`
`In the Supreme Court of the United States
`
`
`
`DEPARTMENT OF HOMELAND SECURITY, et al.,
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
`Respondents.
`
`
`
`DONALD J. TRUMP, President of the United States, et al.,
`Petitioners,
`
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT
`OF COLORED PEOPLE, et al.,
`Respondents.
`
`
`
`KEVIN K. MCALEENAN,
`Acting Secretary of Homeland Security, et al.,
`Petitioners,
`
`v.
`MARTIN JONATHAN BATALLA VIDAL, et al.,
`Respondents.
`
`
`
`On Writs of Certiorari to the United States Courts of Appeals
`for the Ninth, District of Columbia, and Second Circuits
`
`
`
`BRIEF OF AMICI CURIAE CURRENT AND FORMER
`PROSECUTORS AND LAW ENFORCEMENT LEADERS IN
`SUPPORT OF RESPONDENTS
`
`
`
`MARY B. MCCORD
` Counsel of Record
`JOSHUA A. GELTZER
`ANNIE L. OWENS
`DANIEL B. RICE
`INSTITUTE FOR CONSTITUTIONAL
`ADVOCACY AND PROTECTION
`GEORGETOWN UNIVERSITY
`LAW CENTER
`600 New Jersey Ave., NW
`Washington, DC 20001
`(202) 661-6607
`mbm7@georgetown.edu
`
`
`
`
`
`MATTHEW J. PIERS
`CHIRAG G. BADLANI
`CARYN C. LEDERER
`HUGHES SOCOL PIERS
`RESNICK & DYM, LTD.
`70 West Madison St.
`Suite 4000
`Chicago, IL 60602
`(312) 580-0100
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`
`INTEREST OF AMICI CURIAE .......................... 1
`
`SUMMARY OF ARGUMENT ............................... 3
`
`ARGUMENT ......................................................... 5
`
`I. DACA FOSTERS EFFECTIVE LAW
`ENFORCEMENT ............................................ 5
`
`Is
`Policing”
`A. “Community
`Essential To Effective Law
`Enforcement ........................................ 5
`
`B. Trust And Respect Between
`Communities
`And
`Law
`Enforcement Officials
`Are
`Thwarted When
`Individuals
`Fear Removal Consequences Of
`Cooperation ......................................... 6
`
`C. DACA Promotes Cooperation
`With Law Enforcement .................... 13
`
`D. DACA Aids Law Enforcement
`By Facilitating Access To
`Identification ..................................... 16
`
`II. DACA HELPS LAW ENFORCEMENT
`PROTECT VULNERABLE INDIVIDUALS
`FROM CRIME AND EXPLOITATION ............. 18
`
`CONCLUSION .................................................... 23
`
`APPENDIX: LIST OF AMICI CURIAE ............ A-1
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`City of Philadelphia v. Sessions,
`309 F. Supp. 3d 289 (E.D. Pa. 2018) .................. 10
`
`STATUTES
`
`8 C.F.R. § 274a.12(c)(14) .......................................... 17
`
`8 U.S.C. § 1324a(h)(3) .............................................. 17
`
`Violence Against Women Act, Pub. L. No. 106-
`386, 114 Stat. 1491 (2000) .................................. 14
`
`EXECUTIVE AND CONGRESSIONAL
`MATERIALS
`
`Hearing Before the S. Comm. on the Judiciary,
`114th Cong. 2 (2015) (statement of Tom
`Manger, Chief, Montgomery Cty., Md.,
`Police Dep’t & President, Major Cities
`Chiefs Ass’n),
`https://perma.cc/SKM2-QKV9 ........................ 5, 19
`
`Office of Cmty. Oriented Policing Servs., U.S.
`Dep’t of Justice, Enhancing Community
`Policing with
`Immigrant Populations:
`Recommendations
`from a Roundtable
`Meeting of Immigrant Advocates and Law
`Enforcement
`Leaders
`(2010),
`https://perma.cc/62JX-99KK .............................. 18
`
`
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Soc. Sec. Admin., SSA Publ’n No. 05-10096,
`Social Security Numbers for Noncitizens
`(2017), https://perma.cc/9RGJ-X8Y2 .................. 17
`
`U.S. Citizenship & Immigration Servs., U.S.
