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Apprehensions by the Immigration and
We are confronted here with the all-too-familiar necessity of reconciling a legitimate need of government with constitutionally protected rights. There can be no question as to the seriousness and legitimacy of the law enforcement problem with respect to enforcing along thousands of miles of open border valid immigration and related laws. Nor can there be any question as to the necessity, in our free society, of safeguarding persons against searches and seizures proscribed by the Fourth Amendment. 1
On a Thursday evening in March 1978 in Washington, D.C., at Blackie's House of Beef, a busy downtown restaurant, "[a] few minutes after 6 o'clock, five cars stop at the curb on 22nd Street in front of Blackie's. Out step a dozen agents of the Immigration and Naturalization Service (INS), a division of the Justice Department. Two agents run into the alley and take up positions blocking the service entrance. Another hurries to cover a side exit.
"The main party of agents walks through the front entrance, politely pushing through the line of waiting customers. The maitre d' steps forward. “Reservations, gentlemen?" he
asks. The lead agent. . .flashes a piece of paper. Immigration service, we have a warrant, we're coming in. He nods at the other agents, and they go toward the kitchen area. The maitre d' looks as if he wants to protest, then thinks better of it and stands aside. .For some two hours the agents range throughout the restaurant, demanding identification papers from
A few months later, a United States district court judge rules the actions of the INS to be unlawful.3
Apprehension activity such as this,' termed "area control operations,” along with some other variations, inspires some of the most serious complaints against the Immigration and Naturalization Service. These complaints are not without a substantial basis in fact, since many of the area control operations are conducted based on anonymous and vague tips that “illegals” are present in a given area. The INS does not have, as a rule, sufficiently detailed or reliable information to obtain arrest warrants for any specific individuals in these situations. To the contrary, INS employees proved too disruptive. INS agents returned days later with a search warrant, sealed off the exits of the plant with armed Border Patrol agents, and interrogated employees at random, even subjecting one employee to a strip search during the raid, or "factory survey," as INS terms it. George Lundquist, plant manager, Edinburg Manufacturing Company, testimony before the Texas Advisory Committee to the U.S. Commission on Civil Rights, open meeting, San Antonio, Sept. 12-14, 1978, vol. 3, pp. 7-33 (hereafter cited as Texas Open Meeting Transcript).
· Almeida-Sanchez v. United States, 413 U.S. 266 (1973). • Washingtonian, September 1978, p. 169. * Blackie's House of Beef, Inc. v. Castillo, 467 F. Supp. 170 (D.D.C. 1978). The court held that the INS conducted an unlawful and unreasonable search which violated the fourth amendment to the Constitution and which was not authorized by the Immigration and Nationality Act. • Another example of INS apprehension activities occurred in a clothing factory in Texas, where INS agents were refused permission to question employees by the plant manager because a previous interrogation of
apparently prefers an open-ended search because, in addition to the arrest of any individuals about whom specific information is available, INS can use an arrest proceeding against a single individual as an opportunity to interrogate large numbers of people in an attempt to ferret out others who may be undocumented.
Although such techniques undeniably provide the Service with an opportunity to question large numbers of people and may, in fact, increase the number of aliens apprehended by INS," they can also intrude on the privacy of many United States citizens and permanent residents who are often detained and interrogated during the course of these INS operations.
The scope of INS authority to question persons about their immigration status is spelled out by the Immigration and Nationality Act. Because the general authority given to INS to interrogate individuals forms the legal basis for its other enforcement procedures, including the large-scale interrogations of many persons at places of employment or other public places, it is necessary to explore the breadth of that authority.
be read in light of the Constitution, as must all legislation enacted by Congress. The limitations imposed on law enforcement officers by the fourth amendment, therefore, have been held to limit the apparent scope of authority conferred on INS officers by the Immigration and Nationality Act.8
The fourth amendment,” which guarantees the right of the people to be free from "unreasonable searches and seizures," prescribes conditions under which governmental intrusions are permissible. The extent of any conflict between the fourth amendment strictures and the enforcement practices of the Immigration and Naturalization Service is currently a topic of debate, requiring careful examination.
