By Isaac Cui (PO ‘20), Senior Editor
Introduction
On February 10, Daniel Ramirez Medina was taken by the Immigration and Customs Enforcement (ICE) and placed in detention to await deportation proceedings. Having come to the United States at the age of seven, the 24-year-old registered under the Deferred Action for Childhood Arrivals (DACA) program.[1] DACA gives selected unauthorized migrants[2] who arrived in the United States as youths the legal authorization to work and study without fear of deportation.[3] Nevertheless, when ICE arrived at Ramirez Medina’s apartment to arrest his father on immigration-related charges,[4] they also detained Ramirez Medina despite his DACA status. The justification, according to the Department of Homeland Security, was that Ramirez Medina was a gang member—something that, according to ICE, Ramirez Medina had admitted.[5] Ramirez Medina’s attorneys, however, say that ICE became suspicious of him because of a tattoo that read “La Paz BCS,” a reference to Ramirez Medina’s birthplace of La Paz, the capital of Baja California Sur.[6] ICE also claimed that Ramirez Medina was affiliated with gangs because of statements that he allegedly made in custody.[7]
Regardless of whether Ramirez Medina was ever a member of a gang—which seems rather unsubstantiated, given that the only evidence that ICE offered was questionable claims about knowing members of gangs and a tattoo—Ramirez Medina was detained for six weeks,[8] which raises concerns about the strength of DACA protections under the Trump Administration.[9] People with certain criminal convictions are categorically ineligible for DACA, and the status is revocable,[10] which is why the accusation of gang membership is so dangerous. For example, President Obama in 2016 stated, regarding his administration’s deportation policies, that “we prioritize criminals, we prioritize gang-bangers, we prioritize folks who have just come in.”[11] The result is that “accusing an undocumented person of gang affiliation is the quickest way to get them arrested,”[12] and, according to one immigration lawyer, “the chances of getting out of being called a designated gang member[13] are next to nothing.”[14] Despite the stakes at hand, it is easy to be accused of being in a gang. According to an ICE policy issued in 2006, someone can be placed in ICEGangs (ICE’s database for gang members) for having “tattoos identifying a specific gang,” for going to places that gangs are prevalent in, for displaying gang signs, and many other reasons.[15] And because defendants in a deportation proceedings cannot compel the government to disclose evidence against them, it is often extremely difficult to challenge the designation.[16]
For Ramirez Medina, the government pulled a bait-and-switch, offering him protection under DACA yet prosecuting him under flimsy justifications.[17] One of his attorneys commented that Ramirez Medina’s detention was as such “one of the most serious examples of governmental misconduct that I have come across in my 40 years of practice.”[18] Such conduct points to broader ambiguities regarding the rights afforded to non-citizens in the United States.
This essay seeks to address one of those ambiguities: the extent to which unauthorized migrants[19] are afforded privacy protections. I take it axiomatically that the Supreme Court does not have a coherent methodology for addressing the issue of constitutional personhood—the question of which entities the Constitution deems to have rights. However, Zoe Robinson,[20] professor at the DePaul College of Law, has persuasively shown that the Court has historically analyzed the extent of constitutional personhood through two lenses, which I deem the functional and categorical perspectives. In the functional perspective, the Court primarily looks to the “right at issue, rather than the claimant,”[21] determining the purpose of the right before its scope. From the categorical perspective, constitutional personhood is first a question of the claimant of the right, such that it is possible that “the status of the claimant renders them unable to claim constitutional personhood.”[22] After answering this threshold question, the Court then analyzes the scope of that right.
This essay is split into four subsequent parts. In the first two, I analyze whether and to what degree unauthorized migrants should be given privacy rights under the functional and categorical perspectives. In doing so, I explore current Supreme Court case law and argue that it is unclear about the rights of migrants. Next, I apply these findings to gang databases to argue that they should not be used for deportations—if at all. Section V concludes.
Privacy Rights—the Functional Perspective
In the functional perspective, the Court examines the purpose of the right and from there determines whether it should be applied to a given claimant. This section explains the function of privacy rights; its findings are applied to gang databases in Section IV.
