Commission indicates that, contrary to INS statements,95 INS area control operations do cause confusion and pandemonium among all factory employees, thereby disrupting a factory's operations and decreasing production.96 Undocumented persons who are arrested and detained by the INS during factory surveys but who are documentable and not immediately deported can also be adversely affected by INS area control operations. Until their immigration status is clarified by INS (which could take several weeks), their job prospects for that period would be uncertain: [O]ne of the problems, among many, [is] that after the survey is concluded, probably within the next 48 hours, a good many of those people will be back in the employment office asking for their old jobs back, and it is not easy to ascertain whether their detention by the Department of Justice resulted in any clarification of their status, or whether they are just as unclear when they come back after the survey than they were before the survey. . . .I am sure that [for] people who are apprehended in the survey [it] might possibly be several weeks before their status might be clarified. . . .97 97 Involvement of Local Police in The Immigration and Nationality Act expressly authorizes local police involvement in the enforcement of Federal immigration laws only in one instance. That one instance is the harboring provision, which provides that: No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney Gener 95 In a letter to the Commission, the INS stated: In discussing the effects of area control operations conducted by the Service, the report states that pandemonium is often the result. The INS does not cause pandemonium. Persons who are not guilty of illegal conduct need not panic at the sight of a law enforcement officer. It is most often those persons whose status in this country is not legal who are likely to react with fear, confusion and flight. Castillo Letter. * George Lundquist, testimony, Texas Open Meeting Transcript, vol. 3, p. 9. Another factory owner agreed that INS surveys can result in loss of money and business to employers: [E]very time we are inspected, we sit down and talk to them [INS], say, "How are we going to avoid these inspections because it is very costly and disruptive. In fact we feel you are invading the rights of the citizens that are working here because they get no work done, and you are invading my rights because it costs me a lot of money to have my production line shut down for 3, 4, or 5 hours." Production is ruined for the whole day and possibly-in fact, production is ruined for a month, until we get back to normal in a plant our size. al, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.98 However, immigration law enforcement activities. by local police, sometimes a direct result of previous encouragement by the Immigration and Naturalization Service,99 have not been confined to the harboring section of the statute. A Domestic Council committee study in 1976 found that the involvement of local law enforcement authorities in immigration created problems other than those normally arising from INS activities. It attributed these difficulties to "agencies. . .often unaware of usual policies in the enforcement of immigration law or hostile to the feelings of ethnic communities."100 Attempts by local police to enforce the immigration laws can infringe on the rights of United States citizens and legal residents. In Moline, Illinois, the city police department instituted a practice whereby its officers would enter local neighborhood establishments and interrogate persons of Latin ancestry about their status in the United States. Although the overwhelming majority of interrogatees were United States citizens or legal residents, the practice continued. A lawsuit was filed, alleging that United States citizens were arrested and placed in the local jail solely on a suspicion of violating Federal immigration laws. The Moline Police Department ultimately settled the suit and issued a statement of apology to the Latino community. 101 Although they have not yet been adjudicated, other lawsuits have been filed in California and Texas challenging the practice of local police enforcement of Federal immigration laws. 102 One case involved the arrest and incarceration for 3 days of an American citizen of Hispanic ancestry who was a passenger in a truck Arnold Sbicca, testimony, Los Angeles Open Meeting Transcript, p. 402. * Russell Parsons, consultant, Merchants and Manufacturing Association, testimony, Los Angeles Open Meeting Transcript, pp. 225-26. * Immigration and Nationality Act of 1652, §274, 8 U.S.C. §1324(c) (1976). "The Border Patrol Handbook, page 11-7, provides that the “continued cooperation (of all local law enforcement authorities) must be sought and cultivated." INS encouragement of immigration law enforcement by local police has been recognized in INS correspondence such as form letter LIV 40/15-C of the Pleasanton, Calif., Border Patrol Office which states that "[s]ince...the early 1950's we have earnestly solicited the assistance of the various sheriff's departments and police agencies in picking up and holding for us aliens illegally in the United States." 100 Domestic Council Committee on Illegal Aliens, Preliminary Report (1976), p. 207. 101 Resnick Testimony, Washington Hearing Transcript, p. 159. 102 Savala v. Castillo, No. F-78-173-Civ. (E.D.Cal. filed Aug. 30, 1978) (verified petition for removal of a civil action from a State court); Rivera v. Ballard, CA3-79-0874-C (N.D. Tex. filed July 6, 1979); Cervantez v. Whitfield, CA2-79-206 (N.D. Tex. filed Dec. 12, 1979). driven by a fellow employee. The complaint alleged that he was not charged with any crime but rather he was arrested solely because he did not have on his person the necessary documentation to prove his United States citizenship. 