Regulatory Constitutional Law: Protecting Immigrant Free Speech without Relying on the First Amendment

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Regulatory Constitutional Law: Protecting Immigrant Free Speech Regulatory Constitutional Law: Protecting Immigrant Free Speech

without Relying on the First Amendment without Relying on the First Amendment

Michael Kagan

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REGULATORY

CONSTITUTIONAL

LAW:

PROTECTING

IMMIGRANT

FREE

SPEECH

WITHOUT

RELYING

ON

THE

FIRST

AMENDMENT

Michael

Kagan*

The

Supreme

Court

has

long

deprived

immigrants

of

the

full

protection

of

substantive

constitutional

rights,

including

the

right

to

free

speech,

leaving

undocumented

immigrants

exposed

to

detention

and

deportation

if

they

earn

the

government's

ire

through

political

speech.

The

best

remedy

for

this

would

be

for

the

Supreme

Court

to

reconsider

its

approach.

This

Essay

offers

an

interim alternative

borrowed

from

an

analogous

problem

that

arises

under

the

Fourth

Amendment. Under

the

Constitution,

the

Supreme

Court

has

indicated

that

illegally

obtained

evidence

may

be

suppressed

in a

removal

proceeding

only

if

the

Fourth

Amendment

violation

was

"egregious."

Yet,

some

circuit

courts have

indicated

that

a

regulation

protecting

immigrants

from

unjustified arrests

and

interrogations

offers

an

autonomous,

and

potentially

stronger,

basis

for

suppressing

evidence,

suggesting

that

regulations

may

protect

constitutional

rights

even

where

the

Supreme

Court

has

declined

to

fully

enforce

the

Constitution.

Using

the

Fourth

Amendment

example

as

an

analogy,

this

Essay

will

propose

regulations

that

would

protect

immigrants

from

selective

prosecution

for

engaging

in

free

speech,

thus

filling

a

gap

left

by

the

Supreme

Court.

*

Michael

Kagan

(B.A.,

Northwestern

University;

J.D.,

University

of

Michigan

Law

School)

is

Joyce

Mack

Professor

of

Law

at

the

University

of

Nevada,

Las

Vegas,

William

S.

Boyd

School of

Law.

I

am

grateful

to

Jason

Cade

and

Alina

Das

for

thoughtful

comments

on

earlier

drafts.

1417

GEORGIA

LAW

REVIEW

TABLE

OF

CONTENTS

I.

INTRODUCTION

.............................................................

1419

II.

THE

PROBLEM:

IMMIGRANT

FREE SPEECH

UNDER

THE

CONSTITUTION

............................................................

1420

III.

THE

ANALOGY:

UNREASONABLE

SEARCH

AND

SEIZURE

IN

IMMIGRATION

REGULATIONS

.....................................

1426

IV.

APPLYING

THE

ANALOGY

TO

THE

PROBLEM

...............

1429

V.

CONCLUSION

...............................................................

1431

1418

[Vol.

56:1417

REGULATORY

CONSTITUTIONAL

LAW

I.

INTRODUCTION

When

seeking

to

protect

civil

liberties,

the Constitution

is

not

the

only

place

to

turn.

For

immigrants,

it

is

often

the

least

helpful.

In

this

Essay,

I

address

the

vulnerability

of

immigrant

activists

to

repression

by

the

federal government

in

the

form of

deportation.

While

the

government

cannot

directly

censor speech

just

because

the speaker

is

undocumented,

1

the

government

can

potentially

target

the speaker

for

deportation.

2

To

do

so

removes

a

dissenter

from

the

country

and warns

anyone

else

who

might

speak out

that

they

can

be

similarly

targeted.

This

vulnerability

is

alarming

because

immigrant

speech

is

central

to

the

immigrant rights

movement

and

public

discourse

about

immigration

policy.

To

be

clear,

no

one's

free

speech

should

require

any special

justification.

Everyone

should

have

this

freedom

protected.

But

it

is

important

to

articulate

what

is

at

stake.

Political

movements

depend

on

storytelling,

symbols,

and,

most

importantly,

people.

The

immigrant

rights

movement

is

strongest

when

immigrants

are

at

its

center-when

their

stories

and

their

opinions

set

the

agenda.

Other

people

can

and

should

certainly

add

their

voices.

But

nonimmigrants

can

only

speak

on

the

issue

in

the

abstract

or

through

secondhand

stories.

It

is

not

the

same.

For

all

these

reasons,

if

anyone

in the

Department

of

Homeland

Security

ever

wants

to

suppress

the

movement

for

immigrant

rights,

it

would

be

smart

to

try

to

silence

the

immigrant

activists

at

the

movement's

heart.

This

would

be

a

form

of

speaker

discrimination

in

which

the

government

targets

people

not

only

for

what

they

say,

but

also for who

they

are.

3

While

citizens

and

(maybe)

legal

permanent

residents

would

still

be

able

to

speak

freely

in

favor

of

undocumented

immigrants,

impacted

people

themselves

could

easily

be

shut

out.

They

would

be

talked

about

but

1

See

Bridges

v.

Wixon, 326

U.S.

135,

148

(1945)

("Freedom

of

speech

and

of

press

is

accorded

aliens

residing

in

this

country."

(citing

Bridges

v.

California,

314

U.S.

252

(1941))).

2

See

United States

ex

rel.

Turner

v.

Williams,

194

U.S.

279,

292

(1904)

(rejecting

a

First

Amendment

challenge

claiming

"that

the

[Immigration

A]ct

is

unconstitutional

so

far

as

it

provides

for

the

exclusion

of

an

alien because

he

is

an

anarchist").

a

See

generally

Michael

Kagan,

Speaker

Discrimination:

The

of

Free

Speech,

42

FLA.

