POSTED BY Hillary Cheng

Immigration and Customs Enforcement (ICE) of the Department of Homeland Security (DHS) is responsible for locating and deporting immigrants who have not complied with laws governing immigrants. These statutes regulate the criminal activity of aliens, their entry into the U.S., their health, their dependence on public welfare, and various other activities related to the national interest. As technology has advanced, ICE has begun to use an electronic biometrics system to track immigrants in the U.S. in conjunction with local law enforcement databases, and they call this program “Secure Communities.” This policy has raised concern among civil liberties advocates including the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU).

The concern over using the biometrics scanning comes down to three main points, which are listed on the ACLU website regarding the Secure Communities policy. First, it deters people from accessing the criminal justice system and receiving equal protection of the laws. Second, it creates the risk of unlawful and extended detentions by local jails. Third, it invites racial profiling by local law enforcement.

The constitutionality of this ICE policy is difficult to assess. Historically, immigrants have received fewer constitutional protections than citizens, and it is unclear how the protection against unreasonable search and seizure apply. The question, then, becomes whether immigrants should be treated differently than American citizens—and why. One side of the debate advocates for a conditional, special status for immigrants where they are bound to certain restrictions or face the penalty of deportation, characterizing immigrants as temporary visitors to the U.S. whose permission can and should be easily revoked. The other side recommends that immigrants be treated no differently from American citizens, especially if these immigrants have grown up in the U.S. and know no other home but this.