Immigration Affirmative and Negative - Northwestern 2015

7/24/2019 Immigration Affirmative and Negative - Northwestern 2015

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Immigration Aff


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1AC


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Court/Privacy Mechanism---1AC

The United States federal judiciary should rule that a arrant is re!uired forsearch or sei"ure hen enforcing immigration or customs las#

The $ourth Amendment fails to %rotect immigrants at the &order---encounters aresim%ly deemed as nonsearchesRaquelAldana '(, Willam S. Boyd School of Law and University of Nevada, Las Vegas,e!ruary "##$, Vol %&, No. ', htt()**lawreview.law.ucdavis.edu*issues*%&*'*rights+remedies*%&+'-ldana.(dfn this !attle, not unli/e the 0war on drugs,1 which dis(ro(ortionately targeted !lac/s,&" a casualty has !een nonciti2ens3 ourth

-mendment rights. n the &45#s, the U.S. Su(reme 6ourt declared that the $ourth Amendment

a%%lied to immigration enforcement , even if with increased tolerance for racial (rofiling.&' 7owever, as

discussed in this -rticle, through a su!sequent the ourth -mendment has !ecome mori!und, &arely

a&le to grant any %rivacy %rotections to nonciti"ens , (articularly in the realm of

immigrationenforcement series of swee(ing decisions,.

8ne significant e9(lanationfor this ourth -mendment e9ce(tionalism is the 6ourt3s early treatment ofimmigration as a matter of civil as o%%osed to criminal enforcement .&% :he characteri2ation of

immigration enforcement as administrative has colored the evolution of ourth -mendment doctrine. n (articular,!ycharacteri2ing removal (roceedings as non(enal, the 6ourt has, since &4$%, (recluded theourth -mendment3s e9clusionary remedy, e9ce(t within the narrow 0egregious violations1e9ce(tion.&; &5 or even during the e9ecution of administrative warrants in a (erson3s home while she is handcuffed for more than

two hours.&$ :he resulting (icture is that when immigration agents target immigrants inside the !order,the ourth -mendment offers little %rotection . mmigrants are un(rotected either !ecause

the e*clusionary rule has no a%%lication in removal %roceedings , or even when the

e9clusionary rule a((lies, as in criminal (roceedings, most of those encounters are deemed

nonsei"ures and nonsearches#

The IC+ can access search arrants ithout %ro&a&le causesRaquelAldana '(, Willam S. Boyd School of Law and University of Nevada, Las Vegas,e!ruary "##$, Vol %&, No. ', htt()**lawreview.law.ucdavis.edu*issues*%&*'*rights+remedies*%&+'-ldana.(dfBut what if this 0reasona!le1 nonciti2en learns to wal/ away from the immigration agent and

refuses to answer his questions? :his is a li/ely scenario !ecause immigrant rights grou(s advise their clients to maintaina code of silence when they encounter 0la migra.1&4Would immigrants then have a (rivacy e9(ectation torefuse questions and even to wal/ away from 6@?Unfortunately, the answer a((ears to !e no. @9ce(t

in very limited circumstances, 6@ is conducting this latest wave of raids with easy access to

civil arrants in a way that e*%ands the sco%e of its la enforcement %oer,

com%elling mandatory com%liance .


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:oday, A7S3s regulatory arm reaches into em(loyer hiring (ractices ,"# university requirements forforeign students,"& the government3s distri!ution of (u!lic !enefits,"" and driver3s licenses,"'among other areas. n turn, this (reoccu(ation has caused the (roliferation of data!asesthat, in most cases, grant 6@easy access to information a!out a (erson3s immigration statusas a wor/er,"% student, "; or driver."= Witheasy access to such information in these data!ases, 6@ can arm itself with civil warrants even where there is

no %articulari"ed %ro&a&le cause , to conduct raids in (rivate or quasi(rivate s(aces

without having to see/ the information directly from immigrants themselves. :hese warrants name nosus(ects. Rather, they are issued (recisely to allow 6@ to identify and arrest (ersons for removal or to charge them for criminalimmigration violations. ndeed, 6@ agents have em(loyed this strategy in the latest wave of wor/(lace raids."5


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these e*em%tions in the Act0s coverage would ena!le these interests to !e given the

weight that they deserve, and ensure that any countervailing government interests are

recogni2ed and given effect only hen su%%orted &y reasoned justifications#

Surveillance is the linch%in of the overall &order enforcement regime

-nil .alhan 1, -ssociate rofessor of Law at Are9ler University and chair of the New Cor/6ity Bar -ssociationDs nternational 7uman Rights 6ommittee, 0mmigration Surveillance,1 74Md. L. Rev. 1,htt()**digitalcommons.law.umaryland.edu*cgi*viewcontent.cgi?articleE'=%=Fconte9tEmlrar from !eing a clear, fi9ed line that is coe9tensive with the territorial !order, the (icture of the migration !order

that emerges is a worldwide, %ointillist archi%elago of layered &oundary %oints , !oth

fi9ed and mo!ile. New immigration surveillance technologiesare what ma/e this reconfiguration ofthe migration !order (ossi!le.:o (olice this deterritoriali2ed !oundary, federal immigration authoritiescoo(erate and coordinate with an enormous num!er of (u!lic and (rivate actorsH!oth withinand outside the United StatesHto collect, analy2e, store, and share !iometrics and other(ersonal information, to identify individuals, to monitor and control mo!ility, and in someinstances to detain individuals or otherwise restrain their li!erty.ntero(era!le data!ase

systemshel( to create and ma/e (ossi!le these !roader assem!lages, which 0integrate and coordinate otherwisediscrete surveillance regimes1 in !oth 0tem(orary configurations IandJ in more sta!le

structures1Hthere!y connecting and integrating the vast array of actors and institutions

involved in immigration governance."%$
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlrhttp://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlrhttp://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlrhttp://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlrhttp://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlr


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Congress/2ata Mechanism---1AC

The United States federal government should su&stantially monitoring, collectionof data, and trac)ing %ertaining to %ersons involved in immigration#

Congressional legislation should %rovide a frameor) of trans%arency, oversight,and accounta&ility of the collection of data through im%lementing greater %u&licengagement and revie of mechanisms for errors

-nil .alhan 1, -ssociate rofessor of Law at Are9ler University and chair of the New Cor/6ity Bar -ssociationDs nternational 7uman Rights 6ommittee, 0mmigration Surveillance,1 74Md. L. Rev. 1,htt()**digitalcommons.law.umaryland.edu*cgi*viewcontent.cgi?articleE'=%=Fconte9tEmlr

inally, immigration surveillance demands greater attention to trans%arency, oversight, and

accounta&ility . Whether (rogrammatically or in the conte9t of individual adGudications,

immigration agencies, although im(roving in some ways, have long suffered from maGor

trans(arency and accounta!ility deficits.'&; :hose deficits are am%ly evident in

immigration surveillance initiatives and have !een e9acer!ated !y the !lurred lines created !y thedeterritoriali2ed migration !order. @nsuring greater trans(arency, oversight, and due (rocess requires res(onses at a num!er ofdifferent levels.

irst, a maGor contri!uting factor to the lac/ of sufficient trans(arency, oversight, andaccounta!ility has !een the lac/ of sufficiently concrete or detailed legal authority to su((ort

and guide such maGor and com(licated initiatives. o frameor) statutes govern or

constrain immigration surveillance activities , which, as discussed a!ove, also fall outside of the limited

(rivacy (rotections availa!le under the rivacy -ct. :his lac/ of a statutory framewor/ governing surveillance activities that im(licate (rivacy interests in migration, mo!ility, and travel data stands in mar/ed contrast to otherareas, such as communications and financial services , in which government access, storage, and disseminationof (ersonal information have long !een governed and constrained !y framewor/ statutes.'&=

Whether coming from Congress , the e9ecutive !ranch, or !oth acting together, accounta!ility and

oversight of immigration surveillance would !e !etter served !y a more detailed, coherent legalframewor/ governing immigration surveillance activities and o((ortunities for greater %u&lic

engagement ith those rules . -s the


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su(ervise investigatory (ractices.'"# Kiven the limitations in the a!ility of individual redressmechanisms to fully ensure (ro(er oversight of data!ase systems, these systems raise the sta/esin ma/ing sure that structural oversight mechanisms o(erate effectively.'"& @s(ecially as immigrationsurveillance integrates the institutions of immigration control with each other and with the institutions of other domains, the!lurred lines of accounta!ility among different institutions ma/e accounta!ility difficult> the im(lementation of automatedimmigration surveillance initiatives only !lurs those lines further.'""

