Information concerning an immigrant’s “identity” is critical evidence used by the government in a deportation proceeding. Today, the government collects immigrant 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, police collect immigrant identity evidence following an unlawful search and seizure in violation of the Fourth Amendment to the U.S. Constitution. In immigration proceedings, courts may suppress evidence obtained in egregious violation of the Fourth Amendment through application of the exclusionary rule. 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. Despite this purpose-based standard, the policing underlying immigrant identity evidence collection has received almost no judicial or scholarly scrutiny. Instead, courts frequently assume that police collect all immigrant identity evidence for an administrative purpose since the government ultimately introduces it in an administrative immigration proceeding.
This Article’s examination of immigrant identity evidence reveals that, contrary to traditional assumptions, the collection of such evidence is no longer accurately assumed to be administrative in nature. Instead, in today’s world of immigration policing, the collection of immigrant identity evidence is often investigative in its underlying purpose 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. 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, this Article concludes by offering specific reforms to exclusionary rule doctrine governing the suppression of immigrant identity evidence.
Eda Katharine Tinto,
Policing the Immigrant Identity,
68 Fla. L. Rev.
Available at: https://scholarship.law.ufl.edu/flr/vol68/iss3/3