In the context of privacy, simply determining the purpose of the right itself is difficult. As one professor put it, privacy is “a sweeping concept, encompassing (among other things) freedom of thought, control over one’s body, solitude in one’s home, control over information about oneself, freedom from surveillance, protection of one’s reputation, and protection from searches and interrogations.”[23] As such, I limit my analysis of the function of privacy to two sources which are foundational to privacy law: Justice Brandeis’ dissent in Olmstead v. United States,[24] and the Court’s opinion in Griswold v. Connecticut.[25]
In Olmstead, the Court held that wiretapped telephone conversations gathered without a judicial warrant could constitutionally be used as evidence in a criminal trial under the Fourth Amendment.[26] In a lengthy dissent, Brandeis argued the practice violated the individual’s right to privacy since the Fourth Amendment, to Brandeis, guarantees protection for people “in their beliefs, their thoughts, their emotions and their sensations.”[27] Brandeis understood privacy to be based on the sanctity of the individual, and, therefore, he held a cynical view of the government, warning that the “greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”[28] While Brandeis’ dissent in Olmstead did not form binding precedent, it has nevertheless been called a “foundation of American privacy law.”[29] The right to privacy would be formally enshrined as a constitutional right in 1965 with the case of Griswold v. Connecticut.
Griswold struck down a Connecticut law which banned the use of contraceptives for unconstitutionally infringing on the right to privacy. Writing for the majority, Justice Douglas established the right to privacy from the “penumbras” of the Bill of Rights, the “emanations from those guarantees that help give them life and substance.”[30] Under this logic, the rights strictly enumerated in the Bill of Rights are buttressed by “peripheral rights” which affirm the main objects of their protection. In the example of free speech, the Court has also protected “the right to read [] and the freedom of inquiry, freedom of thought, and freedom to teach,”[31] for, without them, “the specific rights would be less secure.”[32] Drawing from the First Amendment’s protection of association,[33] the Third Amendment’s prohibition against housing soldiers,[34] the Fourth Amendment’s protection of personal security,[35] the Fifth Amendment’s Self-Incrimination Clause,[36] and the Ninth Amendment’s protection of unenumerated rights,[37] Douglas weaved together a broader protection from unjustified governmental intrusion into an individual’s personal life. That interpretation of privacy as an overarching right embodied by specific protections in the Bill of Rights was clearly influenced by Brandeis’ writings on the issue, with Justice Goldberg’s concurrence citing the Olmstead dissent.[38]
These texts have overarching motifs that illustrate the function of privacy. Privacy is an individual right, meant to allow persons to flourish in their own unique capacities. But privacy is also a political right, meant to inhibit the government from unjustifiably intruding into an individual’s life and personal space.[39] Moreover, privacy is a procedural protection; it puts the onus on the government to follow a specific means for procuring information towards its ends.[40] According to Brandeis, even if it is legitimate to convict a criminal, the government cannot attempt to do so unlawfully, for the government “is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.”[41]
Privacy checks against governmental abuse and arbitrariness—something that is universally applicable because it constrains the actor (the government) rather than protecting the constituents. Viewed thusly, it is problematic to assume that unauthorized migrants would have no privacy protections. The need for procedural protections is amplified for communities with unauthorized migrants given the humanitarian toll[42] that deportation raids can have, in addition to the fear faced by the migrants themselves.[43]
Nevertheless, under the functional perspective, the application of a right to a given claimant is context-specific. Constitutional personhood, according to this paradigm, is not “a universal binary switch,”[44] but rather, is both right- and issue-dependent. As a result, the extent and application of privacy rights to unauthorized migrants is highly dependent on the practice that is being challenged. I will consider the case of gang databases in California in section IV to complete this analysis. In the subsequent section, I consider the categorical perspective on whether unauthorized migrants have privacy rights.
Privacy Rights—the Categorical Perspective
Under the categorical perspective, rights are first determined by their application to specific claimants, after which specific protections may be attributed. To approach this question, I consider the issue textually, showing that the precedent and text are unclear but suggest the possibility of privacy rights for unauthorized migrants.
When Griswold derived the right to privacy from five different amendments, it created uncertainty about the scope of privacy. The First Amendment’s free speech clause[45] (where the right to association derives,[46] which is the actual right that Griswold cites[47]) does not clearly specify whose speech is protected. The Third Amendment applies to the “Owner” of a house.[48] The Fourth Amendment protects “the people.”[49] The Fifth Amendment states that “No person”[50] shall be subject to certain abuses. And, the Ninth Amendment, as the Fourth, refers to “the people.”[51] Problematically, the Supreme Court has held that the phrase “the people” is a “term of art,”[52] which implies that the right to privacy derives from overlapping penumbras which potentially apply to different subjects.