In a series of cases, the Supreme Court has considered the interplay of section 287(a) of the Immigration and Nationality Act and the fourth amendment. From these cases, rulings have emerged permitting wide latitude to INS in the interrogation of persons at the border and at points considered the "functional equivalent”10 of the border. The Supreme Court has not permitted similar freedom to the INS in "nonborder" situations, however, ruling that vehicles could be stopped by a roving patrol for the purpose of interrogating the occupants only where an officer has a reasonable suspicion based on "specific articulable facts” and reasonable inferences drawn from those facts that the vehicle contains persons who are unlawfully present in the United States. 11
The cases considered by the Supreme Court involved stopping vehicles. The Supreme Court has not yet decided the question of whether an INS agent similarly needs a "reasonable suspicion" of unlawful presence in this country before having the right to stop and interrogate persons on the streets, in places of employment, in transportation facilities (i.e., railroad stations, bus terminals, etc.), and in
Section 287 of the Immigration and Nationality Act gives agents broad powers to stop and interrogate persons regarding their alienage. Without having to obtain a warrant, INS officers may “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States."
In the border areas, INS agents are given even broader powers to search for aliens. However, away from the border the language of this section of the Immigration Act has served as the basis for many INS enforcement activities. This language, while itself imposing no conditions on INS agents exercising their authority to stop and question, must
s Factory raids and other area control operations, however, do not always uncover deportable undocumented aliens. For example, during a raid of the Edinburg Manufacturing Company in Texas in May 1977, INS agents interrogated a large number of the plant's 938 employees and arrested 14 (less than 2 percent of the total number detained), none of whom was ultimately deported. Ibid. • Immigration and Nationality Act of 1952, 8 U.S.C. $1357(a)(1) (1976). ? 8 U.S.C. $1357(a)(3) (1976) grants INS agents authority:
(WJithin a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the
illegal entry of aliens into the United States. • Almeida-Sanchez v. U.S., 413 U.S. 266 (1973). • The fourth amendment of the U.S. Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the person or things to be seized. 10 The functional equivalent of the border is exemplified in the following excerpt from a Supreme Court decision where the Court stated:
For example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City
would clearly be the functional equivalent of a border search. Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973) (footnote omitted). 11 U.S.
v. Brignoni-Ponce, 422 U.S. 873, 874 (1975).
stops and to erect fixed checkpoints in the border area, these exceptions are to be interpreted narrow
Where a person is interrogated by an INS officer, the courts have recognized that a forcible detention can occur not only by force or threat of force, but also by a "command based on the agent's official authority.”7 The courts have also interpreted Terry to require that, in order for a "seizure" to occur, not only must a person be restrained to the extent that he or she is not free to leave, but this individual must also be aware that his or her liberty has been restrained:
other public places in nonborder areas, or whether a reasonable suspicion of alienage is sufficient. 12
Lower Federal courts, however, have been asked to consider the question, and, in grappling for an answer, have focused on the degree to which an individual is restrained when interrogated by an INS officer. 13 Where a person is considered "seized” or "forcibly detained by an enforcement officer,” the fourth amendment prohibition against unreasonable seizures applies. In Terry v. Ohio, 14 the leading case on investigative stops by law enforcement officers, the Supreme Court held that a street stop which results in an individual's loss of freedom to walk away is a “seizure" for constitutional purposes. Before he or she can properly make an investigative stop, a police officer is required by Terry to have "specific articulable facts" that give rise to a "reasonable suspicion” regarding the commission of a crime and the suspect's connection to that crime.
In its recent holding in Dunaway v. New York, 15 the Supreme Court reiterated its decision in Terry. It found that the accused was seized unconstitutionally where there was no probable cause to believe he had committed a crime, and where he was taken into custody by a law enforcement officer and would have been physically restrained had he tried to escape. The Court stated that, although certain narrow exceptions to the requirement that an officer have probable cause before seizing a person do exist, including INS authority to make border vehicular
The major issue currently being debated by the courts is the point at which the mere questioning of a person by an INS officer becomes a forcible detention or "seizure” of that individual. The courts generally agree that an INS officer must have a reasonable suspicion, based on specific articulable facts, that an alien is unlawfully present in the United States before he or she can detain that person for interrogation. On the other hand, an officer may casually question a cooperative person where he or she has a reasonable belief that the person is an alien.20
13 In fact, the Court expressly reserved, for future decision, the question of
affirmed a district court ruling, citing Brignoni-Ponce, that a street stop
As the government concedes, this detention limits the individual's right to walk away. In accord with the Court of Appeals for the District of Columbia, we hold that when an individual is detained against his will for questioning, the INS agents must have a reasonable
suspicion that he is an (undocumented) alien. 540 F.2d 1062, 1070, n. 10. While the court of appeals did affirm the lower court's ruling in the case, it noted that its decision was based on the D.C. Circuit's distinction between casual questions and detention. Id. A rehearing en banc clarified the court of appeals' position and resulted in a modification of the lower court's decision enjoining INS from “arresting, detaining, stopping, and interrogating or otherwise interfering with” persons where INS had no warrant, probable cause, or reasonable suspicion of unlawful presence in the United States. The court directed that the injunction be modified so as not to prohibit an agent from questioning a person concerning his or her right to be in the United States if the agent reasonably believed the person to be an alien, provided the agent did not detain that person by "force, threat of force, or a command based on the agent's official authority.” The effect of this modification is the adoption of the distinction made by the District of Columbia Court of Appeals in Au Yi
The court stated that the Government's position relying on the distinction between mere questioning and detention was “too weak a reed to lean on” and concluded that, at least with regard to area control operations, a suspicion of unlawful presence is necessary to justify any stop, no matter how brief.26 The court found that this stricter standard reflected the “appropriate balance” between the conflicting considerations.
