“The
Constitution protects citizens and non-citizens.” That means, as the Second
Circuit was required to remind us in Zuniga-Perez
v. Sessions, that the contours of the Fourth and Fifth Amendments do
not bend on the basis of one’s race or citizenship.
But, as the Supreme Court has held, “it is not a crime for a removable alien to remain
present in the United States.” And, as the Zuniga-Perez court notes, being
a “Hispanic migrant is not a crime.” Where law enforcement exceed the scope of a
warrant (or alleged warrant in this case), or where that warrant fails to state
with particularity the place to be searched and items to seized, it violates
the Fourth Amendment. A protective sweep that last longer than necessary also violates
the Fourth Amendment. When a person is subjected to random or gratuitous
questioning related to his immigration status, it violates the Fourth Amendment.
And, Miranda applies to citizens and non-citizens
alike.
To permit such unconstitutional conduct by law enforcement
against non-citizens would be, as the Second Circuit reiterated, to “condone ethnic harassment” and to rubber-stamp
an immigration policy that “teeters on the verge of ‘the ugly abyss of racism.’”
Hence the reversal in Zuniga-Perez where
a reasonable fact-finder could conclude that an “egregious constitutional
violation” had occurred—that is, that authorities had targeted petitioners "merely because they appeared to be Hispanic migrants."