103 The problems created by local police attempting to enforce Federal immigration laws are exemplified by the following testimony from a trial on trafficrelated charges. In that case, an American citizen of Mexican ancestry had also been held in jail for 3 days on a "hold for investigation of illegal entry." During the trial, the arresting police officer gave the following testimony during cross-examination:104 Q: What was that charge? A: Investigative charge of illegal entry. Q: That charge, you didn't write him a citation on that charge, did you? A: No, sir. That's investigative charge. Q: And you knew that he was wanted by immigration? A: No, sir. Q: But you just filed that charge? A: Investigative charge. Q: Investigative charge. Did you ever take that charge off? A: I don't know. Somebody evidently did. I didn't. Q: You never took the charge off? A: No, sir. Q: Now is this the normal routine that you follow when you arrest Mexicans in Grand Prairie? A: Are you speaking of an illegal alien or a Mexican? Q: Well, how can you tell the difference? Do you know what the difference is? A: No, sir. When I can't determine, that's why I put them in jail for investigative charges. 103 Cervantez v. Whitfield, CA2-79-206 (N.D. Tex. filed Dec. 12, 1979). 104 Cross-Examination Transcript at 34-35, Texas v. Rivera, Nos. CCr-789668-D, CCr-78-9669-D, CCr-78-9670-D (Dallas Cty, Tex. Crim. Ct. of Appeals, Mar. 6, 1979). 105 U.S., Department of Justice, Press Release, June 23, 1978. Q: So you might be putting American citizens in jail? A: It's possible. Q: That's all right then? A: Yes, sir. Q: They have to prove that they are American citizens? A: Yes, sir. Both the Attorney General and the INS have recently attempted to curtail local police practices of enforcing the immigration laws. In a June 1978 press release, then Attorney General Griffin Bell stated that "the responsibility for enforcement of the immigration law rests with the Immigration and Naturalization Service (INS), and not with state and local police."105 Therefore, local police officers should "not stop and question, detain, arrest or place an 'immigration hold' on any persons not suspected of crime, solely on the ground that they may be deportable aliens."106 More than a year prior to that press release, the INS Central Office sent the following instructions to its Regional Commission ers: There are no provisions in the [Immigration and Nationality] Act other than Section 274 which [authorize] the arrest and/or detention of aliens for violations of the Immigration and Nationality Act by anyone other than an immigration officer. Accordingly, each office shall take whatever steps are necessary to insure local city, county, and state authorities. . .do not detain or place "holds" on aliens for or in behalf of this Service unless an immigration officer has first made a determination that the alien is prima facie deportable from the United States and has specifically authorized the detention of the alien. 107 aid in the enforcement of the immigration laws does not necessarily preclude such assistance. State law may authorize state and local police to enforce the criminal provisions of the federal immigration laws. The Attorneys General of California and Texas, and, to a certain extent, the Attorney General of the State of Washington, have determined that some or all of their state and local enforcement officers do have authority to enforce the federal criminal laws. It is true that it has long been Service and Department of Justice policy, as reaffirmed by the U.S. Attorney General on June 23, 1978, that local police have no authority to arrest persons solely on the ground that they may be aliens illegally in the United States. However, they are encouraged to notify the INS of any persons in local custody for state or local criminal violations whom they suspect of alienage. [emphasis added]109 Notwithstanding the policy statements of the Department of Justice, some local police have apparently continued in their attempts to enforce Federal immigration laws. One newspaper reported that officers of the El Paso Police Department "pick up the aliens and return them to the Mexican side of the frontier."110 A witness in San Diego charged that local police continue to attempt enforcement of the immigration laws, and even an INS District Director acknowledged that local police are continuing to place "immigration holds" on persons suspected of immigration violations: [That earlier witness] may have information that there are some police officers bringing aliens to the county sheriff's office here and placing a hold against them for the Immigration Service. We are having that particular problem now.112 109 Castillo Letter. 110 Los Angeles Times, Aug. 10, 1978. In a letter to the Commission, the El Paso Police Department explained its policy as follows: It is the El Paso Police Department's policy not to enforce the Immigration Laws or pick up an alien simply because he is an alien. The only time an officer from the El Paso Police Department will pick up an alien is when that alien has been involved in some sort of criminal activity. It is commonplace for the police officers, once he (sic) has ascertained that this individual is an alien, to take the person to the border and release him. This is done to avoid the overcrowded situation in the El Paso County Jail which will result if all aliens were booked on relatively minor offenses. It has been our experience that if aliens were booked and prosecuted the courts will only deport them and no criminal punishment will be assessed against that person. Roberto A. Duran, police legal advisor, El Paso Police Department, letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights, Feb. 4, 1980. 111 Herman Baca, testimony, San Diego Open Meeting Transcript, p. 96. The type of conduct alleged in the above cases indicates that local police lack sophisticated, technical expertise in immigration law and that they have difficulty making determinations as to citizenship, immigration status, or the validity of immigration documents. Because they receive little or no training in immigration law, it can be expected that local police will make erroneous determinations of immigration law violations or base immigration arrests upon impermissible, even unconstitutional, grounds. The allegations of the above cases illustrate the potential consequences when local police authorities attempt to enforce the immigration laws. In those cases, the local police officers allegedly made some investigative stops and arrests despite the lawful status of the detained person, and they made other investigative stops and arrests on the basis of racial or ethnic characteristics identifiable with major immigrant groups. Courts have consistently held that ethnic appearance alone does not constitute the necessary reasonable suspicion for an investigative stop, much less an arrest.113 There are currently few restraints on local police to prevent constitutional violations that may result from their immigration law enforcement activities. Although the Attorney General has issued a statement urging local police to refrain from making arrests solely for immigration law violations114 and the INS has instructed its offices to ensure that local police involvement ceases, local police are not accountable to the Department of Justice. Further, while the Justice Department officially discourages local police involvement, it is the policy of at least some local INS offices to continue accepting persons arrested by local police on suspicion of violating immigration laws. 115 112 Joseph Sureck, then INS District Director for Los Angeles, testimony, Los Angeles Open Meeting Transcript, p. 580. 