SHADOW IMMIGRATION ENFORCEMENT AND ITS CONSTITUTIONAL DANGERS.

IMMIGRATION enforcement; CONSTITUTIONAL law; STATE police; POLICE power; STATE laws -- Social aspects; TRAFFIC regulations; CRIMINAL law; POLICE; RACIAL minorities; CIVIL rights; U.S. states; STATUS (Law)

This Article introduces the concept of "shadow immigration enforcement"--that is, the increasingly common and troubling phenomenon of improper involvement in federal immigration enforcement by state and local law enforcement officers. Shadow immigration enforcement occurs when state or local police officers with no immigration enforcement authority exercise their regular police powers in a distorted way for the purpose of increasing federal immigration enforcement. Shadow enforcement typically involves the disproportionate targeting of vulnerable "foreign-seeming" populations for hyper-enforcement for reasons wholly independent of suspected involvement in criminal activity as defined by state or local law. At best, the state officers use the enforcement of laws within their mandate (criminal or traffic laws) as a pretext for targeting those suspected of having unlawful immigration status, often based on observable ethnic or racial characteristics. This shadow enforcement raises qualitatively different civil rights and constitutional concerns from those that arise in immigration enforcement carried out by Department of Homeland Security officers. On the one hand, the overlap of the targeted population with identifiable racial minorities (most notably Latinos) raises special constitutional concerns. On the other, the "under the table" nature of the enforcement incentives, confusion over enforcement authority, and the utter lack of accountability are also extremely troubling. Moreover, the usual constitutional safeguards that seek to protect the public from biased and distorted policing--specific regulations, training and discipline of officers, and using the exclusionary rule in court proceedings--do not serve as effective protection against, or deterrents to, shadow enforcement, because existing accountability structures do not adequately account for this type of enforcement. This Article explores the specific constitutional dangers created by shadow immigration enforcement by state and local officers and proposes strategies for responding to those dangers. [ABSTRACT FROM AUTHOR]

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