`Dep’t of Homeland Sec., OMB No. 1615-
`0040, Instructions for I-765 Application for
`Employment Authorization (last updated
`May 31, 2018),
`https://perma.cc/JW66-XQCG ............................ 17
`
`Victims of Criminal Activity: U Nonimmigrant
`Status, U.S. Citizenship & Immigr. Servs.
`(last
`updated
`June
`12,
`2018),
`https://perma.cc/P3AC-XTHG ............................ 14
`
`OTHER AUTHORITIES
`
`Angelica S. Reina et al., “He Said They’d Deport
`Me”: Factors Influencing Domestic Violence
`Help-Seeking Practices Among Latina
`Immigrants,
`29 J. Interpersonal Violence 593, (2014) ........... 21
`
`Anita Khashu, The Role of Local Police:
`Striking a Balance Between Immigration
`Enforcement and Civil Liberties, Police
`Found. (2009),
`https://perma.cc/KL5A-EQWR ................... 5, 8, 20
`
`
`
`
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Bret Hauff, ICE Targets Immigrants at La
`Plata County Courthouse, Durango Herald
`(Mar. 23, 2019),
`https://perma.cc/8RFS-3YMW ............................ 10
`
`Cora Engelbrecht, Fewer Immigrants Are
`Reporting Domestic Abuse. Police Blame
`Fear of Deportation., N.Y. Times (June 3,
`2018), https://perma.cc/Q4HN-N5BX ................... 9
`
`Elizabeth Fussell, The Deportation Threat
`Dynamic and Victimization of Latino
`Migrants: Wage Theft and Robbery,
`52 Soc. Q. 593 (2011) .............................. 19, 20, 22
`
`Emma Whitford, Courthouse ICE Arrests Are
`Making
`Immigrants
`‘Sitting Ducks,’
`Lawyers Warn, Gothamist (June 22, 2017),
`https://perma.cc/XJT4-YQ4D.............................. 12
`
`Immigration
`et al.,
`Hannah Rappleye
`Crackdown Makes Women Afraid to Testify
`Against Abusers, Experts Warn, NBC News
`(Sept. 22, 2018),
`https://perma.cc/UB6S-RTE7 ................. 10, 12, 13
`
`Hans Johnson & Sergio Sanchez, Immigrants
`in California, Public Policy Institute of
`California (2019),
`https://perma.cc/W5RL-7ZZA ............................... 2
`
`
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Jacob Bucher et al., Undocumented Victims: An
`Examination
`of
`Crimes
`Against
`Undocumented Male Migrant Workers,
`7 Sw. J. Crim. Just. 159 (2010) .......................... 19
`
`James Fanelli, Father of Two Who Testified in
`Brooklyn Homicide Cases and Is Married to
`a U.S. Citizen Detained by ICE, N.Y. Daily
`News
`(Aug.
`2,
`2017),
`https://perma.cc/SBH8-BUGH ........................... 11
`
`James Queally, Fearing Deportation, Many
`Domestic Violence Victims Are Steering
`Clear of Police and Courts, L.A. Times (Oct.
`9, 2017), https://perma.cc/QR2S-FKX7 ................ 9
`
`Jessica Lipscomb, Miami Crime Victim
`Detained by ICE Warns Others About
`Calling Police for Help, Miami New Times
`(Apr. 23, 2019),
`https://perma.cc/9GG5-BKQQ ............................ 11
`
`et al., Latinas’
`Jill Theresa Messing
`Perceptions of Law Enforcement: Fear of
`Deportation, Crime Reporting, and Trust in
`the System,
`30 J. Women & Soc. Work 328 (2015) ............ 8, 20
`
`Katie Mettler, ‘This Is Really Unprecedented’:
`ICE Detains Woman Seeking Domestic
`Abuse Protection at Texas Courthouse,
`Wash.
`Post
`(Feb.
`16,
`2017),
`https://perma.cc/33UE-WC85 ............................. 10
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Leslye Orloff et al., Nat’l Immigrant Women’s
`Advocacy Project, U-Visa Victims and
`Lawful Permanent Residency
`(2012),
`https://perma.cc/53NZ-LCPF .............................. 15
`
`Letter from Mary E. Fairhurst, Chief Justice of
`the Supreme Court of Washington, to John
`F. Kelly, Sec’y of Dep’t of Homeland Sec.