ST.

U.

L.

REV.

765 (2015)

[hereinafter

Kagan,

Speaker

Discrimination]

(arguing

that

the

speaker

discrimination

principle

is

a

useful

tool

in

understanding

the

Supreme

Court's

First

Amendment

jurisprudence).

2022]

1419

GEORGIA

LAW

REVIEW

rarely

heard

from.

In

the

process,

the

movement

would

be

weakened

considerably. Alarmingly,

that

might

not

be

terribly

difficult

for

the

government

to

do

under

present

law.

The

Supreme Court

has

(mostly) foreclosed

selective

prosecution

defenses

in deportation

cases.

Therefore,

Immigration and

Customs Enforcement

(ICE)

could

launch

a

fairly

open

campaign

against

visible

immigrant

organizers

and leaders

and

might

succeed

at

scaring

many

back

into

the

shadows.

In

this

Essay,

I

attempt

to

offer

a

partial,

inadequate,

but

nevertheless

meaningful

remedy:

a

regulation.

In

an

attempt

to

bolster

immigrants'

First

Amendment

freedoms,

I

borrow

from

the

Fourth

Amendment

context.

There are

already

regulations

in

place

that

limit

custodial

interrogations

and

arrests

by

ICE

with

potentially

more

accessible

enforcement

than

the

Fourth

Amendment

has

on

its

own.

4

The

Biden

Administration

has

specifically

indicated

that

it

opposes

selective

enforcement

for

expressive

activities.

5

It

should

put

this

policy

into

a

binding

regulation

to

leave

immigrant

activists

less

vulnerable

to

reprisals

for

their

free

speech

now

or

by

a

future

administration.

II.

THE

PROBLEM:

IMMIGRANT

FREE

SPEECH

UNDER

THE

CONSTITUTION

From

one

perspective,

undocumented

immigrants

in

the

United

States

have

robust

freedom

of

speech-the

same

freedom

enjoyed

by

every

citizen.

The

government

cannot

assert

prior

restraint

against

a

newspaper

op-ed

because

the

author

happens

to

lack

a

proper

visa.

There

is

no

separate

rule

about

what constitutes

incitement

if

the

speaker

is

a

noncitizen.

An

immigrant

can

walk

into

a

courthouse

with

a

jacket

that

says,

"Fuck

the

Draft,"

the

same

as

any

American

citizen

can.

It

does

not

matter

if

the

Pentagon

Papers

were

leaked

to a

reporter

who

lacked

papers.

There

is

one

First

Amendment,

and

it

is

for

everyone.

4

See

8

C.F.R.

§

287.8(b)(2)

(2021)

(regulating

interrogations);

id.

§

287.8(c)(2)

(2021)

(regulating

arrests).

5

Memorandum

from

Alejandro

N.

Mayorkas,

Sec'y,

U.S.

Dep't

of

Homeland

Sec.,

to

Tae

D.

Johnson,

Acting

Dir.,

U.S.

Immigr.

&

Customs

Enft

5

(Sept.

30,

2021),

https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf,

vacated,

Texas v.

United

States,

No.

6:21-CV-00016,

2022

WL

2109204

(S.D.

Tex.

June

10,

2022).

1420

[Vol.

56:1417

REGULATORY

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LAW

Sort

of.

From

another

perspective,

undocumented

immigrants

have

nearly

no

free

speech

rights

at

all.

Or

more

precisely,

they

only

have

as

much

freedom

to

speak

as

the

Executive

Branch

allows

them

to

have.

That

is

because

a

government

wishing

to

repress

the

speech

of

undocumented

immigrants

need

not

resort

to

the

traditional

tools

of

direct censorship

against

which

the

First

Amendment

offers

a

direct

defense.

Instead

of

censoring

speech

directly,

the

government

can

just

remove

the

speaker.

After

all,

undocumented

immigrants

are,

by

definition,

prima

facie

removable

under

the Immigration

and

Nationality

Act.

6

Perhaps

the

most

important

fact

about

immigration

enforcement

in

the

interior

of

the United

States

is

that

there

are

far

more

potentially

removable

immigrants

here

than

ICE

could

possibly

arrest,

detain,

or

deport.

As

a

result,

setting

enforcement

priorities-and

exercising

prosecutorial

discretion

to

deport

or

not

deport

certain

immigrants-is

arguably

the

most

decisive policy

choice to

be

made

regarding

undocumented

immigrants

inside

the

United

States.

7

As

a

simple

matter

of

mathematical

odds,

an

undocumented

immigrant

stands

a

good

chance

of

avoiding

deportation

at

any

given

time

simply because

there

are

many

more

potentially

deportable

immigrants

than

ICE

has

the

capacity

to

arrest,

detain,

and

remove.

But

that

also

means

that

an

undocumented

immigrant

would

likely consider

it rational

to

keep

a

low

profile to

avoid

becoming

a

target.

Consider

the

2022

dispute

over

Jamal

Simmons,

who

had

been

recently

hired

as

a

communications

aide to

Vice

President

Kamala

Harris.

More

than

a

decade

earlier,

Simmons

tweeted:

"Just

saw

2

undocumented

folks

talking

on

MSNBC.

One

Law

student

the

other

a

protester.

Can

someone

explain

why

ICE

is

not

picking

them

up?"

8

He

was

forced

to apologize

for a

remark

that

suggested,

at

least,

a

cavalier approach

to

deportation.

The

people

he

saw

on

television

6

See

8

U.S.C.

§

1227.