3imiting and constraining immigration data collection is )ey-nil .alhan 4'15, -ssociate rofessor of Law at the Are9el University :homas R. line Schoolof Law, 0mmigration olicing and ederalism :hrough the Lens of :echnology, Surveillance,and rivacy,1 8hio State Law Mournal, &"*&%* "#&',htt()**morit2law.osu.edu*students*grou(s*oslG*files*"#&'*&"*&%+alhan.(df:o !egin with, automated immigration (olicing invites reassessment of the interests at sta/e when(ersonal information is collected, maintained, (rocessed, and disseminated for immigrationenforcement (ur(osesand the mechanisms to (rotect those interests."#5 -s have e9(lored elsewhere, the(roliferation of 2ones in society in which immigration enforcement ta/es (lace, and whereimmigration status has !ecome visi!le, salient, and su!Gect to (ervasive6 monitoring, carries arange of social costs."#$ Whileit is entirelya((ro(riate to collect, maintain, and disseminate(ersonal information for immigration enforcement (ur(oses in some conte9ts and su!Gect to certain

constraints, !oth individuals andsociety as a whole have legitimate interests in (reserving 2ones insocietyin which immigration surveillance activities do not ta/e (lace, and inma/ing sure that whenthey dota/e (lace theyare a((ro(riately limited and constrained.:o some e9tent, those interestsstem from thevalue of (reserving individual anonymity or quasi+anonymity more generally and the individual harms that can resultwhen immigration status is routinely monitored."#4 But theyalso arise froma !roader set of socialconcerns that surveillanceand information (rivacy scholars have increasingly recogni2ed asim(ortant. :hese social interestsHfor e9am(le, (reventing coercive or e9cessive aggregations of unrestrained government(owerHoften have less to do with the (articular information !eing collected in any given instance than with the harms that can arisefrom the means of surveillance and information management." n the immigration enforcement conte9t, the im(ortance ofconstraining those aggregations of (ower is heightened !y the (articular vulnera!ilities of nonciti2ens facing removal (roceedingsand the limited e9tent to which their interests are afforded meaningful (rotections in the immigration enforcement and removal(rocess."&&

Surveillance is the linch%in of the overall &order enforcement regime



fi9ed and mo!ile. New immigration surveillance technologiesare what ma/e this reconfiguration ofthe migration !order (ossi!le.:o (olice this deterritoriali2ed !oundary, federal immigration authoritiescoo(erate and coordinate with an enormous num!er of (u!lic and (rivate actorsH!oth withinand outside the United StatesHto collect, analy2e, store, and share !iometrics and other(ersonal information, to identify individuals, to monitor and control mo!ility, and in someinstances to detain individuals or otherwise restrain their li!erty.ntero(era!le data!ase

systemshel( to create and ma/e (ossi!le these !roader assem!lages, which 0integrate and coordinate otherwisediscrete surveillance regimes1 in !oth 0tem(orary configurations IandJ in more sta!le

structures1Hthere!y connecting and integrating the vast array of actors and institutions

involved in immigration governance."%$
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlrhttp://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlrhttp://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlrhttp://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlrhttp://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlr


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$ederalism Advantage---1AC

The federal immigration surveillance state is e*%anding---destroys effectiveimmigration federalism

-nil .alhan 15, -ssociate rofessor of Law, Are9el University, MA, Cale Law School,

0mmigration olicing and ederalism :hrough the Lens of :echnology, Surveillance, andrivacy,1 Ohio State Law Journal, 5%O=P, "#&',htt()**morit2law.osu.edu*students*grou(s*oslG*files*"#&'*&"*&%+alhan.(dfn the avalanche of state and local immigration+related lawma/ing in recent years, fewinitiatives have stirred (assions li/e those involving the (olice.& :a/e, for e9am(le, the charged dis(utesover -ri2ona3s S.B. #, whose most controversial (rovision requires state and local (olice toascertain the immigration status of individuals they encounter and share that information withfederal authorities." @ven !y the heated standards of discourse on immigration, clashes over S.B. # have !een fierce.-dvocates of tougher enforcement have em!raced the -ri2ona law and successfully urged other Gurisdictions to ado(t co(ycat laws.'

-t the same time, civil rights and community+!ased advocates have vigorously o!Gected that S.B.# and similar laws ena!le racial (rofiling, im(ro(er arrests, and violations of due (rocess,and drive wedges !etween local (olice and immigrant communities.%Q :he 8!ama

-dministration swiftly Goined the fray !y filing suit to challenge S.B. #, arguingnot that the lawoffended equal (rotection, due (rocess, or ourth -mendment (rinci(lesHas civil rights advocates urged in their own lawsuitsH!utrather that it was (reem(ted !y federal law.; :he district court enGoined four of the law3s many (rovisions, and in

-ri2ona v. United States, the Su(reme 6ourt largely agreed with the 8!ama -dministration3s(osition, facially invalidating all !ut one of the dis(uted (rovisions and cautioning that the final (rovision remained vulnera!le toas a((lied challenges.Q While -ri2ona has !een widely inter(reted as (utting the !ra/es on state and local immigration regulation, ithardly !rings state and local involvement in immigration law and (olicy to an end.5 With res(ect to immigration (olicing, in

(articular,while the 6ourt !rushed !ac/ the state3s unilateral attem(ts to regulate and enforceimmigration law, it simultaneously gave a !oost to state and local immigration (olicing underthe aegis of federal initiatives that enlist state and local coo(eration.$ Running counter to a conventionalnarrative of federal inaction on immigration control, thesteady e9(ansion ofthese federal arrangementsin recentdecades has contri!uted to an enduring convergence of immigration control and criminal lawenforcement and the removal of un(recedented num!ers of individuals.4 :he long shadow cast !y massimmigration enforcement has integrated the (rinci(les, (riorities, and (rocedures of immigration control into the day+to+day

(ractices of many state and local (olice and criminal Gustice institutions to a considera!le e9tent.Q :hose federal (rograms are nowundergoing a sea change with the de(loyment of technology. or e9am(le, even as it forcefully has urged invalidation of S.B. #

and similar laws, the 8!ama -dministration has (resided over the largest e9(ansion of state andlocal immigration (olicing in U.S. history with its im(lementation of the 0Secure 6ommunities1(rogram. Secure 6ommunities integrates the criminal records data!ases maintained !y statesand the B, which are routinely queried !y (olice conducting !ac/ground chec/s on individuals they arrest, with theimmigration data!ases maintained !y the Ae(artment of 7omeland Security OA7SPHthere!y automating A7S3s a!ility to identify

(otentially de(orta!le nonciti2ens in state or local custody.&& :he (rogram has transformative as(irations) toautomatically determine the immigration status of every (erson nationwide who is arrested and

!oo/ed !y state and local (olice in order to identify (otential immigration law violators.Q Secure6ommunities illustrates a !roader, technology+!ased shift toward what refer to as automated immigration (olicing. -utomatedimmigration (olicing initiatives de(loy intero(era!le data!ase systems and other technologies to automate and routini2e theidentification and a((rehension of (otentially de(orta!le nonciti2ens in the course of ordinary law enforcement encounters andother moments of day+to+day life.&' While scholars and advocates have devoted critical attention to these (rograms, the full

significance of this shift remains undera((reciated. 8!servers (rimarily have analy2ed these initiatives as e9tensions, in degree, of(revious federal efforts to enlist state and local (olice assistance, em(hasi2ing analogous questions, costs, and !enefits.&%Q n this

-rticle, ta/e a com(lementary !ut different a((roach.-utomated immigration (olicing does not sim(ly effecta massive increase in the num!er of state and local law enforcement officials involved inimmigration (olicingH although as discuss, it certainly does that, on an enormous scale.


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determinations of immigration status and the collection, storage, and dissemination of (ersonal information for immigrationenforcement (ur(oses automatic, wides(read, and continuous, automated immigration (olicing effects a !asic shift in the nature of!oth 0immigration federalism1 and ordinary law enforcement activities.&= -s such, the im(lementation of these new initiativesraises questions analogous to those arising from other forms of technology+!ased surveillance and dataveillance that 0monitorIJ(eo(le in order to regulate and govern their !ehavior.1Q -ccordingly, assess automated immigration (olicing in the conte9t of theemergence of this nascent immigration surveillance state, drawing u(on technology+, surveillance+, and (rivacy+!ased framewor/s

to com(lement and refract the insights of e9isting analyses. n art , recount the evolution of state and localimmigration (olicing in recent decades, from which an equili!rium has !een emerging thatH(erha(s ironically, given -ri2ona3s strong endorsement of federal (owerHcontem(lates considera!le enmeshment ofstate and local (olice with immigration control under federal aus(ices, !ut with room for

voluntary state and local choices along the coo(erationnoncoo(eration s(ectrum.n art , e9amine the federal government3s two recent automated immigration (olicing initiativesHSecure 6ommunities and the National

6rime nformation 6enter3s mmigration Violators ileHand show how the architecture of these %rograms disru%ts

that nascent e!uili&rium &y curtailing state and local choices concerning the nature

and e*tent of their %artici%ation in immigration %olicing# nstead, !oth initiatives ma/eimmigration status determinations !y law enforcement automatic, (ervasive, and effectively mandatory. n the (rocess, theseinitiatives also !lur the su!stantive lines !etween immigration control and other regulatory domains and the institutional lines!etween federal, state, and local agencies and de(artments. Q Because they intersect with and share continuities with a !roader,longer term set of develo(ments concerning technology, surveillance, and information sharing, in art V situate and analy2eautomated immigration (olicing within that wider conte9t, addressing the surveillance+ and (rivacy+related (ro!lems that these

initiatives (resent.&$While automated immigration (olicing initiatives can facilitate the efficientidentification of large num!ers of (otentially de(orta!le nonciti2ens, they also carry severalcategories of costsHall of which are e9acer!ated !y the heightened vulnera!ilities of nonciti2ensand the limited (rocedural (rotections afforded in immigration removal (roceedings. :hese costsarise from the inherent falli!ilities of automation, the tendency of surveillance mechanismsto !e used for(ur(oses !eyond those for which they were initially im(lemented, the dis(lacement of state andlocal control over information that states and localities collect and share with federal authorities,andthe everyday effectsof these initiatives on!oth law enforcement agencies and the communities !eingmonitored. inally, in art V, identify and advance (rinci(les to constrain, inform, and guide the im(lementation of automatedimmigration (olicing initiatives and other (rograms that similarly are resha(ing immigration enforcement (ractices with the use ofnew technologies. -s with other forms of technology+!ased surveillance, the e9(anded use of automated immigration (olicingdemands greater attention to the interests at sta/e when (ersonal information is collected for immigration enforcement (ur(oses.

argue that the e9isting (otential for conflicts over control of information !etween federal and

su!federal governments may hel( to (rotect those interests, and that the im(ortance of thoseinterests demands im(roved trans(arency, oversight, and accounta!ility in the im(lementationof automated immigration (olicing mechanisms and other technology+!ased initiatives that arecontri!uting to the develo(ment of the immigration surveillance state.