`(Mar. 22, 2017),
`https://perma.cc/6358-7Z3H ............................... 13
`
`Letter from Seventy-Five Former State and
`Federal Judges to Ronald D. Vitiello, Acting
`Director
`of
`ICE
`(Dec.
`12,
`2018),
`https://perma.cc/LJE2-94P7 ............................... 13
`
`Letter from Stuart Rabner, Chief Justice of the
`Supreme Court of New Jersey, to John F.
`Kelly, Sec’y of Dep’t of Homeland Sec. (Apr.
`19, 2017), https://perma.cc/M2QA-FJYD ........... 13
`
`Letter from Tani G. Cantil-Sakauye, Chief
`Justice of California, to Jeff Sessions, Att’y
`Gen. of the U.S., and John F. Kelly, Sec’y of
`Dep’t of Homeland Sec. (Mar. 16, 2017),
`https://perma.cc/9C8T-QVET ............................. 12
`
`Maria Cramer, ICE Courthouse Arrests Worry
`Attorneys, Prosecutors, Boston Globe (June
`16, 2017), https://perma.cc/VZZ9-J7WE ............ 13
`
`
`
`
`
`
`
`vii
`
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Mark Hugo Lopez et al., More Latinos Have
`Serious Concerns About Their Place in
`America Under Trump, Pew Res. Ctr.:
`Hispanic Trends
`(Oct.
`25,
`2018),
`https://perma.cc/R3TE-DMAD ............................. 6
`
`Matthew Haag, Texas Deputy Accused of
`Molesting 4-Year-Old and Threatening to
`Deport Her Mother, N.Y. Times (June 18,
`2018), https://perma.cc/682K-2ZR3 .................... 19
`
`Michael Corkery & Jessica Silver-Greenberg,
`Banks Reject New York City IDs, Leaving
`‘Unbanked’ on Sidelines, N.Y. Times (Dec.
`23, 2015), https://perma.cc/A5B7-X32D ............. 16
`
`Michael Morris & Lauren Renee Sepulveda, A
`New ICE Age, Texas Dist. & Cty. Attorneys
`Ass’n, The Texas Prosecutor, Vol. 47, No. 4
`(July/Aug. 2017),
`https://perma.cc/J2QH-AWV7 .............................. 9
`
`Min Xie & Eric P. Baumer, Neighborhood
`Immigrant Concentration and Violent
`Crime Reporting to the Police: A Multilevel
`Analysis of Data from the National Crime
`Victimization Survey, 57 Criminology 237
`(2019), https://perma.cc/QS5R-K867 .................... 7
`
`
`
`
`
`
`
`
`
`viii
`
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Nat’l Immigrant Women’s Advocacy Project,
`Promoting Access to Justice for Immigrant
`and Limited English Proficient Crime
`Victims in an Age of Increased Immigration
`Enforcement: Initial Report from a 2017
`National
`Survey
`(2018),
`https://perma.cc/52MV-X8TG ..................... 8, 9, 21
`
`Natalia Lee et al., Nat’l Immigrant Women’s
`Advocacy Project, National Survey of
`Service Providers on Police Response to
`Immigrant Crime Victims, U Visa
`Certification and Language Access (2013),
`https://perma.cc/5SR9-VTWA ............................. 16
`
`Nawal H. Ammar et al., Calls to Police and
`Police Response: A Case Study of Latina
`Immigrant Women in the USA,
`7 Int’l J. Police Sci. & Mgmt. 230 (2005) ........... 21
`
`Nik Theodore, Insecure Communities: Latino
`Perceptions of Police
`Involvement
`in
`Immigration
`Enforcement
`(2013),
`https://perma.cc/XEE8-P42V ................................ 7
`
`Philip Jankowski, Deportation Fears Keep
`Victim
`from Cooperating
`in Domestic
`Violence Case, Travis DA Says, Statesman
`(Austin)
`(Mar.
