Inside the Border, Outside the Law: Undocumented Immigrants and the Fourth Amendment

Abstract

As states enact immigration-related laws requiring local law enforcement officers to identify and detain undocumented immigrants, the Fourth Amendment rights of aliens are becoming critically important. In United States v. Verdugo-Urquidez, a divided Supreme Court suggested that aliens in the United States do not have Fourth Amendment rights unless they have established "substantial connections" to the United States. Lower courts have relied on Verdugo's holding to categorically deny Fourth Amendment rights to certain classes of undocumented immigrants. Commentators have criticized the "substantial connections" test as an isolated misinterpretation of Court precedent regarding the rights of aliens within the United States.

This Article, however, takes a new approach. It analyzes Verdugo in the context of the Supreme Court's treatment of aliens' constitutional rights both inside and outside the United States. In doing so, this Article identifies the Supreme Court's evolving approach to membership and highlights Verdugo's pivotal role in the development of that approach. This Article suggests that the Court's increasing extension of membership rights to aliens outside the United States and denial of membership rights to aliens within the United States is evidence of an emerging "post-territorial" approach to membership that rejects territorial presence as an accurate measure of membership. Rather, the post-territorial approach looks to more substantive indicators of membership, including community ties and mutuality of obligation, to afford rights. Ultimately, this Article examines Verdugo's progeny through a post-territorial lens and concludes that lower courts that categorically deny certain classes of undocumented immigrants Fourth Amendment rights violate Verdugo's post-territorial mandate by failing to evaluate the claimant's substantive indicators of membership.