The mandate of tax agencies seems clear: to secure revenue for the government and ensure taxpayer compliance. Yet for decades, the Internal Revenue Service (IRS) has regularly facilitated violent immigration enforcement. Scholars and the public have paid significant attention to the state and local policing of immigration law. But the role of tax bureaucrats as generals—not mere foot soldiers—has largely been overlooked.

This Article corrects that oversight. Building on emerging critiques of the tax system, I first describe tax agency leadership in immigration raids, holding the dry mechanics of agency procedures up against stark examples of IRS complicity in civil rights violations. I then raise several concerns about tax agency involvement in immigration enforcement. After describing the tax-law origins of immigration raids’ constitutional exceptionalism, I assess residual constraints on tax agency involvement in these raids: information safeguards, suppression under immigration regulations, and civil rights liability.

Finally, I propose reforms to better align tax agency efforts with their revenue-generating mission and to protect immigrants caught in the crosshairs. Those reforms include redesigning criminal tax investigations, crafting interagency agreements, and providing immigration relief. The collaboration of such disparate agencies—here the IRS and Immigration and Customs Enforcement (ICE)—reminds us of administrative cooperation’s hidden costs.

Introduction

An Internal Revenue Service (IRS) supervisor testified, under penalty of perjury, that “[t]he IRS does not participate in immigration enforcement.”[1] The declaration corroborated an intuitive idea: even if tax law distinguishes taxpayers based on citizenship and immigration status, the IRS is not involved in immigration enforcement’s day-to-day machinery. Rather, the agency collects revenue to fill the Treasury’s coffers.[2]

Despite the supervisor’s testimony, members of Congress have (unsuccessfully) sought to redirect IRS resources toward immigration enforcement. An Alabama congressman recently proposed the Bureaucrats at the Border Act, demanding the tax agency’s employees assist with the “processing” of unlawfully present noncitizens.[3] Under the bill, new IRS employees would temporarily be assigned to Customs and Border Protection or Immigration and Customs Enforcement (ICE).[4] The bill, which gathered limited support upon introduction, imagined redeploying tax bureaucrats towards literal border enforcement and its often-adjacent brutality.[5]

That proposed legislation may have languished, but this Article uncovers how its spirit thrives. The tax bureaucracy facilitates immigration enforcement, offering a pretextual key to unlock workplace doors. And even as the IRS deploys its power against poor migrants sidestepping borders—who may have perfect tax compliance—billionaires sidestep the agency’s grasp.[6] The IRS’s participation, and often leadership, in immigration enforcement raises significant questions about interagency relationships, avoidance of constitutional restraints, and the (mis)allocation of resources.

Denials of the tax bureaucracy’s participation in immigration enforcement, while intuitive, are actually false.[7] Existing scholarship presents tax bureaucracy as benign, or even friendly, to immigrants.[8] Tax obligations exist regardless of lawful status, with the IRS facilitating compliance by those without traditional Social Security numbers.[9] Some scholars have described a “trusting relationship” between immigrants and the agency, viewing the latter as a conduit for outreach and engagement with noncitizens.[10] Other scholars have similarly painted the IRS’s “expertise” and “experienced workforce” as assets that are underutilized in addressing immigration issues.[11]

This Article rebuts that idealized narrative, extending and tying together a number of scholarly threads. It builds upon contemporary scrutiny of tax law’s engagement with race and ethnicity, not only through disparate impact, but also through intentional discrimination.[12] It moves beyond criticism of the IRS’s impoverishment of the poor to how it may help imprison and deport them, regardless of any tax-law liabilities or violations.[13] And it cautions that a focus on immigration enforcement’s familiar characters—federal ICE officers, local police, and related corrections officers—misses the similarly visceral but unexpected role of tax officials.[14] The familiar “crimmigration” narratives fail to account for criminal tax investigations into employers, which in turn spawn regulatory actors’ joint targeting of employees.[15]

In describing this tax nexus between immigration enforcement and workplace civil rights violations, I add to our understanding of administrative constitutionalism.[16] While others have focused on how agencies expanded constitutional protections in the workplace, including by combatting discrimination,[17] I offer a less sanguine view of the modern workplace as invaded by tax authorities. Some historians have chronicled how the secretary of treasury administered and enforced Chinese exclusion beginning a century ago.[18] Those administrative “patterns reflect choices about how . . . immigrants deserved to be treated, and these choices were constitutional in nature.”[19] Others have described federal bureaucrats’ participation in “racial strictures” as appearing “banal, humdrum, even benign” when compared to local officials’ vivid violence.[20] This Article shows how the federal tax authority can undergird such purportedly local violence. While surprising, tax agencies’ role in racially discriminatory constitutional violations is neither ahistorical nor inevitable. Intra- and interagency dynamics therefore raise challenging questions concerning both administrative goals and immigrants’ rights.

This Article proceeds as follows. In Part I, I describe the IRS’s role in what many call immigration raids. To begin, I piece together a descriptive account of criminal tax investigations, drawing upon litigation filings, plea agreements, judicial opinions, and news reports, as well as the IRS’s own statutes, regulations, and materials. Beyond providing a generalized outline of the tax bureaucracy in immigration raids, I provide two case studies and a general account of tax militarization—the IRS’s military-like recruitment, training, and operations strategies—to help explain this collaboration.

In Part II, I discuss two causes for concern about the IRS’s involvement in immigration enforcement: its potential negative effects on taxpayer trust and compliance, and related concerns about mission creep, including pretextual prosecutions. In Part III, I describe the limited existing constraints on the IRS’s ability to participate in immigration enforcement. First, I reframe the origins of workplace immigration raids as unexpectedly rooted in the Supreme Court’s tax enforcement jurisprudence. As such, the current weaponization of tax law against immigrants echoes past precedent. From there, I provide mixed assessments of three existing avenues for immigrants to seek protection from IRS-facilitated enforcement: information safeguards, evidentiary suppression, and civil rights torts.

Finally, in Part IV, I offer reform proposals to further limit the IRS’s involvement in immigration enforcement. Drawing from state efforts to limit the harm of immigration raids, I consider redesigning criminal tax investigations, crafting interagency agreements, and providing immigration relief after immigration raids. Throughout, I center my discussion on the responsibilities, though often abdicated, of agencies to consider citizens and noncitizens’ constitutional and other rights.

I. Tax Bureaucracy in Immigration Raids

The tax bureaucracy, often staid and slow moving, may seem incongruent—or even incompatible—with the swift violence of an “immigration raid.” Part I challenges that assumption and provides a descriptive account of tax authorities’ primary role in immigration raids.[21] As a matter of terminology, Supreme Court justices, other federal courts, and scholars have used the phrase “immigration raid” for decades and across contexts.[22] In this Article, I use immigration raids to refer to law enforcement actions targeting immigrants for removal, often at workplaces.[23] Haphazard by nature, raids can ensnare citizens and those with lawful immigration status, all of whom may face detention, arrest, and civil rights violations. As immigration raids may affect thousands of workers in a single worksite, synonyms for “immigration raid” include “mass immigration arrests” and “mass worksite operations.”[24]

Two aspects of these raids deserve emphasis at the outset. First, the harshest consequences of these raids fall not on the original IRS target subject to criminal investigation but rather immigrant workers (and those perceived as such) who may actually be victims of the crimes. The collateral rights violations and deportations may inhere despite workers’ pristine tax compliance and victim, rather than conspirator, status.

Second, the tax bureaucracy is no mere facilitator of the raids; it is an active participant in immigration enforcement. IRS agents brainstorm and collaborate with, stand next to, and patiently wait for other law enforcement agencies, including but not limited to ICE. At times, the IRS even directly violates perceived immigrants’ civil liberties.[25]

The contours and consequences of the tax bureaucracy’s cooperation with immigration enforcement have escaped scrutiny, a gap I hope to fill. Part I.A outlines the IRS’s role in immigration raids, including by addressing shared regulatory space. I then discuss specific interagency collaborations in Part II.B. Finally, in Part II.C, I describe tax militarization to partly explain the IRS’s forceful presence in immigration enforcement.

A.     The Mechanics

To begin, the IRS, often through its Criminal Investigation Division (IRS CI), investigates potential violations of the Internal Revenue Code.[26] Investigations focus on agency-designated emphasis areas, including “employment tax enforcement.”[27] Criminal investigations of employers for tax evasion may be triggered by failure to pay or withhold employee income and payroll taxes (Social Security, Medicare, and unemployment) or both, and failure to file the relevant tax documents.[28] An employee’s immigration status does not eliminate the employer’s tax obligations. Willful failure to collect (withhold) or pay the tax can lead to a felony conviction.[29]

Once the IRS receives a tip concerning a potential criminal tax code violation, the agency commences a primary investigation.[30] If approved by management, that primary investigation escalates to a “subject criminal investigation.”[31] That investigation includes evidence gathering—surveillance, interviews with third-party witnesses, and the execution of search warrants.[32] It is during this evidence-gathering period—en route to a potential prosecution recommendation to the Department of Justice (DOJ) Tax Division or relevant U.S. Attorney—that immigration raids occur.[33]

While data enumerating the number of immigration raids emanating from CI investigations is lacking, the IRS does provide statistical evidence of CI’s investigatory prowess, including its prosecution of employment tax crimes. CI’s conviction rate can exceed 90 percent, arising from thousands of annual investigations, a majority of which are recommended for prosecution.[34] By the former chief of the Criminal Division’s own admission, the conviction rate is the statistic of which he is “most proud.”[35] The number of employment tax investigations has hovered between two and three hundred in recent years.[36] Overall, less than one billion dollars of the IRS budget is allocated to investigations, as compared to over four billion dollars allocated to examinations and collections.[37]

Immigration raids arise from the IRS’s regular cooperation with, and even stewardship of, other federal and state law enforcement agencies. Despite various information safeguards, which I will discuss extensively later, the IRS may share information with other Treasury and DOJ employees for “tax administration,” including to investigate criminal tax liability.[38]

The IRS’s involvement in immigration enforcement encompasses both planning and execution of raids. The IRS agents may accompany law enforcement officers in the execution of the raid, which, even if pursuant to a warrant, may exceed the warrant’s bounds.[39] To execute the warrant, the IRS may expressly request additional “manpower” from local police and share details of the criminally investigated employer and underlying workplace.[40] Sometimes, however, the IRS also seeks to cooperate with an immigration-enforcement agency, such as ICE’s “investigative arm,” Homeland Security Investigations (HSI).[41] IRS requests for HSI assistance are made all the more startling because they can occur even as IRS agents “confirm that [it] was not supposed to be an immigration enforcement action.”[42] While such statements disclaim the IRS’s intentional participation in immigration enforcement, its documented requests for HSI support suggest otherwise.

The Internal Revenue Manual provides guardrails limiting the use of search warrants.[43] Two particular items on the “Search Warrant Check Sheets” are notable.[44] First, IRS agents should consider reasons why “less intrusive means,” including summons or subpoenas, “are not being used.”[45] Second, when seeking a warrant, the IRS should consider “potential problems and proposed resolutions.”[46] These underappreciated check sheet items would appear to caution against the IRS’s participation in immigration raids.

Although IRS-involved raids may be originally or nominally focused on the employers’ tax crimes, immigration enforcement against workers can become an unexpected yet substantial component.[47] The IRS’s role in immigration enforcement is referenced only obliquely in the IRS CI’s own annual reports. In 2022, the IRS reported that a dozen people were sentenced in South Carolina for making millions of dollars’ worth of under-the-table payments to undocumented construction workers.[48] These schemes may involve exchanging employers’ large checks with unlicensed check cashers, with the cash payments then provided to workers.[49] Preceding annual reports prior to 2022 highlighted convictions for “willful failure to collect or pay over tax” and for the unlawful employment of unauthorized workers.[50] The IRS reports mention the immigrant workers in passing, but the collateral damage to those workers’ lives goes unmentioned.[51]

These agency practices and procedures demonstrate how the IRS occupies shared regulatory space with immigration enforcement agencies. The IRS relies on other agencies—ICE officers at the Department of Homeland Security (DHS), federal prosecutors at the DOJ, and local law enforcement—to further its core tax enforcement mission.[52] Shared regulatory space might, for example, be created through interagency agreements, review of rulemaking, or less formalized and transparent collaborations.[53] Noncitizens must navigate interactions with both the IRS and immigration agencies.[54] For example, under the Internal Revenue Code, noncitizens may face similar tax liabilities as citizens if they are either (a) a permanent resident (green card holder) or (b) demonstrate “substantial presence” in the United States measured in calendar days, regardless of immigration status.[55]

In this Article, I argue that the IRS’s shared regulatory space with the DHS should not extend to immigration raids.[56] As the IRS adopts goals as seemingly unrelated to tax administration as immigration enforcement, it risks institutional delegitimization, resource drain, and liability for civil rights violations.[57] Even as the tax and immigration statutes intersect, tax enforcement need not engender the resource-intensive and often discriminatory practices profiled here.

As I discuss throughout this Article,[58] these resource-allocation concerns are starker where the apparent enforcement goal may be unrelated to, or even undermine, revenue collection or tax compliance. Policing employer tax compliance does not require immigration raids—the affirmative targeting of immigrants or immigrant-appearing people for immigration processing.[59] If detentions occur incidental to executing an IRS warrant, the focus of those detentions should be on gathering evidence of tax-law violations, including information from worker witnesses. Since the IRS’s mission revolves around enforcing tax law and collecting revenue, incidental detentions could be leveraged only to reveal information about those tax-law violations.

Shared regulatory space defines our “age of overlapping and concurring regulatory jurisdiction.”[60] This Article criticizes one type of collaboration—between the tax bureaucracy and immigration enforcement—and gestures toward a different vision of interagency relations. As others have observed, shared regulatory space need not be defined only by collaboration but also by checks and balances.[61] Interagency checks may rely on statutory mandates, as opposed to more voluntary measures with less “muscle.”[62] Here, the IRS need not provide information to facilitate, much less marshal, worksite immigration enforcement. Instead of using this separation to act as a check, however, the IRS is literally providing muscle to immigration enforcement and doing so outside any statutory mandate. The IRS’s enforcement power here is as brutal as it is bureaucratic.[63]

Therein lies the broader lesson: the dark underbelly of enforcement should be challenged by agencies, not reinforced. Reimagining the IRS as a protector of immigrant taxpayers—as opposed to driving a civil-rights-violating deportation machine—reminds us of the power of articulating agency aspirations. Individual agencies can foment change in shared regulatory space, rather than perpetuate a status quo that undermines agency goals and others’ humanity.[64]

B.     Case Studies

I offer specific examples to flesh out the contours of the IRS’s collaborations in immigration enforcement. The following two IRS enforcement actions were a thousand miles and a decade apart. They not only reflect the persistence of interagency collaboration but also commonalities across interagency actions. These commonalities include the incongruity between the IRS’s purported focus on the employers’ criminal tax failure to pay and withhold payroll taxes and the actual aggression towards immigrant workers, who may be victims, or at least witnesses, rather than accomplices. The commonalities also include the civil rights suits arising from the tax bureaucracy’s choice to stand next to immigration enforcement, figuratively and literally.

I provide only two accounts for brevity. But these accounts—drawn from judicial opinions, litigation filings, plea agreements, and journalistic accounts—are part of a much larger cohort of cases stretching across time and geography.[65] Moreover, much of what transpired remains unknown because the IRS denied the Freedom of Information Act (FOIA) requests pertaining to these incidents.[66] The courts have questionably reinforced that lack of transparency, a legal issue to which I turn later.

1.     Casa de Maryland v. DHS, IRS (2008)

In 2008, ICE and the IRS raided Annapolis Painting Services (APS) as well as seventeen private homes in the Annapolis, Maryland, area in what was called “Operation Touch Up.”[67] ICE’s news release explained that, during a tax investigation into the APS owner, forty-five employees were arrested on immigration violations and all would be placed in removal proceedings as a result of the eighteen-months-long investigation.[68] After the federal government partially denied its FOIA request later that year, a Maryland nonprofit filed a complaint in federal court seeking to compel ICE and the IRS to release records that would show alleged constitutional violations.[69]

The civil rights lawsuit filed after these Annapolis raids described the agencies’ collaboration.[70] While some affected employees lacked work authorization, the plaintiffs included a married couple: Ingrid Munoz, a citizen, and Pablo Alvarado, a lawful permanent resident (hereinafter, green card holder). They alleged that after ICE agents surrounded their home at 6 a.m. while they and their six-year-old son were sleeping, the agents entered without a warrant and began asking about “illegals” and APS; all the while, the officers refused to allow the couple, who had worn only underwear to sleep, to dress themselves.[71]

Even after the plaintiffs offered evidence of their lawful status, the agents refused to accept the identification, much less identify themselves.[72] Despite the distressing home raid, Mr. Alvarado reported to work at APS, which was also in the midst of a raid.[73] Once at APS, Mr. Alvarado was allegedly detained by two IRS agents, while an ICE officer threatened, “You better tell the truth to these [IRS agents], because I can take away your green card any time.”[74] In his complaint, Mr. Alvarado wrote that “[f]earful of this threat and not wishing to cause any trouble, [he] felt he had no choice but to obey and cooperate with this man and the IRS agents.”[75] After the IRS agents’ interview, the ICE officer inquired as to whether the agents were done, and when those agents confirmed they were, the ICE officer drove Mr. Alvarado away for an interrogation.[76]

By handing off Mr. Alvarado to ICE for further interrogation, the IRS catalyzed the alleged civil rights violations.[77] After their experiences, both Mr. Alvarado and Ms. Munoz alleged resulting emotional distress, anxiety, and insomnia, with arousals from door knocks or loud sounds.[78] Despite consistent psychotherapy, they moved away, leaving their experiences and child’s community behind.[79]

The owner of APS ultimately entered into a plea agreement with the DOJ for various crimes as well as a civil resolution with the IRS pertaining to the failure to withhold workers’ payroll taxes.[80] The federal government also settled the civil rights lawsuit.[81]

Neither the citizen nor lawfully present resident plaintiffs nor their undocumented coworkers were even alleged to have participated in the APS owner’s tax crimes. Rather, they (and the other workers who were detained by ICE during these raids) were the victims of wage theft. By ICE’s own account, “the information suggested that the owner of the company pays these workers by check, deducts 1/3 of their gross pay, and tells the undocumented workers that the deductions are for taxes which will be due after they receive ‘green cards.’”[82]

The owner deprived the workers of wages to which they were entitled regardless of immigration status. Then, because the IRS invited ICE to conduct dragnet immigration enforcement alongside tax enforcement, the agencies further deprived the workers of freedom and physical security.[83]

2.     Zelaya v. Hammer (2018)

In April of 2018, IRS, ICE, and local police officers raided the Southeastern Provisions (Southeastern) meatpacking facility and corporation in Tennessee. Prior to the raid, the IRS had begun investigating four particular individuals: the company’s president, two of the president’s relatives, and one financial employee, all of whom were signatories on Southeastern’s checking account.[84] Those four were named in the affidavit supporting the IRS’s search warrant,[85] which focused on Southeastern’s multiyear use of cash payroll to avoid paying millions in taxes and the resulting need to seize electronic evidence.[86] The IRS special agent’s affidavit also stated that the employer’s representatives “told Citizens Bank personnel that the large cash withdrawals were made for the purpose of paying cash wages to Hispanics,” without providing any specific names of workers.[87] The affidavit’s crude language foreshadowed the illegal race-based segregation during the raid.