`8,
`2017),
`https://perma.cc/9AYX-5FQP ............................. 11
`
`
`
`
`
`
`
`ix
`
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Police Exec. Research Forum, Voices from
`Across the Country: Local Law Enforcement
`Officials Discuss
`the Challenges
`of
`Immigration
`Enforcement
`(2012),
`https://perma.cc/QKN8-QFJK ...................... 16, 17
`
`Roberto G. Gonzales & Angie M. Bautista-
`Chavez, Am. Immigration Council, Two
`Years and Counting: Assessing the Growing
`Power
`of DACA
`(June 16, 2014),
`https://perma.cc/6UBE-Z9AK ............................. 14
`
`Roberto G. Gonzales, Here’s How DACA
`Changed the Lives of Young Immigrants,
`According to Research, Vox Media (Feb. 16,
`2018), https://perma.cc/PB6B-9S9L ................... 14
`
`S. Poverty Law Ctr., Under Siege: Life for Low-
`Income Latinos
`in
`the South
`(2009),
`https://perma.cc/7GCY-V25L .................. 19, 20, 22
`
`S.P. Sullivan, Advocates Say ICE Courthouse
`Arrests in N.J. Are Hurting Immigrant
`Crime Victims, NJ
`(June 5, 2017),
`https://perma.cc/8VQW-TYD7 ............................ 12
`
`Sarah Stillman, When Deportation Is a Death
`Sentence, New Yorker (Jan. 15, 2018),
`https://perma.cc/TK4U-FKMY ........................... 12
`
`Steve Coll, When a Day in Court Is a Trap for
`Immigrants, New Yorker (Nov. 8, 2017),
`https://perma.cc/VMT5-75M5 ............................. 11
`
`
`
`
`
`x
`
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Tom K. Wong, Sanctuary Cities Don’t ‘Breed
`Crime.’ They Encourage People to Report
`Crime., Wash. Post
`(Apr. 24, 2018),
`https://perma.cc/EDW3-9SEQ .............................. 7
`
`Zenén Jaimes Pérez, United We Dream, A
`Portrait of Deferred Action for Childhood
`Arrivals Recipients: Challenges
`and
`Opportunities Three-Years Later (2015),
`https://perma.cc/AGE7-X5UH ...................... 14, 18
`
`
`
`
`
`
`
`
`
`1
`
`INTEREST OF AMICI CURIAE1
`
`Amici are current and former prosecutors and law
`enforcement leaders who have extensive expertise in
`law enforcement, prosecution, and cooperative fed-
`eral-state law enforcement activities. They are inti-
`mately familiar with the challenges of performing
`critical law enforcement and governance functions in
`communities where immigrants fear the police and
`are vulnerable to exploitation and crime. Amici rep-
`resent jurisdictions from across the country that un-
`derstand the challenges of protecting local community
`needs and public safety.
`
` Amici’s experience in keeping their communities
`safe has underscored the critical importance of bring-
`ing immigrants and their families “out of the shad-
`ows.” Community trust and cooperation are essential
`to public safety, and sound police work as well as suc-
`cessful prosecutorial efforts are undermined when un-
`documented immigrants and their communities fear
`interacting with law enforcement and the justice sys-
`tem. This dynamic leaves undocumented immigrants
`more vulnerable to crime and exploitation—and un-
`documented immigrant victims less likely to come for-
`ward or cooperate with investigations and prosecu-
`tions—leading to more violence in the communities
`
`
`1 Pursuant to Supreme Court Rule 37.6, counsel for amici cer-
`tifies that no counsel for a party authored this brief in whole or
`in part and that no person or entity, other than amici and their
`counsel, made a monetary contribution intended to fund this
`brief’s preparation or submission. Counsel of record for all par-
`ties received timely notice of the filing of this brief and consented
`to its filing.
`
`
`
`
`
`2
`
`amici are and have been charged with protecting. In
`the State of California, where more than a quarter of
`the population are immigrants,2 these problems have
`a particularly profound impact.
`
`The Deferred Action for Childhood Arrivals
`(“DACA”) program has protected from removal nearly
`800,000 individuals brought to this country as chil-
`dren. Under DACA, these individuals—who have un-
`dergone background checks and lived continuously in
`the United States since 2007—have been permitted to
`live, work, and study in this country without fear of
`removal. Amici are aware that the DACA program
`has helped law enforcement officers and prosecutors
`keep their communities safe by reducing the fear of
`removal for these nearly 800,000 individuals who are
`active members of their communities.
`
`
`
`
`
`2 Hans Johnson & Sergio Sanchez, Immigrants in California,
`Public
`Policy
`Institute
`of California,
`1
`(2019),
`https://perma.cc/W5RL-7ZZA (in 2017, immigrants constituted
`27 percent of California’s population).