Unfortunately, these terms are not sufficiently clear. In United States v. Verdugo-Urquidez,[53] the Court held that the phrase “the people” referred to a “national community” or those “who have otherwise developed sufficient connection with this country to be considered part of that community.”[54] However, when interpreting that phrase in the Second Amendment, Justice Scalia’s majority opinion in District of Columbia v. Heller[55] specified that “the people” did not only refer to a national community, but also to a “political community.”[56],[57] In other parts of the opinion, Scalia wrote that this referred to “citizens,” “Americans,” and “law-abiding citizens,” which led lower courts to uphold statutory bans on firearm possession by felons.[58] This obfuscation has created a circuit split over the issue of whether undocumented persons are protected by the Second Amendment: according to the Fourth, Fifth, and Eighth Circuits, they are not, whereas the Seventh Circuit has held that they could conceivably be protected under the Second Amendment if they have “substantial connections” to the United States.[59]
That being said, it is worth noting that Justice Scalia’s clarifications of the term “the people” were dicta; the holding of the case was confined to the nature of the Second Amendment right, and the case never touched on the question of whether migrants (authorized or not) were to be afforded the right.[60] Moreover, as some scholars have pointed out, there is some sloppiness in the way that Justice Scalia’s opinion addresses the issue. The Constitution specifically mentions citizenship when discussing it as a qualification for federal public office, whereas in regards to the Second Amendment and other rights, it uses broader terminology. Aside from Verdugo-Urquidez, the Court’s only other extended consideration of “the people” was in Dred Scott v. Sandford,[61] when the Court ruled that “the people” only referred to white citizens. Barring the morally reprehensible nature of relying on such a case for precedent, that case was explicitly overruled by the Fourteenth Amendment, which also uses “persons” and “citizens” in different clauses,[62] indicating that these words were thought of as distinct, at least by the Reconstruction Era.[63] Also, there would also be an ironic contradiction at the heart of the Heller ruling if it were to confine “the people” to citizens, given that it would make the right to bear arms—which Scalia declared was based on the right of self-defense—depend on “obligation and loyalty to—and recognition by—the state […] Conditioning the right on an intimate tie to the state suggests that the Amendment is not actually about self-defense, but about state-defense.”[64]
A broader understanding of the Second Amendment’s phrase, “the people,” would also be more aligned with understandings of the Fourth Amendment. The case noted before, Verdugo-Urquidez, had to do with the application of the Fourth Amendment’s prohibition of warrantless searches for a Mexican national’s home in Mexico. Chief Justice Rehnquist’s decision in Verdugo-Urquidez established the aforementioned “substantial connections” test for determining if someone was a member of “the people,” which would imply that at least some unauthorized migrants would be protected. That decision, however, did not clarify the exact scope of how “substantial” one’s connection must be.
The precedent reveals a muddied doctrine, as the Court has put forth mixed signals regarding the extent of the protections in the Bill of Rights. Key phrases such as “the people” have unclear boundaries—even if one were to assume, for example, Chief Justice Rehnquist’s substantial connections test from Verdugo-Urquidez. (This is exacerbated by Heller’s inconsistent application of Rehnquist’s substantial connections test.) Moreover, even if there was conceptual clarity about the nature of that phrase, the Verdugo-Urquidez decision to distinguish the communities referenced in “the people” (of the Second, Fourth, and Ninth Amendments) from “No person” (of the Fifth Amendment) makes the issue of privacy—which derives from all of those sources—difficult to conclusively resolve.
However, the phrase “no person” has been considered to be an “all-inclusive” and “sweeping” term by the Court in Reid v. Covert;[65],[66] the broad nature of the term “person,” as opposed to “the people,” has also been noted by scholars.[67] If this term is indeed broader than “the people,” and it is true—as I contend—that some unauthorized migrants meet the substantial connections test established in Verdugo-Urquidez, then it would be logical to assume that privacy, which derives from the penumbras of these various enumerated rights, would apply to some unauthorized migrants as well. In other words, if the protections offered by the Fifth and Third Amendments are broader in scope than those of the Fourth and the Ninth, and if the latter’s protections do extend to some unauthorized migrants, then so too would the right to privacy as a whole.
Against Gang Databases
This section analyzes the application of gang databases to immigration enforcement through the lens of privacy protections. More specifically, by interpreting the function of privacy as a shield against arbitrary governmental abuse, I argue that the accusation of gang membership, justified by entry in a database, is insufficient to override privacy concerns given multiple issues with their accuracy.