7

See

generally

SHOBA

SIVAPRASAD

WADHIA,

BEYOND

DEPORTATION:

THE

ROLE

OF

PROSECUTORIAL

DISCRETION

IN IMMIGRATION

CASES

(2015).

8

Dartunorro

Clark,

Harris'

New

Communications

Director

Apologizes

After

Backlash

to

2010

Deportations

Tweet,

NBC

NEWS

(Jan.

7,

2022,

4:57

PM),

https://www.nbenews.com/politics/white-house/harris-new-communications-director-

apologizes-after-backlash-2010-deportations-tweet-n

1287194.

2022]

1421

GEORGIA

LAW

REVIEW

were

prominent

undocumented activists

Erika

Andiola

and

Cesar

Vargas.

9

Andiola

accepted

Simmons's

apology.

10

This

relatively

minor

political

incident

highlights

two

critical

facts

about

immigrant

speech.

First, the

visible

appearance

of

undocumented activists in

the

public

arena

is

extremely

important

for

immigrant rights

advocacy.

The

voices

of

impacted

people

are

critical

in

any

movement

for

policy

change.

In

advocacy,

it

is

not

just

what

is

said

that

matters.

The

identity

of

the

speaker

also

impacts

the

message

and

its potency."

First

Amendment

doctrine

has

embraced

this

reality. In

City

of

Ladue

v.

Gilleo,

the

Supreme Court

wrote,

A

sign

advocating

"Peace

in

the

Gulf'

in

the

front

lawn

of

a

retired

general

or

decorated

war

veteran

may

provoke

a

different

reaction

than

the

same

sign

in

a

10-

year-old child's bedroom

window

or

the

same

message

on a

bumper

sticker

of

a

passing

automobile.

12

But

then

there

is

the

second

reality

highlighted

by

Simmons's

offensive

tweet.

How

can

undocumented

immigrants

speak out

if

their

survival

in

the

United

States

depends

on

not

attracting

attention?

Simmons's

seemed

to

assume

ICE

would

or

should

target

any

deportable

immigrant

who

simply

appears

on

its

radar.

Such

an

approach

would

not

even

require

any

intention

to

repress

immigrant rights

activists.

If

mere

visibility

were

enough

to

put

an

immigrant

at

risk,

then

this

alone

would

likely

be

enough

to

keep

immigrants

from

appearing

on

cable

news

or

writing

an

op-ed.

But

that

is

just

the

start

for

an undocumented

immigrant

who

speaks

out in

favor

of

immigration

reform.

Quite

likely,

she is

not

just

making

herself

visible.

She

is

also

likely

to

visibly

criticize

the

precise

government

agency

that

would

have

to

decide

whether

to

9

See

Erika

Andiola

(@ErikaAndiola),

TWITTER

(Jan

7,

2022,

5:18

PM),

https://twitter.com/ErikaAndiola/status/1479578321151139840.

10

See

Erika

Andiola

(@ErikaAndiola),

TWITTER

(Jan

8,

2022,

2:15

PM),

https://twitter.com/ErikaAndiola/status/1479894601020235779?s=20&t=Rw57xKUjIeLF7x

Wu3A7MLw.

"

See

Kagan,

Speaker

Discrimination,

supra

note

3,

at

766-68

(discussing

the

importance

of

speaker identity).

12

City

of

Ladue

v.

Gilleo,

512

U.S.

43,

56 (1994).

1422

[Vol.

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REGULATORY CONSTITUTIONAL

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target

her

for

arrest.

The

risk

of

retaliation

here

seems

especially

high,

and

some

ICE

retaliation

cases

of

exactly

this

type have

happened.

13

Standard

First

Amendment

law

should

offer

at

least

some

shield

from

this

problem

through

the

defense

of

selective

prosecution

or

the

analogous

claim

of

First

Amendment

retaliation.

This

defense,

which

is

well

established

in criminal

law,

is

not

easy

to

raise

successfully,

even

when

permitted.

As

one

court

said,

"there

is

a

presumption

that

prosecution

for

violation

of

the

criminal

law is

in

good

faith."

14

A

defendant

bears

"the

heavy

burden"

of

showing

that

similarly

situated

people

have

not been

targeted

and

that

the

government acted

with

bad faith.

15

Yet,

this

defense

can

be

successful

and has

a

prominent

history

in

immigration

law.

It

was

raised,

with

partial

success,

by ex-Beatle

John

Lennon

to

resist

deportation

in

the

1970s.

16

Lennon

was

targeted

by

the

federal

government because

of

his

anti-war

activism,

but

the

facially

legitimate

ground

for

deportation

invoked

against

him

was

a

British

conviction

for

possession

of

cannabis

resin.

17

In

1975,

the

Second

Circuit

wrote

of

Lennon's

case,

"The

courts

will

not

condone

selective

deportation

based

upon

secret

political grounds."

18

Despite

that

hopeful

signal

from

a

circuit

court,

the

Supreme

Court

has

been

far

less willing

to

protect

immigrants

from

selective

enforcement.

In

1904,

the

Court

denied

that

deportation

even

had

a

13

See,

e.g.,

Ragbir

v.

Homan,

923

F.3d

53,

60-61

(2d Cir. 2019)

(describing

a

First

Amendment

retaliation

claim

in

a

decision to

deport

Ravi Ragbir),

vacated

sub

nom.

Pham

v.

Ragbir,

141

S.

Ct.

227 (2020)

(mem.);

Joel

Rose,

An

Immigrant

Activist

Says

ICE

Deported

Him

in

Retaliation.

Now

He's

Back

in

the

U.S.,

NAT'L

PUB.

RADIO

(Dec.

