Pressing Public Necessity: The Unconstitutionality of the Absconder Apprehension Initiative
40 Pages Posted: 17 Aug 2011 Last revised: 7 Dec 2016
Date Written: August 17, 2011
The Absconder Apprehension Initiative, announced in January 2002, was designed to locate, apprehend, interview and deport approximately 314,000 people described as 'absconders' or 'alien fugitives.' Such individuals had been ordered deported by an immigration judge but failed to comply with the judge’s final order by remaining in the United States. The government did not intend to pursue all 314,000 equally. Rather, the government declared that it would target several thousand who came from countries in which there had been Al Qaeda terrorist presence or activity. By May 2003, over eleven hundred alleged absconders, almost all of them Arab or Muslim men, had been arrested and over two-thirds of them deported as a result of the program.
This article argues that prioritizing the arrest, detention, interrogation and deportation of a few thousand Arab and Muslim men from a group of over three hundred thousand similarly situated individuals was unconstitutional. This conclusion stems from two principles. First, Supreme Court jurisprudence establishes that classifications based on race, ethnicity, and national origin receive strict scrutiny, and that selective enforcement driven by discriminatory purpose or resulting in discriminatory effect is impermissible. Second, strict scrutiny applies because the Absconder Apprehension Initiative was, in design and implementation, fundamentally a tool of domestic criminal law enforcement. Effectuating domestic law enforcement under the guise of immigration law enforcement does not cure unconstitutionality.
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