Days after submitting his affidavit, the same IRS agent met with the Morristown Police Department, Tennessee Highway Patrol, and ICE officers in a pre-raid planning meeting.[88] There, the agent “communicated the twin purposes of the Raid: to gather documents and to process and identify employees to determine legal status,” despite providing no names of any such employees on the warrant application.[89] The next day, with only a narrow tax-crime warrant for electronic payroll records in hand, over one hundred officers—including IRS agents and ICE officers, the Morristown Police Department, and Tennessee highway patrol—raided the meatpacking plant.[90] Exceeding the search warrant’s focus on electronic evidence seizure, the officers and IRS agents detained nearly one hundred workers who appeared to be “Latinos,” leaving the White workers alone.[91] A class of the affected workers sued, including the named plaintiff Isabel Zelaya. When Zelaya tried to present his documents proving his lawful immigration status and work authorization, an officer handcuffed him instead and detained him for hours.[92]

The federal court allowed a class action to proceed on the theory that the federal officers conspired to deprive the workers of their equal protection under the law.[93] In doing so, the court summarized the complaint, which described the multiagency officers as having

point[ed] machine guns at Plaintiffs—intentionally us[ing] the search warrant as a pretext to target Latino workers for illegal arrests. . . . [A]gents detained only Latinos, pointed firearms only at Latinos, handcuffed only Latinos, transported only Latinos to the Armory, hurled racial slurs only at Latinos, physically harmed only Latinos, humiliated only Latinos, and all the while allowed [W]hite individuals who also worked at the Plant to stand by unmolested.[94]

The federal government, including the special IRS agent whose affidavit provided the grounds for the warrant, ultimately settled these claims.[95] Some immigration experts called the settlement “the first class settlement over an immigration enforcement operation at a work site.”[96]

This case demonstrates the narrow pretext for the IRS’s unexpectedly broad role in immigration enforcement. The search warrant and the Southeastern president’s subsequent plea showed that the investigation began with the employer’s criminally willful failure to collect or pay taxes.[97] A government press release touting the president’s guilty plea concluded by stating that “[i]nvestigating cases of employment tax fraud is an investigative priority for IRS Criminal Investigation.”[98] A hundred mostly immigrant workers were collateral damage in the investigation of their employer’s tax crime.[99]

C.     Tax Militarization

These examples raise the question: Why is the tax bureaucracy facilitating, and even leading, immigration enforcement? IRS agents appear to be convening the groups involved in immigration raids.[100] In the context of employment law, commentators have critiqued the IRS’s myopic focus on immigration enforcement and its related disregard for labor laws, a shortsightedness that has been endorsed by the Supreme Court.[101] Additionally, although this Article discusses the mechanics and history of IRS involvement in immigration enforcement, the agency continues to guard many details of its work with ICE against public disclosure.[102] Accordingly, while this Article uncovers a rarely acknowledged phenomenon, a lack of transparency prevents a fuller discussion of internal agency debates. As broad declarations about immigration enforcement’s absence from IRS activities leave us skeptical and wanting, the IRS’s refusals to provide information add fuel to the fire.

One explanation for the IRS’s gratuitous involvement in immigration enforcement is the militarized culture at the IRS, which may prioritize force and weapons over data, argument, and benign bureaucracy. An agency’s culture—what employees believe to be the agency’s core practices, tasks, and values—provides employees with a sense of purpose, for better or worse, when they widely embrace that culture.[103] I document this militarized culture by briefly discussing the IRS’s recruiting programs, training modules, and field operations.

The IRS’s recruiting programs offer an early glimpse into the agency’s culture. The Criminal Investigation (CI) Unit hosts one-day, mock criminal investigations in which college students can be “‘sworn in’ as special agents in the morning and wear IRS protective vests, . . . handcuffs, [and] toy guns” before ultimately “arrest[ing] the mock offender.”[104] Participating students, “many of whom had never handled a gun or a set of handcuffs, became more adept at using them . . . [and] quicker at pulling the gun out of the holster.”[105] CI also recruits at military base career fairs, making the connection between the IRS and law enforcement explicit.[106]

The IRS’s training modules also reflect the culture of tax militarization, with the recruitment programs’ toy guns replaced by real firearms and ammunition. CI hosts a “Use of Force” instructor training program in (i) firearms, (ii) defensive tactics, and (iii) team tactics.[107] An IRS agent accidentally killed a fellow agent during one such field training day, with the shooting agent now indicted for handling his firearm “without due caution and . . . with reckless disregard for human life.”[108] Beyond the pistols, revolvers, and shotguns common to other agencies, the IRS also recently reported a uniquely large inventory of rifles.[109] The IRS’s continued purchase of firearms and ammunition elicited scrutiny among Republicans claiming IRS overreach.[110]

After the recruitment and training modules come the armed enforcement operations. Operation Touch-Up, for example, involved tax compliance and the hiring of undocumented workers, yet the only underlined word in the operation document’s first page pertained to firearms: “All personnel must wear their issued ballistic vest and full-duty gun-belts.”[111] The operation intertwined the not-so-benign tax bureaucracy with violent immigration enforcement.[112] These militarized operations generate bipartisan concern: Americans for Tax Reform, which “opposes all tax increases as a matter of principle,”[113] worried about the IRS increasing “military style raids” against small businesses.[114] Despite differing taxpayer constituencies, Democrats and Republicans share concerns over the IRS’s literal weaponry.

The tax bureaucracy thus finds a kindred spirit in American immigration enforcement, which has been similarly critiqued for its militarization.[115] While the military has at times been expressly involved in immigration enforcement,[116] militarization and attendant violence more generally undergirds border-control efforts. The federal government sued the state of Texas over Operation Lone Star—the construction of a new floating barrier complemented by concertina wire (a form of razor wire).[117] As migrants pierced by the wire filled hospitals, even south Texas politicians favoring border enforcement criticized these border-control tactics.[118] The parallel militarization of tax and immigration enforcement may help explain the draw of cooperation. Tax militarization—from recruiting and training to operations—may thrive where its costs fall disproportionately on those, like immigrants, who are perceived to have little recourse.

II. The Problem with the Tax Bureaucracy in Immigration Raids

There are at least two reasons why the tax bureaucracy should avoid participating in, much less leading, immigration raids. The first is to build taxpayer trust and compliance. Citizens and noncitizens alike have taxpayer obligations,[119] yet distrust of the tax bureaucracy can deter individuals from filing and sharing tax information out of fear that it will be shared further and produce adverse immigration consequences.[120] While immigrants benefit from tax compliance under both current law and leading comprehensive immigration reform proposals, IRS participation in immigration raids blunts immigrants’ incentives to file taxes.

Second, the IRS’s role in immigration raids raises concerns about mission creep and allocation of limited enforcement resources. Tax scholars have recently called attention to the consequences, including racially disparate impact, of prioritization decisions.[121] The prospect that the tax bureaucracy would seek out opportunities for, and devote resources to, immigration enforcement is troubling.

A.     Taxpayer Trust and Compliance

IRS participation in immigration enforcement undermines trust in the agency. That trust is significant because noncitizens, including undocumented immigrants, have tax obligations. Under the Internal Revenue Code, noncitizen tax residents must pay their taxes, which requires procuring an Individual Taxpayer Identification Number (ITIN) if they are ineligible for a Social Security Number.[122] The National Taxpayer Advocate has argued for making the ITIN application process easier since millions use the ITIN to file their taxes.[123] And yet, tax authorities target unidentified employees in immigration raids without concern for their tax compliance, instead using race as a heuristic for immigration status.

Recent evidence documents how immigration enforcement can deter enrollment in public poverty-reduction programs, including those administered through tax agencies. Legal and medical economists analyzed data from ICE’s infamous deportation-focused program, Secure Communities (SC).[124] Exploiting geographic variation in SC rollout and interacting that variation with race and ethnicity indicators, they document enforcement’s negative effect on participation in public poverty-reduction programs by households headed by Hispanic citizens.[125] In arguing that declining participation may result more from “fear” than “stigma,” the authors note that declines are particularly sharp in areas with high levels of deportation fear (as measured by Google Trends in searches for deportation-related terms) and where detainers are disproportionately issued for low-level arrests (suggesting dragnet immigration enforcement rather than targeting of serious offenders).[126] While the study focuses on participation in Supplemental Security Income (SSI) and the Supplemental Nutrition Assistance Program (SNAP), one might extrapolate the impacts of deportation fear to decreased participation in tax-based poverty alleviation programs, and even tax participation more generally.

Other accounts corroborate how tax authorities’ involvement with immigration enforcement reduces engagement with both tax-administered and other public programs.[127] As state legislatures have articulated, immigration raids can deter public school attendance and integration.[128] After a raid, stressed families scramble to locate family members and provide them with essential medicines and power of attorney forms to ensure their children’s care.[129] (After the Zelaya raid’s detention of approximately one hundred immigrant workers, over five hundred minor students in the community did not attend school the next day.[130]) When raids cause family separation inside the border, institutional trust ebbs among community members.[131]

During periods of significant immigration enforcement, taxpayers fear that personal identifying information on tax filings could be used to deport them.[132] The IRS has responded by declaring that “under federal law, tax information cannot be shared with another government agency and that includes the Department of Homeland Security.”[133] While that statement may be strictly true, it is undermined by agency coordination and cooperation in immigration enforcement, including raids. For undocumented immigrants, tax filings matter under current law, particularly in the naturalization process.[134] Tax filings also matter under proposed comprehensive immigration reform packages, which often require tax compliance as a condition of regularization.[135] By associating itself with immigration enforcement, the IRS deters tax compliance, and as a consequence, it deters lawful immigration regularization. Immigrants have good reason to question the credibility of an agency that chooses to see their removal as part of its mission.[136]

B.     Mission Creep: Internal Revenue, External Borders

As articulated in its Internal Revenue Manual, the IRS’s mission is to “provide America’s taxpayers top quality service by helping them understand and meet their tax responsibilities and enforce the law with integrity and fairness to all.”[137] This echoes the mission of state revenue agencies.[138]

Scholars have accordingly characterized tax agencies’ primary mission as collecting revenue and enforcing tax laws.[139] The IRS and state analogues have gradually expanded their role into other areas, including administration of social benefits according to legislative requirements.[140] The prime example of this phenomenon is the administration of the Earned Income Tax Credit (EITC).[141] In one scholar’s words, administration of antipoverty programs and credits like the EITC “thrust[s] the IRS into the lives of low-income taxpayers with many different characteristics than the business taxpayers the IRS has dealt with traditionally.”[142] Social benefits, once adjacent to tax law, are now part of tax administration.[143]

Scholars have begun to attend to the effects of prioritization decisions on poor and non-White taxpayers. For example, the IRS more frequently audits lower-income taxpayers, because it is inattentive to the amount of potential underreported tax liability of richer filers and prefers to avoid the more resource-intensive audits required.[144] In tax-law contexts where employer compliance is known to be low, such as domestic work, the IRS appears uninterested in pursuing employers.[145] Such prioritization decisions may further retrench race- and nationality-based disparities because of domestic workers’ demographics.[146]

The concerns about mission creep echo concerns about tax compliance as a tool for pretextual prosecution more generally. Famously, the Prohibition Era gangster Al Capone was ultimately arrested for tax evasion, not his racketeering, violence, and other crimes.[147] Similarly, in the years after September 11, tax crimes and related technical financial crimes were a frequent tool that prosecutors used to penalize people and entities suspected of having ties to Al Qaeda and other terrorist groups.[148] Prosecutors justify these indirect approaches as efficient ways of targeting individuals who are suspected of more serious wrongdoing.[149] But such pretextual prosecutions raise concerns because they obscure whether law-enforcement resources are addressing true priorities, rather than the low-hanging fruit of available convictions.[150]

The ills of pretextual enforcement and mission creep are at their apex here. As described above, the IRS may try to justify (when it even acknowledges) its participation in immigration raids by citing the tax evasion or other wrongdoing of an employer. Yet the employees pay the highest price, facing violence, detention, and potential removal from the country. Immigration raids and mass deportations undermine the IRS’s revenue mission, jeopardize its public image as an independent institution, and sacrifice taxpayer trust. Collaboration in immigration raids and mass deportations, beyond “mission creep,” may reflect mission abandonment.

III. The Present, Limited Constraints

These immigration raids are not simply ill advised—they are often marked by illegal conduct. To frame the legal violations occurring at this particular tax-immigration nexus, Part III.A begins from a distinct vantage point: the tax enforcement roots of Fourth Amendment exceptionalism for immigration raids.[151] Scholars use the language of exceptionalism to describe immigrants’ limited ability to invoke the exclusionary rule—preventing the use of unconstitutionally obtained evidence in criminal proceedings—in civil removal proceedings.[152] The Supreme Court relied on a tax case, United States v. Janis, to limit suppression as a remedy in deportation proceedings.[153] One could even say that tax law’s limited embrace of the exclusionary rule made immigration raids’ unconstitutional facets more palatable—rendering the tax bureaucracy’s current involvement disturbingly familiar.

There are other legal frameworks besides the Fourth Amendment in the immigration enforcement context. Part III.B moves beyond Fourth Amendment exceptionalism to assess three types of residual protections and constraints on immigration raids and the IRS’s participation in them: information safeguards, evidentiary suppression under immigration regulations, and civil rights liability.

Tax authorities invoke information safeguards—both privacy protection statutes and exemptions to transparency mandates—to refuse disclosure of even non-tax-related planning of immigration raids. While taxpayer privacy laws should protect undocumented taxpayers’ personal information from immigration authorities, tax authorities have weaponized taxpayer privacy laws against honoring post-raid FOIA requests to hold the government accountable.

Given the double-edged nature of these information safeguards, other regulatory protections and civil rights liability provide more promise to limit the IRS’s mission creep into immigration enforcement. Suppression of evidence gathered during raids remains a possible remedy where agents’ actions constitute violations of the immigration regulations, even as the full protection of Fourth Amendment suppression remains unavailable. And while many forms of civil rights tort liability have been doctrinally undermined, if not outright overruled, recent litigation shows that the IRS may face 42 U.S.C. § 1985 liability for conspiracy to deprive individuals of their civil rights.

A.     The Tax-Law Origins of Immigration Raids

This Article is about the unexpected role of tax-law enforcement, namely criminal investigations of employers, in immigration raids affecting employees. Yet these immigration raids persist because of an early Supreme Court tax case, United States v. Janis,[154] which declined to extend the application of the exclusionary rule to civil tax proceedings. The Supreme Court, in INS v. Lopez-Mendoza,[155] then invoked that tax precedent to limit the exclusionary rule in civil immigration proceedings. As such, the current use of tax law to advance immigration enforcement comports with a longer legal history.