15,

2021,

10:40

AM),

https://www.npr.org/2021/12/15/1064224812/immigrant-activist-deported-ice-retaliation-

rojas (describing

the

case

of

Claudio

Rojas).

14

United States

v.

Amon,

669

F.2d

1351,

1355-56

(10th

Cir.

1981)

(quoting

United States

v.

Bennett,

539

F.2d

45,

54

(10th

Cir.

1976),

cert.

denied,

429

U.S.

925).

15

United

States

v.

Berrios,

501

F.2d

1207,

1211

(2d

Cir.

1974);

see

also

Steve

R.

Johnson,

The

Selective

Enforcement

Defense

in

Civil

and

Criminal

Tax

Cases,

2008

A.B.A.

SEC.

TAX'N

NEWSQUARTERLY 14,

14-15

(quoting

Berrios

in

reference

to

criminal

tax

prosecutions).

16

See

generally

Lennon

v.

INS,

527

F.2d

187

(2d

Cir.

1975).

17

See

id.

at

188

("We

are

...

called upon

to

decide

whether

Lennon's

1968

British

conviction

for

possession

of

cannabis

resin

renders

him

.

. .

an

excludable

alien.

. .

").

18

Id.

at

195.

2022]

1423

GEORGIA

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REVIEW

bearing

on

free

speech concerns.

19

In

a

case

concerning

the

deportation

of

an

anarchist,

the

Court

said,

We

are

at

a

loss

to

understand

in

what

way

the

act

is

obnoxious

to

[the

First

Amendment]

objection.

.

. .

It

is,

of

course,

true

that

if

an

alien

is

not

permitted

to

enter

this

country,

or,

having

entered

contrary

to

law,

is

expelled,

he

is

in

fact

cut

off

from

worshipping

or

speaking

or

publishing

or

petitioning

in

the

country,

but

that

is

merely

because

of

his

exclusion

therefrom.

2

0

That

case is

antiquated;

it

came

before

the

advancement

of

civil

liberties

in

twentieth

century constitutional

law.

21

But

it

set

a

tone.

In

the

1990s,

the

Supreme Court

came

quite

close

to

closing

the

door

to

selective

prosecution

as

a

defense

to

deportation.

22

In

the

1999

case

of

Reno

v.

American-Arab

Anti-Discrimination

Committee

(AADC),

the

Court

said,

"As

a

general

matter-and

assuredly

in

the

context

of

claims

such

as

those

put

forward

in

the

present

case-an

alien

unlawfully

in

this

country

has

no

constitutional

right

to

assert

selective

enforcement

as

a

defense

against

his

deportation."

23

I

have

argued

elsewhere

that

the

AADC

decision

probably

does

not

completely

close

the

door

to a

selective

prosecution

defense

in

an

especially

extreme

case.

24

The

Court

itself

held

back

slightly,

allowing

that

in

the

future

there

might

be

"a

rare

case

in

which

the

alleged

basis

of

discrimination

is

so

outrageous"

that

a

selective

19

See

United

States

ex

rel.

Turner

v.

Williams,

194

U.S.

279,

292

(1904)

(dismissing

Turner's

challenge

to

the

Alien

Immigration

Act

of

1903

on

First

Amendment

grounds

for

its

targeting

of

anarchists).

20

Id.

21

See,

e.g.,

Gitlow

v.

New

York,

268

U.S.

652,

666-67

(1925)

(incorporating

the

First

Amendment

free

speech

right

against

the

states);

De

Jonge

v.

Oregon,

299

U.S.

353,

365

(1937)

(holding

that

the

First

Amendment

protects

"peaceable

assembly");

W.

Va.

State

Bd.

of

Educ.

v.

Barnette,

319

U.S.

624,

642

(holding

compelled speech

unconstitutional).

22

See

Michael Kagan,

When

Immigrants

Speak:

The

Precarious

Status

of

Non-Citizen

Speech

Under

the

First

Amendment,

57

B.C.

L.

REV.

1237, 1282

(2016)

[hereinafter

Kagan,

When

Immigrants

Speak]

("Concededly,

parts

of

AADC

indicate

that

there

is

no

First

Amendment

selective

prosecution

defense

against

deportation.").

23

Reno

v.

Am.-Arab

Anti-Discrimination

Comm.

(AADC),

525

U.S.

471,

488

(1999).

24

See

Kagan,

When

Immigrants

Speak,

supra

note

22,

at

1267-68

("[T]here

are

subtle

indications

in

AADC

that

the

ground

has

shifted

considerably

since

the

era

of

the

Turner

decision

and

that

the

holding

of

the

AADC

case

may

be

tied

quite

closely

to

its

facts.").

1424

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prosecution

claim

could

be

successfully

raised.

25

But

if

selective

prosecution

is

a

difficult

defense

in

a

normal

context,

it

certainly

seems

even

harder

in

a

deportation

case.

That, then,

is

the

problem.

Immigrant

speech

is

vital,

should

be

protected,

and,

in

theory,

is

entitled

to

the

same

protection

from

direct censorship

as anyone

else's.

26

But

immigrants

take risks

when

they

speak out

publicly

merely

by

their

visibility,

and

they

will

face

unique

difficulties

raising

a

selective

prosecution

defense

if

the

government

targets

them

for

deportation in

retaliation

for

their

free

expression.

27

This problem

should

be

fixed,

and the

best

way

to

address

it

would

be

for

courts

to

revisit

the

AADC

decision

or

to

at

least

narrow

its

application.

In

short,

AADC was

a

case

in

which

bad

facts have made

very

bad

law.

28

The

immigrants

at

issue

were

accused

of

supporting

terrorist

organizations

and

may

not

even

have

been

engaged

in

First

Amendment

protected

activity.