S%ecifically, it destroys state fle*i&ility in immigration la-nil .alhan 15, -ssociate rofessor of Law, Are9el University, MA, Cale Law School,0mmigration olicing and ederalism :hrough the Lens of :echnology, Surveillance, andrivacy,1 Ohio State Law Journal, 5%O=P, "#&',htt()**morit2law.osu.edu*students*grou(s*oslG*files*"#&'*&"*&%+alhan.(df

-utomated immigration (olicing has ena!led massive levels of state and local involvement inimmigration enforcement that could never have !een achieved under earlier (rograms . :he N66mmigration Violators ile, for e9am(le, now ma/es over "4$,4## records of (otentially de(orta!le individuals accessi!le to state

and local (olice nationwide.&&& Under Secure 6ommunities, over twenty+eight million sets of finger(rints have !een transmitted toA7S since the (rogram3s ince(tionH0thousands1 of finger(rints (er day, according to one official, including finger(rints of allindividuals !orn outside the United States or whose (lace of !irth is un/nownHfrom which A7S has identified over &.% millionmatching records in A@N:. 6@ has returned or formally removed "54,%$" of these individuals, with the num!er of removalsattri!uta!le to Secure 6ommunities Gum(ing from &%,'=% in "##4, re(resenting four (ercent of all removals, to $',$&; in "#&",

re(resenting one+fifth of all removals.&&" n light of these num!ers, the 8!ama -dministration has decreased itsreliance on tas/ force agreements under the"$5OgP (rogram, one of the cornerstones of the (revious generation

of federal immigration (olicing initiatives.Q n order to achieve these num!ers, these initiatives have forcefully

challenged and eroded the e!uili&rium on immigration federalism that has &een


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emerging in recent years , illustrating the (owerful ways in which thetechnological architecture of

federalism itself can sha(e and govern the institutional relationshi(s among different levels ofgovernment.&&'While sharing with its (redecessors the goal of reducing the federal government3sinformation deficit vis++vis states and localities in the identification of (otentially de(orta!le nonciti2ens,automated immigration (olicing de(arts from those earlier initiatives !y (recluding states and localities from ma/ing affirmative,cali!rated, and negotiated choices a!out the level of immigration (olicing assistance they wish to furnish. nstead, these initiativesH

while nominally still tethered to 0voluntary1 forms of federalstate coo(erationH affect informational end runs around those choicesthrough the use of technology. Both (rograms tightly weave immigration (olicing mechanisms intoesta!lished, dee(ly ingrained systems designed to facilitate criminal investigation, (rosecution,and sentencingHtransforming the (rocess of monitoring and verifying immigration status into a routine, seamless (art ofvirtually all ordinary law enforcement encounters with mem!ers of the (u!lic.Q :his a((roach erodes the conce(tionof immigration federalism that has emerged in recent years !y narrowing the s(ace for statesand localities to ma/e affirmative choices concerning their coo(eration on immigration (olicingthat are inde(endent from other decisionsHinitially made decades earlierHto e9change identification and criminalhistory records for wholly se(arate criminal Gustice (ur(oses. With the N66, given the manner of its e9tensive use !y state and local(olice, the inclusion of immigration records means that individual (olice officers will automatically receive immigration statusinformation when ma/ing routine queries, even if their Gurisdictions have (oliciesHwhich are li/ely immune from (reem(tionH(rohi!iting or restricting officers from collecting that information from mem!ers of the (u!lic they encounter. 8nce (resented withthat information, (olice officers may then !e induced to detain or arrest sus(ected civil or criminal immigration law violatorswithout regard to their formal immigration arrest authority, which -ri2ona v. United States now clarifies to !e highly constrained, orthe e9tent to which their Gurisdictions have affirmatively chosen to coo(erate with 6@.&&%Q Secure 6ommunities goes even further,inducing and routini2ing the assistance of state and local (olice en masse. 7ere, the informational end run (roceeds in the o((ositedirection from the flow of information using the N66. Rather than sending immigration status information to law enforcementofficials, A7S automatically e9tracts identification and criminal history information from state and local law enforcement agencieswhen they routinely transmit that information to the B for (ur(oses that are unrelated to civil immigration enforcement, !utunderstood as essential for criminal law enforcement.&&; A7S then uses that information for immigration enforcement (ur(osesHwithout regard to whether those Gurisdictions have affirmatively chosen to coo(erate with federal immigration authorities in hel(ingto identify (otentially de(orta!le individuals whom they encounter.Q While technologyH!eing 0(lastic,1 as Lawrence Lessig hasem(hasi2edH li/ely could !e designed to (reserve the room for state and local choices that e9isting federal immigration (olicinginitiatives contem(late, these new automated immigration (olicing initiatives are early com(onents in a !roader federal strategythat instead a((ears (oised not sim(ly to erode e9isting conce(tions of immigration federalism even further, !ut to e9(and thesesurveillance mechanisms to encom(ass even larger num!ers of U.S. citi2ens.&&= ederal officials have cham(ioned Secure6ommunities not Gust as an immigration (olicing (rogram, !ut as the first (hase of the B3s Ne9t Keneration dentification ONKPinitiative, a !iometric data!ase system intended to u(grade and re(lace -S, which will ena!le the collection, storage, (rocessing,and e9change of un(aralleled quantities of !iometric and !iogra(hic information of !oth U.S. citi2ens and nonciti2ens ali/e.&&5 :hesco(e of NK3s data!ase system is enormous, encom(assing multimodal !iometric records of finger(rints, multi(le (hotogra(hs, irisscans, (alm (rints, voice data, and (otentially other !iometric identifiers along with detailed !iogra(hical information, and

(o(ulated with data from a multi(licity of sourcesHincluding not only law enforcement agencies, !ut (otentially also commercialdata!ases, security cameras, (u!licly availa!le sources, social networ/ing (latforms, (rivate em(loyers, and individuals. Using(owerful facial recognition and search tools, NK not only ena!les more so(histicated means of immediately identifying (articularindividuals, !ut also ma/es it 0trivially easy1 to locate, identify, and trac/ individuals remotely for investigative, intelligencegathering, or (reventive (ur(oses.&&$ :o the e9tent that A7S stores the finger(rints of U.S. citi2ens collected under Secure6ommunities, as discussed a!ove, the im(lications of Secure 6ommunities for U.S. citi2ens will !ecome even more consequentialunder NK and any other (rograms that might involve !roader sharing of those finger(rints and other !iometrics along with any

(ersonal information that may !e lin/ed to those !iometric records.Q :he com(rehensive immigration reform !illrecentlyado(ted !y the Senate also(ro(oses to use technology in a manner that (romises toresha(e e9isting conce(tions of immigration federalism. :he !ill would require em(loyers to

verify em(loyees3 identities against A7S data!ases using an enhanced version of @+Verify, A7S3se9isting online em(loyment eligi!ility verification system, which incor(orates a 0(hoto tool1 containing (hotos and (ersonal

information drawn from state driver3s license and identification !ureaus.&&4With all of these automated initiatives,the manner in which information from different data!ase systems and regulatory domains isroutinely aggregated and e9changed !lurs the lines !etween immigration control and otherregulatory domains, on the one hand, and the institutional lines !etween federal, state, and localinstitutions, on the other.&"#

Constraints on federal immigration surveillance solve---they0re )ey to effectivedivision of %oer &eteen the states and federal government

-nil .alhan 15, -ssociate rofessor of Law, Are9el University, MA, Cale Law School,0mmigration olicing and ederalism :hrough the Lens of :echnology, Surveillance, and