ICE uses immigration raids in part because arrestees from a raid have limited recourse to the exclusionary rule. Even if a raid exceeds Fourth Amendment limitations, admissions of alienage and other information obtained due to the raid may often be used in removal proceedings. Given that ICE does not enter a raid knowing the identities or immigration histories of each arrestee, such information may be essential to making the case for removal. The lack of individualized information about employees also invites the racial, ethnic, and linguistic profiling that have characterized at least some raids that involve the IRS.[156]

This limitation on the exclusionary rule was established by INS v. Lopez-Mendoza.[157] In that case, two Mexican citizens, whose cases were combined by the Court, challenged their deportation orders by seeking to suppress their admission of illegal entry.[158]

The deportation of the second immigrant, Sandoval-Sanchez, began with a large raid in which he was one of thirty-seven employees arrested.[159] As people began to move, the agents blocked exits and questioned workers: “[A]ny who could not respond in English and who otherwise aroused . . . suspicions were questioned in Spanish as to their right to be in the United States.”[160] Among the dozens detained and taken to the county jail, a third acquiesced to “voluntary” departure and were immediately bussed out of the United States. Sandoval-Sanchez instead exercised his right to a deportation hearing.[161] Sandoval-Sanchez argued that his admission of unlawful entry—which would have been excluded from evidence in a criminal case—should be excluded from his civil deportation hearing.[162] The Supreme Court disagreed.[163]
            In refusing the immigrants’ requests to extend the exclusionary rule, the Lopez-Mendoza Court drew upon an earlier tax case, United States v. Janis.[164] In that case, wagering records were seized by state criminal law enforcement officers pursuant to a warrant, which was later quashed and all seized items were ordered returned.[165] However, shortly after the seizure and prior to the quashing, the state officer contacted the IRS, which used the seized records from the police to assess a tax deficiency. The question before the Janis Court was whether “evidence obtained by a state criminal law enforcement officer in good-faith reliance on a warrant that later proved to be defective shall be inadmissible in a federal civil tax proceeding.”[166] The Janis Court answered in the negative, declining to extend the exclusionary rule from the state and federal criminal trials to the civil tax proceeding.[167]

Lopez-Mendoza extended Janis’s denial of the exclusionary rule’s applicability from tax proceedings to deportation proceedings. In reaching that decision, perhaps the “most important” factor was the way in which federal immigration authorities regulated their own raids—what the Court described as “chaotic” arrests of “large numbers of [noncitizens]” that occurred “during farm, factory, or other workplace surveys.”[168] The Court seemed placated by the existence of the agency’s regulations requiring “that no one be detained without reasonable suspicion of illegal alienage, and that no one be arrested unless there is an admission of illegal alienage or other strong evidence thereof,” at risk of internal punishment.[169] The Court thought of the exclusionary rule’s deterrence value to Fourth Amendment protections as a “diversion,” outweighed by the need “to permit the quick resolution of very large numbers of deportation actions.”[170] In sanctioning chaotic and confused immigration raids, the Court seemed to offer agencies carte blanche to conduct these raids under the Fourth Amendment, as if other forms of immigration enforcement were unavailable.

While Lopez-Mendoza built on tax law to limit the exclusionary rule’s application in deportation proceedings, the Court issued an oft-forgotten but increasingly relevant caveat. The Court emphasized the absence of “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” in the instant case.[171] And the Court therefore emphasized how its consideration of the exclusionary rule’s value “might change, if there developed good reason to believe that Fourth Amendment violations by [immigration] officers were widespread.”[172] That time has arguably now come. Federal courts’ leveraging of the “egregiousness” exception to reaffirm the exclusionary rule and the IRS’s continued involvement in sloppy immigration raids suggest as much.[173] Violations once thought to be the domain of immigration officers are drifting to collaborators across different agencies—including ones as seemingly unrelated to immigration enforcement as the IRS—as well as down to state officers.[174] Decades after Lopez-Mendoza, the exclusionary rule is needed amidst the new realities of multiagency, twenty-first-century immigration enforcement.[175]

Moreover, scholars often criticize Lopez-Mendoza for conceiving of a criminal-civil divide without acknowledging criminal-civil entanglement. As one scholar has written, “Far from being ‘separate and independent from the criminal proceeding,’ deportation and other aspects of immigration status are often key considerations in the disposition of a criminal case.”[176] Others bemoan the further erosion of the Fourth Amendment as law enforcement officers, including but not limited to immigration agents, sloppily engage noncitizens as if they lie outside the Fourth Amendment’s protections.[177] As one special agent baldly declared, “We didn’t have warrants . . . . We don’t need warrants to make the arrests. These are illegal immigrants.”[178]

B.     Residual Protections

Without the protection of the constitutional exclusionary rule, there are few avenues to deter the tax bureaucracy’s collaboration in immigration raids, limit the resulting harms, or obtain redress for those harms. This Section assesses three residual protections: information safeguards, suppression under an agency’s regulations, and civil rights liability. These protections’ challenges and limitations, as described below, suggest the status quo is unlikely to change. Reigning in internal revenue’s external borders will require new proposals, to which I turn in Part IV.

1.     Information Safeguards

Information safeguards might constrain the IRS’s involvement in immigration raids. On one hand, taxpayer privacy laws limit the sharing of taxpayer information, regardless of immigration status. On the other, transparency mandates should require the IRS to share details of the agency’s activities, focusing public attention on mission creep. In reality, however, courts’ questionable reasoning has left aggrieved noncitizens without access to these IRS agency records—the IRS invokes the criminally investigated employer’s taxpayer privacy to deny requests for information detailing its immigration enforcement activities.

Comprehensive taxpayer privacy provisions—found in section 6103 of the Internal Revenue Code—generally prohibit disclosure of tax return information, subject to some exceptions.[179] As earlier mentioned, information may be shared for purposes of “tax administration,” including for purposes of a criminal investigation.[180] Historically, scholars warned of IRS information sharing—particularly personal identifying information of undocumented taxpayers—for immigration enforcement, leading to immigrant fears of deportation and tax noncompliance.[181]

Tax law’s privacy provisions define “return” and “return information” broadly.[182] As federal courts have recounted, the statutes’ breadth reflects Congress’s intent to protect taxpayer information after the Nixon Administration asked IRS agents to harass political enemies.[183] At the same time, the statutory provisions contemplate circumstances in which otherwise confidential return information can be disclosed—including to committees of Congress or the President (or duly designated White House employees).[184]

Taxpayer privacy law may conflict with the Freedom of Information Act (FOIA),[185] a statute that could help aggrieved immigrants. As the Supreme Court has explained, FOIA “is broadly conceived . . . to permit access to official information long shielded unnecessarily from public view.”[186] FOIA imposes a broad duty of disclosure on federal agencies.[187] FOIA is already used in the immigration context, in which agencies receive a disproportionate number of FOIA requests.[188] In theory, FOIA could be leveraged to understand the details of the IRS’s involvement in immigration raids, particularly where there are no allegations of, much less probable cause to suspect, tax-law violations by those immigrants.[189]

However, tax law’s privacy provisions have been interpreted so liberally in favor of criminally investigated employers as to cloak the IRS’s role in immigration enforcement. The tax bureaucracy uses its target’s privacy as a basis to deny FOIA requests about its treatment of unrelated individuals perceived to be foreign.

Immigration advocacy organizations have unsuccessfully challenged the IRS’s denial of their FOIA requests pertaining to immigration raids.[190] In Southern Poverty Law Center (SPLC) v. IRS, nonprofit legal services organizations sought IRS records regarding an immigration raid, including the Search Warrant Check Sheets and Plans, communications between the IRS and both the Department of Homeland Security (DHS) (including ICE) as well as state law enforcement agencies, and staff lists containing the identities of those involved in the planning, physically present in the raid, or both.[191] The IRS denied the request, citing section 6103’s privacy protections; after a further denial on administrative appeal, the issue reached the federal district court.[192]

In granting the IRS’s motion for summary judgment, the district court took a disconcertingly sweeping view of the privacy provision. The SPLC court wrote that “return information” included seemingly anything “collected or prepared in connection with its investigation into potential tax crimes” at the raided workplace.[193] The privacy provision is intended to be broad: the district court noted that the documents exempted from FOIA need not “specifically ‘identify a particular taxpayer’”[194]; rather “they need only be ‘taxpayer-specific.’”[195]

The court shielded the immigration-raid documents from disclosure as “taxpayer-specific” because they tenuously “related to the taxpayer’s alleged criminal liability under the tax code.”[196] To the SPLC court, tax privacy provisions exist to protect immigration surveillance rather than actual taxpayer privacy.[197] The court stretched section 6103’s privacy protections by suggesting that all the requested records were pursuant to an investigation “by the IRS to determine the ‘existence, or possible existence, of liability’” under the Internal Revenue Code.[198]

Yet other federal courts have imposed boundaries on what comprises “return information” exempted from FOIA disclosure.[199] In remanding a case back to the IRS for FOIA processing, a district court rejected the agency’s argument that it could not “confirm or deny the existence of any records relating to investigations of unlawful disclosures of return information to anyone in the Executive Office of the President because whether an investigation exists is, itself, return information.”[200] Instead, the court explained that the requested information “is not ‘return information,’ as broadly defined as that term may be.”[201]

Information about the IRS’s collaboration with other agencies in immigration raids is also not “return information.” The SPLC court’s breezy declaration that the requested documents were “taxpayer-specific records related to the taxpayer’s alleged criminal liability under the tax code” oversimplifies the situation.[202] It may be fair to characterize the IRS investigation as the but-for cause of the raid, but the raid cannot be said to relate sufficiently to the IRS’s employer investigation as to preclude disclosure of the raid’s targeting of, and impact on, masses of unnamed workers.

While the plaintiffs eventually accessed a record of the raid and the IRS’s participation through discovery, the public remains in the dark.[203] In blocking the FOIA request, the IRS frustrated important public transparency mandates. The stretched definition of “return information” under section 6103 is striking given the already expansive construction of “tax administration” needed by the IRS to share taxpayer information and coordinate the raids. There lies the catch-22: exceptions to privacy may be interpreted liberally to facilitate raids, but aggrieved workers trying to publicize their plight are rebuffed by these same privacy protections.

It is neither doctrinally tenable nor wise for the IRS to rely on the reasoning in the SPLC decision. Despite the invocation of section 6103, FOIA requests may, and should, eventually make public the IRS’s dealings in immigration enforcement that have already begun to leak into the public record. The IRS’s criminal investigations of employers should not shield the agency from having to explain how those investigations ensnared workers not themselves subject to IRS criminal investigation.

Information safeguards have been distorted to undermine noncitizen interests. Further litigation might clarify the interaction of section 6103 with FOIA and reinforce the (equally) protected status of noncitizens in the tax information landscape. For now, however, other avenues may better protect noncitizens and workers.

2.     Immigration Regulations

Immigration regulations provide a second legal constraint on ICE. Despite the courts’ half-hearted application of the Fourth Amendment’s suppression remedy to immigration proceedings, evidence collected in violation of the agency’s own (more specific) regulations may still be suppressed. These proceedings are not the norm—many noncitizens, like some of the workers affected by the raids in Lopez-Mendoza, lack counsel and are susceptible to immediate, “voluntary departure.”[204] Doctrinally, immigration raids are not per se illegal or unconstitutional, but in practice, existing regulations require the exclusion of illegal alienage inquiries to deter shoddy large-scale enforcement operations.[205]

Both the Immigration and Nationality Act and agency regulations govern the conduct of ICE agents.[206] While they were not challenged in Lopez-Mendoza, federal courts have recently cited the regulations as a basis for evidentiary suppression in deportation proceedings.[207] These regulations protect citizens as well as noncitizens; the former may otherwise still face oppressive law enforcement actions based on race and ethnicity.[208]

Congress always envisioned strong protections for even noncitizens interacting with ICE.[209] Consider the statutory scheme governing ICE’s detention and arrest authority. The Immigration and Nationality Act provides only limited statutory authorization for ICE (but not state) agents to affect warrantless arrests. That authorization extends to noncitizens whom the officer “has reason to believe . . . is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.”[210]

The regulations at least facially limit warrantless arrests in immigration enforcement.[211] In reviewing these warrantless arrests, federal courts have interpreted the “reason to believe” language as equivalent to probable cause.[212] Federal courts have also emphasized that warrantless arrests are generally valid only where there is some likelihood of escape as required by the statute—otherwise, warrants should be procured, at risk of suppression.[213] Within that framework, connections to family members in the United States have been interpreted as evidence against potential flight.[214]

The regulatory scheme also significantly limits ICE officers’ powers even when a detention does not rise to the level of an arrest. The regulations condition an immigration officer’s ability to briefly detain a person for questioning—even when not amounting to an arrest—on that officer’s “reasonable suspicion, based on specific articulable facts, that the person being questioned is . . . engaged in an offense against the United States or is . . . illegally in the United States.”[215]

This of course renders mass raids ripe for legal violations. Federal agents can hardly enter a worksite and detain workers en masse while developing the requisite individualized suspicion needed to avoid relying on race and ethnicity alone.[216] And courts have conveyed that “race and ethnicity alone can never serve as the basis for reasonable suspicion.”[217]

When noncitizens challenge detentions in immigration raids where agents obtained entry through a warrant, the government often defends itself by citing to the Supreme Court’s decision in Michigan v. Summers.[218] In Summers, the Court held that a search warrant founded on probable cause “carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”[219] The Court reasoned that temporary detention serves three primary interests: preventing flight, prioritizing officer safety, and an orderly completion of the search.[220] Summers emphasized that the “information the officers seek normally will be obtained through the search and not through the detention.”[221]

Summers cannot justify the mass detentions of immigration raids, and courts should accordingly employ suppression as a remedy. As both the Board of Immigration Appeals and federal courts have explained, suppression is needed when officers violate regulations in a way that prejudices the noncitizen’s protected interests.[222] In the context of workplace immigration raids, concerns arise where the agents rely on Summers detentions to extract immigration information instead of to search the workplace itself.[223] In Perez Cruz v. Barr, the Ninth Circuit explained that the Fourth Amendment does “not allow officers to conduct a Summers detention for the purpose of obtaining answers from detainees, let alone transporting detainees offsite and holding them long beyond the length of the search so they can be further interrogated.”[224] Thus, when the IRS plans, participates, or otherwise furthers such an immigration raid, suppression of alienage-related information should be the appropriate remedy.[225] Summers does not permit officials to use a warrant for evidence of employer tax crimes to justify detaining employees to inquire about alienage and then introduce the fruits of that inquiry to deport them.

While suppression has been a challenging remedy for noncitizens to obtain, it has not proven impossible. Despite the limited application of the exclusionary rule to civil proceedings, widespread raids with egregious disregard of the Fourth Amendment make the case for revitalizing suppression. Additionally, violations of immigration-agency regulations in these multiagency raids can be the basis for suppression, protecting workers from the IRS, ICE, and their collaborators.

3.     Civil Rights Liability

Finally, even if neither information safeguards nor regulation-based suppression of evidence from immigration raids deter the IRS’s immigration enforcement, civil rights liability might. That liability can occur through constitutional litigation or administrative complaints and remedies. I begin with the limited Bivens action and more expansive 42 U.S.C. § 1985 liability for conspiracy to deprive individuals of their civil rights.

While constitutional-tort law faces significant limits,[226] an underappreciated statute can provide a cause of action in limited circumstances: the federal prohibition of conspiracy to deprive others of civil rights.[227] Facing such statutory claims in Zelaya, the IRS Special Agents settled after losing a motion to dismiss.[228] A section 1985 claim can constrain participation in immigration raids, especially since the IRS is unable to avail itself of the intracorporate, conspiracy-based qualified immunity that shields other defendants.[229]

Recovering damages for constitutional violations by federal officials is near impossible. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court permitted plaintiffs to sue federal officials for damages arising from constitutional violations.[230] Similarly, section 1983 creates a parallel action for state officials.[231] But in recent decades, the Supreme Court has all but foreclosed Bivens and section 1983 as constitutional remedies,[232] including recently in a lawsuit filed by parents of children shot and killed by United States Border Patrol agents.[233] Moreover, for both Bivens and section 1983, the defense of qualified immunity looms large.[234]

Even as Bivens recedes and qualified immunity shields federal officers from personal liability, causes of action for conspiracy under section 1985 may prevail.[235] Section 1985(3) applies when multiple people “conspire or go . . . on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws,” with the deprived party then being able to recover in damages against any of the conspirators.[236] As the Supreme Court clarified, “[T]he language requiring intent to deprive of equal protection . . . means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.”[237]

Most recently, the Supreme Court’s decision in Ziglar v. Abbasi leaves open opportunities for new challenges under section 1985, even though the plaintiffs in that case lost.[238] In the aftermath of the September 11, 2001 attacks on the World Trade Center, six immigrants of Arab or South Asian descent sued, asserting their monthslong confinement was unlawful and involved unconstitutionally harsh conditions.[239] They alleged that officials “twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.”[240] The Court ultimately rejected the section 1985 claim, answering the question of qualified immunity—“whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy”—in the negative.[241]

In applying qualified immunity, the Court emphasized the intracorporate conspiracy doctrine. That doctrine asserts that an agreement between “agents of the same legal entity,” acting in their official capacities, “is not an unlawful conspiracy.”[242] Because the federal officials sued were all from the same Department (of Justice), qualified immunity attached to the conspiracy claim.[243]

The Zelaya court confronted similar circumstances to what the Supreme Court encountered in Ziglar,[244] yet one significant difference separated the two: the alleged conspiracy in Zelaya spanned federal and state officers, precluding intracorporate conspiracy-based qualified immunity against section 1985 claims.[245] The IRS, DHS, and state highway patrol officers all participated in the raids.[246] Since no reasonable officer could have believed that the state officers belonged to the same legal entity as federal officers from IRS and DHS, the intracorporate protections that impaired the plaintiffs in Ziglar were unavailing.[247]

Even IRS defendants who did not plan the raid with immigration officers faced liability. Some of the “non-planner” defendants unsuccessfully argued that, unlike the “planner defendants,” they were not sufficiently involved in the planning of the immigration raid and sought to be dismissed from the case. The court rejected their efforts, explaining that section 1985(3) defendants need not expressly agree nor know every detail to be part of the conspiracy.[248] Rather, the court found sufficient allegations for the IRS nonplanners’ liability, including their admission that they attended a pre-operation briefing with DHS and state officers and plaintiffs’ allegations that they detained and abused Latino workers alongside DHS.[249] Although the Zelaya court did not reach the issue, it would be difficult for IRS agents to believe that the intracorporate conspiracy doctrine applied to their engagement with DHS employees, given that they serve in different agencies.[250]

The IRS risks conspiratorial liability in its immigration-raid collaborations with other agencies and state law enforcement. Despite the ongoing limitations on Bivens and the persistence of qualified immunity, section 1985 remains a meaningful vehicle for aggrieved immigrants to seek redress and presents a liability the IRS should take pains to avoid.