29

An

undocumented

activist

who

campaigns

for

immigration

reform

and appears

on

cable

news

or

speaks

at

a

rally

is

a

lot

more like

John

Lennon

than

the

AADC

respondents.

Indeed,

in

2018,

the

Second

Circuit

found

that

AADC

did

not

foreclose a

First

Amendment

retaliation

claim

by

an activist

with

a

final order

of

removal

who

had

been

the

target

of

open

hostility

from

the

local

ICE

office.

0

But

going

forward,

this

Essay

will

assume

that

the

Constitution

does

not

offer

enough

to

protect

immigrant

free

speech

rights

and

will

discuss

an

alternative.

25

AADC,

525

U.S.

at

491.

26

See

Kagan,

When

Immigrants

Speak,

supra

note

22,

at

1240

(explaining

how

Citizens

United

could

protect

immigrant

speech

(citing

Citizens

United

v.

FEC,

558

U.S.

310

(2010))).

27

See

id.

("Yet,

because

Elsayed

was

in

the

United

States

as

a

non-citizen

on

a

temporary

visa,

he

was

vulnerable

to

government

action

triggered

by

his

speech

in

a

way

that

a

citizen

would

not

have

been.").

28

See

id.

at

1268,

1280

(arguing

that

AADC

should

be

limited

to

its

unusual

facts).

29

See

id.

at

1280

(explaining

that

the

government

"withdrew

the

Communism

ground

for

deportation"

and

that

the

actual

reason for

deportation

was

respondents' memberships

in

a

terrorist

organization).

0

See

Ragbir

v.

Homan,

923

F.3d

53,

71

(2d

Cir.

2019)

(holding

that

AADC

did

not

foreclose

plaintiffs

claim

because

the

government's

alleged

conduct

"plausibly fits

within

the

'outrageous[ness]'

exception

to

AADC"

(alteration

in

original)),

vacated

sub

nom.

Pham

v.

Ragbir,

141

S.

Ct.

227 (2020)

(mem.)

(remanding

for

further

consideration

in

light

of

Dep't of

Homeland

Sec.

v.

Thuraissigiam,

140

S.

Ct.

1959

(2020)).

2022]

1425

GEORGIA

LAW

REVIEW

III.

THE

ANALOGY:

UNREASONABLE

SEARCH

AND

SEIZURE

IN

IMMIGRATION

REGULATIONS

The

weak

application

of

constitutional

civil

liberties

in

the

context

of

immigration

enforcement

is

hardly

limited

to

the

First

Amendment.

It

is

also a

problem

under

the

Fourth

Amendment.

In

INS

v.

Lopez-Mendoza,

the

Supreme Court

held

that

respondents

in

removal

proceedings

generally

cannot

suppress

evidence

obtained

through

Fourth

Amendment

violations.

31

In

fact,

there

is

good

reason

to

think

that

major

parts

of

the immigration

enforcement

system

systematically

and

routinely

violate

protections

against

unreasonable

searches and seizures.

32

Yet,

a

constitutionally

suspect

system

persists

through

"[j]udicial

[u]nderenforcement

of

the

Constitution."

33

The

Supreme

Court,

however,

did

not

completely

slam

the

door

here.

A

plurality

of

the

Supreme Court

found

that

a

person

facing

deportation

can

in

fact

suppress

evidence

if

it

was

obtained

through

an

"egregious

violation[

of

Fourth

Amendment

or

other

liberties

that

might

transgress

notions

of

fundamental

fairness."

34

An

immigrant

in removal

trying

to

suppress

evidence

has

one

tool

that

is

not

available in

a

free

speech

case.

In

addition

to

the

Bill

of

Rights,

a

regulation

independently

addresses

unreasonable

searches

and

seizures.

In

fact,

there

is

a

set

of

rules

that

appear

to

set

out

general

Fourth

Amendment

norms

within

the

Code

of

Federal

Regulations.

For example,

there

is

a

regulation

that

only

permits

custodial

interrogation

by

an

immigration

officer

when

the

officer

possesses

"reasonable

suspicion,

based

on specific

articulable

facts."

35

Another

says

that

"[a]n

arrest

shall

be

made

only

when

the

designated immigration

officer

has

reason

to

believe

that

the

person

to

be

arrested

has

committed

an

offense

against

the

United

States

31

INS

v.

Lopez-Mendoza,

468

U.S.

1032,

1045-46

(1984).

32

See

generally

Michael

Kagan,

Immigration

Law's

Looming

Fourth

Amendment

Problem,

104

GEO.

L.J.

125

(2015)

(critiquing the

lack

of

Fourth

Amendment

protection

for

immigrants).

as

Jason

A.

Cade,

Policing

the

Immigration

Police:

ICE

Prosecutorial

Discretion

and

the

Fourth

Amendment,

113

COLUM.

L.

REV.

SIDEBAR

180,

190

(2013).

34

Lopez-Mendoza,

468

U.S.

at

1050;

see

also

Oliva-Ramos

v.

Att'y

Gen. of

U.S.,

694

F.3d

259,

271-72

(3d Cir. 2012)

(explaining

that

the

majority

of

the

Supreme Court

in

Lopez-

Mendoza

endorsed

suppression

of

evidence

for

egregious

violations).

a5

8

C.F.R.

§

287.8(b)(2)

(2021).

1426

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LAW

or

is

an

alien

illegally

in

the United

States."

36

The

"reason

to

believe"

standard

for

a

warrantless

arrest

also

appears

in

the

statute,

37

and

courts

have

generally

interpreted

it

to

mean

probable

cause.38

Such

rules

are

hardly

remarkable

on

their

face.