`
`
`
`
`
`3
`
`SUMMARY OF ARGUMENT
`
`The lessons amici have learned in protecting their
`communities shed important light on the issues
`raised in this case. When community residents live
`in constant fear that interactions with local law en-
`forcement officials could result in removal, that fun-
`damental breakdown in trust threatens public safety
`and impedes justice system leaders from doing their
`jobs. Extensive evidence shows that, in such circum-
`stances, undocumented immigrants—and their law-
`fully present family and neighbors—fear that turning
`to the police and cooperating with prosecutors could
`bring adverse immigration consequences. As a result,
`immigrant communities are less willing to report
`crimes and cooperate with criminal investigations
`and prosecutions. This dynamic poses a major chal-
`lenge to the investigation and prosecution of individ-
`ual crimes and to the proper allocation of public safety
`resources.
`
`DACA ameliorates these problems by addressing
`an important reason that many individuals fear coop-
`erating with law enforcement. As experience with
`DACA has shown, when immigrants are permitted to
`step out of the shadows, they are much more willing
`to work cooperatively with police and prosecutors. As
`explained below, nearly two-thirds of DACA recipi-
`ents reported being less afraid of law enforcement,
`and 59 percent indicated that they were more likely
`to report crimes after having entered the program.
`DACA further aids law enforcement by facilitating ac-
`cess to identification, such as federal employment au-
`thorization documents. Lack of identification in im-
`migrant communities often leads to undue burdens on
`
`
`
`
`
`4
`
`police, potentially turning a simple traffic stop into an
`hours-long detour to fingerprint someone at the police
`station. When police are able to identify victims, wit-
`nesses, and potential suspects without those sorts of
`delays, valuable law enforcement resources are
`spared. Knowing the identity of individuals with
`whom law enforcement officers come into contact aids
`in the safety of law enforcement officers as well.
`
`DACA also promotes public safety by helping law
`enforcement to protect a population uniquely vulner-
`able to exploitation and violent crime. Numerous
`studies have shown that undocumented individuals’
`fear of interacting with law enforcement makes them
`attractive targets for many forms of crime and abuse.
`With limited access to bank accounts (in substantial
`part because of their lack of identification), they have
`been dubbed “walking ATMs” and are frequent tar-
`gets for robbery. Undocumented individuals are also
`especially vulnerable to domestic abuse because they
`often fear turning to law enforcement for help. And
`they face increased wage theft and other forms of ex-
`ploitation in the workplace.
`
`By eliminating an important reason to fear law en-
`forcement, enabling access to work authorization and
`to identification, and building trust between law en-
`forcement and immigrants with longstanding ties to
`the United States, DACA aids community policing
`and makes recipients less vulnerable to crime and ex-
`ploitation. In doing so, DACA provides vital support
`to police and prosecutors charged with protecting all
`members of their communities.
`
`
`
`
`
`5
`
`ARGUMENT
`
`I. DACA FOSTERS EFFECTIVE LAW ENFORCEMENT
`
`A. “Community Policing” Is Essential To Ef-
`fective Law Enforcement
`
`The experience of policing cities across the country
`has taught law enforcement officers that doing their
`jobs well requires “the trust and respect of the com-
`munities [they] serve.” Hearing Before the S. Comm.
`on the Judiciary, 114th Cong. 2 (2015) (statement of
`Tom Manger, Chief, Montgomery Cty., Md., Police
`Dep’t & President, Major Cities Chiefs Ass’n),
`https://perma.cc/SKM2-QKV9 [hereinafter Statement
`of Tom Manger]. To combat crime, police officers
`“need the full cooperation of victims and witnesses.”
`Id. This common-sense philosophy is sometimes
`called “community policing”—an approach to policing
`whereby local law enforcement organizations partner
`with communities to reduce crime and promote public
`safety. See Anita Khashu, The Role of Local Police:
`Striking a Balance Between Immigration Enforce-
`ment and Civil Liberties, Police Found. (2009),
`https://perma.cc/KL5A-EQWR.
`
`Community policing requires police to interact
`with neighborhood residents in a manner that builds
`trust and encourages cooperation. Id. at xiii. When
`that trust is missing—as it is when people believe
`that contacting police or cooperating with prosecutors
`could lead to removal for themselves or others—com-
`munity policing breaks down and the entire commu-
`nity suffers.