Beyond constitutional litigation lies the seemingly underutilized administrative complaint system. The IRS has its own Civil Rights Unit within the Office of Equity, Diversity, and Inclusion.[251] The IRS Civil Rights Unit encourages people who “feel that an IRS employee . . . has discriminated against [them] on the basis of [their] race, color, [or] national origin (including limited English proficiency)” to submit a written complaint.[252] Though the scope of any administrative remedy seems unclear, such a complaint could feasibly raise attention to ongoing raids’ civil rights violations for the IRS chief diversity officer’s annual evaluation of civil rights compliance.[253] Even so, the lack of clear remedies suggests that litigation may provide a stronger constraint than the current administrative complaint process.[254]

In sum, these existing protections—information safeguards, suppression under immigration regulations, and civil rights liability—hold some promise to deter the IRS’s creep into immigration enforcement. Yet these protections are often limited by design or through judicial decisions weakening their force.

IV. Potential Reforms

While current law modestly limits IRS collaboration with immigration enforcement, Part IV explores legal reforms to limit discriminatory collaborations between the IRS and immigration enforcement agencies. I begin by examining state efforts to limit their agencies’ ability to collaborate with immigration enforcement, and the implications for the federal and state tax bureaucracy. I then propose three measures to realign resources with the IRS’s goals and help immigrants harmed by raids: (i) redesigning criminal tax investigations, (ii) crafting interagency agreements, and (iii) providing immigration relief.

A.     Lessons from State Efforts

The IRS is one among several entities that assist immigration raids, just as impressment has evoked backlash from states and localities.[255] This Section describes the emerging law of state authorities against federal raids, and the unresolved constitutional questions surrounding federal immigration powers and prerogatives. California’s anti-“immigration raid” legislation and the resulting constitutional lawsuits highlight three points relevant to the IRS’s involvement in immigration raids: (i) noncooperation comports with federal immigration enforcement’s internal divisions, (ii) cooperation is a choice, and (iii) state laws may constrain state tax revenue authorities from emulating the IRS’s engagement with immigration enforcement.

First, state action challenging federal agencies may mirror (unsuccessful) intra-agency federalism—the idea that federal officers stationed in, and thereby responsive to, the divergent policies of states and localities may disagree on how to effectuate federal law.[256] Federal immigration enforcement is hardly unified. For example, in 2018, the Trump Administration publicly scolded the Oakland mayor’s pre-raid warnings to immigrant residents, alleging that the warnings allowed over 800 undocumented persons to elude immigration officials.[257] An ICE official, based in San Francisco, argued these estimates were misleading and ultimately resigned in frustration.[258] Following the official’s resignation, California’s senators called for a federal probe into ICE.[259] The ICE agent’s resignation shows that local actions and sentiments can influence the actions of federal officers, even if the local policies contradict that officer’s agency culture.[260]

Second, cooperation is a choice. Legal authority can be leveraged to formally resist workplace intrusions and reallocate limited resources. For example, California passed the Immigrant Worker Protection Act (AB 450) to protect workers from immigration enforcement, particularly workplace raids.[261] The state law punishes employers who consent to ICE’s warrantless entry into nonpublic areas of workplaces.[262] The law includes civil penalties for federal cooperation levied by either the state labor commissioner or attorney general.[263] For workplace inspections of employment eligibility forms (I-9s), employers, upon receiving their legally mandated notice of such federal inspections,[264] must promptly notify employees of the imminent inspections.[265] The law also precludes employers from reverifying employment eligibility where not required by federal law.[266] California holds employers responsible for protecting their workers from federal raids.[267]

In response, the federal government challenged California’s law on both intergovernmental-immunity and federal-preemption grounds, but the Ninth Circuit sided with the state.[268] First, the Ninth Circuit found that the intergovernmental-immunity doctrine, which may attach where a state discriminates against the federal government, did not apply because California’s law regulates employers, not the federal government.[269] California “does not treat the federal government worse than anyone else [and] does not regulate federal operations at all.”[270] Second, in denying the federal preemption arguments, the Ninth Circuit reiterated that that the state law’s “employee-notice provisions do not permit employers to hire individuals without federally defined authorization, or impose sanctions inconsistent with federal law.”[271] More generally, it cited to other circuit courts for the proposition that there is no preemption-based conflict whenever state laws protecting workers reach to undocumented workers.[272]

In upholding California’s exercise of discretion to safeguard the rights of immigrant workers, the Ninth Circuit acknowledged the significance of the leading federal law governing immigrant work: the Immigration and Reform Control Act of 1986 (IRCA).[273] The Supreme Court characterized IRCA as beginning to make “combating the employment of illegal aliens in the United States central to the policy of immigration law.”[274] When evaluating the constitutionality of state laws affecting immigrant workers and therefore federal powers, the Supreme Court regularly begins with IRCA.[275] Federal immigration powers loom large—the Supreme Court and lower courts may find state and local immigration regulation unconstitutional.[276] IRCA’s employer emphasis should guard against tax agencies ratifying worker-targeted immigration raids.

Federal immigration powers are bounded, for raids and beyond, because public actors retain the choice to cooperate. Even in non-raid contexts, the federal government’s complaints about the need to leverage local and state law enforcement against recalcitrant states have been rebuffed. For example, the California Values Act (SB 54) limited state and local law enforcement cooperation with immigration authorities. Under SB 54, California law enforcement agencies cannot inquire about immigration status, detain an immigrant pursuant to a federal request, or provide immigration authorities key information including release dates or home addresses.[277]

In upholding SB 54, the Ninth Circuit expressed skepticism over the need for so many officers in immigration enforcement.[278] The court was unsympathetic to the contention that California’s law forces federal officers to “stake out a jail and seek to make a public arrest[, which] generally require five officers and present risks to the arresting officer.”[279] Citing both to other federal courts of appeals and the anticommandeering doctrine,[280] the Ninth Circuit reiterated that federal law provides states “the option, not the requirement, of assisting federal immigration authorities.”[281] SB 54 represents California’s constitutionally permissible choice not to assist.[282]

Finally, state tax authorities, although analogous to the IRS in many ways, can opt out of immigration enforcement and choose to focus on revenue. Under SB 54, the California Franchise Tax Board’s Criminal Investigation Bureau, a state analog to the IRS CI that is similarly concerned with employer tax compliance, cannot cooperate with immigration enforcement. Even absent an SB 54-type law, state residents can themselves pressure tax agencies to respect the constitutional rights of their immigrant neighbors.[283] Such pressure should have little bearing on agencies’ ability to enforce tax laws. The Tennessee Highway Patrol’s (expensive) involvement in Zelaya reflects the misallocation of state resources towards the IRS’s immigration enforcement—state tax agencies and law enforcement can instead choose different paths.

California therefore offers multiple lessons for reforming the tax bureaucracy’s diversions and excesses.[284] States may generally decline to participate in immigration enforcement, and federal agencies often have even greater authority to do so because preemption and intergovernmental immunity do not apply. Beyond elective noncooperation, legislation constraining state and local actors, including state tax agencies, can protect noncitizens. California law precludes actors, including its tax agency, from veering away from their core missions and diverting resources to federal immigration enforcement. In sum, the IRS and state analogs can, and may have to, decline to participate in immigration enforcement.

B.     Paths Forward

Amidst the inefficacy of existing constraints on the tax-immigration-enforcement complex, I propose potential paths forward. Those paths include a redesign of criminal tax investigations, interagency agreements to limit collaboration, and immigration relief.

1.     Redesign of Criminal Tax Investigations

The design of the aforementioned criminal tax investigations could easily be reformed.[285] Many aspects of these investigations are orthogonal to this Article’s concerns, even as they are often subject to criticism. For example, CI’s focus on the conviction rate as a measure of success, while problematic for other reasons, need not implicate the raids and rights violations described here.[286] In fact, greater concern for immigrant workers’ rights could actually improve conviction and referral rates by encouraging better evidence gathering and witness interviews. Moreover, extant internal processes provide alternative safeguards that could be better utilized: Search Warrant Check Sheets, improved training, and lawyers’ review of affidavits.

The Internal Revenue Manual’s “Search Warrant Check Sheets” include two important considerations: first, whether “less intrusive means” could be used including summons or subpoenas, and second, “potential problems and proposed resolutions.”[287] Few methods are more intrusive than mass enforcement operations that deploy an army of officers and transform workplaces into battlegrounds. These collaborations leverage nontax manpower for tax investigations and must be explicit as to why such intrusive means are necessary. As for potential problems and proposed resolutions, constitutional protections are too often sacrificed when fast-moving, armed officers storm workplaces. Seeking and effectuating warrants requires not only minimizing intrusions but also planning for resolution to such intrusions, including by protecting workers caught in the crosshairs of enforcement actions targeting their employers. To avoid conflating targeted employers with collateral employees, the affidavit supporting the warrant should name the suspects to be detained.

Improved training for employees across the hierarchy could include bias training, such as something akin to the Fair and Impartial Policing (FIP) curriculum, but specialized to the work confronted by tax agents.[288] FIP is hardly a panacea—a randomized evaluation of FIP’s effects on the New York Police Department found that while it was viewed favorably by participating police, it had little effect on the officers’ beliefs, attitudes, and enforcement disparities.[289] One potential explanation was that an eight-hour training did not suffice, encouraging a lengthier training in any tax-oriented adaptation.[290] More involved trainings may be a starting point for culture change.[291]

Finally, legal review of tax agents’ affidavits needs to be strengthened. The warrant alleging the payment of cash wages to “Hispanics”—using an ethnic group in lieu of providing workers’ names or referring to them as employees—reflects callous discrimination and indifference to constitutional harms.[292] Even if an agent may not see these issues, reviewing IRS lawyers should catch them through due diligence. Such review may be more complicated than it sounds.[293] However, these workflow practices can be implemented by the Office of the Chief Counsel for the IRS.[294]

In other contexts, agency lawyers have successfully used their voice to challenge constitutionally impoverished state practices and laws, even when courts seemed apathetic.[295] Agency lawyers may be particularly important here where, in light of the decline of Bivens, “some constitutional violations do not, in practice, have a judicial remedy.”[296] Internal legal pressure can protect workers even when the courts cannot.

2.     Interagency Agreements

Interagency agreements can place limits on agency cooperation and therefore abuses.[297]

To be clear, multiagency, coordinated investigations—a form of administrative integration—can further worthwhile goals. For example, the IRS cooperates with the Department of Homeland Security as part of the Global Illicit Financial Team (GIFT).[298] Such cooperation has produced significant financial settlements in cases involving foreign bribery and corruption.[299] Similarly, where a lawyer’s tax evasion derives from bribing an ICE agent, a clearer basis for cooperation exists than it does for workplace immigration raids.[300] The IRS and Department of Labor (DOL) also have an agreement for “enhanced information sharing” for the purposes of improving compliance with both wage and hour as well as self-employment or small-business tax laws.[301]

Yet, agency “information sharing” in immigration can also be pretextual. In deciding a challenge to the decennial Census, the Supreme Court concluded that the secretary of commerce “was determined to reinstate a citizenship question,” but, to avoid an Administrative Procedure Act (APA) challenge, tried to convince other agencies to request the citizenship information.[302] Agencies have masked their own interest in immigration information by attempting to inaccurately and illegally attribute it to others. Accordingly, agencies should assess the true intentions of interagency agreements when defining these relationships.

As agencies recognize how interactions with immigration enforcement may erode their missions,[303] they may forge interagency agreements that promote cooperation while still safeguarding the rights of immigrants and the agency’s mission. Federal agencies have crafted Memorandums of Understanding (MOUs) to provide at least symbolic assurance that interactions will not compromise their integrity.[304] Such memoranda, like enforcement discretion itself, reflect tools in the agency’s toolkit that are less formal than rulemaking,[305] even as they may eventually inspire congressional legislation.[306]

Interagency MOUs can regulate interactions and reflect internal separation of powers.[307] Classic examples include the DOL’s memoranda with ICE. Concerned about conflicting missions, the agencies agreed that effective enforcement of both labor and immigration laws required avoiding inappropriate manipulation of immigration laws by employers subject to labor law investigations.[308] Employers accused of workplace law violations should not be allowed to retaliate against workers by using immigration enforcement.[309] The memorandum explicated that ICE would “refrain from engaging in civil worksite enforcement activities at a worksite that is the subject of an existing DOL investigation.”[310] In a later addendum, ICE extended this exercise of restraint to investigations by two other agencies: the Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB).[311]

Concerns with ICE raids have grown over time and beyond the memorandum’s four corners. A decade after the original agreement, the DOL issued further guidance to “Cease Mass Worksite Operations.”[312] Beyond citing raids as highly visible misallocations of resources, DOL bemoaned them as “chilling, and even serving as a tool of retaliation for, worker cooperation in workplace standards investigations.”[313] As such, DOL more expressly stated its view that immigration raids fundamentally undermined its mission by discouraging worker cooperation in investigations and failing to center the employer in enforcement.[314]

While imperfect, these memoranda offer formality and transparency to agency cooperation and overlap, particularly where missions and values conflict. Scholars have of course noted shortcomings of existing interagency agreements.[315] Some have advocated for interagency funding shifts, including reallocating ICE’s funding for I-9 (work authorization) audits to DOL-assisted education of workers on their rights to a safe and organized workplace, regardless of immigration status.[316] Other scholars describe the possibility for presidential coordination across the executive branch.[317] However formed, interagency agreements can vindicate constitutional and statutory rights by limiting collaborations that threaten them.[318]

3.     Immigration Relief after Immigration Raids

Interagency dynamics reveal the broader need for immigration relief.[319] Agencies may ask DHS to consider exercising prosecutorial discretion for workers who are victims of or witnesses to illegal workplace conduct. Rather than accepting deportation, agencies ask DHS to consider awarding workers prosecutorial discretion from deportation, including for those encountered in raids who may serve as witnesses in DOL-related investigations.[320] As an agency whose investigations also overlap with undocumented workers, the IRS could invoke that model. A worker’s immigration status, even alongside perfect tax compliance, leaves them vulnerable in raids, compounding the suffering they face due to fraudulent employers.[321]

Additionally, through the U-visa program, the statutory basis for immigration relief already exists: the Violence Against Women Act of 2000. The act created the U-visa regime to assist victims of crimes who cooperate with law enforcement.[322] That regime provides relief to noncitizen victims of enumerated crimes who are likely to be helpful to law enforcement’s criminal investigations.[323] The U-visa is still conditioned on general admissibility, which an otherwise inadmissible noncitizen can accomplish through a waiver.[324]

Since U-visa petitioners require a certifying agency, the IRS could take on a more significant role as a certifying agency under the existing crimes for the U-visa. The definition of a certifying agency is broadly construed.[325] By regulation, certifying agency means “a Federal, State, or local law enforcement agency . . . [and] includes agencies that have criminal investigative jurisdiction in their respective areas of expertise.”[326] While there are paradigmatic certifying agencies like the DOL, the IRS should also meet the requirements.[327]

As such, the IRS could certify noncitizen employees of criminally investigated employers as potential U-visa recipients. This would require approaching undocumented workers as potential witnesses and victims, as opposed to simply as collateral damage. While Congress could amend the list of crimes to include employer tax avoidance, the statutory framework already enumerates a number of crimes that would surface in such contexts like forced labor, obstruction of justice, and perjury.[328] As the Supreme Court articulated, threatening “an immigrant with deportation could constitute the threat of legal coercion that induces involuntary servitude.”[329] If raids persist, tax bureaucrats could interview detained workers, recognizing that a worker’s allegation that the employer threatened them with deportation could become the basis for immigration relief.[330]

Even though immigration relief is a safety net for noncitizens, it does not fully remedy civil rights violations committed during these raids. That is especially true for citizens and lawful permanent residents. Thus, even if the IRS fully used its ability to seek immigration relief, the question of why it continued to participate in—and often lead—such haphazard raids would persist.

Conclusion

The tax bureaucracy’s express role in immigration enforcement has escaped scrutiny. Criminal tax investigations of employers somehow veer into constitutional deprivations for citizens and noncitizens alike. The raids of recent decades reframe and revive longstanding questions of how agency choices shape and violate individual rights.

There are limited constraints on the tax bureaucracy’s participation in immigration enforcement and similarly limited relief for those harmed. While immigration may be “ground zero” for the politically intractable decisions confronting the administrative state,[331] reforming tax authorities’ involvement should not stoke division.

With this Article, I hope to shed light on this underappreciated collaboration and redirect tax enforcement away from constitutional violations and towards core values. Congress and inspectors general can exercise their oversight powers to bring more detail on these collaborations to the surface. The IRS should reconsider its perverse use of taxpayer privacy laws to shield its conduct here and instead review and redesign its approach to Criminal Investigation. More broadly, illuminating tax agencies’ interactions with other agencies and ordinary people forces us to reassess tax law, adjacent canons, and the dark administrative practices at their intersections.

Copyright © 2024 Shayak Sarkar, Professor, University of California, Davis School of Law. The author thanks Alice Abreu, Ahilan Arulanantham, Jeremy Bearer-Friend, Anya Bernstein, Ash Bhagwat, Dorothy Brown, Ming Chen, Justin Cox, Pooja Dadhania, Brian Galle, Daniel Hemel, Eisha Jain, Irene Joe, Catherine Kim, Jennifer Koh, Stephen Lee, Hiroshi Motomura, Shalini Bhargava Ray, Josh Rosenthal, Blaine Saito, Emily Satterthwaite, Ji Seon Song, Aaron Tang, as well at audiences at Critical Tax, Georgetown, Pepperdine, UC Davis, and Western People of Color (Loyola-LA) for helpful comments and conversations. I owe special thanks to the California Law Review editors, particularly Josh Cayetano and Isabel Jones, whose thoughtful engagement enriched this Article.