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rivacy,1 Ohio State Law Journal, 5%O=P, "#&',htt()**morit2law.osu.edu*students*grou(s*oslG*files*"#&'*&"*&%+alhan.(df:o some e9tent, those interests stem from the value of (reserving individual anonymity or quasi+anonymity more generally and the individual harms that can result when immigration status isroutinely monitored."#4 But they also arise from a !roader set of social concerns that surveillance and information (rivacyscholars have increasingly recogni2ed as im(ortant. :hese social interestsHfor e9am(le, (reventing coercive or

e9cessive aggregations of unrestrained government (owerHoften have less to do with the(articular information !eing collected in any given instance than with the harms that can arisefrom the means of surveillance and information management ." n the immigration enforcement conte9t,the im(ortance of constraining those aggregations of (ower is heightened !y the (articular

vulnera!ilities of nonciti2ens facing removal (roceedings and the limited e9tent to which theirinterests are afforded meaningful (rotections in the immigration enforcement and removal(rocess.Q Vindicating these interests in the immigration enforcement conte9t therefore requires conte9t+a((ro(riate constraintson the collection, use, storage, and dissemination of (ersonal information for immigration enforcement (ur(oses, including limits

on secondary uses of information that were not originally contem(lated.While courts may seem unli/ely to readilyrecogni2e and im(ose such limits, in fact the value of these /inds of limits has nevertheless long

!een recogni2ed !y numerous government actorsHincluding courts and even federalimmigration officials themselves."&" 7owever, e9u!erance over the (otential !enefits of intero(era!le data!ases andother new technologies may !e clouding attention to the continued im(ortance of these limits when im(lementing those systems. n

an era in which more data is almost always assumed to !e !etter, more information sharing and interconnectivity !etween data!ase

systems is also often assumed to !e !etter as well."&' But as Mohn alfreyand Urs Kasser have em(hasi2ed, 0com(leteintero(era!ility at all times and in all (laces . . . can introduce new vulnera!ilities1 and0e9acer!ate e9isting (ro!lems.1-ccordingly, they argue, (lacing constraints u(on information sharing andintero(era!ility and retaining 0friction in ItheJ system1 may often !e more o(timal.Q


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7elations Advantage---1AC

US-Me*ico relations lo due to immigration %olicies@sther Pan , Staff Writer for 6ouncil on oreign Relations and Stanford University graduate,e!ruary "&, "##=, TU.S.+


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drugs and trade. urther, without a coo(erative relationshi( with its nearest Latin -merican

neigh!or it will !e difficult for the United States to im%rove relations ith the rest of

the region . -nd as demonstrated !y the e9(ansion of 6hinese investment, Russian military sales and naval maneuvers,ranian di(lomatic visits, and 7ugo 6hve23 regional sway, U.S. influence in the Latin -merican region can no longer !e ta/en forgranted.

7eforms on immigration re&uild relations ith Me*icoamela . Starr '8, director of the U.S.+


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-t a time ofO(erceivedP declining U.S. influence, it3s im(ortant that -merica dee(ens its ties withregional alliesthat might have !een once ta/en for granted.-s emerging nations such as Bra2il clamor for(ermanent seats on the U.N. Security 6ouncil and more re(resentatives in the higher reaches of the World Ban/

and the nternational


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-lthough Latin -merica and the 6ari!!ean lag !ehind the United States and 6anadain terms ofim(lemented clean energy (olicy and (roGect funding, 5 (ercent of the region3s total installed ca(acity today is

renewa!les, and it is e*%ected to gro faster in years to come.OSee related interactive ma() 0:he

Klo!al @lectricity


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drin)ing-ater and im%roved sanitation sho a close corres%ondence ith

im%rovements in human health and economic %roductivity. @very day each (erson needs "#+;# litresof water free from harmful chemical and micro!ial contaminants, for drin/ing, coo/ing and hygiene. :he growing challenge of (roviding this !asicservice to large segments of the human (o(ulation is highlighted !y one of the United Nations


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health and ell-&eing .8utdoor air (ollution is caused (redominantly !y the com!ustion of non+renewa!le fossil fuels

for electricity generation, trans(ort and industry. Klo!ally, ur!an air (ollution is res(onsi!le for significantmortality every year, mostly as a result of heart and lung diseases . n addition, the accom(anyingrelease of a maGor greenhouse gasO68"P and its consequent contri!ution to glo!al warming havefurther, mostly adverse, im(acts on human health. -ir (ollution due to forest fires and !urning (ractices inagriculture also can have serious local and regional health consequences. :his was highlighted !y the (u!lic health e9(eriences in

south+east -sia in &44$, following wides(read Odrought+associatedP forest fires in Sumatra and alimantan, ndonesia in the latter(art of &445 and early &44$.:im!er e9(loitation has contri!uted to s(eciesD loss and ecosystemdegradation in many regions of the develo(ing world, affecting traditional livelihoods, micro!ial ecologyand causing other health+related ris/s. n (articular the destruction and fragmentation of ha!itats,accom(anied !y new (atterns of human+micro!e contacts, has introduced new infectiousdiseases into human (o(ulations e.g. the Ni(ah virus in


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a!ove is sensitive to climatic conditions and therefore will !e affected !y human+induced climate

change. n turn, these ecosystem changes ill affect the ell-&eing and health of

human %o%ulations . lac/ of clean water and shelter> (oornutritional status> and adverse im(acts on mental health.


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$ederalism Advantage


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U


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U\+++Surveillance 7urts ederalism

Immigration surveillance state e*%anding, threatens federalism-nil .alhan 15, -ssociate rofessor of Law, Are9el University, MA, Cale Law School,0mmigration olicing and ederalism :hrough the Lens of :echnology, Surveillance, and

rivacy,1 Ohio State Law Journal, 5%O=P, "#&',htt()**morit2law.osu.edu*students*grou(s*oslG*files*"#&'*&"*&%+alhan.(dfn the avalanche of state and local immigration+related lawma/ing in recent years, fewinitiatives have stirred (assions li/e those involving the (olice.& :a/e, for e9am(le, the charged dis(utesover -ri2ona3s S.B. #, whose most controversial (rovision requires state and local (olice toascertain the immigration status of individuals they encounter and share that information withfederal authorities." @ven !y the heated standards of discourse on immigration, clashes over S.B. # have !een fierce.-dvocates of tougher enforcement have em!raced the -ri2ona law and successfully urged other Gurisdictions to ado(t co(ycat laws.'

-t the same time, civil rights and community+!ased advocates have vigorously o!Gected that S.B.# and similar laws ena!le racial (rofiling, im(ro(er arrests, and violations of due (rocess,and drive wedges !etween local (olice and immigrant communities.%Q :he 8!ama

-dministration swiftly Goined the fray !y filing suit to challenge S.B. #, arguingnot that the lawoffended equal (rotection, due (rocess, or ourth -mendment (rinci(lesHas civil rights advocates urged in their own lawsuitsH!ut

rather that it was (reem(ted !y federal law.; :he district court enGoined four of the law3s many (rovisions, and in-ri2ona v. United States, the Su(reme 6ourt largely agreed with the 8!ama -dministration3s(osition, facially invalidating all !ut one of the dis(uted (rovisions and cautioning that the final (rovision remained vulnera!le toas a((lied challenges.Q While -ri2ona has !een widely inter(reted as (utting the !ra/es on state and local immigration regulation, ithardly !rings state and local involvement in immigration law and (olicy to an end.5 With res(ect to immigration (olicing, in

(articular,while the 6ourt !rushed !ac/ the state3s unilateral attem(ts to regulate and enforceimmigration law, it simultaneously gave a !oost to state and local immigration (olicing underthe aegis of federal initiatives that enlist state and local coo(eration.$ Running counter to a conventionalnarrative of federal inaction on immigration control, thesteady e9(ansion ofthese federal arrangementsin recentdecades has contri!uted to an enduring convergence of immigration control and criminal lawenforcement and the removal of un(recedented num!ers of individuals.4 :he long shadow cast !y massimmigration enforcement has integrated the (rinci(les, (riorities, and (rocedures of immigration control into the day+to+day(ractices of many state and local (olice and criminal Gustice institutions to a considera!le e9tent.Q :hose federal (rograms are now

undergoing a sea change with the de(loyment of technology. or e9am(le, even as it forcefully has urged invalidation of S.B. #and similar laws, the 8!ama -dministration has (resided over the largest e9(ansion of state andlocal immigration (olicing in U.S. history with its im(lementation of the 0Secure 6ommunities1(rogram. Secure 6ommunities integrates the criminal records data!ases maintained !y statesand the B, which are routinely queried !y (olice conducting !ac/ground chec/s on individuals they arrest, with theimmigration data!ases maintained !y the Ae(artment of 7omeland Security OA7SPHthere!y automating A7S3s a!ility to identify

(otentially de(orta!le nonciti2ens in state or local custody.&& :he (rogram has transformative as(irations) toautomatically determine the immigration status of every (erson nationwide who is arrested and

!oo/ed !y state and local (olice in order to identify (otential immigration law violators.Q Secure6ommunities illustrates a !roader, technology+!ased shift toward what refer to as automated immigration (olicing. -utomatedimmigration (olicing initiatives de(loy intero(era!le data!ase systems and other technologies to automate and routini2e theidentification and a((rehension of (otentially de(orta!le nonciti2ens in the course of ordinary law enforcement encounters andother moments of day+to+day life.&' While scholars and advocates have devoted critical attention to these (rograms, the fullsignificance of this shift remains undera((reciated. 8!servers (rimarily have analy2ed these initiatives as e9tensions, in degree, of

(revious federal efforts to enlist state and local (olice assistance, em(hasi2ing analogous questions, costs, and !enefits.&%Q n this-rticle, ta/e a com(lementary !ut different a((roach.-utomated immigration (olicing does not sim(ly effecta massive increase in the num!er of state and local law enforcement officials involved inimmigration (olicingH although as discuss, it certainly does that, on an enormous scale.


