Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment

25 Pages Posted: 26 Oct 2013 Last revised: 3 Mar 2016

See all articles by Jason A. Cade

Jason A. Cade

University of Georgia School of Law

Date Written: March 2016


A persistent puzzle in immigration law is how the removal adjudication system should respond to the increasing prevalence of violations of noncitizens’ constitutional rights by arresting officers. Scholarship in this area has focused on judicial suppression of unconstitutionally obtained evidence, typically by arguing that the Supreme Court should overrule its 1984 decision in INS v. Lopez-Mendoza not to enforce the exclusionary rule in civil immigration court. This Essay, in contrast, considers the role of Immigration and Customs Enforcement (ICE) attorneys in upholding the Fourth Amendment, taking as a launching point the recent exercise of prosecutorial discretion by ICE attorneys in Charlotte, North Carolina in cases arising from systemic unlawful policing.

Part I briefly describes how ICE's lawyers in the Charlotte immigration court have closed deportation cases against noncitizens arrested through unlawful policing by local officers in North Carolina, following a Department of Justice report on the discriminatory targeting of Latinos in Alamance County, North Carolina. The Essay then explores two potential bases for an ICE prosecutor’s decision to take remedial action when arresting officers violate the constitution. First, Part II examines ICE prosecutors’ constitutional responsibilities as executive branch attorneys in light of the Supreme Court’s decision to underenforce the Fourth Amendment in the context of immigration arrests. Part III then considers whether ICE’s remedial actions in North Carolina comport with internal agency guidelines for exercising prosecutorial discretion in deportation cases.

Keywords: Lopez-Mendoza, Brignoni-Ponce, suppression, exclusionary rule, administrative closure, John Morton, deportability, removability, inadmissibility, SComm, Secure Communities, 287(g), Criminal Alien Program, CAP, traffic stops, SB 1070, discriminatory policing, racial profiling, search and seizure

JEL Classification: D73, K14, J61

Suggested Citation

Cade, Jason A., Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment (March 2016). 113 Columbia Law Review Sidebar 180 (2013), UGA Legal Studies Research Paper No. 2014-04, Dean Rusk International Center Research Paper No. 2016-02, Available at SSRN: https://ssrn.com/abstract=2343710

Jason A. Cade (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States
(706) 542-5209 (Phone)

HOME PAGE: http://www.law.uga.edu/profile/jason-cade

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