           [1].     Zelaya v. Hammer, 342 F.R.D. 426, 431 (E.D. Tenn. 2022) (quoting IRS Supervisor Richard Nelson).

           [2].     The agency’s resources and ability to collect that revenue have been described as “curtailed” and “strain[ed].” Emily Satterthwaite, Rewarding Honest Taxpayers: An Experimental Assessment, 22 Fla. Tax Rev. 200, 202 (2018); see also Leandra Lederman, The IRS, Politics, and Income Inequality, 150 Tax Notes 1329, 1330–32 (2016) (chronicling the impact of IRS budget cuts).

                    The Inflation Reduction Act has provided new funding for the IRS, though its staying power and effects remain to be seen. Internal Revenue Serv., Inflation Reduction Act of 2022, IRS (2022), https://www.irs.gov/inflation-reduction-act-of-2022 [https://perma.cc/87W2-ANJS]. Moreover, the National Taxpayer Advocate has argued that, of the $80 billion in Inflation Reduction Act funding, too much was allocated to “Enforcement,” leaving “Taxpayer Services” financially anemic. Erin Collins, National Taxpayer Advocate Urges Congress to Maintain IRS Appropriations But Re-Direct Some Funds Toward Taxpayer Service and Information Technology Modernization, Taxpayer Advocate Serv., NTA Blog (Mar. 16, 2023), https://www.taxpayeradvocate.irs.gov/news/nta-blog-nta-urges-congress-to-maintain-irs-appropriations-but-re-direct-some-funds-toward-taxpayer-service-and-it-modernization/ [https://perma.cc/UC3T-GY9F].

           [3].     H.R. 8759, 117th Cong. (2021–22).

           [4].     Id. at § 3(a) (describing the 30-day detail for IRS employees hired as a result of the funding increase from the Inflation Reduction Act); see also id. at § 3(b) (requiring a detail “with either U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement for the purpose of providing assistance at the southern border”).

           [5].     See Peter L. Markowitz, After Ice: A New Humane & Effective Immigration Enforcement Paradigm, 55 Wake Forest L. Rev. 89, 103–16 (2020) (arguing, at the extreme, that ICE is a “rogue agency” necessitating wholesale revision of substantive immigration laws).

           [6].     See, e.g., Brian Galle, David Gamage & Darien Shanske, Solving the Valuation Challenge: The Ultra Method for Taxing Extreme Wealth, 72 Duke L.J. 1257, 1262 (2023) (criticizing the realization rule and explaining how “many of America’s wealthiest individuals . . . have reported taxable incomes lower than those of the Internal Revenue Service (‘IRS’) agents who audit them”).

           [7].     See supra note 1 and accompanying text.

           [8].     See infra notes 10–11 and accompanying text.

           [9].     See infra notes 122–23 and accompanying text. Cynthia Blum, Rethinking Tax Compliance of Unauthorized Workers After Immigration Reform, 21 Geo. Immigr. L.J. 595, 620 (2007) (“[T]he current IRS stance of encouraging and facilitating tax compliance by undocumented workers is entirely appropriate . . . .”).

         [10].     Ming Hsu Chen, Pursuing Citizenship in an Enforcement Era 119 (2020) [hereinafter Pursuing Citizenship] (suggesting that the IRS “could tap its database of Individual Taxpayer Identification Number users to dispense timely and relevant information about immigration benefits such as eligibility for adjustment of status and naturalization”). Another scholar more generally argues that the IRS could “increase outreach to immigrant populations with compliance and public education programs” given “the role that tax law currently plays in the social project of constructing citizens.” Tessa Davis, The Tax-Immigration Nexus, 94 Denv. L. Rev. 195, 254 n. 235 (2017).

         [11].     Katherine D. Black, Stephen T. Black & Ryan H. Pace, Is the IRS the Solution to Illegal Immigration?, 35 Wm. Mitchell L. Rev. 309, 310, 339 (2008).

         [12].     See, e.g., Dorothy A. Brown, Race and Class Matters in Tax Policy, 107 Colum. L. Rev. 790, 799 (2007) (arguing that support for the Earned Income Tax Credit (EITC) is conditional on it being “‘properly’ raced”); Steven Dean & Attiya Waris, Ten Truths About Tax Havens: Inclusion and the ‘Liberia’ Problem, 70 Emory L. J. 1657, 1659 (discussing the role of race in the designation of international tax havens); Jeremy Bearer-Friend, Race-Based Tax Weapons, 14 U.C. Irvine L. Rev. (forthcoming 2024) (discussing the role of intent in “tax-based race weapons” comparatively, drawing upon historical taxes from California, Kenya, Texas, and Scotland). Cf. Dorothy Brown, The Whiteness of Wealth 216 (2022) (“Not only are many of the [B]lack taxpayers who suffered under that legalized discrimination [through segregated public education] alive today, but they are without the financial security that their white peers were able to obtain through education and homeownership.”); Hiroshi Motomura, Immigration Law After A Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 562–64 (1990) (describing how the “constitutional norm of racial equality” informed statutory tax interpretation in Bob Jones v. United States, 461 U.S. 574 (1983)).

         [13].     See, e.g., Ariel Jurow Kleiman, Impoverishment by Taxation, 170 U. Pa. L. Rev. 1451, 1485–1500 (2022) (describing how the U.S. tax system leads to “fiscal impoverishment”).

         [14].     See, e.g., César Cuauhtémoc García Hernández, Deconstructing Crimmigration, 52 U.C. Davis L. Rev. 197, 230 (2018) (discussing how “[i]nitiatives such as 287(g) and Secure Communities turn local police officers, the caretakers of public safety, into the gatekeepers of the immigration detention and removal pipeline”); Ingrid V. Eagly, Prosecuting Immigration, 104 Nw. U. L. Rev. 1281, 1290 (2010) (arguing that “collaboration between local criminal law enforcement agencies and federal immigration authorities is expanding rapidly”).

         [15].     See, e.g., Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 373 (2006) (describing how “[t]he criminalization of immigration law” resulted in a “burgeoning population of detainees” and “overwhelmed the available cell space in federal and state jails and prisons”); Eisha Jain, Jailhouse Immigration Screening, 70 Duke L.J. 1703, 1719 (2021) (describing how “[j]ailhouse immigration screening incorporates the crime-control model by relying on the process of criminal arrest to identify noncitizens for removal”).

         [16].     See generally Gillian E. Metzger, Administrative Constitutionalism, 91 Tex. L. Rev. 1897, 1897 (2013) (defining “administrative constitutionalism” as “actions by federal administrative agencies to interpret and implement the U.S. Constitution”); see also Sophia Z. Lee, Our Administered Constitution: Administrative Constitutionalism from the Founding to the Present, 167 U. Pa. L. Rev. 1699, 1707 (2019) (describing ways in which nineteenth-century “agencies took the lead in deciding constitutional questions, subject to some oversight by Congress and the President, but virtually none by the courts” and how that might be troubling to “foundationalists,” “who seek to restore administrative law to its nineteenth-century foundations”).

         [17].     See, e.g., Sophia Z. Lee, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, 96 Va. L. Rev. 799, 811 (2010) (describing how “[i]n the early 1960s, agency lawyers adopted broad theories of state action, arguing that the Constitution authorized, and perhaps even compelled, agencies and the businesses they regulated to adopt equal employment policies”).

         [18].     See, e.g., Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law 38 (1995) (detailing the process by which “[t]he collector of customs at each port, supervised by the secretary of the treasury, assumed the primary duty of deciding whether to admit or exclude Chinese coming to the United States”). Cf. Dep’t of Commerce and Labor, Immigration Laws and Regulations of July 1, 1907, at 74, Statistical Rules XXVII–XXVIII (1910) (describing how “[a]ll alien Chinese are subjects for head tax, and should be reported in regular immigration statistics” and how “[a]t the close of each quarter year the collector of customs at each port will forward” information to the Bureau of Immigration and Naturalization).

         [19].     Karen M. Tani, Administrative Constitutionalism at the “Borders of Belonging”: Drawing on History to Expand the Archive and Change the Lens, 167 U. Pa. L. Rev. 1603, 1623 (2019).

         [20].     Joy Milligan, Plessy Preserved: Agencies and the Effective Constitution, 129 Yale L.J. 924, 1005–06 (2020). As one scholar bluntly notes, “[I]t is not good for the administrative state to inflict harm on minority and vulnerable communities in order to maintain itself.” Bijal Shah, Administrative Subordination, U. Chi. L. Rev. 1, 18 (forthcoming 2024).

         [21].     While raids play a central role in this Article, there are certainly more regular and less action-packed modes of immigration enforcement. See Eagly, supra note 14 and accompanying text; see also Jain, supra note 15, at 1722–41 (describing jailhouse immigration screening and the use of detainers, and arguing that such screening harms immigrants by (i) increasing bail amounts and jail time, (ii) relying on flawed databases and therefore a lack of probable cause of an immigrant’s removability, and (iii) disproportionately targeting groups in which immigrants are overrepresented: the poor, racialized, and disabled, and those whose isolation affects their ability to vindicate their rights).

                    While I focus on the federal IRS, state tax authorities should also opt out of immigration enforcement and choose to focus on revenue. But see infra notes 282–84 and accompanying text.

         [22].     See, e.g., Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 625 (2011) (Breyer, J., dissenting) (noting the impact of immigration raids on farmers); Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 (1st Cir. 2004) (describing how nothing “requires the INS to perform an immigration raid on the premises of an employer, particularly when the employer cooperates with the INS to make its suspect employees available at another location”); Raquel Aldana, Of Katz and “Aliens”: Privacy Expectations and the Immigration Raids, 41 U.C. Davis L. Rev. 1081, 1095 (2008) (analyzing “workplace immigration raids”).

         [23].     Cf. Eisha Jain, The Interior Structure of Immigration Enforcement, 167 U. Pa. L. Rev. 1463, 1468 (2019) (arguing that undocumented migrants who remain in the United States are not “merely aware of the possibility that one day ICE may come knocking at their door” but “have reason to perceive routine interactions with key institutions—employers, police, and others—as potential triggers for detention”).

         [24].     See, e.g., Mayorkas, infra note 312 and accompanying text.

         [25].     See, e.g., infra notes 91–96 and accompanying text.

         [26].     These investigations are much more resource intensive than individualized audits, although audits may nonetheless provide the basis for such longer, criminal investigations. Internal Revenue Serv., Program and Emphasis Areas for IRS Criminal Investigation, IRS (2024), https://www.irs.gov/compliance/criminal-investigation/program-and-emphasis-areas-for-irs-criminal-investigation [https://perma.cc/NK6P-UW8T].

         [27].     Id.; see also Internal Revenue Serv., SOI Tax Stats – Collections and Refunds, by Type of Tax – IRS Data Book Table 1, IRS (2022), https://www.irs.gov/statistics/soi-tax-stats-collections-and-refunds-by-type-of-tax-irs-data-book-table-1 [https://perma.cc/BN83-ZXTY] (documenting, in the chart for 2022, how employment taxes comprise nearly a third of gross U.S. tax collections); Kristin E. Hickman, Administering the Tax System We Have, 63 Duke L.J. 1717, 1724–25 (2014) (discussing the significance of employment taxes for IRS revenue).

         [28].     See 26 U.S.C. §§ 3101–3102; id. § 3111 (Social Security and Medicare Taxes); id. §§ 3301–3311 (Federal Unemployment Tax Act); see also Sachin S. Pandya, Tax Liability for Wage Theft, 3 Colum. J. Tax. L. 113, 126 (2012) (discussing payroll taxes); Leandra Lederman, Statutory Speed Bumps: The Roles Third Parties Play in Tax Compliance, 60 Stan. L. Rev. 695, 698 (2007) (characterizing tax law’s withholding requirements as “systems that engage third parties to help facilitate compliance with the federal income tax” and are “highly successful”).

         [29].     See 26 U.S.C. § 7202.

         [30].     Internal Revenue Serv., How Criminal Investigations are Initiated, IRS (2024), https://www.irs.gov/compliance/criminal-investigation/how-criminal-investigations-are-initiated [https://perma.cc/2BAD-9X9N]. These tips may come from a revenue agent (auditor), other IRS agent or law enforcement agency, or even member of the public. See id.

         [31].     Id.

         [32].     See id.

         [33].     See id.; see also Internal Revenue Serv., IRM § 1.1.1.2 (2019), https://www.irs.gov/irm/part1/irm_01-001-001#idm139964655718464 [https://perma.cc/SH22-NW82].

         [34].     See Internal Revenue Serv., Criminal Investigation Annual Report 4 (2022) (reporting a 90.6 percent conviction rate); see also id. at 5 (noting 789 prosecutions recommended from 1388 initiated investigations); Internal Revenue Serv., Criminal Investigation Annual Report 4 (2021) (reporting an 89.4 percent conviction rate); id. at 5 (noting 850 prosecutions recommended from 1372 initiated investigations).

         [35].     Internal Revenue Serv., Criminal Investigation Annual Report 3 (2022).

         [36].     See id. at 44 (2022). From 2015 to 2017, the number hovered between one and two hundred. Internal Revenue Serv., Criminal Investigation Annual Report 114 (2017).

         [37].     Internal Revenue Serv., Data Book 71 (2022) (presenting budget data from 2021 and 2022).

         [38].     26 U.S.C. § 6103(h)(1)–(2) (providing for limited disclosure to Treasury and DOJ employees), id. § 6103(k)(6). Tax administration is defined broadly. See id. § 6103(b)(4) (defining “tax administration” to include “conduct, direction, and supervision of the execution and application of the internal revenue laws or related statutes” as well as “assessment, collection, enforcement, [and] litigation”) (emphasis added). But see Internal Revenue Serv., IRM § 11.3.22.1.5.2 (2018), https://www.irs.gov/irm/part11/irm_11-003-022 [https://perma.cc/ME7D-9LHJ] (defining “related statutes” without reference to immigration laws); see also id. § 37.1.2.3 (2004), https://www.irs.gov/irm/part37/irm_37-001-002 [https://perma.cc/LCX6-7KEM] (emphasizing constraints on disclosure to DOJ).

                    These information sharing provisions have notably facilitated investigations into whether President Joe Biden’s son was treated preferentially in his IRS prosecution. See Samantha Handler, GOP Releases Hunter Biden IRS Whistleblower Documents, Bloomberg Tax (June 22, 2023), https://news.bloombergtax.com/daily-tax-report/gop-prepares-release-of-hunter-biden-whistleblower-documents [https://perma.cc/5U2B-Q3FA] (describing how the House “Ways and Means Committee met in a closed-door session to review information protected under the Internal Revenue Code Section 6103” pertaining to the prosecution of Hunter Biden).

         [39].     See, e.g., infra notes 84–95 (contrasting limited nature of warrant with mass arrests).

         [40].     See Zelaya v. Hammer, 342 F.R.D. 426, 431 (E.D. Tenn. 2022).

         [41].     U.S. Dep’t of Homeland Sec., Homeland Security Investigations, https://www.ice.gov/about-ice/homeland-security-investigations [https://perma.cc/S68Y-GZ69].

         [42].     Zelaya, 342 F.R.D. at 430.

         [43].     The Internal Revenue Manual (IRM) is “a highly formalized manual available online that details [the IRS’s] internal regulatory drafting and clearance procedures” in contrast to other agencies’ opaquer practices. Jennifer Nou, Intra-Agency Coordination, 129 Harv. L. Rev. 421, 479 (2015).

         [44].     Internal Revenue Serv., IRM § 38.3.1-1 (Aug. 11, 2004), https://www.irs.gov/irm/part38/irm_38-003-001#idm140234910210560 [https://perma.cc/LGD9-Q5GJ].

         [45].     Id.

         [46].     Id.

         [47].     In this context, resource conservation benefits poor immigrant workers. My article rebuts scholars who suggest that “the administrative pursuit of institutional values—efficiency [and] cost-effectiveness . . . —favors the powerful.” Shah, supra note 20, at 17. As such, while in some cases, administrative “efficiency is particularly harmful to minorities,” that is unlikely to be the case here. Id. at 19.

         [48].     Internal Revenue Serv., Criminal Investigation Annual Report 13 (2022).

         [49].     See id.; see also Internal Revenue Serv., Criminal Investigation Annual Report 27 (2021).

         [50].     Internal Revenue Serv., Criminal Investigation Annual Report 70 (2019); see also Internal Revenue Serv., Criminal Investigation Annual Report 59 (2023) (describing convictions of labor staffing companies that “did not withhold federal income, Social Security, and Medicare taxes from [unauthorized] workers’ wages, and . . . did not report said wages to the IRS”).

         [51].     See, e.g., Internal Revenue Serv., Criminal Investigation Annual Report 59 (2023).

         [52].     See generally infra notes 298–303 and accompanying text.

         [53].     See Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131, 1156–57 (2012) (describing “informal coordination” as still potentially including “conversations, shared practices, and unwritten agreements between officials in different agencies” who might also “routinely exchange information and intelligence, manage jurisdictional conflicts, and work cooperatively on policy issues”). Freeman & Rossi suggest that this more informal coordination may be “potentially suspect from a transparency and accountability perspective,” id. at 1157, a critique this Article shares. See also Anya Bernstein & Cristina Rodríguez, The Accountable Bureaucrat, 132 Yale L.J. 1600, 1619–20 (2023) (quoting interviewees on interagency dynamics and negotiations in the Executive Office of the President).

         [54].     This includes agencies administering state, non-income taxes, which also exist at the nexus of immigration-tax law. See Shayak Sarkar, Capital Controls As Migrant Controls, 109 Calif. L. Rev. 799, 813–21 (2021) (discussing remittance taxation and the constitutional issues arising from its intersection with immigration status).