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!oth 0immigration federalism1 and ordinary law enforcement activities.&= -s such, the im(lementation of these new initiativesraises questions analogous to those arising from other forms of technology+!ased surveillance and dataveillance that 0monitorIJ(eo(le in order to regulate and govern their !ehavior.1Q -ccordingly, assess automated immigration (olicing in the conte9t of theemergence of this nascent immigration surveillance state, drawing u(on technology+, surveillance+, and (rivacy+!ased framewor/s

to com(lement and refract the insights of e9isting analyses. n art , recount the evolution of state and localimmigration (olicing in recent decades, from which an equili!rium has !een emerging thatH(erha(s ironically, given -ri2ona3s strong endorsement of federal (owerHcontem(lates considera!le enmeshment of

state and local (olice with immigration control under federal aus(ices, !ut with room forvoluntary state and local choices along the coo(erationnoncoo(eration s(ectrum.n art , e9amine the federal government3s two recent automated immigration (olicing initiativesHSecure 6ommunities and the National

6rime nformation 6enter3s mmigration Violators ileHand show how the architecture of these %rograms disru%ts

that nascent e!uili&rium &y curtailing state and local choices concerning the nature

and e*tent of their %artici%ation in immigration %olicing# nstead, !oth initiatives ma/eimmigration status determinations !y law enforcement automatic, (ervasive, and effectively mandatory. n the (rocess, theseinitiatives also !lur the su!stantive lines !etween immigration control and other regulatory domains and the institutional lines!etween federal, state, and local agencies and de(artments. Q Because they intersect with and share continuities with a !roader,longer term set of develo(ments concerning technology, surveillance, and information sharing, in art V situate and analy2eautomated immigration (olicing within that wider conte9t, addressing the surveillance+ and (rivacy+related (ro!lems that these

initiatives (resent.&$While automated immigration (olicing initiatives can facilitate the efficientidentification of large num!ers of (otentially de(orta!le nonciti2ens, they also carry several

categories of costsHall of which are e9acer!ated !y the heightened vulnera!ilities of nonciti2ensand the limited (rocedural (rotections afforded in immigration removal (roceedings. :hese costsarise from the inherent falli!ilities of automation, the tendency of surveillance mechanismsto !e used for(ur(oses !eyond those for which they were initially im(lemented, the dis(lacement of state andlocal control over information that states and localities collect and share with federal authorities,andthe everyday effectsof these initiatives on!oth law enforcement agencies and the communities !eingmonitored. inally, in art V, identify and advance (rinci(les to constrain, inform, and guide the im(lementation of automatedimmigration (olicing initiatives and other (rograms that similarly are resha(ing immigration enforcement (ractices with the use ofnew technologies. -s with other forms of technology+!ased surveillance, the e9(anded use of automated immigration (olicingdemands greater attention to the interests at sta/e when (ersonal information is collected for immigration enforcement (ur(oses.

argue that the e9isting (otential for conflicts over control of information !etween federal andsu!federal governments may hel( to (rotect those interests, and that the im(ortance of thoseinterests demands im(roved trans(arency, oversight, and accounta!ility in the im(lementation

of automated immigration (olicing mechanisms and other technology+!ased initiatives that arecontri!uting to the develo(ment of the immigration surveillance state.

2estroys immigration federalism---)ills state fle*i&ility-nil .alhan 15, -ssociate rofessor of Law, Are9el University, MA, Cale Law School,0mmigration olicing and ederalism :hrough the Lens of :echnology, Surveillance, andrivacy,1 Ohio State Law Journal, 5%O=P, "#&',htt()**morit2law.osu.edu*students*grou(s*oslG*files*"#&'*&"*&%+alhan.(df

-utomated immigration (olicing has ena!led massive levels of state and local involvement inimmigration enforcement that could never have !een achieved under earlier (rograms . :he N66mmigration Violators ile, for e9am(le, now ma/es over "4$,4## records of (otentially de(orta!le individuals accessi!le to stateand local (olice nationwide.&&& Under Secure 6ommunities, over twenty+eight million sets of finger(rints have !een transmitted toA7S since the (rogram3s ince(tionH0thousands1 of finger(rints (er day, according to one official, including finger(rints of all

individuals !orn outside the United States or whose (lace of !irth is un/nownHfrom which A7S has identified over &.% millionmatching records in A@N:. 6@ has returned or formally removed "54,%$" of these individuals, with the num!er of removalsattri!uta!le to Secure 6ommunities Gum(ing from &%,'=% in "##4, re(resenting four (ercent of all removals, to $',$&; in "#&",

re(resenting one+fifth of all removals.&&" n light of these num!ers, the 8!ama -dministration has decreased itsreliance on tas/ force agreements under the"$5OgP (rogram, one of the cornerstones of the (revious generation

of federal immigration (olicing initiatives.Q n order to achieve these num!ers, these initiatives have forcefully

challenged and eroded the e!uili&rium on immigration federalism that has &een

emerging in recent years , illustrating the (owerful ways in which thetechnological architecture of

federalism itself can sha(e and govern the institutional relationshi(s among different levels of


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government.&&'While sharing with its (redecessors the goal of reducing the federal government3sinformation deficit vis++vis states and localities in the identification of (otentially de(orta!le nonciti2ens,automated immigration (olicing de(arts from those earlier initiatives !y (recluding states and localities from ma/ing affirmative,cali!rated, and negotiated choices a!out the level of immigration (olicing assistance they wish to furnish. nstead, these initiativesHwhile nominally still tethered to 0voluntary1 forms of federalstate coo(erationH affect informational end runs around those choices

through the use of technology. Both (rograms tightly weave immigration (olicing mechanisms intoesta!lished, dee(ly ingrained systems designed to facilitate criminal investigation, (rosecution,

and sentencingHtransforming the (rocess of monitoring and verifying immigration status into a routine, seamless (art ofvirtually all ordinary law enforcement encounters with mem!ers of the (u!lic.Q :his a((roach erodes the conce(tionof immigration federalism that has emerged in recent years !y narrowing the s(ace for statesand localities to ma/e affirmative choices concerning their coo(eration on immigration (olicingthat are inde(endent from other decisionsHinitially made decades earlierHto e9change identification and criminalhistory records for wholly se(arate criminal Gustice (ur(oses. With the N66, given the manner of its e9tensive use !y state and local(olice, the inclusion of immigration records means that individual (olice officers will automatically receive immigration statusinformation when ma/ing routine queries, even if their Gurisdictions have (oliciesHwhich are li/ely immune from (reem(tionH(rohi!iting or restricting officers from collecting that information from mem!ers of the (u!lic they encounter. 8nce (resented withthat information, (olice officers may then !e induced to detain or arrest sus(ected civil or criminal immigration law violatorswithout regard to their formal immigration arrest authority, which -ri2ona v. United States now clarifies to !e highly constrained, orthe e9tent to which their Gurisdictions have affirmatively chosen to coo(erate with 6@.&&%Q Secure 6ommunities goes even further,inducing and routini2ing the assistance of state and local (olice en masse. 7ere, the informational end run (roceeds in the o((ositedirection from the flow of information using the N66. Rather than sending immigration status information to law enforcementofficials, A7S automatically e9tracts identification and criminal history information from state and local law enforcement agencies

when they routinely transmit that information to the B for (ur(oses that are unrelated to civil immigration enforcement, !utunderstood as essential for criminal law enforcement.&&; A7S then uses that information for immigration enforcement (ur(osesHwithout regard to whether those Gurisdictions have affirmatively chosen to coo(erate with federal immigration authorities in hel(ingto identify (otentially de(orta!le individuals whom they encounter.Q While technologyH!eing 0(lastic,1 as Lawrence Lessig hasem(hasi2edH li/ely could !e designed to (reserve the room for state and local choices that e9isting federal immigration (olicinginitiatives contem(late, these new automated immigration (olicing initiatives are early com(onents in a !roader federal strategythat instead a((ears (oised not sim(ly to erode e9isting conce(tions of immigration federalism even further, !ut to e9(and thesesurveillance mechanisms to encom(ass even larger num!ers of U.S. citi2ens.&&= ederal officials have cham(ioned Secure6ommunities not Gust as an immigration (olicing (rogram, !ut as the first (hase of the B3s Ne9t Keneration dentification ONKPinitiative, a !iometric data!ase system intended to u(grade and re(lace -S, which will ena!le the collection, storage, (rocessing,and e9change of un(aralleled quantities of !iometric and !iogra(hic information of !oth U.S. citi2ens and nonciti2ens ali/e.&&5 :hesco(e of NK3s data!ase system is enormous, encom(assing multimodal !iometric records of finger(rints, multi(le (hotogra(hs, irisscans, (alm (rints, voice data, and (otentially other !iometric identifiers along with detailed !iogra(hical information, and(o(ulated with data from a multi(licity of sourcesHincluding not only law enforcement agencies, !ut (otentially also commercialdata!ases, security cameras, (u!licly availa!le sources, social networ/ing (latforms, (rivate em(loyers, and individuals. Using(owerful facial recognition and search tools, NK not only ena!les more so(histicated means of immediately identifying (articularindividuals, !ut also ma/es it 0trivially easy1 to locate, identify, and trac/ individuals remotely for investigative, intelligencegathering, or (reventive (ur(oses.&&$ :o the e9tent that A7S stores the finger(rints of U.S. citi2ens collected under Secure6ommunities, as discussed a!ove, the im(lications of Secure 6ommunities for U.S. citi2ens will !ecome even more consequentialunder NK and any other (rograms that might involve !roader sharing of those finger(rints and other !iometrics along with any