California’s Gang Database Fails to Ensure the Validity of Its Entries
Gang databases are run on both the state and federal level. While it is unknown how many people are entered into ICE’s system, databases in California and Texas alone contain over 250,000 people, the majority of whom are Latinx.[68] For the sake of conciseness, I limit my investigation to California’s CalGang database.
The most common process for state law enforcement agencies to add someone into CalGang is that of field contacts—untargeted and informal investigatory stops performed without any court oversight.[69] The result is that allegations of gang membership can be extremely arbitrary[70] and that “investigatory stops are rarely based on objectively reasonable suspicion,” according to a report published by the University of California, Irvine, (UCI) School of Law.[71]
The state auditor has also found problems with CalGang, most notably that 42 entries of CalGang were of persons younger than one year old at the time of entry—with 28 of those entries being entered for admitting to being gang members.[72] Those must be some precocious toddlers. Other inconsistencies[73] demonstrate that the system is overly deferential to law enforcement agents and lacks meaningful checks by independent agents. In fact, the audit even found that, in many scenarios, law enforcement agencies “could not substantiate CalGang entries they had made.”[74]
Both CalGang and ICEGang[75] have policies that are meant to limit the usage of its information. More specifically, CalGang is only supposed to point to “source documentation,” and cannot be used for purposes other than law enforcement. However, the audit found some law enforcement agencies’ practices as well unpublished court opinions demonstrate that the information is used for non-law enforcement related activities, such as employment screenings. The auditor concludes, “[t]hese instances emphasize that inclusion in CalGang has the potential to seriously affect an individual’s life; therefore, each entry must be accurate and inappropriate.”[76]
Impacts on Immigration
Gang accusation, as noted before,[77] can have powerful ramifications on an unauthorized migrant’s life by making it harder, if not impossible, to apply for DACA rights. For the DACA applicant, placement in a gang database creates a double bind as the application requires one to report gang affiliation. Both gang membership and lying on one’s DACA application makes one a priority for deportation. If someone were included in a gang database, they would have no choice—they would either be forced to confirm the gang database entry or they would be suspected of lying about gang affiliation.[78] And as in the case of Daniel Ramirez Medina,[79] it can also cause an unauthorized migrant to be continually detained for fear of them being dangerous to society.[80]
Unique issues arise with the intersection of gang databases and immigration. For one, the Court has held in Immigration and Naturalization Service v. Lopez-Mendoza[81] that deportation proceedings are civil actions instead of criminal actions because deportation is “not to punish an unlawful entry.”[82] The effect is that many of the protections usually afforded to criminal defendants—such as the ability to cross-examine a witness, the right to prior discovery of evidence that will be presented at the hearing,[83] or the guarantee of legal representation[84]—are not provided to those undergoing immigration proceedings. This makes unauthorized migrants especially vulnerable to governmental abuse.
The Promise of Privacy
A substantial amount of precedent protects the federal government’s discretion in immigration proceedings. As stated by the Court, “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”[85] However, even in recognizing the government’s plenary power over immigration, the Court has emphatically stated that the government must be bound by the Constitution’s guarantees.[86] The promise of privacy must protect against the abuse of governmental power found in the indiscriminate use of gang databases.
I argue specifically—following the conclusion of the UCI School of Law’s report[87]—that neutral review hearings for gang membership status is vital to protect individuals. Because access to gang databases can be the justification for issuing civil warrants to engage in deportation proceedings,[88] law enforcement agencies should be barred from using gang membership databases as justifications for immigration proceedings until a neutral arbiter has confirmed the status through an adversarial process. Otherwise, those warrants become unjustifiably broad, based not in probable cause but overarching deference to law enforcement agents. Indeed, if it is law enforcement agents who generally determine whether one is placed in a gang database—and if a warrant is issued based off of such a database—then there seems to be little role for the judiciary. As one scholar has noted, these warrants “are neither very different from nor less offensive to liberty values than the general warrants that originally inspired the Fourth Amendment.”[89]
It is true that such a rule would make it much more difficult for the law enforcement agents to designate individuals as gang members for the purpose of immigration proceedings, but this is only a problem if those agencies continue to use overly broad criteria for determining entries. Moreover, the risks related to false accusation are so dire—and so likely, given the problems with databases such as CalGang—that any meaningful constitutional protection would hold the government to a high standard regarding the usage of gang databases in immigration proceedings.