         [55].     Internal Revenue Serv., U.S. Citizens and Resident Aliens Abroad, IRS (2024), https://www.irs.gov/individuals/international-taxpayers/us-citizens-and-resident-aliens-abroad [https://perma.cc/L5P3-YBRM] (“If you are a U.S. citizen or resident alien, the rules for filing income . . . tax returns . . . are generally the same whether you are in the United States or abroad.”); see also 26 U.S.C. § 7701(b)(1) (providing general rules for defining “resident alien”); id. at § 7701(b)(3) (providing “substantial presence test”); id. § 7701(b)(11) (providing rulemaking authority for the definition of resident alien and nonresident alien).

         [56].     See infra Parts II, III, and IV (describing, respectively, the policy issues, existing legal constraints, and proposed reforms associated with tax-immigration agency coordination); see generally Freeman & Rossi, supra note 53 (describing the phenomenon of shared regulatory space and various tools for agency coordination, including interagency consultation, interagency agreements, joint policymaking, and presidential management of coordination); Saito, infra note 141, at 741–42 (arguing that the “coordination between the IRS/Treasury and other federal agencies” has merit but notably omitting any discussion of immigration).

         [57].     See infra Part II.

         [58].     See infra notes 123–35 and accompanying text.

         [59].     Although racial and ethnic proxies are often used in policing, they also surface in the context of tax law. See, e.g., Jeremy Bearer-Friend, Colorblind Tax Enforcement, 97 N.Y.U. L. Rev. 1, 7 (2022) (discussing the inference of ancestry from surnames in the Netherlands). Bearer-Friend goes on to argue how proxies might be used in U.S. tax law. See id. at 32, 43.

         [60].     Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201, 207–08 (2006) (quoting FTC v. Ken Roberts Co., 276 F3d 583, 593 (D.C. Cir. 2001)). Gersen unpacks the mechanics of sharing by describing how “Congress might allocate overlapping jurisdiction, but give different policy tools to different agencies, perhaps giving rulemaking authority to one agency and enforcement authority to another, as Congress often does.” Id. at 210.

         [61].     Sharon B. Jacobs, The Statutory Separation of Powers, 129 Yale L.J. 378, 399–405 (2019) (describing “checks and balances, which might be called entanglements, between agencies”).

         [62].     Id. at 400.

         [63].     Cf. Jonathan Weinberg, Bureaucracy As Violence, 115 Mich. L. Rev. 1097, 1100 (2017) (reviewing David Graeber, The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy (2015)) (arguing that government bureaucracy “manag[es] structures of pervasive inequality ultimately created and maintained by the threat of physical violence”).

         [64].     Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1317 (1984) (citing Max Weber, The Protestant Ethic And The Spirit Of Capitalism 182 (Talcott Parsons trans., 1958)) (“Because all human existence is affected by bureaucratic structures, the formalist model’s attempt to rob some aspects of life of ‘personal’ qualities threatens the life experience itself.”).

         [65].     See, e.g., supra notes 48–51 and accompanying text (reviewing Criminal Investigation annual reports); see also Press Release, Dep’t of Homeland Sec. (ICE), 3 Restaurant Chain Executives Indicted on Federal Immigration, Tax Charges (Apr. 20, 2011), https://www.ice.gov/news/releases/3-restaurant-chain-executives-indicted-federal-immigration-tax-charges [https://perma.cc/4ZNS-82X8] (discussing both the arrests of the owners of Chuy’s, a regional Mexican restaurant chain, for failure to pay and withhold payroll taxes as well as the execution of search warrants for fifteen restaurants by IRS and ICE across the Southwest); Bradley McCombs, Feds: 3 Execs of Chuy’s Hired Crossers Illegally, Arizona Daily Star (Apr. 21, 2011), https://tucson.com/news/local/crime/feds-3-execs-of-chuys-hired-crossers-illegally/article_4066470c-0f73-5687-bb9e-f2b7c7f2fb69.html [https://perma.cc/SNT5-LJJY] (describing how “[a]gents also arrested 40 illegal immigrants they encountered Wednesday at Chuy’s locations in Arizona and California”); Jeremy Redmon, ICE: 46 Suspected of Being Here Illegally Found in Store Search, Atlanta J.-Const. (Dec. 13, 2019), https://www.ajc.com/news/breaking-news/ice-suspected-being-here-illegally-found-store-search/KBay5ocAD4XNgXKa1PXdLK/ [https://perma.cc/S8MP-QUUD] (describing raid of an “Atlanta-area chain of Hispanic grocery stores” and quoting ICE Spokesman Lindsay Williams as saying that “the IRS was the lead agency and that officials with ICE’s Homeland Security Investigations directorate assisted the probe”).

         [66].     See infra notes 191–98 and accompanying text (describing failed efforts to obtain information under FOIA from SPLC v. IRS).

         [67].     News Release, Dep’t of Homeland Sec. (ICE), ICE Arrests 45 Illegal Aliens Employed by Maryland Painting Business (July 30, 2008), https://www.aila.org/library/ice-arrests-45-people-employed-maryland-business [https://perma.cc/69LP-W7ZG]; see also U.S. Immigration & Customs Enforcement Operation Plan (2008) (on file with author).

         [68].     See Letter Confirming Plea Agreement, USA v. Bontempo, No. 1:09-cr-00193-WDQ (N.D. Md. 2009) (on file with author).

         [69].     See Complaint, Casa de Maryland v. DHS, IRS, No. 8:08-cv-03249-PJM (D. Md. 2008). The federal courts eventually compelled ICE to disclose records pursuant to the FOIA request, but for a different Maryland raid, where the IRS’s involvement may have been more attenuated. The Fourth Circuit “agree[d] with the district court that the public interest outweighs the privacy interest asserted by ICE.” Casa De Maryland, Inc. v. U.S. Dep’t of Homeland Sec., 409 F. App’x 697, 701 (4th Cir. 2011).

         [70].     See Complaint, Pablo Alvarado, Ingrid Munoz, et al., v. United States, No. 1:11-cv-01777-PJM (D. Md. 2011).

         [71].     Id. ¶¶ 13–26.

         [72].     Id. ¶ 32.

         [73].     Id. ¶¶ 38–40.

         [74].     Id. ¶ 41.

         [75].     Id.

         [76].     Id. ¶ 43.

         [77].     Rule 111 Order, Pablo Alvarado, Ingrid Munoz, et al., v. United States, No. 1:11-cv-01777-PJM (D. Md. 2012).

         [78].     Complaint, Alvarado, supra note 70, ¶¶ 47–49.

         [79].     Id.

         [80].     Letter Confirming Plea Agreement, USA v. Bontempo, 93 Cal. Rptr. 3d 229 (Ct. App. 2009) (on file with author).

         [81].     See Alvarado, supra note 78.

         [82].     U.S. Immigration & Customs Enforcement Operation Plan (on file with author); Special Intelligence Section, I.C.E. Operation “Touch-Up” (on file with author).

         [83].     County Executive John R. Leopold Statement on Immigration and Customs Enforcement Operation in Anne Arundel County (June 30, 2008) (on file with author).

         [84].     Exh. 2, Affidavit in Support of Search Warrant, No. 3:19-cv-00062-TRM-SKL, at 6–7, 13 (Apr. 2, 2008).

         [85].     Id. at 6.

         [86].     Id. at 16–19.

         [87].     Id. at 9 (emphasis in original).

         [88].     Zelaya v. Hammer, 342 F.R.D. 426, 431 (E.D. Tenn. 2022).

         [89].     Id. (internal quotation marks omitted) (emphasis added).

         [90].     Id. at 430.

         [91].     See Zelaya, 516 F. Supp. 3d at 789–90 (“The officers neither interrogated the [W]hite workers about their immigration status nor transported them to the Armory.”).

         [92].     Id. at 790.

         [93].     Id. at 806.

         [94].     Id. A national paper, after reviewing videotape of the operation, confirmed the “agents separat[ed] Latino workers and frisk[ed] them.” Miriam Jordan, In Rare Victory, Immigrants Prevail in Suit Over Meat Plant Raid, N.Y. Times (Feb. 27, 2023), https://www.nytimes.com/2023/02/27/us/meat-plant-raid-immigrants-tennessee.html [https://perma.cc/8BM7-MDGJ].

         [95].     Grant of Mot. of Prelim. Approval of Class Action Settlement Agreement, Zelaya v. Hammer, No. 3:19-cv-00062-TRM-CHS, Document 781, at *1–2 (Oct. 19, 2022) (noting IRS Special Agent Worsham’s agreement to pay defendants).

         [96].     See, e.g., Jordan, supra note 94.

         [97].     Plea Agreement for James Brantley, No. 2:18-cv-118, at 1 (Aug. 16, 2018) (citing 26 U.S.C. § 7202) (on file with author). The initial search warrant affidavit also included allegations of unlawfully employing noncitizens without work authorization. See Exh. 2, Affidavit in Support of Search Warrant, No. 3:19-cv-00062-TRM-SKL (Apr. 2, 2018).

         [98].     Press Release, Dep’t of Justice, Southeastern Provision Owner James Brantley Pleads Guilty to Federal Information (Sept. 12, 2018), https://www.justice.gov/usao-edtn/pr/southeastern-provision-owner-james-brantley-pleads-guilty-federal-information#:~:text=Southeastern%20Provision%20Owner%20James%20Brantley%20Pleads%20Guilty%20to%20Federal%20Information,-Wednesday%2C%20September%2012&text=GREENEVILLE%2C%20Tenn.,employment%20of%20unauthorized%20illegal%20aliens [https://perma.cc/84PW-WN6S].

         [99].     This collateral damage is particularly troubling given Congress’s choice to criminalize employment of unauthorized workers but not the unauthorized work itself. See infra notes 274–75 and corresponding text.

      [100].     See supra notes 68–77 (chronicling the IRS agents’ central role in the APS raids); see also supra notes 84–95 (discussing the IRS agents’ central role in the Tennessee raids).

      [101].     See, e.g., Rebecca Smith, Ana Avendaño & Julie Martínez Ortega, Iced Out: How Immigration Enforcement has Interfered with Workers’ Rights 5 (2009) (describing a “single-minded focus on immigration enforcement without regard to violations of workplace laws”). Accord Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 140 (2002) (holding that a National Labor Relations Board award of backpay to an undocumented immigrant “who has never been legally authorized to work in the United States . . . is foreclosed by federal immigration policy, as expressed by Congress in the Immigration Reform and Control Act of 1986 (IRCA)”).

      [102].     See infra Part III.B.1 (discussing taxpayer privacy and failed FOIA efforts).

      [103].     See James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do IT 370–71 (1989) (describing the “advantages [and disadvantages] of infusing an agency with a sense of mission”); see also Eric Biber, Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies, 33 Harv. Envtl. L. Rev. 1, 35 (2009) (describing how “a reformer might seek to change the internal culture of the agency so that its mission no longer interferes” with other goals); Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims 161 (1983) (contrasting a state department of education’s “agency culture,” which translated professionalism into “preferences for quality” through “thoughtful” but time-intensive processing, with that of the same state’s welfare department, where professionalism was more limited and “cases were decided more quickly”).

      [104].     Internal Revenue Serv., Citizen Academy Allows Students to Become IRS Criminal Investigation Special Agents for a Day, IRS (2023), https://www.irs.gov/compliance/criminal-investigation/citizen-academy-allows-students-to-become-irs-criminal-investigation-special-agents-for-a-day [https://perma.cc/WBM4-U79J].

      [105].     Lea Kahn, Students Learn How to ‘Follow the Money’ During IRS Citizens Academy at Rider University, Central Jersey (Dec. 20, 2022), https://centraljersey.com/2022/12/20/rider-university-hosts-internal-revenue-services-citizens-academy/ [https://perma.cc/T5PG-6SHX].

      [106].     Internal Revenue Serv., Criminal Investigation Annual Report 24 (2023) (providing photograph and caption of Army base career fair).

      [107].     Indictment, U.S. v. Brown, No. CR-24-00355-PHX-SPL (ASB) (D. Ariz. 2024), ¶ 2, https://www.justice.gov/usao-az/media/1340816/dl?inline [https://perma.cc/8T3Y-SJ7X].

      [108].     Id. ¶ 13.

      [109].     GAO, Purchases and Inventory Controls of Firearms, Ammunition, and Tactical Equipment 29–30, 59–80 (2018) (showing that among the agencies providing spending and inventory data, the IRS had the largest inventory of rifles in 2017).

      [110].     See Letter from Hon. Stephanie Bice (R-Okla.), to Daniel Werfel, IRS Commissioner (July 24, 2023).

      [111].     U.S. Immigration & Customs Enforcement Operation Plan (on file with author); Special Intelligence Section, I.C.E. Operation Touch Up (on file with author).

      [112].     See supra notes 70–83 and accompanying text.

      [113].     Americans for Tax Reform, About, https://www.atr.org/about/ [https://perma.cc/5Y2Z-DLY8].

      [114].     Alexander Hendrie, Americans for Tax Reform, Flashback: IRS Agents Accused of “Military Style Raids,” Harassed Children & Small Business Owners (July 6, 2021), https://www.atr.org/flashback-irs-agents-accused-military-style-raids-harassed-children-small-business-owners/ [https://perma.cc/L4SY-35SG].

      [115].     See, e.g., César Cuauhtémoc García Hernández, Creating Crimmigration, 2013 B.Y.U. L. Rev. 1457, 1509 (2013) (describing the military’s involvement in immigration regulation at the end of the twentieth century); see also Stumpf, supra note 15, at 373–74 (describing the development of infrastructure by the Bureau of Prisons and the military to contain noncitizen detainees convicted of crimes); E. Tendayi Achiume, Racial Borders, 110 Geo. L.J. 445, 493–94 (2022) (remarking that those “who are foreclosed from the global mobility infrastructure . . . are nonetheless subject to the military . . . and economic coercive power of the First World”); Ana Muñiz, Bordering Circuitry: Crossjurisdictional Immigration Surveillance, 66 UCLA L. Rev. 1636, 1653 (2019) (remarking on global “infrastructure building and militarization at the border”).

      [116].     Hernández, Creating Crimmigration, supra note 115, at 1509.

      [117].     Complaint, U.S. v. Abbott, Civil Action No. 1:23-cv-00853 (W.D. Tex. 2023). Cf. Pratheepan Gulasekaram, Rick Su & Rose Cuison Villazor, Anti-Sanctuary and Immigration Localism, 119 Colum. L. Rev. 837, 839–43, 848 (2019) (describing anti-sanctuary laws in Texas as a new legal landscape of “immigration localism”).

      [118].     See Edgar Sandoval, Jay Root & J. David Goodman, Texas’ Harsh New Border Tactics Are Injuring Migrants, N.Y. Times (July 19, 2023) (quoting Mayor Rolando Salinas, Jr., of Eagle Pass, TX), https://www.nytimes.com/2023/07/19/us/texas-border-migrants-abbott.html [https://perma.cc/JPT2-6H4P].

      [119].     See infra notes 122–23 and accompanying text.

      [120].     See infra notes 124–36 and accompanying text. Cf. Jain, supra note 23, at 1506 (suggesting that immigrant distrust in communities with poor police relationships may persist despite immigrant-friendly, sanctuary policies).

      [121].     See infra notes 145–46 and accompanying text; see also Letter from Daniel Werfel, IRS Commissioner, to Members of the United States Senate 2 (May 15, 2023) (affirming that the IRS’s “initial findings support the conclusion that Black taxpayers may be audited at higher rates than would be expected given their share of the population”).

      [122].     26 U.S.C. § 7701(b). SSNs and ITINs both span the spectrum of lawful status. On one hand, people retain their Social Security number, even if they overstay a visa or otherwise lose lawful status. On the other, some foreign nationals might have lawful status and need an ITIN for tax filing purposes, by virtue of residency length in a given year and worldwide taxation rules.

      [123].     Taxpayer Advocate Serv., NTA Blog: Most Taxpayers Needing a New ITIN Are Prohibited From Filing Electronically, Causing Unnecessary Refund Delays, IRS (Apr. 13, 2021), https://www.taxpayeradvocate.irs.gov/news/nta-blog-most-taxpayers-needing-a-new-itin-are-prohibited-from-filing-electronically-causing-unnecessary-refund-delays/ [https://perma.cc/4PG8-V5F5]; see also Jacqueline Laínez Flanagan, Reframing Taxigration, 87 Tenn. L. Rev. 629, 643–44 (2020) (discussing lack of publicly available data on the number of ITIN filings).

      [124].     Marcella Alsan & Crystal Yang, Fear and the Safety Net: Evidence from Secure Communities, NBER Working Paper Series 24731 (forthcoming 2023).

      [125].     Thus, the authors measure how public-program participation compares between Hispanic households and non-Hispanic Black and White households, before and after Secure Community’s rollout. Compare id. with Emma Kaufman, Segregation by Citizenship, 132 Harv. L. Rev. 1379, 1415 (2019) (explaining the importance of distinguishing between race, ethnicity, alienage, and national origin in understanding the constitutionally troubling segregation reflected in all-foreign prisons).

      [126].     Alsan & Yang, supra note 124.

      [127].     These measures may also reinforce migrants’ perception of (il)legitimacy of, and corresponding willingness to comply with, American immigration laws. See generally Emily Ryo, Deciding to Cross: Norms and Economics of Unauthorized Migration, 78 Amer. Soc. Rev. 574 (2013) (drawing upon survey data from the Mexican Migration Project to relate perceptions of American legal legitimacy and procedural justice to prospective migrants’ deference to immigration law).

