First immigrants, then you: Policing methods are used on immigrants, then others

Immigrations and Customs Enforcement (ICE) asked several states if it could browse through driver’s license records, looking at photos. We know this from documents acquired by Georgetown Law’s Center on Privacy and Technology. ICE has built a database of millions of face images, most of them ordinary people unconnected with immigration or any crime. We don’t yet know what ICE was looking for, though we can guess. When ICE showed up at Motel 6 and asked to look through guest lists, it circled Spanish surnames. 

It is possible that a congressional investigation may tell us more about ICE’s plans for its database of photos; representatives from both parties have criticized federal law enforcement acquisition of face pictures. But we know three things already.

First, discussed here, is that ICE has no clear mission. ICE goes to places, physical and virtual, where there are Latino people and asks for identification. There never has been an official explanation of why the U.S. needs two uncoordinated immigration enforcement agencies, one on the border (Customs and Border Protection) and one in the interior. We do not need ICE to identify the few dangerous or criminal immigrants. ICE exists to pick up immigrants who have no criminal records. Its enforcement strategies do not deter people from migrating to the U.S. 

The second thing we know is that ICE techniques are destroying the privacy of millions of Americans unconnected with immigration or crime. Your facial image is probably in an ICE database, with no restrictions or guidelines on how it might be used. Your license plate is probably in an ICE database. Your cell phone use may have been picked up by a fake tower that ICE erects to capture data. 

The third thing is that immigration enforcement still plays its historic role. Security techniques first are tried out on immigrants and then used against anyone. Loyalty oaths, deportation and internment were practiced first on immigrants who were not U.S. citizens. Then they were extended to citizens. The current frontier appears to be the creation of national identification papers.

Loyalty oaths have been required of people seeking to become U.S. citizens since 1790. Other Americans were not required to take oaths of loyalty until the 1940s, when thousands lost their jobs because they could not swear truthfully that they never supported radical organizations.

Deportation first became part of U.S. immigration practice in 1892. New arrivals from China had been blocked by federal statutes from 1875 (aimed at women) and 1882 (men). The Geary Act of 1892 went further, authorizing the deportation of lawfully admitted Chinese who could not produce “credible evidence” of their status from a white witness. A bitterly divided Supreme Court upheld (5-3) the Geary Act in 1893. This led to the first immigration amnesty, the McCreary Act of 1893, when the government realized it lacked capacity for mass deportation. 

But the constitutional damage was done: the concept, still part of our law, that deportation does not necessarily require due process of law. Once authorized, deportation did not remain something special for Chinese people, but was extended to other lawful residents. Foreign-born subversives were deported after World War I. Then came the largely indiscriminate deportation of Mexican-Americans, many born in the U.S. 

Imprisonment in the U.S. normally happens only if the person has been convicted of a crime or is awaiting criminal trial. Immigration control created an exception, permitting Chinese nationals to be detained without due process as part of their deportation. This was broadened during World War II when Americans of Japanese ancestry, including U.S.-born citizens, were identified by the Census Bureau and interned in camps. 

National identification papers now are being tried on immigrants and Latino citizens. Of course, the United States does not even issue national identification cards, let alone require everyone to carry them. 

But on July 22, 2019, the Department of Homeland Security issued a notice that it would use “expedited removal” — that is, deportation on the order of an immigration officer without any hearing or review — on anyone it selects who cannot prove to the officer’s satisfaction that they have been lawfully admitted or physically present in the U.S. for the preceding two years. This procedure previously has been used only at the border, and only against those who lack valid documents. The new proposal extends expedited removal into the country’s interior. 

We do not have to speculate who will be asked to satisfy immigration officials. Even though most Latinos in the U.S. are U.S.-born citizens, they are aware that they are the targets of requests for identification and often carry multiple forms.  

The new notice on expedited removal probably is unconstitutional. A U.S. Court of Appeals held last March that people facing expedited removal have a constitutional right to challenge their detention. The same court harshly criticized the racial profiling of asking only Latinos for identification.  

So either the new expedited removal policy will collapse without any constitutional way of deciding who has to show their papers to Border Patrol or ICE, or hose agencies will continue their practice of harassing Latinos in the U.S., even citizens. Or, the immigration agencies will create a bogus record of routinely asking random Americans for papers, without regard to their ethnicity. And then, once again, the measures designed to harass and repress immigrants will spread out to all U.S. citizens.

Alan Hyde is a distinguished professor of law and Sidney Reitman Scholar at Rutgers University. An expert in labor, employment and immigration law, he has taught at Yale, Columbia, Toronto, New York University and the University of Michigan. He is the author of “Working in Silicon Valley” (2003) and “Bodies of Law” (1997).