(ersonal information that may !e lin/ed to those !iometric records.Q :he com(rehensive immigration reform !illrecentlyado(ted !y the Senate also(ro(oses to use technology in a manner that (romises toresha(e e9isting conce(tions of immigration federalism. :he !ill would require em(loyers to

verify em(loyees3 identities against A7S data!ases using an enhanced version of @+Verify, A7S3se9isting online em(loyment eligi!ility verification system, which incor(orates a 0(hoto tool1 containing (hotos and (ersonal

information drawn from state driver3s license and identification !ureaus.&&4With all of these automated initiatives,the manner in which information from different data!ase systems and regulatory domains isroutinely aggregated and e9changed !lurs the lines !etween immigration control and otherregulatory domains, on the one hand, and the institutional lines !etween federal, state, and localinstitutions, on the other.&"#


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Solvency---:rin)/$ed 3a Solves

$ederal la determines state authority over immigration---it0s am&iguous noarthic/ 7ama)rishnan 4'1, (rofessor of (u!lic (olicy and (olitical science at theUniversity of 6alifornia, 0Understanding mmigration ederalism in the United States,1 6enter

for -merican rogress,


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Solvency+++6urtailment Solves

Constraints on federal immigration surveillance are )ey to effective division of%oer &eteen the states and federal government


0mmigration olicing and ederalism :hrough the Lens of :echnology, Surveillance, andrivacy,1 Ohio State Law Journal, 5%O=P, "#&',htt()**morit2law.osu.edu*students*grou(s*oslG*files*"#&'*&"*&%+alhan.(df:o some e9tent, those interests stem from the value of (reserving individual anonymity or quasi+anonymity more generally and the individual harms that can result when immigration status isroutinely monitored."#4 But they also arise from a !roader set of social concerns that surveillance and information (rivacyscholars have increasingly recogni2ed as im(ortant. :hese social interestsHfor e9am(le, (reventing coercive ore9cessive aggregations of unrestrained government (owerHoften have less to do with the(articular information !eing collected in any given instance than with the harms that can arisefrom the means of surveillance and information management ." n the immigration enforcement conte9t,the im(ortance of constraining those aggregations of (ower is heightened !y the (articular

vulnera!ilities of nonciti2ens facing removal (roceedings and the limited e9tent to which their

interests are afforded meaningful (rotections in the immigration enforcement and removal(rocess.Q Vindicating these interests in the immigration enforcement conte9t therefore requires conte9t+a((ro(riate constraintson the collection, use, storage, and dissemination of (ersonal information for immigration enforcement (ur(oses, including limits

on secondary uses of information that were not originally contem(lated.While courts may seem unli/ely to readilyrecogni2e and im(ose such limits, in fact the value of these /inds of limits has nevertheless long

!een recogni2ed !y numerous government actorsHincluding courts and even federalimmigration officials themselves."&" 7owever, e9u!erance over the (otential !enefits of intero(era!le data!ases andother new technologies may !e clouding attention to the continued im(ortance of these limits when im(lementing those systems. nan era in which more data is almost always assumed to !e !etter, more information sharing and interconnectivity !etween data!ase

systems is also often assumed to !e !etter as well."&' But as Mohn alfreyand Urs Kasser have em(hasi2ed, 0com(leteintero(era!ility at all times and in all (laces . . . can introduce new vulnera!ilities1 and0e9acer!ate e9isting (ro!lems.1-ccordingly, they argue, (lacing constraints u(on information sharing andintero(era!ility and retaining 0friction in ItheJ system1 may often !e more o(timal.Q


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Information $ederalism I3

Information federalism-nil .alhan 15, -ssociate rofessor of Law, Are9el University, MA, Cale Law School,0mmigration olicing and ederalism :hrough the Lens of :echnology, Surveillance, and

rivacy,1 Ohio State Law Journal, 5%O=P, "#&',htt()**morit2law.osu.edu*students*grou(s*oslG*files*"#&'*&"*&%+alhan.(df:he significance of these anti+detainer (olicies and the e9tent to which they ta/e hold in other Gurisdictions remain to !e seen.

7owever, the !roader traGectory leading to their ado(tion suggests that as state and localinstitutionsH including hos(itals, educational institutions, and othersHincreasingly collect and maintain(ersonal information that might !e relevant to immigration enforcement , analysis ofimmigration federalism may !enefit from greater understanding of and attention to thedynamics of information control.


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ederalism Kood+++rivacy*Rights

State immigration la %rotects immigrant %rivacy rights and limits rights a&uses


0mmigration olicing and ederalism :hrough the Lens of :echnology, Surveillance, andrivacy,1 Ohio State Law Journal, 5%O=P, "#&',htt()**morit2law.osu.edu*students*grou(s*oslG*files*"#&'*&"*&%+alhan.(dfB. mmigration ederalism and nformation ederalismQ 8ne im(ortant means of fostering and facilitatingthese /inds of constraintsHof creating 0friction in ItheJ system1 in aid of the (u!lic goodH may !e to harness thee9isting (otential for conflicts over information control !etween the federal government andstates and localities."&4 While it is customary, in immigration as in other areas, to thin/ of the federalgovernment as a 0!ulwar/1 against rights violations !y states, federalism also esta!lishes multi(le centers of(ower with the ca(acity to e9ert inde(endent chec/s u(on federal authority. articularly in the face of !road e9ercises offederal (ower, state and local institutions can (lay im(ortant roles in the (rotection of rightsand li!ertiesHas focal (oints for the e9(ression of (olitical o((osition to national (olicies, as 0seed!edIsJ for (olitical change atthe national level,1 as sources of alternative and (otentially !roader conce(tions of federal rights, and as (otentially moderating

influences on the federal actors who see/ their coo(eration.Q mmigration scholars have long discounted these(ossi!ilities, devoting greater attention to more restrictive su!federal im(ulses . 7owever, in recentyears, scholars increasingly have recogni2ed that states and localities can and do (lay affirmativeand constructive roles in integrating, (rotecting, and otherwise affirmativelyengaging their nonciti2enresidents.""& ndeed, with res(ect to the collection, (rocessing, storing, and dissemination of immigration status and other(ersonal information for immigration enforcement (ur(oses, states and localities have long (layed (recisely this /ind of roleHfore9am(le, !y fashioning (olicies that constrain the collection of that information or its dissemination to federal immigration

officials."""Q -utomated immigration (olicing initiatives such as Secure 6ommunities directlyres(ondto these forms of resistance!y reducing the need for affirmative state and local assistance incollecting information a!out (otentially de(orta!le nonciti2ens in their custody. 7owever, as !othsurveillance and federalism scholars might have (redicted, that resistance itself has (ersisted in the form of efforts to limit the a!ility

of federal immigration officials to use that information.""'- growing num!er of states and localities haveado(ted (olicies limiting their coo(eration with 6@ at the ne9t stage of the enforcement

(rocess, when 6@ issues detainers to facilitate a((rehension of individuals identified throughSecure 6ommunities.or e9am(le, 6alifornia recently ado(ted the :rust -ct, which, e9ce(tin casesinvolving individuals charged with or convicted of serious criminal offenses,(rohi!its law enforcement officials

within the state from detaining individuals for immigration enforcement (ur(oses, at 6@3s request, ifthose individuals are otherwise eligi!le for release.""%Q :he significance of these anti+detainer(olicies and the e9tent to which they ta/e hold in other Gurisdictions remain to !e seen . 7owever,the !roader traGectory leading to their ado(tion suggests that as state and local institutionsHincluding hos(itals, educational institutions, and othersHincreasingly collect and maintain (ersonalinformation that might !e relevant to immigration enforcement , analysis of immigration federalismmay !enefit from greater understanding of and attention to the dynamics of information control .


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understandings of :enth -mendment (rinci(les, federal efforts to com(el states to (rovide thisinformation should !e foreclosed as an im(ermissi!le form of commandeering .""$ While anti+commandeering doctrine itself has limits, as


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+con Advantage


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Immigration =ood for Me*ican +con

>%en &orders hel%s the Me*ican economyNonie 2arish 4'15, 0S LL@K-L


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Immigration =ood for US +con

Immigration hel%s the US economy &y increasing %roductivityKordon 7. ?ansen 4''@, acific @conomic 6oo(eration 6hair in nternational @conomicRelations and director of the School3s 6enter on @merging and acific @conomies, 0:he

@conomic Logic of llegal mmigration,1 :he Bernard and rene Schwart2 Series on -merican6om(etitiveness, -(ril "##5, 6SR No. "= (g. &4+"#mmigration generates e9tra income for the U.S. economy, even as it (ushes down wages forsome wor/ers. By increasing the su((ly of la!or, immigration raises the (roductivity of resourcesthat are com(lementary to la!or.