      [128].     See, e.g., City of Huntington Beach v. Becerra, 44 Cal. App. 5th 243, 272–73 (2020) (quoting Cal. Gov’t Code § 7284.2). Cf. Helen Marrow, Immigrant Bureaucratic Incorporation: The Dual Roles of Professional Missions and Government Policies, 74 Am. Soc. Rev. 756, 761–62 (2009) (describing how Southern “bureaucrats working in public elementary school systems” “espoused a . . . favorable view of [undocumented] youth” “even when politicians and bureaucrats in other institutions did not”).

      [129].     See, e.g., Bill Ong Hing, Entering the Trump Ice Age: Contextualizing the New Immigration Enforcement Regime, 5 Tex. A&M L. Rev. 253, 308–09 (2018) (discussing how deportations and raids stress families); see also Emily Ryo & Ian Peacock, Denying Citizenship: Immigration Enforcement and Citizenship Rights in the United States, 84 Stud. L., Pol., & Soc. 43, 43–44 (2020) (describing how U.S.-citizen children whose parents have been detained or deported are subjected to “effective” if not “formal” denials of citizenship).

                    Raids, by destabilizing communities and schools, may affect even unaccompanied minors, among the most vulnerable of migrants. Cf. Emily Ryo & Reed Humphrey, Children in Custody: A Study of Detained Migrant Children in the United States, 68 UCLA L. Rev. 136, 136 (2021) (using an empirical analysis of Office of Refugee Resettlement administrative records to suggest that “those [unaccompanied minors] who continue to arrive at the U.S. border are likely children who are most in need of special care and legal protection”).

      [130].     Ryan Devereaux & Alice Speri, The Day After Trump’s ICE Raid in a Small Tennessee Town, 550 Kids Stayed Home from School, The Intercept (Apr. 10, 2018), https://theintercept.com/2018/04/10/ice-raids-tennessee-meatpacking-plant/#:~:text=Perry%2C%20the%20Hamblen%20County%20superintendent,students%20remained%20absent%20on%20Monday [https://perma.cc/E4UG-VK69].

      [131].     See Stephen Lee, Family Separation As Slow Death, 119 Colum. L. Rev. 2319, 2324 (2019) (arguing that “[t]heorizing our immigration system in terms of slow death helps us reconceptualize the types of separations that impact and shape immigrant lives”); Jain, supra note 23, at 1479 (noting that “any arrest, including a minor one, can trigger family separation”). Ultimately, communities may suffer a post-raid exodus of even lawful immigrants and an economic spiral. See Jonathan Xavier Inda, Borderzones of enforcement: Criminalization, workplace raids, and migrant counterconducts, in The Contested Politics of Mobility 74 (Vicki Squire ed., 2010) (arguing that Marshalltown, Iowa, suffered such a post-raid exodus).

      [132].     See, e.g., Undocumented Workers Fear Paying Taxes Under Trump Administration, CBS Los Angeles (Mar. 31, 2017), https://www.cbsnews.com/losangeles/news/undocumented-workers-fear-paying-taxes-under-trump-administration/ [https://perma.cc/X78A-W76Y] [hereinafter Undocumented Workers]; see also Blum, supra note 9, at 618 (remarking that a permissive or mandatory information-sharing rule between IRS and the Department of Homeland Security (DHS) “would interfere with the IRS mission of collecting taxes”).

      [133].     Undocumented Workers, supra note 132.

      [134].     See Shayak Sarkar, Tax Law’s Migration, 62 B.C. L. Rev. 2209, 2251 (2022). These tax filings are distinct from the billions of dollars in excess paid into the Social Security Trust Funds from unauthorized workers. See Stephen Goss, Alice Wade, J. Patrick Skirvin, Michael Morris, K. Mark Bye & Danielle Huston, Soc. Sec. Admin., Effects of Unauthorized Immigrations on the Actuarial Status of the Social Security Trust Funds 1–2 (2013). Cf. Tessa Davis, The Tax-Immigration Nexus, 94 Denv. L. Rev. 195, 246–47 (2017) (drawing inspiration from U.S. Citizenship and Immigration Services fee waivers to argue for a naturalization tax credit).

      [135].     See Sarkar, Tax Law’s Migration, supra note 134, at 2256.

      [136].     Noncitizen taxpayers may be removed if they are convicted of a tax crime that constitutes an “aggravated felony” for the purposes of the Immigration and Nationality Act. 8 U.S.C. § 1227(a)(2)(A)(iii); see also Kawashima v. Holder, 565 U.S. 478, 480 (2012) (affirming removability of permanent residents convicted of “willfully making and subscribing a false tax return” and “aiding and assisting in the preparation of a false tax return”).

      [137].     Internal Revenue Serv., IRM § 1.1.1.2, supra note 33; see also Leslie Book, Giving Taxpayer Rights A Seat at the Table, 91 Temp. L. Rev. 759, 784 (2019) (discussing the evolution of the IRS’s mission statement).

      [138].     See, e.g., Cal. Franchise Tax Bd., About Us, https://www.ftb.ca.gov/about-ftb/index.html [https://perma.cc/GQ28-3G47] (“Our mission is to help taxpayers file tax returns timely, accurately, and pay the correct amount to fund services important to Californians.”).

      [139].     See Hickman, supra note 27, at 1724 (“[T]he culture, practices, and procedures of the IRS, in particular, are oriented toward the mission of raising revenue.”); see also Shu-Yi Oei, Getting More by Asking Less: Justifying and Reforming Tax Law’s Offer-in-Compromise Procedure, 160 U. Pa. L. Rev. 1071, 1119 (2012) (“[T]he IRS’s central job is the collection of revenue and enforcement of the tax laws.”); Yoon-Ho Alex Lee, Beyond Agency Core Mission, 68 Admin. L. Rev. 551, 561 (2016) (characterizing the IRS as “inherently tax-oriented,” as opposed to goal-oriented, during the collection of federal tax revenues).

      [140].     See Francine J. Lipman, Access to Tax (In)justice, 40 Pepp. L. Rev. 1173, 1180 (2013) (“Congress has increasingly directed the IRS to serve taxpayers by administering billions of dollars of tax-based versus direct spending social benefit programs.”); see also Sara Sternberg Greene, The Broken Safety Net: A Study of Earned Income Tax Credit Recipients and A Proposal for Repair, 88 N.Y.U. L. Rev. 515, 530 (2013) (characterizing the EITC as “run through the Internal Revenue Service (IRS) and resembl[ing] other tax refunds in administration and public perception” while being substantively akin to “social welfare programs such as SNAP and TANF”); Asad L. Asad, On the Radar: System Embeddedness and Latin American Immigrants’ Perceived Risk of Deportation, 54 Law & Soc’y Rev. 133, 152 (2020) (quoting DACA recipient Marina, who said DACA’s “key benefit is my tax refund” rather than “reprieve from deportation”); Dennis J. Ventry, Jr., Welfare by Any Other Name: Tax Transfers and the EITC, 56 Am. U. L. Rev. 1261, 1265 (2007) (describing the much lower administrative costs for the IRS-administered EITC when compared to traditional social welfare programs).

      [141].     See generally Lawrence Zelenak, Tax or Welfare? The Administration of the Earned Income Tax Credit, 52 UCLA L. Rev. 1867 (2005) (providing a detailed description of the IRS’s role in administering the EITC, including through eligibility certification and enforcement measures); see also Blaine G. Saito, Tax Coordination, 38 Ga. St. U. L. Rev. 735, 750 (2022) (discussing the EITC and arguing that “[r]emoving the IRS as a player in the administration of social policy tax expenditures means that the benefits of high touch points and information gathering would disappear”).

      [142].     Susannah Camic Tahk, The Tax War on Poverty, 56 Ariz. L. Rev. 791, 841 (2014).

      [143].     See generally Hickman, supra note 27, at 1728 (arguing that “[a]lthough the tax system has always served multiple goals, recent decades have seen a dramatic escalation in tax programs and provisions serving purposes other than traditional revenue raising”).

      [144].     Emily Black, Hadi Elzayn, Alexandra Chouldechova, Jacob Goldin & Daniel E. Ho, Algorithmic Fairness and Vertical Equity: Income Fairness with IRS Tax Audit Models, FAccT ‘22: 2022 ACM Conf. Fairness, Accountability & Transparency (2022).

      [145].     See Ariel Jurow Kleiman, Shayak Sarkar & Emily A. Satterthwaite, Taxing Nannies, 110 Iowa L. Rev. (forthcoming 2024–25) (quoting experts from both legal services organizations and household payroll companies bemoaning the lack of IRS enforcement against nanny employers).

      [146].     See id. (discussing demographics of domestic workers); see also Shayak Sarkar, The New Legal World of Domestic Work, 32 Yale J. L. Feminism 1, 11­–13 (2021) (discussing the role of foreign nationals in domestic work); Hadi Elzayn, Evelyn Smith, Thomas Hertz, Arun Ramesh, Robin Fisher, Daniel E. Ho & Jacob Goldin, Measuring and Mitigating Racial Disparities in Tax Audits, Stanford University for Economic Policy Research Working Paper 3–4 (explaining how high rates of EITC audits drive Black taxpayers to be audited more than non-Black taxpayers); Letter from Elizabeth Warren to Commissioner Werfel and Secretary Yellen (Apr. 13, 2023), https://www.warren.senate.gov/imo/media/doc/2023.04.13%20Letter%20to%20IRS%20TRS%20on%20racial%20equity%20in%20tax%20enforcement.pdf [https://perma.cc/BVT2-9C7K] (canvassing sources).

      [147].     Daniel C. Richman & William J. Stuntz, Al Capone’s Revenge, 105 Colum. L. Rev. 583, 583–84 (2005).

      [148].     Id. at 618–24.

      [149].     Harry Litman, Pretextual Prosecution, 92 Geo. L. J. 1135, 1135–36 (2004).

      [150].     See Richman & Stuntz, supra note 147, at 614–17. Cf. Stephen Lemons, ICE, IRS Raid Chuy’s Restaurants in Arizona and California, While Barack Obama Plays Latinos Like a Fiddle, Phoenix News Times (Apr. 20, 2011) (quoting Sal Reza of the Puente Movement), https://www.phoenixnewtimes.com/news/ice-irs-raid-chuys-restaurants-in-arizona-and-california-while-barack-obama-plays-latinos-like-a-fiddle-6498854 [https://perma.cc/A95Z-TB6K] (“‘Why is ICE taking part in an IRS related matter?’ he asked. ‘It’s double-speak. If it’s an IRS matter, deal with it as an IRS matter.’”).

      [151].     Aldana, supra note 22, at 1095 (describing how “workplace immigration raids” reflect Fourth Amendment exceptionalism and the unmoored ways that “privacy expectations about immigration status in the workplace have been eroded”).

      [152].     See, e.g., id. at 1085 (arguing that “[o]ne significant explanation for this Fourth Amendment exceptionalism is the Court’s early treatment of immigration as a matter of civil as opposed to criminal enforcement”).

      [153].     See, e.g., Richard M. Re, The Due Process Exclusionary Rule, 127 Harv. L. Rev. 1885, 1938 (2014) (citing to both Janis and Lopez-Mendoza as examples of how “[t]he Court has declined to exclude unconstitutionally obtained evidence in several civil contexts” and criticizing these decisions as “rest[ing] on dubious and essentially ad hoc assertions regarding deterrence”).

      [154].     428 U.S. 433 (1976).

      [155].     468 U.S. 1032, 1034 (1984).

      [156].     See supra notes 93–95 and accompanying text.

      [157].     468 U.S. at 1034.

      [158].     Id. at 1035. For Lopez-Mendoza, the agents entered a transmission repair shop without a warrant. Id. When Lopez-Mendoza admitted that he was from Mexico and had minimal ties to the U.S., the agent arrested him and then led him to the agency offices for further interrogation, where his admission of entry without inspection eventually led to a deportation order. Id. at 1035.

      [159].     Id. at 1037. The immigration agents had entered a potato-processing plant in Washington with a manager’s permission but, again, without a warrant. Id. at 1036.

      [160].     Id. at 1037.

      [161].     Id.

      [162].     Id. at 1034–36.

      [163].     Id. at 1034.

      [164].     United States v. Janis, 428 U.S. 433 (1976).

      [165].     Id. at 436–38.

      [166].     Id. at 447.

      [167].     Id. at 448.

      [168].     Lopez-Mendoza, 468 U.S. at 1044. In extending the rule and disposing of Fourth Amendment concerns, the Court emphasized that because arrests by agents of the then-Immigration and Naturalization Service almost always led to “voluntary deportation without a formal hearing,” “the arresting officer is most unlikely to shape his conduct in anticipation of the exclusion of evidence.” Id.

      [169].     Id. at 1045. Faith in the agency’s self-governance was not unlimited—the Court suggested that, given the agency’s “highly repetitive,” “crowded and confused” operations, a pattern of violations could be established by a later group of plaintiffs asking for declaratory relief. Id. at 1045, 1049.

      [170].     Id. at 1048–49.

      [171].     Id. at 1050–51.

      [172].     Id. at 1050.

      [173].     See, e.g., Oliva-Ramos v. Att’y Gen. of U.S., 694 F.3d 259, 275 (3d Cir. 2012) (quoting id.) (reiterating that “the exclusionary rule may apply in removal proceedings where an alien shows ‘egregious violations of Fourth Amendment or other liberties,’” finding that the BIA erred, and remanding for further proceedings); Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008) (defining “egregiousness” liberally using a standard akin to qualified immunity and then remanding); Cotzojay v. Holder, 725 F.3d 172, 183 (2d Cir. 2013) (explaining that the petitioner’s allegations “portray an egregious Fourth Amendment violation requiring application of the exclusionary rule” since “certain aspects of the raid as alleged . . . transform the constitutional transgression depicted here [lack of consent to enter the home] into an egregious Fourth Amendment violation”).

                    Cotzojay, in a footnote, expressly disagreed with the Ninth Circuit’s “qualified immunity-type inquiry” as going “too far.” 725 F.3d at 183, n.10. Cf. Yanez-Marquez v. Lynch, 789 F.3d 434, 453 (4th Cir. 2015) (describing the “Ninth Circuit’s qualified immunity approach” as the “friendly test for egregiousness”); Eda Katharine Tinto, Policing the Immigrant Identity, 68 Fla. L. Rev. 819, 839 (2016) (describing how “the circuits define ‘egregiousness’ differently” and arguing that “courts will likely find that warrantless home raids constitute egregious violations”).

      [174].     Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1114–15 (2004); Jennifer M. Chacón, A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 Duke L.J. 1563, 1613 (2010).

      [175].     Stella Burch Elias, “Good Reason to Believe”: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev. 1109, 1140 (2008) (“The current pattern of immigration enforcement strongly suggests . . . that now may be the time for the Supreme Court to revisit its decision in Lopez-Mendoza.”).

      [176].     Gabriel J. Chin, Illegal Entry As Crime, Deportation As Punishment: Immigration Status and the Criminal Process, 58 UCLA L. Rev. 1417, 1420 (2011) (quoting Lopez-Mendoza, 468 U.S. at 1038).

      [177].     Hernández, Creating Crimmigration, supra note 115, at 1475 (arguing that “[m]odern policing practices have frequently conflated immigration and criminal law enforcement goals while relying on lax interpretations of the Fourth Amendment that are rooted in civil immigration law”).

      [178].     Nina Bernstein, Raids Were a Shambles, Nassau Complains to U.S., N.Y. Times (Oct. 3, 2007), https://www.nytimes.com/2007/10/03/nyregion/03raid.html [https://perma.cc/5EP4-F5XC].

      [179].     26 U.S.C. § 6103; see also Church of Scientology of California v. IRS, 484 U.S. 9, 16 (1987) (“Congress did not intend the statute to allow the disclosure of otherwise confidential return information merely by the redaction of identifying details.”); Joseph J. Darby, Confidentiality and the Law of Taxation, 46 Am. J. Comp. L. 577, 584 (1998) (emphasizing how, even post-Church of Scientology, “[i]nformation requested from the IRS may fall outside the scope of ‘tax returns or return information’, in which case the IRS would be obliged under the Freedom of Information Act to release it”). But see Blum, supra note 9, at 616 (arguing that section 6103’s many exceptions mean that there is no animating principle of privacy).

                    Privacy and confidentiality are also statutory components of the Taxpayer Bill of Rights. See 26 U.S.C. § 7803(a)(3)(F)–(G); Internal Revenue Serv., Taxpayer Bill of Rights, IRS (2023), https://www.irs.gov/taxpayer-bill-of-rights [https://perma.cc/YPQ3-GYDS].

      [180].     See supra note 38 and accompanying text.

      [181].     See supra notes 132–33 and accompanying text; see also Nou, supra note 43, at 465 (noting that agency heads can standardize how enforcement and other agency staff “provide legal information within the agency and to third parties”).

      [182].     26 U.S.C. § 6103(b)(1) (“The term ‘return’ means any tax or information return, declaration of estimated tax, or claim for refund.”); id. § 6103(b)(2)(A)–(D) (defining the term “return information” broadly but noting that “such term does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer”).

      [183].     Elec. Priv. Info. Ctr. v. Internal Revenue Serv., 910 F.3d 1232, 1235 (D.C. Cir. 2018) (describing the political history and resulting “sweeping legislation”).

      [184].     See 26 U.S.C. § 6103(f)–(g). During the Trump Administration, some scholars highlighted these provisions as possible bases for the government to deport immigrants using self-submitted information. Amanda Frost, Can the Government Deport Immigrants Using Information It Encouraged Them to Provide?, 2 ALR Accord 97, 104 (2017) (arguing that “the textual provisions barring disclosure are neither comprehensive nor ironclad”). See also George K. Yin, Preventing Congressional Violations of Taxpayer Privacy, 69 Tax Law. 103, 119 (2015) (arguing that 26 U.S.C. § 6103(f) should permit a “tax committee disclosure of return information only if it serves a legitimate purpose, a minimal condition merely requiring the action to be consistent with the committee’s legislative and Constitutional responsibilities”).