`
`
`
`
`
`
`
`6
`
`B. Trust And Respect Between Communities
`And Law Enforcement Officials Are
`Thwarted When Individuals Fear Re-
`moval Consequences Of Cooperation
`
` The reality of everyday life for millions of undoc-
`umented immigrants living in the United States
`poses significant challenges to effective community
`policing. According to a recent Pew survey, 66 percent
`of Hispanic immigrants and 43 percent of all Hispanic
`adults in the United States worry about removal—of
`themselves, family members, or close friends. Mark
`Hugo Lopez et al., More Latinos Have Serious Con-
`cerns About Their Place in America Under Trump,
`Pew Res. Ctr.: Hispanic Trends (Oct. 25, 2018),
`https://perma.cc/R3TE-DMAD. This fear predictably
`hinders cooperation and communication with police
`and prosecutors. Immigrants often assume that in-
`teraction with law enforcement officials could have
`adverse consequences for themselves or a loved one.
`
`As a result, immigrant communities—and undoc-
`umented immigrants in particular—are less likely to
`trust and cooperate with local police and prosecutors.
`One recent study found that individuals living in com-
`munities of recent immigrants are less likely to report
`violent crime: in neighborhoods where 65 percent of
`residents are immigrants, there is only a 5-percent
`chance that a victim will report a violent crime, com-
`pared with a 48-percent chance in a neighborhood
`where only 10 percent of residents are born outside
`the United States. Min Xie & Eric P. Baumer, Neigh-
`borhood Immigrant Concentration and Violent Crime
`Reporting to the Police: A Multilevel Analysis of Data
`from the National Crime Victimization Survey, 57
`
`
`
`
`
`7
`
`Criminology 237, 249 (2019), https://perma.cc/QS5R-
`K867. The authors of the study specifically noted that
`“the development of trusting relationships between
`citizens and the police is often challenged by the pres-
`ence and application of local and federal immigration
`enforcement programs . . . that may dissuade resi-
`dents from calling on the police to help address crime
`problems.” Id. at 254.
`
`In addition, one survey of Latinos in four major cit-
`ies found that 70 percent of undocumented immi-
`grants and 44 percent of all Latinos would be less
`likely to contact law enforcement authorities if they
`were victims of a crime for fear that the police would
`ask them or people they know about their immigra-
`tion status; and 67 percent of undocumented immi-
`grants and 45 percent of all Latinos would be less
`likely to provide information about, or report, crimes
`because of the same fear. Nik Theodore, Insecure
`Communities: Latino Perceptions of Police Involve-
`ment
`in Immigration Enforcement 5-6
`(2013),
`https://perma.cc/XEE8-P42V; see also id. at 1 (“Sur-
`vey results indicate that increased involvement of po-
`lice in immigration enforcement has significantly
`heightened the fears many Latinos have of the police,
`. . . exacerbating their mistrust of law enforcement
`authorities.”). And a recent survey of undocumented
`individuals in San Diego County found that if local
`law enforcement officials were working together with
`ICE, 60 percent of survey respondents would be less
`likely to report a crime they witnessed, while 43 per-
`cent would be less likely to report being a victim of a
`crime. Tom K. Wong, Sanctuary Cities Don’t ‘Breed
`Crime.’ They Encourage People to Report Crime.,
`Wash. Post (Apr. 24, 2018), https://perma.cc/EDW3-
`
`
`
`
`
`8
`
`9SEQ. These studies (among others) highlight that
`fears of immigration enforcement result in damage to
`law enforcement cooperation from not only undocu-
`mented community members, but also individuals
`with citizenship or lawful status, particularly in
`“mixed-status” households.3
`
`This problematic atmosphere of mistrust poses a
`fundamental challenge for community policing. Po-
`lice cannot prevent or solve crimes if victims or wit-
`nesses are unwilling to talk to them or prosecutors be-
`cause of concerns that they, their loved ones, or their
`neighbors will face adverse immigration conse-
`quences. Law enforcement officers participating in
`one recent national survey reported seeing an across-
`the-board decline in immigrant communities’ willing-
`ness to cooperate with law enforcement. Nat’l Immi-
`grant Women’s Advocacy Project, Promoting Access to
`Justice for Immigrant and Limited English Proficient
`Crime Victims in an Age of Increased Immigration
`Enforcement: Initial Report from a 2017 National
`Survey 101
`(2018), https://perma.cc/52MV-X8TG
`[hereinafter NIWAP Report]. Roughly one-fifth of po-
`lice officers surveyed reported that, in 2017, immi-
`grants were less willing than they were in 2016 to
`make police reports, less likely to help police when
`
`
`
`3 An estimated 85 percent of immigrants live in mixed-status
`families. See Khashu, supra, at 24; see also Jill Theresa Messing
`et al., Latinas’ Perceptions of Law Enforcement: Fear of Deporta-
`tion, Crime Reporting, and Trust in the System, 30 J. Women &
`Soc. Work 328, 334 (2015) (“The results indicate that for each 1-
`point increase in fear of deportation [e.g., from ‘not much’ to
`‘some’ worry, or from ‘some’ to ‘a lot’], Latina participants were
`[15 percent] less willing to report being [a] victim of a violent
`crime to police.”).