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A$TA :ad for Me*ican +con

A$TA and other trade agreements have not hel%ed the Me*ican economy, it hasactually made it orse#Mustin -/ers Chacn 4'1', (rofessor of U.S. 7istory and 6hicano Studies in San Aiego,

6alifornia, 0:he U.S.+


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Surveillance :ad for US +con

Immigration de%ortation costs and the shutdon of immigrant &usinesses ri%%lethe economyShannon . >0eil 15, Nelson and Aavid Roc/efeller Senior ellow for Latin -merica Studies

and Airector of the 6ivil Society,


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US +con .ey to Me*ican +con

US economy is .4 Me*icos economic sta&ilityamela . Starr '8, director of the U.S.+ its industrial sector is tightly integrated

with U.S. manufacturing> it earns ^&& !illion a year from U.S. tourists traveling in it de(ends on over

B4' &illion in annual remittances sent &y its citi"ens living and or)ing in the

United States > and it relies on the U.S. financial system as its main source of international credit. :his reality quic/ly

transmitted the im(act of the U.S. economic crisis into


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Productivity I3

9hen there is %roductivity in the US, it creates %roductivity in Me*icoKordon 7. ?ansen 4''@, acific @conomic 6oo(eration 6hair in nternational @conomicRelations and director of the School3s 6enter on @merging and acific @conomies, 0:he

@conomic Logic of llegal mmigration,1 :he Bernard and rene Schwart2 Series on -merican6om(etitiveness, -(ril "##5, 6SR No. "= (g. &;llegal immigration also !rings low+s/illed wor/ers to the United States when the (roductivitygains of doing so a((ear to !e highest. Auring the (ast twenty years,


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7elations Advantage


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Immigration/Plan .ey

Tensions over &order enforcement s%ill over to destroy the US-Me*icorelationshi% &roadly


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:he relationshi( has !een in a donard s%iral over the last si* years , e9(erts say. When

o9 and Bush came to (ower in "###, !etter relations !etween the two countries were high on the(riority lists of !oth leaders.But after 4*&&, the United States shifted its focus to -fghanistan, raq, and

the


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Action Solves

3atin America ants &roader legali"ation for immigration--- relieves social ills@sther Pan ', Staff Writer for 6ouncil on oreign Relations and Stanford University graduate,e!ruary "&, "##=, TU.S.+


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and 6entral -merica have increasingly !ecome victims of /idna((ing and a!uses !y organi2ed crime, sometimes in collusion withcorru(t


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Me*ico .ey to 3A 7elations

Me*ico0s )ey to &roader 3atin American relationsamela . Starr 8, director of the U.S.+


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3A 7elations Im%act---Multilat

US-3atin American relations are )ey to &roader US legitimacy and %oer inmultilateral forums6hristo(her Sa&atini 14, adGunct (rofessor at 6olum!ia University in the (olitical economy of

Latin -merica and the U.S. foreign (olicy in Latin -merica, =*&'*&", 0Why the U.S. canDt affordto ignore Latin -merica,1 htt()**glo!al(u!licsquare.!logs.cnn.com*"#&"*#=*&'*why+the+u+s+cant+afford+to+ignore+latin+america*Ces, we get it.:he relative calm south of the United States seems to (ale in com(arison to otherdevelo(ments in the world) 6hina on a seemingly inevita!le (ath to !ecoming a glo!al economic (owerhouse, the (otentialof (olitical change in the


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-R6, a left+wing guerrilla grou( !ased in 6olom!ia, has !een designated as a 0significantforeign narcotics traffic/er1 !y the U.S. government.

-t the same time, gangs, narcotics traffic/ers and transnational criminal syndicates are

overrunning Central America .n "##=,


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3A 7elations Im%act---+nviro

3atin American relations are )ey to sustaining green environmental coo%erationAaniel .ammen 14, serves the U. S. Secretary of State as an @nergy and 6limate ellow and isa rofessor at the University of 6alifornia Ber/eley, &"+;+&", 0Building Bridges to a Sustaina!le

@nergy uture,1 htt()**energy!log.nationalgeogra(hic.com*"#&"*&"*#;*!uilding+!ridges+to+a+sustaina!le+energy+future*

:he -mericas are undergoing a transition in the energy sector that will have glo&al

geo%olitical ramifications . -t the same time as the United States is touted to !ecome the world3s

largest oil (roducer !y "#"#, and a net e9(orter !y "#'#, Bra2il, Nicaragua, and anama show the most

(romise in !ecoming regional hu&s not only for clean energy investment , !ut for

sustained lo-car&on economic groth Osee related story) 0U.S. to 8verta/e Saudi -ra!ia, Russia asWorld3s :o( @nergy roducer0P.

-lthough Latin -merica and the 6ari!!ean lag !ehind the United States and 6anadain terms ofim(lemented clean energy (olicy and (roGect funding, 5 (ercent of the region3s total installed ca(acity today is

renewa!les, and it is e*%ected to gro faster in years to come.OSee related interactive ma() 0:he

Klo!al @lectricity


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Immigration Advantage


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Immigrant 2eaths

Increased :order Security hugely increases deaths of immigrantsRo!in +mmott D'@, Mournalist, 6orres(ondent and @ditor for Reuters, 5*&"*"##5, 0


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to e9haustion, inGury, dehydration, or age.IJ urthermore, immigrants see/ing to cross thesouthern !order illegally increasingly do so in desert regions where the e9treme heat can lead toover+e9haustion and death. - study !y the -merican 6ivil Li!erties Union and


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2angerous/2ifferent 7outes

:order Security 2oesn0t Sto% Immigration- Instead $orces Immigrants to ris) liveson unsafe %arts of &order6alynn 2oler 15, B- in olitical Science, - in


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increased. n


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. Advantage


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=eneral Ine!uality

The &order re%resents ine!uality &eteen Me*ico and the US6alynn 2oler 15, B- in olitical Science, - in


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country.:he matri9 of disequili!rium (roduced !y the U.S.+


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Pano%ticon

3i&erties are constrained inside :order Patrol facilitiesRoger A. ?odge 14, former editor of 7ar(erDs


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7ace

7ace %lays a role in the immigration las are carried out#Aoris anstroom, "##5P. -s Benedict -nderson suggests, oneDs mem!ershi( in a national !ody is inreality 0an imagined community1 of (eo(le who !elieve that they !elong together . :hisa!stractsense of mem!ershi( leaves a lot of room for the e9clusion of (eo(le who seem different , and

(erha(s not suita!le for assimilation O-nderson, &4$'> anstroom, "##5> ol!erg, "##=P. t is thus not sur(rising thatmuch of the (ressure for e9clusion comes from citi2ens themselves, not from the to(, wherecommercial interests and international di(lomacy may dictate a more cosmo(olitan a((roach. n@uro(e, for e9am(le, (o(ulist (arties have made shar( restrictions on immigration a central (lan/ in their (latforms. :hequestion is not so much why race matters to citi2ens who feel threatened !y ra(id demogra(hicchange, !ut rather how the law ada(ts to racial an9ieties. n a time when race+neutral rules have found favor,

how does racial disadvantage (ersist? :his essay offers a two+(art e9(lanation, !ased on the U.S. e9(erience. 3atinos in the

United States, %articularly immigrants of Me*ican and Central American origin,

have &een dis%ro%ortionately targeted for de%ortation O rovine and Aoty, "#&&P. :he (attern

is evident in (o(ular stereoty(es a!out immigrants, in the s(ending and construction that areta/ing (lace on the southern !order with


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in deference to !order communities and U.S. em(loyers desiring tem(orary


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Solvency/Mechanisms


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S%ecific Policy 7ecommendations

The Su%reme Court should rule narroing e*em%tions to the Privacy Act---reduces amount of surveillance in &order

-nil .alhan 1, -ssociate rofessor of Law at Are9ler University and chair of the New Cor/

6ity Bar -ssociationDs nternational 7uman Rights 6ommittee, 0mmigration Surveillance,1 74Md. L. Rev. 1,htt()**digitalcommons.law.umaryland.edu*cgi*viewcontent.cgi?articleE'=%=Fconte9tEmlrmmigration surveillance sits at the intersection of several different doctrines that afford significant deference to government actors

in !order, migration, and mo!ility control. Under its !order enforcement Guris(rudence, the Su%reme Court has

afforded federal officials considera!le latitude to conduct immigration and customsenforcement activities. :his deference is strongest at the (hysical !order itself, where the 6ourt

has deemed 0routine,1 sus%icionless searches and sei"ures of individuals and (ro(erty for

(ur(oses of enforcing immigration and customs laws to !e (er se reasona!le, and therefore

e*em%t from the $ourth Amendment0s arrant and (ro!a!le cause requirements,

0 sim%ly &y virtue of the fact that they occur at the &order .1'&& :he 6ourt has reached this

conclusion with little e9(lanation, often relying on conclusory statements or invocations of history and tradition with little more.'&"n some instances, the 6ourt has e9(licitly invo/ed and tied this 0!order e9ce(tion1 to the federal government3s (ower overimmigration, which it has long deemed to !e (lenary. n others, the 6ourt has instead characteri2ed !order searches as falling withinthe categories of e9ce(tions from ordinary ourth -mendment limits for administrative or 0s(ecial needs1 searches.'&'n a world in which the migration !order is effectively everywhere, (oliced !y large num!ers of actors other than federalimmigration officialsHand in which immigration surveillance activities reach large num!ers of U.S. citi2ens and nonciti2ens with

lawful immigration statusH the Gustifications for such swee(ing deference !ecome more difficult tomaintain. :he categories of (otential de(rivations that can result from immigration surveillanceactivities have multi(lied drastically!eyond the sim(le a!ility to enter and remain in the United States. With thee9(ansion of the domains of enforcement and the tools of immigration surveillance, these enforcement activities can (lacerestrictions on the rights to international and domestic travel, em(loyment, education, social service !enefits, and freedom from

(hysical restraint in !oth the criminal Gustice and immigration enforcement (rocesses. -s discussed a!ove, the (owerful toolsof immigration surveillance create significant ris/s of erroneous de(rivations and are easilysusce(ti!le for uses !eyond those originally contem(lated when im(lemented .

