collaboration, including proposing measures to eliminate cooperation, to the extent possible, in transmission of information to ICE . White & Koseff, supra note 26.
61. Cha´zaro, supra note 9 , at 625. Additionally, advocates have reported that absent the ability to hold noncitizens for forty-eight hours pursuant to former detainer policies, ICE agents are finding other ways to arrest and put noncitizens in custody.
62. Cha´zaro, supra note 9 , at 650-51.
63. See discussion supra Section I.B; Jason A. Cade, The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court, 34 CARDOZO L . REV. 1751 ( 2013 ) (discussing how the expansion of deportation laws to include minor criminal offenses can result in deportation, and how this heightens consequences for noncitizens who face charges in lower non-federal fora which are disadvantageous to criminal defendants).
64. Eagly , Immigrant Protective Policies in Criminal Justice, supra note 9.
65. Andrea Castillo , ACLU Demands End to Immigration Program in Fresno Jail , FRESNO BEE ( June 23 , 2016 , 5 :50 PM), http://www.fresnobee.com/news/local/article85663737. html (ACLU advocates contending that PEP was essentially no better than Secure Communities in protecting noncitizens from rights violations).
125. Cha´zaro, supra note 9 , at 654 n.278 (citing Michele Waslin, The Secure Communities Program: Unanswered Questions and Continuing Concerns, IMMIGR . POL'Y CTR . 8-9 (Nov . 2011 ), https://perma.cc/CSG5 -NGM9 (explaining anti-Secure Communities advocates may have unintentionally reinforced the criminal alien category by critiquing ICE's removal statistics for deporting people who were not criminal aliens, as opposed to fundamentally questioning the reliance on criminality).
126. Cha´zaro, supra note 9 , at 55.
127. See Eagly , Immigrant Protective Policies in Criminal Justice, supra note 9.
128. Cha´zaro, supra note 9 , at 659.
129. See ALEXANDER , supra note 13, at 60.
130. See Rosenbaum, supra note 58 , at 10-16.
131. See , e.g., Bernie Sanders on Drug Policy, FEELTHEBERN .ORG, http://feelthebern.org / bernie-sanders-on-drug-policy/ (last visited Feb. 4 , 2017 ) (advocating for treatment in place of criminalization).
132. See sources cited supra notes 74-75.
133. See Lucas Guttentag, Introduction, Immigration Reform: A Civil Rights Issue , 3 STAN J. C.R. & C.L. 157 , 158 ( 2007 ) (contending that “immigration law and policy cannot be divorced from issues of race, national origin, ethnicity, and color .”)
134. See generally Eagly, Immigrant Protective Policies in Criminal Justice, supra note 9 (addressing state and local immigrant protective policies as one manifestation of concerns about racially disparate impacts of criminal immigration enforcement); see also Johnson , Doubling Down on Racial Discrimination, supra note 21 , at 1014-22 ( analyzing state and local resistance to cooperation with federal immigration authorities, and immigration reform, as means to respond to the racially disparate harms of the criminal immigration removal system).
135. Eagly , Immigrant Protective Policies in Criminal Justice, supra note 9 , at 301 (citing Off. of Cmty. Oriented Policing Servs., President's Task Force On 21st Century Policing, Final Report Of The President's Task Force On 21st Century Policing 18 ( 2015 ), http://www.cops.usdoj .gov/pdf/taskforce/taskforce_finalreport.pdf) (“Federal immigration enforcement can be decouple[d] from routine policing for civil enforcement and non-serious crime .”); see also id. at 288 (citing Hiroshi Motomura , Immigration Outside the Law , 108 COLUM. L. REV. 2037 , 2071 , 2073 - 75 ( 2008 )) (beginning the conversation about the immigrant integration justification for proimmigrant local protective policies).
136. Id . at 294-99.
137. Id . at 288.
139. Desjardins , supra note 138; Jeremy Diamond & David Wright , Trump touts stop-andfrisk practice amid black outreach , CNN (Sept. 22 , 2016 , 11 :14 AM), http://www.cnn.com/ 2016 / 09/21/politics/donald-trump -stop-and-frisk/.