They

seem

to

merely

restate

well-established

Fourth

Amendment

doctrine.

But

they

may in

fact

add

something

new:

an

enforcement

mechanism

stronger

than

what

the

Fourth

Amendment

offers

on

its

own.

The

Ninth

Circuit

has

held

that

evidence

may

be

suppressed

if

it

was

obtained

either

in

violation

of

the

Constitution

or

in

violation

of

the

regulation. In

its

2019

decision

in

Sanchez

v.

Sessions, the

court

held

that

the

exclusionary rule

applies

to

removal proceedings

in

two

situations.

39

The

first

is

"when

the

agency

egregiously

violates

a

petitioner's

Fourth

Amendment

rights."

40

The

second

is

"when

the

agency

violates

a

regulation

promulgated

for

the

benefit

of

petitioners

and

that

violation

prejudices

the

petitioner's

protected

interests."

41

This

second

holding

is

the

important

one.

It

suggests

that

the regulations

may

fill

the

hole

left

by

the

Supreme

Court's

decision

in

Lopez-Mendoza.

It

would

allow

suppression

of

evidence

even

if

the

violation

is

not

"egregious."

This

is

an

emerging

idea

and

there

is

a

circuit

split

on

the

matter.

The

Second

Circuit

in

particular

seems

to

disagree.

In

Maldonado

v.

Holder,

the

court

found

that

to

suppress

evidence

by

invoking

the

regulations,

a

respondent

in

removal proceedings

must

"assert

egregious

violations"

of

the

regulations,

just

like

with the

Fourth

Amendment.

42

The

Second

Circuit,

at

least

in

this

case,

said

that

a

motion

to

suppress

based

on

the regulations

would

fail

"[f]or

the

M

Id.

§

287.8(c)(2).

37

8

U.S.C.

§

1357(a)(2).

M

See

Au

Yi

Lau

v.

U.S.

INS,

445

F.2d

217,

222

(D.C.

Cir.

1971)

("[T]he

arrest

provision

must

be

read

in

light

of

constitutional standards,

so

that

'reason

to believe'

must

be

considered

the

equivalent

of

probable

cause.");

see

also

United States

v.

Sanchez,

635

F.2d

47,

62

n.13

(2d

Cir.

1980)

(citing

Au

Yi

Lau);

Lee

v.

INS,

590

F.2d

497,

500

(3d

Cir.

1979)

(same);

United States

v.

Cantu,

519

F.2d

494,

496

(7th

Cir.

1975)

(same).

D

Sanchez

v.

Sessions,

904

F.3d

643,

649

(9th

Cir.

2018).

40

Id.

41

Id.;

see

also

Perez

Cruz

v.

Barr,

926

F.3d

1128,

1145-46

(9th

Cir. 2019)

("Because

the

agents

violated

8

C.F.R.

§

287.8(b)(2),

Perez

Cruz

is

entitled

to

suppression

of

the

evidence

gathered

as

a

result

of

that

violation."

(citing

Sanchez,

904

F.3d

at

653)).

42

Maldonado

v.

Holder,

763

F.3d

155,

164

(2d

Cir.

2014)

(emphasis

added).

2022]

1427

GEORGIA

LAW

REVIEW

[same]

reasons

discussed

above,"

referencing

the

court's

analysis

of

the

Fourth

Amendment.

43

That

said,

the

Second

Circuit

offered

little

reasoning

why

the regulations

should

mean

the

same

thing

as

the

Fourth

Amendment.

Moreover,

in

an

earlier

case,

the

Second

Circuit

relied

on

the regulations

(not

the

Constitution)

to

suppress

a

statement

by

a

respondent

in

removal

proceedings

where

the

respondent

was

in custody

and

was

not

informed

of

his

rights

before

questioning.

44

In

that

case,

the

Second

Circuit

said

nothing

about

the

violation

being

egregious.

I

am

aware

of

only

one

other

circuit

court

reaching

this

issue,

and

it

seems

to

agree

with the

Ninth

Circuit.

The

Third

Circuit,

in

Oliva-

Ramos

v.

Attorney

General,

offered

a

lengthy

dissection

of

the

regulations

governing

seizure

45

and

warrantless

arrests

46

by

ICE

officers.

For

both

regulations,

the Third

Circuit

held

that

probable

cause

was

required

and

defined

probable

cause

with

reference

to

the

normal

standards

of

criminal

cases,

not

the

"egregious"

standard

in

Lopez-Mendoza.

47

The

Ninth

Circuit's

position

is

logically

convincing

and supported

by

the

Supreme

Court's

decision

in

Lopez-Mendoza. In

Lopez-

Mendoza,

in

which

the

Supreme

Court

established

the

"egregious

violation"

standard,

the

Court

carefully

stated

that

it

was dealing

only

with

a

remedy

for

a

constitutional

violation,

not

for

a

violation

of

an

agency

regulation.

48

It

is

thus

entirely

consistent with

Lopez-

Mendoza

for

the

regulation

to

have

a

meaning

distinct

from

the

Fourth

Amendment,

and

for

the

regulation

to

be

more

strict.

The

Second

Circuit

erred

by

assuming

without

analysis

that

the

Lopez-

43

Id.

44

See

Singh

v.

Mukasey,

553

F.3d

207,

215-16

(2d Cir. 2009)

(stating

that

8

C.F.R.

§

287.3(c)

requires

the examining

officer

to

inform

an

alien

of

his

rights).

45

Oliva-Ramos

v.

Att'y

Gen.

of

U.S.,

694

F.3d

259,

283-84

(3d

Cir.

