Pressing Public Necessity: The Unconstitutionality of the Absconder Apprehension Initiative


The above stories share two important things in common: first, the individuals were present in the United States at the time of their arrest, despite an outstanding final order of deportation against them; and second, the individuals were targeted by the INS for armed raids, interrogation, and deportation because, among the hundreds of thousands of similarly situated immigrants, they were Arab and Muslim men. They were targets of the Absconder Apprehension Initiative (“AAI”), a program announced by Deputy Attorney General Larry Thompson in January 2002 and designed to locate, apprehend, interview, and deport approximately 314,000 people described as “absconders” or “alien fugitives.” Absconders are individuals who have been ordered deported by an immigration judge but who, for a variety of reasons ranging from having strong family ties in the United States, to fearing persecution in their nation of origin, to being honestly ignorant that they had been ordered deported, have failed to comply with the judge’s final order by remaining in the United States.

The government did not intend, however, to pursue all 314,000 absconders equally. Rather, the government declared that it would initially target thousands of “priority absconders” who “come from countries in which there has been Al Qaeda terrorist presence or activity.” The result was an egregious, government directed roundup consisting overwhelmingly of Muslim and Arab individuals. By May 2003, over eleven hundred alleged absconders had been arrested, and over two-thirds of them deported. In that same month, the government changed the priorities of the AAI with the announcement of the National Fugitive Operations Initiative. Now, those absconders who had been convicted of committing serious crimes in the country moved to the top of the list. This article will focus on Phase I of the AAI-the period between January 2002 and May 2003- when the announced target was Arab and Muslim individuals.

In this article, my objection to the AAI does not arise from a belief that the profiling of Arab and Muslim individuals as terrorists, potential terrorists, or friends of terrorists is an ineffective tool of law enforcement. Other commentators have persuasively made this case.”Rather, I argue that prioritizing the arrest, detention, interrogation and deportation of a few thousand Arab and Muslim men from a group of over three hundred thousand similarly-situated individuals was unconstitutional. This conclusion stems from two principles. First, Supreme Court jurisprudence establishes that classifications based on race, ethnicity, and national origin receive strict scrutiny, and that selective enforcement driven by discriminatory purpose or resulting in discriminatory effect is impermissible. Indeed, only the discredited rationalizations of the Supreme Court’s infamous decision in Korematsu v. United States squarely support the govern ment’s priority targeting of Arab and Muslim men for deportation following the September 11 attacks. Second, strict scrutiny applies because the AAI was, in design and implementation, fundamentally a tool of domestic criminal law enforcement. Effectuating domestic law enforcement under the guise of immigration law enforcement should not and does not cure unconstitutionality. Finally, I argue that even if the AAI is considered immigration law enforcement, prioritizing enforcement based on race and national origin remains unconstitutional.

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