There is no question that INS statutory authority to interrogate persons is subject to constitutional limitations. The debate has been, and seems likely to remain, over the extent of the actual limits imposed on INS authority to interrogate individuals in nonborder settings where no vehicular stops are involved.27
The courts have held that a person's cooperation or willingness to be questioned is a crucial element in determining whether he or she has actually been detained or merely questioned.21 The rationale underlying this distinction is that the casual questioning of a cooperative person is a minimal invasion of that
a person's privacy and is justified by the legitimate law enforcement needs of the government to conduct such questioning, while detention is a more substantial invasion of an individual's privacy and can be justified only where the officer has a reasonable suspicion that the individual has violated the law.
The courts generally agree that “so long as the queried person voluntarily submits to questioning, it is lawful for an INS officer to approach on reasonable suspicion of alienage alone" (emphasis added).22 However, at least one court has found that the distinction between casual inquiries and actual detentions is merely theoretical.23 Recognizing that its duty is to maintain a proper balance between the public interest in apprehending persons unlawfully in the United States and an individual's right to be free of unconstitutional seizures, that court observed that to permit the casual interrogation of suspected aliens was supportable "to the extent that the distinction between casual inquiries and detentive stops is, or can be, strictly observed.”24 In the court's view, however, this distinction was only theoretical and could not possibly be observed in actual situations:
Area Control Operations
The immigration raid detailed at the beginning of the chapter is an example of what the INS terms "area control operations" or "surveys.” The Service cites section 287 of the Immigration and Nationality Act as authorizing its area control operations in neighborhoods, factories, and plants.28 Whatever label is applied, an area control operation is basically a search for undocumented workers by a large number of INS agents. Typically, entrances and exits to the place to be searched are blocked, and persons within the surrounded area are interrogated regarding their legal status in this country.
Charles Sava, INS Associate Commissioner for Enforcement, stated that area control operations are searches made without specific prior clues as to the presence of particular persons in particular places:
In other words, an "area control operation" would be looking for, let's say, undocumented workers in an area, or seeking them in a place of employment. While we might have some infor
It is in the nature of [a contradiction in terms] to speak of “casual” inquiry between a government official, armed with a badge and a gun and charged with enforcing the nation's immigration laws, and a person suspected of alienage.25
Lau and Cheung Tin Wong between the “mere questioning” of a cooperative individual and a "temporary detention" of that individual by an exercise of authority. 21 Cheung Tin Wong v. INS, 468 F.2d 1123 (D.C. Cir. 1972). Based on the particular facts in this case, which involved the questioning of a Chinese male who appeared to be a busboy and who had just entered a taxi, the court agreed that the immigration agent had adequate grounds for a reasonable belief that the individual was an alien. The court also accepted the Government's contention that the questioning had not involved a "forcible detention,” and therefore the agent was not required to have a "reasonable suspicion" of unlawful presence in the United States. 22 Marquez v. Kiley, 436 F. Supp. 100, 112 (S.D. N.Y. 1977) (construing Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (7th Cir. 1976). Accord, Au Yi Lau v. INS, 445 F.2d 217, 222 (D.C. Cir. 1971); Yam Song Kwai v. INS, 411 F.2d 683, 686-88 (D.C. Cir. 1968). See also Terry v. Ohio, 392 U.S. 1, 32-33 (1968) (Harlan, J., concurring) (involving investigative stops of person by local law enforcement officers). 23 Marquez v. Kiley, 436 F. Supp. 100, 112 (S.D.N.Y. 1977). See also Illinois Migrant Council v. Pilliod, 398 F. Supp. 882 (N.D. III. 1975).