Conclusions
In this essay, I have argued that unauthorized migrants, in the eyes of the Constitution, must be understood as part of “the people”—even if it only includes those who have a substantial connection to the United States, per Verdugo-Urquidez.[90] As such, those migrants must be afforded the privacy protections necessary to limit arbitrary governmental abuse. Beyond the legal question, the issue of who is to be afforded rights in the eyes of the Constitution is fundamentally an ethical one. In Verdugo-Urquidez and in Heller, the Court understood “the people” of the United States to be a community. To be a part of a community is to understand that that community’s actions matter, that those actions “belong uniquely to the community and will form a part of its narrative history and identity, helping to underwrite its standing in the community of communities.”[91] For unauthorized migrants, many rights are not recognized, even as these migrants in all other respects are members of the community. People such as Daniel Ramirez Medina have found themselves arbitrarily detained or deported, without the full protections of constitutional personhood. A vital question that this political era confronts is whether or not this is acceptable.
[1] Daniel Ramirez Medina, “Daniel Ramirez Medina: I’m a ‘dreamer,’ but immigration agents detained me anyway,” The Washington Post, March 13, 2017, accessed April 10, 2017, https://www.washingtonpost.com/posteverything/wp/2017/03/13/im-a-dreamer-immigration-agents-detained-me-anyway/.
[2] Sometimes, people authorized under DACA are called “Dreamers,” in reference to the Development, Relief, and Education for Alien Minors (DREAM) Act, a bill that would have created a pathway to citizenship for a similar class of people to those authorized under DACA. The DREAM Act was first introduced to Congress in 2001, and has been reintroduced multiple times, though it has never passed. See Nicole Chavez and Rosa Flores, “ICE releases Seattle ‘Dreamer’ Daniel Ramirez Medina, CNN, March 29, 2017, accessed April 10, 2017, http://www.cnn.com/2017/03/29/us/daniel-ramirez-dreamer-released/.
[3] Hiroshi Motomura, “The President’s Dilemma: Executive Authority, Enforcement, and the Rule of Law in Immigration Law,” 55 Washburn Law Journal 1 (2015), 3-5.
[4] Ramirez Medina, supra note 1.
[5] Nina Shapiro, “Do feds have evidence that detained Dreamer is a gang member beyond tattoo?,” The Seattle Times, February 15, 2017; updated February 16, 2017, accessed April 10, 2017, http://www.seattletimes.com/seattle-news/feds-says-detained-dreamer-is-gang-member-lawyer-denies-it/.
[6] Id, and supra note 1.
[7] Ali Winston, “Vague Rules Let ICE Deport Undocumented Immigrants as Gang Members”, The Intercept, February 17, 2017, accessed April 10, 2017, https://theintercept.com/2017/02/17/loose-classification-rules-give-ice-broad-authority-to-classify-immigrants-as-gang-members/.
[8] Chavez and Flores, supra note 2.
[9] DACA was originally established under the Obama administration, and the Trump administration has declared that it will support its protections. See Joe Sutton, Joe Sterling, Azadeh Ansari, and Rosa Flores, “Portland ‘Dreamer’ released on bond after being arrested by ICE agents,” CNN, March 29, 2017, accessed April 10, 2017, http://www.cnn.com/2017/03/27/us/portland-dreamer-ice-arrest/.
[10] Ramirez Medina, supra note 1, and Motomura, supra note 3.
[11] Tina Vasquez, “Trump’s ‘Smart and Strategic’ Immigration Approach: Everyone Is Deportable,” Rewire, February 21, 2017, accessed April 10, 2017, https://rewire.news/article/2017/02/21/trumps-smart-strategic-immigration-approach-everyone-deportable/.
[12] Id.
[13] It should be noted that this is in reference to individuals who are placed in gang databases, whereas Ramirez Medina’s attorneys state that ICE accused him of being in a gang after his arrest. Nevertheless, as I detail later, the criteria for being put in a gang database are as vague as the justifications that ICE used in Ramirez Medina’s case.
[14] Jennifer Medina, “Gang Database Criticized for Denying Due Process May Be Used for Deportations,” New York Times, January 10, 2017, accessed April 10, 2017, https://www.nytimes.com/2017/01/10/us/gang-database-criticized-for-denying-due-process-may-be-used-for-deportations.html.
[15] More precisely, that policy stated that anyone having two of the following ten criteria can be placed into the database:
“Subject has tattoos identifying a specific gang.”