2012)

("This

regulation[,

8

C.F.R.

§

287.8(b)(1),]

incorporates

the

test

that

'a

person has

been

"seized"

within

the

meaning

of

the

Fourth

Amendment

only

if,

in

view

of

all

of

the circumstances

surrounding

the

incident,

a

reasonable person

would

have

believed

that

he

was

not

free to

leave."'

(quoting

United States

v.

Mendenhall,

446

U.S.

544,

554

(1980))).

46

See

id.

at

268

(reviewing

Board

of

Immigration

Appeals

dispositions

of

arguments

based

on

alien

arrest

regulations,

including

8

C.F.R.

§

287.3(c)).

47

See

id.

at

285-86

(interpreting

8

C.F.R.

§

287.8(c)(2)(i)

as

a

probable

cause

requirement

for

alien

arrests).

48

INS

v.

Lopez-Mendoza,

468

U.S.

1032,

1050 ("[N]o

challenge

is

raised

here

to

the

INS's

own

internal

regulations.");

see

also

id.

at

1044

(noting

that

the

INS

"has

its

own

comprehensive

scheme

for

deterring

Fourth

Amendment

violations

by

its

officers").

1428

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CONSTITUTIONAL

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Mendoza

rule

applied

to

the

regulation.

The

Supreme Court

explicitly

said

that

regulations might

be

different.

To

be

clear,

the regulations

do

not

state

a

remedy

for

their

violation.

That

is

certainly

a

weakness-one

the

Department

of

Homeland Security

should

fix.

Nevertheless,

when

the immigration

regulation requiring

reasonable

suspicion

for

a

custodial

interrogation

was

first

proposed in

1992,

the

Department

of

Justice

stated

that

it

aimed

to

"bring

immigration

officers

in

line

with

other

Department

of

Justice

law

enforcement

officers."

49

That

seems

to

invoke

the

normal

rules

applicable

in

the

criminal

context,

where

law

enforcement

officers

are

subject

to

the

full

exclusionary

rule

under

the

Fourth

Amendment.

The

Ninth

Circuit

reasoned

that

the

regulation

was

meant

to

implement

Fourth

Amendment norms

and

to

be

enforced.

The

court

wrote, "The

regulation

and the

Fourth

Amendment

standards

it

reflects

are

undoubtedly

for

the

benefit

of

petitioners

and

not

mere

best-practices

suggestions

for

immigration

officers."50

While

I

would

personally

prefer

that

the

Fourth

Amendment

apply

with

full

force

to

deportation

cases,

there

is

a

coherent

logic

in

allowing

regulations

to

be

more

protective.

A

constitutional

norm

is

rigid.

By

contrast, the

government

can

choose

to

bind

itself

to

rules

beyond

what

the

Bill of

Rights

requires

through

regulations.

This

is

normal.

For

example,

some

states

offer

judicial

review

after

a

warrantless

arrest

faster

than

required

under

the

Constitution.

51

The

advantage

of

allowing

this

is

that

if

the

government

finds

the

additional

protection

unworkable,

it

can

change

it;

in

this

case,

it

can

simply

engage

the

rulemaking

process

to

issue

less protective

regulations.

But

so

long

as

the regulations

are

on

the

books,

they

should

be

enforced.

IV.

APPLYING

THE

ANALOGY

TO

THE

PROBLEM

Let us assume

the

exclusionary

rule

is

indeed

more

protective

under

the regulations

than

it

is

under

the

Fourth

Amendment.

This

49

Enhancing

the

Enforcement

Authority

of

Immigration

Officers,

57

Fed.

Reg.

47,011,

47,011

(Oct.

14,

1992)

(codified

at

8

C.F.R.

pts.

242,

287).

50

Sanchez

v.

Sessions,

904

F.3d

643,

652

(9th

Cir.

2018).

51

See,

e.g.,

MO.

REV.

STAT.

§

544.170

(requiring

a

probable

cause

determination

after

a

warrantless

arrest

within

twenty-four

hours);

ALASKA

STAT.

§

12.25.150

(same).

2022]

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GEORGIA

LAW

REVIEW

then

offers

a

path

to

restore

some

protection

from

selective

enforcement

for

immigrant

activists

who

exercise

their

free

speech

rights.

The

Department

of

Homeland

Security

should issue

regulations

providing

that

an

immigration

court

must

terminate

removal

proceedings

if

the

respondent

can

show

that

the

immigration

officers

either

became

aware

of

her

or

chose to

take

action

against

her

because

of

activity

that

is

protected

by

the

First

Amendment.

52

ICE

itself

has,

in

the past,

been

willing

to

terminate

removal

proceedings

to

remedy

civil

rights

violations

in

the

context

of

immigration

enforcement. This

happened,

for

example,

in

Charlotte,

North

Carolina

in

2012

when

it

became

clear

that

a

group

of

immigrants had

been

arrested

through

"unlawful

policing

practices."

53

If

dismissal

can

be

used

by

immigration

prosecutors

on

a

discretionary

basis

to

remedy

abuses,

it

could

also

be

wielded

by

immigration

judges,

making

it

a

more

reliable

systematic

remedy.

At

least

on

paper,

the

Executive

Branch

currently

appears

to

have

some

willingness

to

address

the

free

speech

issue.

The

Biden

Administration

has

already

declared

a

policy

against

selective

enforcement.

The

Department

of

Homeland

Security's

September

2021

Guidelines

for

the

Enforcement

of

Civil

Immigration

Law

state

that

"[a]

noncitizen's

exercise

of

their

First

Amendment

rights

...

should

never

be

a

factor

in

deciding

to

take

enforcement

action."