`
`
`
`
`
`9
`
`they arrived at the scene of the crime, less likely to
`assist with subsequent investigations, and less will-
`ing to work with prosecutors. Id. at 42. As a result,
`more than half of the law enforcement officials sur-
`veyed reported that crimes such as domestic violence,
`human trafficking, and sexual assault became more
`difficult to investigate. Id. at 51.
`
`These trends have continued to worsen in recent
`years. See Cora Engelbrecht, Fewer Immigrants Are
`Reporting Domestic Abuse. Police Blame Fear of De-
`portation., N.Y.
`Times
`(June
`3,
`2018),
`https://perma.cc/Q4HN-N5BX. According to the Hou-
`ston Police Department, rape reporting by members
`of the Hispanic community fell over 40 percent from
`the first quarter of 2016 to the same period in 2017,
`despite an overall increase in city-wide crime reports.
`Michael Morris & Lauren Renee Sepulveda, A New
`ICE Age, Texas Dist. & Cty. Attorneys Ass’n, The
`Texas Prosecutor, Vol. 47, No. 4 (July/Aug. 2017),
`https://perma.cc/J2QH-AWV7. Los Angeles, San
`Francisco, and San Diego also witnessed lagging sex-
`ual assault and domestic violence reporting by Latino
`persons—but not other ethnic groups—in the first
`half of 2017. James Queally, Fearing Deportation,
`Many Domestic Violence Victims Are Steering Clear of
`Police and Courts, L.A. Times (Oct. 9, 2017),
`https://perma.cc/QR2S-FKX7. According to Los Ange-
`les County Sheriff’s Deputy Marino Gonzalez,
`“[t]hey’re afraid of us. And the reason they’re afraid
`of us is because they think we’re going to deport
`them.” Id.; see also NIWAP Report, supra, at 99 (find-
`ing that, in 2016 and 2017, fear of removal was the
`principal reason that immigrant victims did not call
`the police for help or file or follow through with a court
`
`
`
`
`
`10
`
`case). Law enforcement officials across the country
`have echoed that sentiment. See, e.g., Hannah Rap-
`pleye et al., Immigration Crackdown Makes Women
`Afraid to Testify Against Abusers, Experts Warn, NBC
`News (Sept. 22, 2018), https://perma.cc/UB6S-RTE7
`(“‘We rely very heavily at the local level on coopera-
`tion from our witnesses and from our victims to en-
`sure that cases can be prosecuted,’ said Denver City
`Attorney Kristin Bronson. ‘What we’ve found in Den-
`ver is people are not showing up because they’re
`afraid that they might get apprehended in the hall-
`ways.’”); see also City of Philadelphia v. Sessions, 309
`F. Supp. 3d 289, 341 (E.D. Pa. 2018) (“[Philadelphia]
`Police Commissioner Ross reiterated his earlier testi-
`mony that the City’s ability to fight crime is impaired
`when victims and witnesses are afraid to report
`crimes for fear of immigration consequences.”); Bret
`Hauff, ICE Targets Immigrants at La Plata County
`Courthouse, Durango Herald
`(Mar. 23, 2019),
`https://perma.cc/8RFS-3YMW (explaining that the
`tactic of courthouse arrests “deters people from mak-
`ing reports; it deters people from coming in” (quoting
`Colorado 6th Judicial District Chief Judge Jeffery
`Wilson)).