“Subject frequents an area notorious for gangs and/or associates with known gang members.”
“Subject been seen displaying gang signs/symbols.”
“Subject has been identified as a gang member through a reliable source.”
“Subject has been identified as a gang member through an untested informant.”
“Subject has been arrested in the company of other gang members on two or more occasions.”
“Subject has been identified as a gang member by a jail or prison.”
“Subject has been identified as a gang member through seized or otherwise obtained written or electronic correspondence.”
“Subject has been seen wearing distinctive gang style clothing or has been found in possession of other gang indicia.”
“Subject has been identified as a gang member through documented reasonable suspicion.”
They can also be placed in the database if they were convicted for being in a gang or if they admit to gang ties during questioning by law enforcement. See: Ali Winston, “Vague Rules Let ICE Deport Undocumented Immigrants as Gang Members,” The Intercept, February 17, 2017, accessed April 10, 2017, https://theintercept.com/2017/02/17/loose-classification-rules-give-ice-broad-authority-to-classify-immigrants-as-gang-members/.
[16] Id.
[17] Vasquez, supra note 11.
[18] Winston, supra note 15.
[19] In using this terminology, I borrow from Hiroshi Motomura, Immigration Outside the Law (Oxford University Press 2014), 4. Throughout this essay, I avoid terms such as “alien” or “illegal aliens” due to their pejorative connotations. While it is true that those are the technical legal terms, they are needlessly politicized. For more discussion on this terminology, see Pratheepan Gulasekaram, “’The People’ of the Second Amendment: Citizenship and The Right to Bear Arms,” 85 New York University Law Review 1521 (November 2010): 1521-1580.
[20] Zoe Robinson, “Constitutional Personhood,” 84 George Washington Law Review 605 (May, 2016): 605-667.
[21] Id at 655.
[22] Id at 656.
[23] Daniel J. Solove, “Conceptualizing Privacy,” 90 California Law Review 1087 (July, 2002), 1088.
[24] 277 U.S. 438 (1928).
[25] 381 U.S. 479 (1965).
[26] It is worth noting that there was also a Fifth Amendment claim brought, but this essay focuses on Olmstead’s implications on the Fourth Amendment. See Olmstead v. United States (1928).
[27] Olmstead v. United States, supra note 24, at 478.
[28] Id at 479.
[29] Neil M. Richards, “The Puzzle of Brandeis, Privacy, and Speech,” 63 Vanderbilt Law Review 1295 (2010), 1295.
[30] Griswold v. Connecticut, supra note 25, at 484.
[31] Griswold v. Connecticut, supra note 25, at 482. Internal citations are omitted.
[32] Id at 483.
[33] This is derived not explicitly from the text, but rather, was found to be a peripheral right of the freedom of speech in NAACP v. Alabama, 357 U.S. 449 (1958).
[34] U.S. Const. amend. III (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner”).
[35] U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”).
[36] U.S. Const. amend. V (“No person […] shall be compelled in any criminal case to be a witness against himself”).
[37] U.S. Const. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”).
[38] Griswold v. Connecticut, supra note 25, at 494, Justice Goldberg’s concurrence on privacy as a “fundamental personal right.”
[39] For example, Justice Douglas explicitly notes the special “sanctity of a man’s home,” mirroring the Fourth Amendment’s protection. This designation of the home as sacred is a prominent part of the subsequent Court’s Fourth Amendment and privacy jurisprudence. Id at 484.
[40] Specifically, the Fourth Amendment requires “probable cause, supported by Oath of affirmation” to issue a warrant, which must describe “the place to be searched, and the persons or things to be seized.”
[41] Olmstead v. United States, supra note 24, at 485.
[42] See, e.g., Raquel Aldana, “Of Katz and ‘Aliens’: Privacy Expectations and the Immigration Raids,” 41 UC Davis Law Review 1081 (February, 2008), 1132. (“In Massachusetts, for example, Governor Deval Patrick called immigration raids’ effect on families a ‘humanitarian crisis,’ when the state had to make childcare arrangements for at least thirty-five children, ranging from infants to age sixteen, whose parents were among at least 361 workers, mostly women, who were arrested during a raid […] Additionally, in Massachusetts, ICE denied social workers attempting to advocate on behalf of the children access to the detainees because it was a law enforcement issue.”)
[43] Ramirez Medina, supra note 1 (DACA allowed him to “live without the constant fear of being sent to a country we don’t know, forced to leave behind the people we love.”).