24 Marquez v. Kiley, 436 F. Supp. 100, 112 (S.D.N.Y. 1977).
When it is further considered that refusal to cooperate or an attempt to
able. (citations omitted) * A recent case, Shan Gan Lee v. INS, 590 F.2d 497 (3d Cir. 1979), considered the two standards and decided the case without endorsing either one, upholding an interrogation as being “reasonably related in scope" to the agent's suspicion. 2* Bernard Karmiol, INS Western Regional Counsel, testimony before the California Advisory Committee to the U.S. Commission on Civil Rights, open meeting, Los Angeles, June 15-16, 1978, pp. 538–39 (hereafter cited as Los Angeles Open Meeting Transcript).
mation they were there, it's different from having a case where we are going to interview a particular person by name at a given location. . . .29
testimony indicated that factory employees are indeed aware that their freedom to leave has been restricted. One witness testified that during INS factory raids, employees become frightened and in panic attempt to escape:
INS area control operations must be evaluated against the judicial restrictions imposed by court cases on INS interrogation authority. This section discusses current INS area control operations in view of the judicial standards applicable to interrogations of individuals. Specifically, it examines area control operations to determine whether INS enforcement practices violate the fourth amendment guarantee of freedom from unreasonable seizures, whether or not INS relies on specific articulable facts to launch these operations and whether search warrants currently used by INS to conduct area control operations are constitutionally permissible. A section also notes the effects of these operations on U.S. citizens and residents as well as aliens.
I would also like to point out that the raids made of places of work, small factories, are a traumatic experience, and they are frequent, very frequent. The buses pull up and the agents surround the building and enter, and there is absolute pandemonium in the factory. People are screaming, running. 32
Although individuals can refuse to answer questions when stopped and interrogated by INS officers and can even walk away, an INS official conceded that this could be difficult because INS officers block all the exits:
Well, he may not be able to get out if the exits are blocked, but he can still refuse to answer, and actually, if he were smart, or if he had been coached properly by some organization, he would insist on his civil rights that he doesn't have to. . .answer. He can just turn away.33
Area Control Operations as
The courts have held that a seizure under the fourth amendment occurs when an individual who has been stopped for interrogation loses his or her freedom to walk away and is aware that his or her liberty has been restrained. During factory surveys, INS officers enclose the area or building to be searched and ensure that “the door-the exits are sealed off.”30 Agents will block off exits from surveyed factories to ensure that no employees leave the building:
Testimony received by the Commission alleged, however, that employees who are trapped in factories in actuality have no choice but to respond to INS interrogation. Mark Rosenbaum of the American Civil Liberties Union testified that during factory raids workers have no real option to walk away from questioning:
Before the limited number of officers available to conduct a survey arrive, diagrams have been prepared indicating the various accesses to the company. Officers are usually stationed at various entrances and exits in order to guarantee that individuals will not escape. Under normal circumstances about 25 percent of those officers available to conduct the survey are stationed outside of the plant.31
Once inside, INS blocks all exits. There is no way that a person is free to leave the workplace once INS enters, so you have a classic custodial situation in which freedom and liberty [are] removed from all persons, and the message is extremely clear to those who are involved, that they must comply with the questioning, they must answer the questions, and they must answer them generally in the way that INS wants. There is no freedom to refuse.
INS factory raids, then, are carefully planned to ensure that all employees are forced to remain on the premises or are restrained from leaving. Other
Charles Sava, testimony before the U.S. Commission on Civil Rights, hearing, Washingto D.C., Nov. 14-15, 1978, p. 87 (hereafter cited as Washington Hearing Transcript). On the other hand, Armand Salturelli, INS Southern Regional Commissioner, noted that there are limits on INS authority to conduct area control operations and testified that "we have no authority" to block off city streets for area control operations. Armand Salturelli, testimony, Texas Open Meeting Transcript, vol. 4, pp. 356-58. 30 Glen Bertness, INS Assistant Commissioner for Investigations, testimony, Washington Hearing Transcript, p. 101.
.It is a clear custodial situation in which there is no
31 Philip Smith, INS Assistant District Director for Investigations in Los Angeles, affidavit executed June 30, 1978, filed in ILGWU v. Sureck, No. CV 78-0740-LEW (PX) (C.D. Cal. Feb. 7, 1980) (judgment and order entered) (hereafter cited as Smith Affidavit). 32 Rev. Bryan Karvelis, testimony before the New York State Advisory Committee to the U.S. Commission on Civil Rights, open meeting, New York City, Feb. 16-17, 1978, vol. 1, p. 120 (hereafter cited as New York Open Meeting Transcript). 33 Karmiol Testimony, Los Angeles Open Meeting Transcript, p. 566.