`
`Immigrants’ fear of interacting with law enforce-
`ment and prosecutors in light of potential removal
`consequences is not merely theoretical. In February
`2017, for example, an immigrant woman living in
`Texas arrived at a courthouse seeking a protective or-
`der against her abusive boyfriend, only to leave under
`arrest—likely due to a tip from her abuser. Katie
`Mettler, ‘This Is Really Unprecedented’: ICE Detains
`Woman Seeking Domestic Abuse Protection at Texas
`Courthouse, Wash. Post
`(Feb.
`16,
`2017),
`
`
`
`
`
`11
`
`https://perma.cc/33UE-WC85. In August 2017, fed-
`eral agents detained an undocumented immigrant
`who had provided key testimony in two homicide
`cases. James Fanelli, Father of Two Who Testified in
`Brooklyn Homicide Cases and Is Married to a U.S.
`Citizen Detained by ICE, N.Y. Daily News (Aug. 2,
`2017), https://perma.cc/SBH8-BUGH. Weeks later,
`ICE agents arrested a victim of domestic violence as
`he left a county courthouse. Steve Coll, When a Day
`in Court Is a Trap for Immigrants, New Yorker (Nov.
`8, 2017), https://perma.cc/VMT5-75M5. And in Feb-
`ruary 2019, ICE detained a 38-year-old mother of
`three who was cooperating with police in an open in-
`vestigation—and almost removed her to her native
`Nicaragua. Asked upon her release if she would think
`twice before interacting with law enforcement in the
`future, she answered without hesitation: “Sí.” Jessica
`Lipscomb, Miami Crime Victim Detained by ICE
`Warns Others About Calling Police for Help, Miami
`New Times (Apr. 23, 2019), https://perma.cc/9GG5-
`BKQQ.
`
` The underreporting of crimes by recent immi-
`grants is a problem for the entire criminal justice sys-
`tem. Precisely because victims and witnesses fear re-
`moval, violent crimes have gone unreported, and
`pending prosecutions have disappeared from courts’
`dockets. For example, a Texas district attorney con-
`firmed that a victim of domestic violence had become
`uncooperative because she feared removal. Philip
`Jankowski, Deportation Fears Keep Victim from Co-
`operating in Domestic Violence Case, Travis DA Says,
`Statesman
`(Austin)
`(Mar.
`8,
`2017),
`https://perma.cc/9AYX-5FQP. Denver prosecutors
`have been forced to drop 30 domestic violence cases
`
`
`
`
`
`12
`
`for similar reasons, Rappleye et al., supra, and in
`2017, more than a dozen Latina women in Denver
`dropped their own civil cases against domestic abus-
`ers, citing fear of removal. Sarah Stillman, When De-
`portation Is a Death Sentence, New Yorker (Jan. 15,
`2018), https://perma.cc/TK4U-FKMY. An immigrant
`mother in New Jersey, fearing that interaction with
`the court system could trigger removal, declined to re-
`port that her son had been assaulted on his way to
`school. S.P. Sullivan, Advocates Say ICE Courthouse
`Arrests in N.J. Are Hurting Immigrant Crime Vic-
`tims, NJ (June 5, 2017), https://perma.cc/8VQW-
`TYD7. And a victim of domestic violence in New York
`City “did not think it was in her best interest” to pur-
`sue a protective order. Emma Whitford, Courthouse
`ICE Arrests Are Making Immigrants ‘Sitting Ducks,’
`Lawyers Warn, Gothamist
`(June 22, 2017),
`https://perma.cc/XJT4-YQ4D. In addition to their
`particular removal concerns, undocumented immi-
`grant victims and witnesses may understandably re-
`coil more generally from a system that allows partici-
`pants to walk into a courthouse to fulfill a civic re-
`sponsibility to testify, only to be detained by immigra-
`tion authorities and prevented from walking freely
`out of that same courthouse.
`
`In response to these types of incidents, the chief
`justices of three state supreme courts—including the
`Supreme Court of California—wrote to federal au-
`thorities to emphasize that preserving trust with im-
`migrant communities is essential to the administra-
`tion of justice. Letter from Tani G. Cantil-Sakauye,
`Chief Justice of California, to Jeff Sessions, Att’y Gen.
`of the U.S., and John F. Kelly, Sec’y of Dep’t of Home-
`land Sec. (Mar. 16, 2017), https://perma.cc/9C8T-
`
`
`
`
`
`13
`
`QVET; Letter from Mary E.