[44] Robinson, supra note 20, at 654.
[45] U.S. Const. amend. I (“Congress shall make no law […] abridging the freedom of speech”).
[46] Supra note 33.
[47] Griswold v. Connecticut, supra note 25.
[48] Supra note 34.
[49] Supra at note 35.
[50] Supra at note 36.
[51] Supra at note 37.
[52] United States v. Verdugo-Urquidez, 494 U.S. 265 (1990).
[53] Id.
[54] Id at 266.
[55] 554 U.S. 570 (2008).
[56] Id at 576.
[57] There is a meaningful distinction here; a “political community” connotes those with political rights, such as voting, whereas a “national community” might refer to a broader category. See Gulasekaram, supra note 19.
[58] Gulasekaram, supra note 19.
[59] D. McNair Nichols, Jr., “Guns and Alienage: Correcting a Dangerous Contradiction,” 73 Washington and Lee Law Review 2089 (Fall, 2016).
[60] Id.
[61] 60 U.S. 393 (1857).
[62] The Privileges or Immunities clause reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” whereas the subsequent clauses (the Due Process and Equal Protection clauses) read: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (emphasis mine).
[63] Gulasekaram, supra note 19.
[64] Id at 117.
[65] 354 U.S. 1 (1957), 8. It is worth noting that, again, this case did not deal explicitly with the rights of unauthorized migrants, so it is not dispositive in regards to its definition of these terms.
[66] Verdugo-Urquidez also opined that the term “person” is “relatively universal.” Supra at note 52.
[67] See, e.g., Gulasekaram, supra note 19, at 119.
[68] Tina Vasquez, “Here Are the State and Federal Databases That Could Hurt Immigrant Communities in Trump’s Administration,” Rewire, January 11, 2017, accessed April 9, 2017, https://rewire.news/article/2017/01/11/state-federal-databases-hurt-immigrant-communities-trump-administration/.
[69] Sean Garcia-Leys, Meigan Thompson, Christyn Richardson, “Mislabeled: Allegations of Gang Membership and Their Immigration Consequences,” University of California, Irvine, School of Law Immigrant Rights Clinic (April 2016), http://www.law.uci.edu/academics/real-life-learning/clinics/ucilaw-irc-MislabeledReport.pdf, 5,7.
[70] Id at 7 (“And during the more common untargeted consensual or investigatory field stops, gang allegations may be made on evidence as slight as wearing a baggy white t-shirt and standing in the courtyard of one’s apartment if an officer believes that indicates gang clothing and presence in a gang area.”).
[71] Id at 8.
[72] California State Auditor, “The CalGang Criminal Intelligence System,” Report 2015-130 (August 2016), accessed April 11, 2017, https://www.documentcloud.org/documents/3010637-CalGang-Audit.html, 3.
[73] Id at 2 (“For example, Sonoma included a person in CalGang for allegedly admitting during his booking into county jail that he was a gang member and for being ‘arrested for an offense consistent with gang activity.’ However, the supporting files revealed that this person stated during his booking interview that he was not a member of a gang and that he preferred to be housed in the general jail population. Further, his arrest was for resisting arrest, an offense that has no apparent connection to gang activity.”).
[74] Id at 2.
[75] Winston, supra at note 7 (quoting an internal ICE policy: “‘All information accessed through ICEGangs (ICE or third agency) is to be treated as law enforcement intelligence and not to be disclosed or used as evidence in any criminal, civil, or administrative proceeding, nor is it to be used independently as probable cause to support arrests, searches, seizures, or other law enforcement actions,’”).
[76] California State Auditor, supra note 72, at 2.
[77] See section I.
[78] Garcia-Leyes, et al., supra note 69, at 15.
[79] Ramirez Medina, supra note 1.
[80] Garcia-Leyes, et al., supra note 69, at 15.
[81] 468 U.S. 1032 (1984).
[82] Id.
[83] Garcia-Leyes, et al., supra note 69, at 17.
[84] Winston, supra note 7.
[85] Mathews v. Diaz, 426 U.S. 67 (1976).
[86] Reid v. Covert, supra note 65, at 5 (“The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution”).
[87] Garcia-Leyes, et al., supra note 69; see also Winston, supra note 7.
[88] Aldana, supra note 47.
[89] Id.
[90] See section III.
[91] Douglas A. Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity (Yale University Press 2010).