113 United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Cheung Tin Wong v. INS, 468 F.2d 1123 (D.C. Cir. 1972); Illinois Migrant Council v. Pilliod, 398 F.Supp. 882 (1975), aff'd 540 F.2d 1062 (7th Cir. 1976); Marquez v. Kiley, 436 F. Supp. 100 (1977). 114 U.S., Department of Justice, Press Release, June 23, 1978; INS Deputy Commissioner Green, memorandum to INS Regional Commissioners, Jan. 10, 1977. 115 Despite the efforts of the Justice Department, some local police departments are continuing to detain persons on suspicion of immigration law violations under what is commonly referred to as an "immigration hold" until the police deliver the suspects to the INS or the Service picks them up from local police detention facilities. Sureck Testimony, Los Angeles Open Meeting Transcript, pp. 582, 583; Walter V. Edwards, Associate Regional Commissioner for Enforcement, INS Southern Region, testimony, Texas Open Meeting Transcript, vol. 4, p. 371. Findings and Recommendations Finding 6.1: The INS has failed to update its 1967 handbook, Authority of Immigration and Naturalization Service to Make Arrests (INS Manual M-69), which contains guidelines for interrogations and arrests of aliens by INS officers. Since its publication in 1967, several Supreme Court decisions interpreting the fourth amendment have restricted the conditions under which law enforcement officers are authorized to conduct searches and seizures. Although the INS has stated that a complete revision of that handbook is underway, no revised edition has been published. The failure of INS to issue a revised edition has resulted in criticism from the courts. Recommendation 6.1: The INS should complete the revision of the handbook on INS arrest and interrogation authority and make it available to Service officers immediately in order to clarify for those officers the legal authority under which they may interrogate and arrest persons suspected of violations of the immigration laws. Finding 6.2: INS area control operations have built into them procedures that can and do in some instances result in persons, including United States citizens and residents, being subjected to unconstitutional searches and seizures. INS officers apparently select interrogatees during area control operations in one of three ways: (1) all persons within the target area; (2) on the basis of ethnic appearance; and (3) on the basis of a mere suspicion of alienage. INS area control operations are "unreasonable" seizures because each of the three standards currently used to determine which persons shall be interrogated during area control operations is constitutionally defective: The interrogation of all persons within a target area implies the absence of any interrogation selection criteria, violating the fourth amendment requirement of a reasonable suspicion based on specific articulable facts that each person interrogated has violated the law; The selection of interrogatees on the basis of ethnic appearance is constitutionally impermissible without the presence of other factors giving rise to a reasonable suspicion; and The selection on a mere suspicion of alienage, even where based on articulable facts, is insufficient to justify interrogations of individuals during 116 8 U.S.C. §1324(c)(1976). area control operations, because such surveys can be considered "seizures" under the fourth amendment and therefore require a suspicion of unlawful presence to detain persons. Recommendation 6.2: INS should immediately cease its area control operations, as currently conducted, to prevent the continued violation of the constitutional and civil rights of individuals. INS interrogations of persons should be based only upon specific articulable facts which create a reasonable suspicion that the individual is unlawfully present in the United States in violation of the immigration laws. Finding 6.3: Search warrants used by the INS to conduct area control operations are legally impermissible unless they conform to fourth amendment standards. Criminal search warrants (see rule 41 of the Federal Rules of Criminal Procedure) and civil search warrants (see Blackie's House of Beef, Inc. v. Castillo, 480 F. Supp. 1078 (D.D.C. 1979)) must be based on probable cause and must name and describe with sufficient particularity the person or persons who are the subject of the search. Civil warrants based on an administrative inspection theory may not properly be used by INS to search for persons suspected of immigration violations in business establishments where such businesses are not regulated and licensed and where the persons sought are not specifically named. Recommendation 6.3: a. Future INS searches should be based upon warrants that are supported by probable cause and that name and describe specifically the person or persons who are the subject of the search. b. INS should discontinue its attempts to obtain warrants under an administrative inspection theory, since the courts have held that only regulated businesses are subject to such searches. Finding 6.4: Local police involvement in enforcing the immigration laws has resulted in violations of the constitutional rights of American citizens and legal residents. Although the Immigration and Nationality Act expressly authorizes local police involvement in the enforcement of Federal immigration laws in only one instance,116 local police departments have not confined their enforcement of those laws to that portion of the statute. This expanded local police involvement has continued, notwithstanding admo |