Detainer

Abstract: In _Lindsey v. Normet_, the U.S. Supreme Court upheld a state wrongful detainer statute against tenants who withheld their rent after the Bureau of Buildings of Portland, Oregon declared their house to be uninhabitable. In reaching its holding, the Court stated that it was “unable to perceive in [the Constitution] any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the terms of his lease without the payment of rent.” The Court did not address the separate issue of a lack of any housing, but subsequent federal court decisions have interpreted _Lindsey_ to mean that housing is not a fundamental constitutional right. Because housing has been denied fundamental right status with its attendant strict scrutiny standard of review, federal and state courts routinely have rejected attempts by the poor to obtain adequate shelter despite the extremely hard facts that these cases often present. To demonstrate why courts should recognize a right to shelter, Part I of this Article examines the political and social conditions during the colonial era. To assess whether the Constitution and the newly established American government improved the legal and social conditions for the poor, Part II examines conditions during and after the Revolutionary era. As will be seen, both eras are marked by legislative hostility to and political exclusion of the poor. Part III demonstrates that this legacy of political powerlessness continues to disadvantage the homeless today.

Abstract: The devolution of immigration authority to line officers, touted as a strength of the Secure Communities program, planted the seeds of the program's downfall. Rising from the ashes of Secure Communities, the Priority Enforcement Program (PEP) set priorities for removal and also unveiled a potential antidote to the devolution of agency discretion. This Article details the rise of Secure Communities and describes the devolution of discretion that ultimately undermined the program. It then spotlights a little-noticed attribute of the PEP-one that addresses head-on Secure Communities' devolution of enforcement discretion to the lowest level. PEP attempts to recapture federal discretion to make macro-level policy decisions about immigration enforcement by siphoning discretion up the chain to higher-level federal officials. This hydraulic experiment in recapturing agency discretion will ultimately determine whether immigration enforcement priorities are doomed to devolution or poised to find a perch on higher ground.INTRODUCTIONThe federal government launched the Secure Communities program in April 2008, touting it as the perfect marriage of federal, state, and local authority working together to maximize immigration enforcement.1 U.S. Immigration and Customs Enforcement (ICE) designed the program to leverage state and local arrests of noncitizens by using technology to increase federal removals of "criminal aliens."2 Using fingerprint data that state and local police gathered during routine booking procedures, the Secure Communities program automatically ran arrestees' fingerprints through federal databases to search for criminal histories and possible immigration violations.3 If a search revealed a match, ICE would notify the relevant nonfederal law enforcement agency that it should hold the individual until ICE could assume custody.4 Secure Communities rolled out county-by-county, gathering momentum as it expanded its reach. By the end of February 2015, Secure Communities had contributed to over 400,000 deportations.5By the spring of 2014, however, Secure Communities had lost its footing. Criticism of the program was legion.6 Cities and states resisted federal enlistment of their law enforcement resources to aid the program and issued policies and legislation to limit its local effect.7 Courts began to declare that one of the program's critical underpinnings raised serious constitutional questions. These courts paired the Tenth and Fourth Amendments to cast doubt on the constitutionality of the program's treatment of the federal immigration detainer, or ICE hold, as a mandatory order to nonfederal officers to prolong the detention of a person in state or local custody.8 By November 2014, the Obama Administration had announced the end of the Secure Communities program.9Like the proverbial phoenix, Secure Communities in its demise laid the ember of a next incarnation. In the same breath in which the Administration announced the end of Secure Communities, Administration officials revealed its replacement: the Priority Enforcement Program, or PEP.10 Like Secure Communities, PEP relies on law enforcement arrests and national database mining to identify potential immigration violators. Two critical differences distinguish PEP from Secure Communities. First, PEP rolls back the use of the immigration detainer as a mandatory order to nonfederal authorities to hold noncitizens until ICE takes custody of them. Second, PEP establishes specific directives for how the Department of Homeland Security's (DHS) chain of command must manage PEP's national priorities for deporting noncitizens.11 In other words, with PEP, the federal government seeks to reclaim the discretion over immigration enforcement priorities that Secure Communities devolved to the arresting line officer.This Article addresses the question whether discretion over immigration enforcement decisions, once devolved, can be recaptured. It describes how the devolution of immigration authority, touted as a strength of Secure Communities, contained the hidden seeds of its demise by dispersing the discretion needed for a coherent national immigration enforcement policy. …

Abstract: The conventional wisdom, backed by legitimacy research, is that most people obey most of the laws, most of the time. This turns out to not be the case in a study of state-local participation in immigration law enforcement. Two enforcement programs involving the use of immigration detainers, a vehicle by which the federal government (through ICE) requests that local law enforcement agencies (LEAs) detain immigrants beyond their scheduled release upon suspicion that they are removable, demonstrate the breakdown of conventional wisdom. In the five years following initiation of the Secure Communities program, a significant and growing number of states and localities have declined to cooperate with federal immigration detainer requests or enacted sanctuary policies -- ultimately leading to the demise of the Secure Communities program and a reworking of federal-local partnerships in immigration enforcement through the Priority Enforcement program that replaced it in November 2014. The balance of crime control and community trust in immigration enforcement is being reset as the political pendulum swings as Congress considers legislative reforms to curb local resistance to detainers following the killing of Kathryn Steinle in July 2015.This Essay finds that state and local non-cooperation in immigration enforcement -- a timely example of uncooperative federalism -- is influenced by attitudes toward the legitimacy of executive action -- distinct from attitudes toward the law’s legality, morality, or politics. Both cooperation and noncooperation contribute to a policymaking feedback loop in ways more complicated than existing theories of cooperative federalism and executive action presage.

Abstract: Secure Communities is a program launched by the federal government to improve the efficiency of interior immigration enforcement and to enhance the capacity for targeting deportable individuals with criminal convictions, referred to as “criminal aliens.” In particular, Secure Communities provides a system that automatically transmits and checks fingerprints against the Department of Homeland Security’s (DHS) Automated Biometric Identification System (IDENT), which contains information on known immigration violators, known and suspected terrorists, and “criminal aliens,” among others. A fingerprint match prompts Law Enforcement Support Center (LESC) officers from Immigration and Customs Enforcement (ICE) to investigate, determine the individual’s immigration status, and forward their conclusion to the relevant ICE field office. If ICE decides to take action, a detainer is issued to the law enforcement agency requesting that the individual be detained for up to 48 hours so that ICE can assume custody.Research has found that Secure Communities does not increase public safety, as predicted. Given a lack of effectiveness, should Secure Communities be abandoned? My answer is unequivocally “yes.” In this essay, I offer seven reasons why: (1) The assumptions upon which Secure Communities was founded are flawed; (2) Secure Communities is unnecessary; (3) Secure Communities does not target the right offenders; (4) Local law enforcement officials have not embraced Secure Communities; (5) Secure Communities creates insecure communities; (6) Secure Communities may increase instances of racial profiling and pretextual arrests; and (7) Secure Communities is associated with significant human costs.