6ourts have slowly &egun to recogni"e that significant interests are at sta)e inimmigration surveillanceactivities for !oth nonciti2ens and U.S. citi2ens.'&% 7owever, these interests havecontinued to !e given insufficient weight !y 6ongress, which has e9em(ted records of mostnonciti2ens from the rivacy -ct, and the e9ecutive !ranch, which has invo/ed the -ct3s

e9em(tionsfrom its coverage for data!ases used for law enforcement and national security (ur(oses. arroing

these e*em%tions in the Act0s coverage would ena!le these interests to !e given the

weight that they deserve, and ensure that any countervailing government interests are

recogni2ed and given effect only hen su%%orted &y reasoned justifications#

Congress should %ass a legislation that %rovides a frameor) of trans%arency,oversight, and accounta&ility of the collection of data through im%lementing

greater %u&lic engagement and revie of mechanisms for errors-nil .alhan 1, -ssociate rofessor of Law at Are9ler University and chair of the New Cor/6ity Bar -ssociationDs nternational 7uman Rights 6ommittee, 0mmigration Surveillance,1 74Md. L. Rev. 1,htt()**digitalcommons.law.umaryland.edu*cgi*viewcontent.cgi?articleE'=%=Fconte9tEmlr

inally, immigration surveillance demands greater attention to trans%arency, oversight, and

accounta&ility . Whether (rogrammatically or in the conte9t of individual adGudications,

immigration agencies, although im(roving in some ways, have long suffered from maGor
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trans(arency and accounta!ility deficits.'&; :hose deficits are am%ly evident in

immigration surveillance initiatives and have !een e9acer!ated !y the !lurred lines created !y thedeterritoriali2ed migration !order. @nsuring greater trans(arency, oversight, and due (rocess requires res(onses at a num!er ofdifferent levels.

irst, a maGor contri!uting factor to the lac/ of sufficient trans(arency, oversight, andaccounta!ility has !een the lac/ of sufficiently concrete or detailed legal authority to su((ort

and guide such maGor and com(licated initiatives. o frameor) statutes govern or

constrain immigration surveillance activities , which, as discussed a!ove, also fall outside of the limited

(rivacy (rotections availa!le under the rivacy -ct. :his lac/ of a statutory framewor/ governing surveillance activities that im(licate (rivacy interests in migration, mo!ility, and travel data stands in mar/ed contrast to otherareas, such as communications and financial services , in which government access, storage, and disseminationof (ersonal information have long !een governed and constrained !y framewor/ statutes.'&=

Whether coming from Congress , the e9ecutive !ranch, or !oth acting together, accounta!ility and

oversight of immigration surveillance would !e !etter served !y a more detailed, coherent legal

framewor/ governing immigration surveillance activities and o((ortunities for greater %u&lic

engagement ith those rules . -s the


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6ustoms @nforcement O6@P, and 6iti2enshi( and mmigration Services OUS6SPHand those of other relevantagencies. t should !e vested with legal authority to (rovide recommendations regarding federalimmigration andsecurity (olicy, enforcement, and com(laint (rocedures, and it should also !e

a!le to hold federal immigration agencies accounta&le . ts !road (ur(oses should !e to (romote !est(ractices at the !order, to enhance internal ca(acities in !order agencies, and to strengthen relations !etween the community andgovernment agencies.

:he 6ommission should !e com(osed of a diverse grou( of (eo(le who understand the com(le9ities of the !order, and most of themshould !e !order residents.

t must have three (owers) O&P investigatory (ower, O"P auditing (ower, andO'P legal (ower,including the (ower to su!(oena.:he inde(endent commission also needs to !e a!le to formulate and fund an effective outreach strategy to !order communities. :he6ommission should re(ort annually to 6ongress.


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Immigration Surveillance Increasing

Surveillance technologies have su&stantially increased funding and use ofimmigration control

-nil .alhan 1, -ssociate rofessor of Law at Are9ler University and chair of the New Cor/

6ity Bar -ssociationDs nternational 7uman Rights 6ommittee, 0mmigration Surveillance,1 74Md. L. Rev. 1,htt()**digitalcommons.law.umaryland.edu*cgi*viewcontent.cgi?articleE'=%=Fconte9tEmlrn this -rticle, e9amine a set of im(ortant !ut undera((reciated consequences of this entrenchment of mass immigrationenforcement, tracing and analy2ing the evolution of immigration governance into an enduring regime of immigration surveillance.%

By any measure, enforcement levels have soared in recent years . ederal e9(enditures on !order and

immigration control have gron fifteen-fold since &4$= and nowsu!stantially e9ceed

e9(enditures on all other federal la enforcement %rograms com&ined .; :hese activities

have !eensu((lemented !y a di22ying array of initiatives, often administered !y state, local, and (rivate actors, thatindirectly enforce immigration law !y regulating access to rights, !enefits, and servicesHincludingem(loyment, social services, driver3s licenses, trans(ortation services, and educationH!ased on citi2enshi( or immigration status.=

ncreasingly, immigration control o!Gectives also are (ursued using criminal (rosecutions.5

:hese initiatives have yielded a staggering, widely noted increase in the num!er of nonciti2ensformallyremoved from the United States.$


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Md. L. Rev. 1,htt()**digitalcommons.law.umaryland.edu*cgi*viewcontent.cgi?articleE'=%=Fconte9tEmlr7owever, legal scholars havegiven virtually no attention to the revolution ta/ing (lace in thetechniques and technologies of immigration enforcement themselvesHtheir swift (roliferation, enormousscale, li/ely entrenchment, and !roader meanings. n this -rticle, theori2e and assess these shifts, situating and analy2ing themwithin a !roader, longer term set of develo(ments concerning technology and surveillance in contem(orary governance.&=

mmigration control has not sim(ly evolved into a system to effectuate the removal ofnonciti2ens on a massive scale, although it manifestly has done that.


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states and localitiesHmost (rominently -ri2ona, with its controversial and widely+noted Senate Bill #Hhave authori2ed orrequired law enforcement to inquire a!out the immigration status of individuals they encounter and in some instances to convey

that information to federal immigration officials.5$ While the Su(reme 6ourtleft o(en the (ossi!ility of as+a((liedchallenges to Section " when it reviewed SB #, it declined to facially invalidate the (rovision, and it has (reviouslysignaled its willingness to tolerate an active role for state and local (olice in direct immigrationenforcement.54

Immigrants are surveiled at de%arture for any time violations and drug traffic)ing-nil .alhan 1, -ssociate rofessor of Law at Are9ler University and chair of the New Cor/6ity Bar -ssociationDs nternational 7uman Rights 6ommittee, 0mmigration Surveillance,1 74Md. L. Rev. 1,htt()**digitalcommons.law.umaryland.edu*cgi*viewcontent.cgi?articleE'=%=Fconte9tEmlrinally, A7S has im(lemented mechanisms to monitor and control de(artures from the UnitedStates. n a series of laws dating !ac/ to &44=, 6ongress has mandated the esta!lishment of acom(rehensive, automated system to monitor and collect records of the de(arture of everynonciti2en lawfully admitted to the United States.' :his system see/s tomatch de(arture records witharrival records to confirm whether nonciti2ens admitted under tem(orary, nonimmigrant admissioncategories have de(arted the United States when required and to identify individuals who have0overstayed.1-s with screening and registration u(on initial entry, a com(lete e9it control system necessarily

involves monitoring and verifying citi2enshi( and immigration status for all individualstraveling from the United States.ncreasingly, e9it controls have !een Gustified with reference to national security andcriminal law enforcement.% -t some locations along the U.S.+


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Surveillance .ey to :order Control

-lso in Random A- Lin/s

Surveillance and intero%era&le data&ases are )ey to e*tensive &order control



fi9ed and mo!ile. New immigration surveillance technologiesare what ma/e this reconfiguration ofthe migration !order (ossi!le.:o (olice this deterritoriali2ed !oundary, federal immigration authoritiescoo(erate and coordinate with an enormous num!er of (u!lic and (rivate actorsH!oth withinand outside the United StatesHto collect, analy2e, store, and share !iometrics and other(ersona

Immigration Affirmative and Negative - Northwestern 2015

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