ARTICLE: The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement, 41 U.C. Davis L. Rev. 1137 (2008)

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This Article proposes privacy as a descriptive and normative framework to analyze the constellation of recent initiatives to expand interior enforcement of federal immigration laws. By expanding the circumstances in which individuals are expected to demonstrate their lawful presence in the United States, these various initiatives seek to transform the significance of immigration and citizenship status in day-to-day life from something largely invisible and irrelevant to something visible and salient in a variety of settings. This transformation, however, carries underappreciated social costs. Building upon scholarship theorizing privacy as protecting a set of social or structural interests, and using the Supreme Court’s decision in Katz v. United States as a conceptual starting point, the Article argues that recognizing and protecting immigration and citizenship status privacy in certain contexts serves valuable social purposes. While the Fourth Amendment itself may ultimately establish a weak constraint against interior enforcement, in other contexts courts and state and local governments have increasingly recognized and protected privacy interests in immigration and citizenship status in precisely these structural terms. Although these responses represent only a partial solution to the privacy-related harms that may arise from expanded interior enforcement, they contribute to a public conversation that may recognize more directly the social value of preserving zones in society in which status remains invisible, irrelevant, and private.