54

The

trouble,

however,

is

that

these

Guidelines

are

just

guidelines.

They

are

not

enforceable

in

court,

and

there

is

no

remedy

for a

person

who

believes

they

have

been

violated.

55

Enacting

binding

regulations

would

show

that

the

Biden

Administration

means

it.

Enacting regulations

has

an

added

benefit:

transparency

and

public

engagement.

To

issue

the

regulations

that

I

am

proposing,

the

Department

of

Homeland Security

would

go

through

an

informal

rulemaking

process

on

which

the

public

would

have

the

52

This

rule

would

not

allow

a

person

to

bootstrap

a

free

speech

defense

to

removal

by

engaging

in

a

public

protest against

ICE

after

ICE

initiated

action

against

her.

She

would

need

to

show

by

direct

or

circumstantial

evidence

that

the

First

Amendment

activity

precipitated

the

ICE

action.

5a

Cade,

supra

note

33,

at

184.

54

Memorandum

from

Alejandro

N.

Mayorkas,

supra

note

5,

at

5.

55

See

Christensen

v.

Harris

Cnty.,

529

U.S.

576,

587

(2000)

(differentiating

agency

rules

from

mere

administrative

guidance).

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opportunity

to

comment.

56

In

the

short

run,

this

would

be

a

healthy

process;

however,

the

greatest

benefit

may

not

be

in

the

enactment

of

the

regulations.

The

real

boon

to

transparency

and

engagement

would

come

in

the

event

of

the regulations'

proposed

repeal.

If

a

future

administration

wants

the

option

of

engaging

in

selective

immigration

enforcement

against

activists,

it

would

need

to

announce

that

intention

by

proposing

a

repeal.

That

public

announcement

would provide

an

opportunity

for

public

objection.

It

would

make repressive,

anti-liberty

intent

clear.

That

would

be

preferable

to a

stealth

campaign

against

activists

because

it

at

least

allows

public opinion

to

act

as

a

check

against

government

abuse.

V.

CONCLUSION

Selective

enforcement

is

not

the

only

First

Amendment

problem

facing

immigrants.

When

immigrants

seek

visas

to

enter

the

country,

the

Supreme Court

permits

the

government

to

bar

them

for

speech-related

reasons

on

standards

far

more

relaxed

than

what

would apply

under

the

First

Amendment

for

direct

limitations

on

expression.

57

The

Supreme

Court

has

also

upheld

restrictions

on

immigrants'

participation

in

partisan

election-related

expenditures.

58

As

a

general

matter,

constitutional

protection

of

immigrants'

civil

liberties

is

weak.

That

is

a

problem

that

originates

with the

Supreme Court

and

that

only

the

Supreme Court

can

fully

remedy.

Yet,

the

other branches

of

government

need

not

remain

on

the

sidelines.

As

Jason

Cade

has written, the

Executive

shares

a

responsibility

with the

Judiciary

for

enforcing

constitutional

56

See

Administrative

Procedure

Act

§

4(b),

5

U.S.C.

§

553(c)

(providing

for

submissions

from

interested

persons

regarding

new

rules).

67

See

Kleindienst

v.

Mandel,

408

U.S.

753,

770

(1972)

("[W]hen

the

Executive

exercises

this

power

[to

make

policies

and rules

for

exclusion

of

aliens]

negatively

on

the basis

of

a

facially

legitimate and

bona

fide

reason,

the

courts

will

neither

look

behind

the

exercise

of

that

discretion,

nor

test

it

by

balancing

its

justification against the

First

Amendment

interests

of

those

who seek

personal

communication

with the

applicant.").

58

See

Bluman

v.

FEC,

800

F.

Supp.

2d

281,

288

(D.D.C.

2011)

("[T]he

government

may

bar

foreign

citizens

(at least

those

who

are

not

lawful

permanent

residents

of

the United

States)

from

participating

in

the

campaign

process

that

seeks

to

influence

how

voters

will

cast

their

ballots

in

the

elections."),

aff'd,

132

S.

Ct.

1087

(2012)

(mem.).

2022]

1431

GEORGIA

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norms.

59

In

particular,

the

Executive

Branch

has

already

issued

regulations

about

warrantless

arrests

and custodial

interrogations

of

immigrants.

60

There

is

good

reason-and

some

circuit-level

caselaw-to

think

that

these regulations

offer

stronger

protection

from

unreasonable

searches and seizures

than

does

the

Fourth

Amendment.

61

The

Biden

Administration

has

already

said

that

it

opposes

selective

enforcement

of

immigration

law

in

the

free

speech

context,

but

it

has

not

issued

anything

binding.

Enacting

regulations

on

this

point

would

offer

substantial

protection

against

the

vulnerability

of

immigrant

activists

who

fear

government

reprisal.

59

Cade,

supra

note

33,

at

195-96

(arguing

that

where

the

Supreme

Court

has

narrowed

constitutional

guarantees,

the

Executive

Branch still

has

the

authority

and

responsibility

to

"uphold

the

fuller

breadth"

of

the

Constitution's guarantees).

60

See

8

C.F.R.

§

287.8(c)(2)(ii)

(2021)

("A

warrant

of

arrest

shall

be

obtained

...

");

8

C.F.R.

§

287.8(b)

(allowing

immigration

officers

to

question

a

person

without

suspicion

if

they

do

not

restrain

the

individual's

freedom).

61

See

Perez

Cruz

v.

Barr,

926

F.3d

1128, 1145

(9th

Cir. 2019)

(finding

a

seizure

impermissible

because

border agents'

suspicionless

detention

and

questioning

of

Perez

Cruz

violated

8

C.F.R.

§

287.8(b)(2)).

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