Chapter 6

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

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

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).

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,5 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.

Authority

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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

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). 78 U.S.C. §1357(a)(3) (1976) grants INS agents authority:

[W]ithin 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:

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.R

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" 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

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).