Title

Policing the Immigrant Identity

Abstract

Information concerning an immigrant’s “identity” is critical evidence used by the government against an individual in a deportation proceeding. Today, the government collects immigration-related identity evidence in a variety of ways: a local police officer conducts a traffic stop and obtains a driver’s name and date of birth, fingerprints taken at booking link to previously acquired biographical information, and a search of a national database reveals a person’s country of origin. Data suggests that in an increasing number of cases, immigrant identity evidence is collected by the police following an unlawful search and seizure in violation of the Fourth Amendment. In immigration proceedings, the exclusionary rule serves to suppress evidence obtained in egregious violation of the Fourth Amendment. Under current doctrine, when the suppression of identity evidence is at issue, courts make a factual inquiry as to whether the police collected the identity evidence for an investigative purpose, which would warrant suppression, or for an administrative purpose, which would not. Yet despite this purpose-based standard, the policing underlying the collection of immigrant identity evidence has received almost no judicial or scholarly scrutiny. This Article undertakes this needed examination and reveals that, in today’s world of immigration policing, due to the expanding role of local law enforcement in federal immigration enforcement, the expansion of government databases, and the growth of immigration-related offenses, the collection of immigrant identity evidence is often investigative in its underlying purpose. Consequently, in the immigration context, current exclusionary rule doctrine often wrongly shields evidence from suppression that the rule normatively intends to suppress, and unwittingly undermines the animating function of the exclusionary rule — the deterrence of unconstitutional police misconduct. In light of this analysis, the Article concludes by offering specific reforms to exclusionary rule doctrine governing the suppression of immigrant identity evidence. These proposals also support broader doctrinal reforms to the application of the exclusionary rule to all identity evidence in both criminal and civil courts.

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