      [185].     5 U.S.C. § 552.

      [186].     Env’t Prot. Agency v. Mink, 410 U.S. 73, 80 (1973).

      [187].     J. Lyn Entrikin, Family Secrets and Relational Privacy: Protecting Not-So-Personal, Sensitive Information from Public Disclosure, 74 U. Miami L. Rev. 781, 834 (2020) (arguing that, “[a]s virtually every court has held, the language that Congress employed in FOIA imposes a broad duty to disclose information in public records”).

      [188].     U.S. Dep’t Homeland Security, Fiscal Year 2022 Freedom of Information Act Report to the Attorney General of the United States and the Director of the Office of Government Services 2 (Feb. 2022) (describing how “DHS received 442,650 FOIA requests and responded to 467,347 requests”).

                    Empirically, immigration FOIA requests are largely first person. Margaret B. Kwoka, First-Person FOIA, 127 Yale L.J. 2204, 2227–28 (2018) (describing how immigration lawyers used FOIA requests to prepare themselves for inconsistencies with past statements as well as errors in the noncitizens’ [“A”-]files). Scholars have described the first-person FOIA phenomenon in immigration and beyond as contrary to Congress’s primary goal—even as the requests “promote the fairness and accuracy of agency processes,” they do not “promote public democratic oversight of government activities.” Id.

      [189].     FOIA has already allowed noncitizens to hold ICE accountable in non-tax contexts. For example, in a landmark case arising from immigration raids in Los Angeles, FOIA exposed internal ICE memoranda that, despite the agency’s application for a narrow search warrant, confirmed a much larger “preexisting plan whose central purpose is to detain, interrogate, and arrest a large number of individuals without individualized reasonable suspicion.” Perez Cruz v. Barr, 926 F.3d 1128, 1133, 1143 n.2 (9th Cir. 2019).

      [190].     E.g., Southern Poverty Law Center v. IRS, 589 F. Supp. 3d 79, 81 (D.D.C. 2022).

      [191].     Id. at 82.

      [192].     Id. at 82–83.

      [193].     Id. at 84.

      [194].     Id. at 84 (citing Church of Scientology of Cal. v. IRS, 484 U.S. 9, 15 (1987)).

      [195].     Id. at 85 (citing Tax Analysts v. IRS, 117 F.3d 607, 614 (D.C. Cir. 1997)). In emphasizing the wide breadth of the relevant privacy provision, the case cited to a list of federal court decisions that found the statutory term “return information,” and therefore privacy protections from FOIA disclosure, to extend to IRS requests for return information. Southern Poverty Law Center, 589 F.Supp.3d at 85 (citing Cause of Action v. IRS, 125 F. Supp. 3d 145, 165 (D.D.C. 2015)).

      [196].     Southern Poverty Law Center, 589 F. Supp. 3d at 85.

      [197].     See Jain, supra note 23, at 1466 (arguing that as “immigration enforcement has absorbed the enforcement norms of federal criminal prosecution, it has also absorbed surveillance and ‘managerial’ techniques . . . from the low-level criminal law context”); see also Shalini Bhargava Ray, Abdication Through Enforcement, 96 Ind. L.J. 1325, 1363 (2021) (discussing ICE’s “staggering surveillance capabilities”).

      [198].     Southern Poverty Law Center, 589 F. Supp. 3d at 85 (citing 26 U.S.C. § 6103).

      [199].     See, e.g., Cause of Action v. Treasury Inspector Gen. for Tax Admin., 70 F. Supp. 3d 45, 54 (D.D.C. 2014) (holding that the information protected by an agency’s Glomar response, in which an agency neither admits nor denies the existence of responsive records to a FOIA request, is not “return information” for purposes of section 6103).

      [200].     Id. at 51.

      [201].     Id. at 54; see also 26 U.S.C. § 6103(b)(2)(D) (defining the term “return information” to “not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer”).

      [202].     Southern Poverty Law Center, 589 F. Supp. 3d at 85 (emphasis added).

      [203].     After the FOIA request was declined, the nonprofit advocacy groups, representing plaintiff-immigrants in constitutional litigation, were able to serve the IRS with a subpoena for the same records and procure a notable fraction thereof. Id. at 82–83. Yet, those discovery-produced records did not comprise an “official and documented disclosure by the government.” 5 U.S.C. § 552. As such, the records did not lose their “protective cloak” from FOIA. Southern Poverty Law Center, 589 F. Supp. 3d at 85 (citing Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999)).

      [204].     Supra note 162 and accompanying text; Anne R. Traum, Constitutionalizing Immigration Law on Its Own Path, 33 Cardozo L. Rev. 491, 504 (2011) (arguing that “[d]etention and lack of counsel greatly diminish a noncitizen’s chances of success in removal proceedings” and citing to an analysis by the New York Study Group on Immigrant Representation).

      [205].     See, e.g., Sanchez v. Sessions, 904 F.3d 643, 646 (9th Cir. 2018) (granting plaintiff’s petition for review after a successful “prima facie showing that he was seized solely on the basis of his Latino appearance, which constitutes a particularly egregious regulatory violation”).

      [206].     See, e.g., 8 U.S.C. § 1357 (provision of the INA authorizing INS employees to interrogate, arrest, or search any noncitizen under certain conditions without a warrant).

      [207].     E.g., Sessions, 904 F.3d at 649 (9th Cir. 2018) (holding that while it is “well-established that the exclusionary rule generally does not apply to removal proceedings” there is an exception for “when the agency violates a regulation promulgated for the benefit of petitioners and that violation prejudices the petitioner’s protected interests”).

      [208].     See, e.g., Kevin R. Johnson, The Case Against Race Profiling in Immigration Enforcement, 78 Wash. U. L.Q. 675, 677 (2000) (describing how “U.S. citizens or lawful permanent residents bear the brunt of race-based immigration enforcement, which cuts to the core of their belonging to the national community”); Achiume, Racial Borders, supra note 115, at 450 (describing “race as political and territorial border infrastructure, alongside other border infrastructure, that ranges from physical walls to the institution of citizenship”).

      [209].     See Lindsay Nash, Inventing Deportation Arrests, 121 Mich. L. Rev. 1301, 1317–18 (2023) (arguing that “even though the early administrative enforcement structure coalesced at a time of virulent hostility toward immigrants and overtly racist immigration regulation, it relied upon a system of arrest procedures that was designed to impose significantly greater checks on enforcement officers’ arrest authority and more robust independent review than does the deportation arrest regime today”).

      [210].     8 U.S.C. § 1357(a)(2) (emphasis added). The regulation further explains how the arrested noncitizen “shall be taken without unnecessary delay for examination before an officer . . . having authority to examine [noncitizens] as to their right to enter or remain in the United States,” id., a requirement some scholars have found to be toothless. See, e.g., Nash, supra note 209, at 1311–12 (critiquing the lack of more substantive review of immigration officers’ “reason to believe” or probable cause determinations for warrantless asserts).

                    Local officials can enter into formalized agreements with federal authorities in order to perform immigration functions, which are also known as 287(g) programs based on the section of the INA that authorized them. 8 U.S.C. § 1357(g); see also Jason A. Su, Enforcing Immigration Equity, 84 Fordham L. Rev. 661, 689 (2015) (describing “multiple enforcement initiatives to identify noncitizens who encounter state and local criminal justice systems,” with “[t]he most important [being] the Priority Enforcement Program (PEP) (formerly known as Secure Communities), the Criminal Alien Program (CAP), and the so-called ‘287(g) programs’”).

      [211].     Cf. Nash, supra note 209, at 1357 (arguing that DHS officers possess “expansive warrantless arrest authority,” but that most deportation arrests currently still rely on administrative warrants because DHS’s interior enforcement relies on “partnerships with state and local law enforcement officers, who generally make these arrests based on those administrative warrants”).

      [212].     Chacón, supra note 174, at 1608 (citing to a number of cases from the federal courts of appeals).

      [213].     See, e.g., United States v. Cantu, 519 F.2d 494, 496–97 (7th Cir. 1975) (“The likelihood of defendants escaping is . . . a statutory limitation. It is always seriously applied.”); Hon Keung Kung v. Dist. Dir., Immigr. & Naturalization Serv., 356 F. Supp. 571, 576 (E.D. Mo. 1973) (approving of a warrantless arrest by an officer who “knew that petitioner had previously deserted ship in violation of law with the apparent purpose of remaining in the United States when he was not authorized to do so”); see also Note, Min K. Kam, ICE Ruses: From Deception to Deportation, 122 Colum. L. Rev. 125, 155 (2022) (interpreting the statute to authorize a warrantless arrest “[i]f an occupant is unable to proffer adequate identification and is deemed a flight risk”).

      [214].     Araujo v. United States, 301 F. Supp. 2d 1095, 1102 (N.D. Cal. 2004) (rejecting the government’s argument that the noncitizen “evinc[ed] an intention to flee” since “[t]he only evidence in the record”—at the time of arrest, the noncitizen was living with his wife and had filed to adjust status—was “to the contrary”).

      [215].     8 C.F.R. § 287.8(b)(2).

      [216].     Cf. Mary Romero, Crossing the immigration and race border: A critical race theory approach to immigration studies, 11 Contemporary J. Rev. 23, 32 (2008) (describing how one interview subject, “[r]eflecting on the degradation to which persons of Mexican ancestry who were caught in the dragnet of immigration raids were subjected, . . . realized that her American roots, that reach back to before the Mexican-American War of 1846–48, did not protect her from second-class citizenship”).

      [217].     Sanchez v. Sessions, 904 F.3d 643, 656 (9th Cir. 2018). Of course, the Supreme Court has justified a car stop on the basis that “[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” United States v. Brignoni-Ponce, 422 U.S. 873, 886–87 (1975). See also Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1009 (2010) (arguing that the decision’s “legacy, allowing law enforcement reliance on ‘Mexican appearance’ in making immigration stops, remains central to modern enforcement of the U.S. immigration laws at the border and in the interior of the United States”); Nash, supra note 209, at 1304–05 (arguing that “immigration enforcement officers alone authorize their colleagues or even themselves to arrest and detain people for civil immigration prosecutions” and that this regime “[f]ree[s] arresting officers from any obligation to justify the arrest to a detached arbiter” and “allow[s] race-based policing to persist”).

      [218].     452 U.S. 692 (1981); see e.g., Mora v. Arpaio, No. CV-09-1719-PHX-DGC, 2011 WL 1562443, at *6 (D. Ariz. Apr. 25, 2011) (drawing upon Summers to conclude “that whether Plaintiffs’ detention [during a workplace immigration raid] was constitutionally reasonable is a question of fact best left for the jury”); Valdez v. United States, 58 F. Supp. 3d 795, 818 n.2 (W.D. Mich. 2014) (describing officers’ argument that plaintiff’s “detention was permissible under Michigan v. Summers”).

      [219].     Michigan v. Summers, 452 U.S. 692, 705 (1981).

      [220].     Id. at 702–03.

      [221].     Id. at 701. The Court has affirmed Summers—an officer’s “authority to detain incident to a search”—in subsequent cases. See, e.g., Muehler v. Mena, 544 U.S. 93, 98 (2005).

      [222].     See Matter of Garcia-Flores, 17 I. & N. Dec. 325, 328 (BIA 1980) (citing United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979)).

      [223].     See, e.g., Perez Cruz v. Barr, 926 F.3d 1128, 1143–44 (2019) (citations omitted) (finding that “as the permissible applications of Summers have expanded—covering broader searches and a greater number of detentions, so has the potential for abuse”).

      [224].     Id. at 1144.

      [225].     The Supreme Court assumes immigration officers are trained in the relevant Fourth Amendment law (and implicitly the related statutory and regulatory constraints), both at the outset of their employment and through periodic trainings. Lopez-Mendoza, 468 U.S. 1032, 1045 (1984) (asserting that “immigration officers receive instruction and examination in Fourth Amendment law . . . [and] periodic refresher courses”). The fact that such trainings fail to protect the civil rights of affected parties militates in favor of revitalizing suppression as a remedy. See Nash, supra note 209, at 1305 (citing to the Lopez-Mendoza decision in describing how low-level immigration enforcement results in “unjust deportations, as even arrests that violate the statute or Constitution often do not result in the exclusion of evidence or termination of removal proceedings”).

      [226].     See Hernandez v. Mesa, 589 U.S. 93, 112 (2020) (expressing hesitation about Bivens and concerns about foreign relations in foreclosing relief); see also Stephen I. Vladeck, The Disingenuous Demise and Death of Bivens, Cato Sup. Ct. Rev.: 2019–2020, at 263 (criticizing the Supreme Court’s reasoning in Hernandez, and the availability of constitutional tort remedies).

      [227].     42 U.S.C. § 1985.

      [228].     Grant of Mot. of Prelim. Approval of Class Action Settlement Agreement, Document 781, Zelaya v. Hammer, No. 3:19-cv-00062-TRM-CHS (E.D. Tenn. 2022) (noting IRS Special Agent Worsham’s agreement to pay defendants); Jordan, supra note 94 (describing a “settlement against the U.S. government and federal agents, who they said used racial profiling and excessive force during the operation, stepping on a person’s neck and punching another in the face” as “very likely the first class settlement over an immigration enforcement operation at a work site, according to immigration experts”) (emphasis added).

      [229].     Infra notes 245–50 and accompanying text.

      [230].     403 U.S. 388, 397 (1971).

      [231].     42 U.S.C. § 1983.

      [232].     See, e.g., Egbert v. Boule, 596 U.S. 482, 486 (2022) (denying a constitutional damages action based on a Fourth Amendment excessive force claim on facts similar to Bivens); see also Richard H. Fallon, Jr., Constitutional Remedies: In One Era and Out the Other, 136 Harv. L. Rev. 1300, 1307 (2023) (emphasizing how “the Court indicated in Egbert v. Boule that ‘if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution’”) (quoting Egbert, 596 U.S. at 502).

      [233].     Hernandez v. Mesa, 589 U.S. 93, 112 (2020).

      [234].     See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”); see also Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1798 (2018) (criticizing how “qualified immunity’s shield against government damages liability is stronger than ever”).

      [235].     Cf. Joanna C. Schwartz, Alexander Reinert & James E. Pfander, Going Rogue: The Supreme Court’s Newfound Hostility to Policy-Based Bivens Claims, 96 Notre Dame L. Rev. 1835, 1852 (2021) (arguing that, despite a recent turn in Ziglar v. Abbasi, 582 U.S. 120 (2017), “the Supreme Court has long expected that damages awards against individual officers and policymakers can influence government officials to change unconstitutional policies”).

      [236].     42 U.S.C. § 1985(3).

      [237].     Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).

      [238].     See 582 U.S. 120 (2017).

      [239].     Ziglar, 582 U.S. at 128–29. They alleged being subjected to a pattern of “physical and verbal abuse” and “slammed” against walls, with frequent strip searches. Id. at 128.

      [240].     Ziglar, 582 U.S. at 128.

      [241].     Id. at 155–56; see also William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 76 n.182 (2018) (arguing that “[u]ntil Ziglar, there was a circuit split about whether qualified immunity applied to suits under Section 1985 . . . though the Court and the parties did not mention that it had been an open question”).

      [242].     Ziglar, 582 U.S. at 153. Because a circuit split precluded certainty on the question of whether the intracorporate conspiracy doctrine applies to section 1985, the federal officials “would not have known with any certainty that the alleged agreements were” illegal. Id. at 155; see also Michael L. Wells, Qualified Immunity After Ziglar v. Abbasi: The Case for a Categorical Approach, 68 Am. U. L. Rev. 379, 389 (2018) (“The only lack of clarity in the case involved the intrabranch conspiracy issue.”).

      [243].     Benjamin C. Zipursky, Ziglar v. Abbasi and the Decline of the Right to Redress, 86 Fordham L. Rev. 2167, 2172–73 (2018) (describing the role of qualified immunity in the section 1985 claim).

                    The particulars of the 1985 claim have been somewhat drowned out by the significant commentary on the case’s embrace of qualified immunity and disdain for Bivens. See e.g., id. at 2168–69 (characterizing the decision as a “near dismissal of Bivens” and part of a contemporary “legal culture” of “hostility to private rights of action”); William Baude, supra note 241, at 88 (arguing post-Ziglar that the doctrine of qualified immunity “lacks legal justification, and the Court’s justifications are unpersuasive”).

      [244].     In Zelaya, Latino workers alleged deprivation of equal protection because of evidence “confirming that agents and planners knew that they did not have reasonable suspicion as to any specific employee[,] . . . demonstrating that agents used Hispanic identity as a proxy for illegal immigration status[, and] . . . revealing a plan to target Hispanic workers and detain and interrogate them to develop probable cause for their arrests.” Zelaya v. Hammer, 342 F.R.D. 426, 438 (E.D. Tenn. 2022). There was even video evidence capturing how Hispanic workers were treated differently than White workers. Id. at 438.

      [245].     In granting class certification, the district court recognized plaintiffs’ evidence alleging that class members were harmed by a raid orchestrated by the IRS and DHS, “memorialized in ‘Operations Plans’ prepared by both agencies.” Id. at 434.

      [246].     Zelaya v. Hammer, 516 F. Supp. 3d 778, 789–90 (E.D. Tenn. 2021).

      [247].     Id. at 805.

      [248].     Zelaya v. Hammer, No. 3:19-CV-62, 2022 WL 16757083, at *9 (E.D. Tenn. Jan. 26, 2022) (citing Weberg v. Franks, 229 F.3d 514, 526 (6th Cir. 2000)).

      [249].     Id.

      [250].     Cf. Ziglar, 582 U.S. 120, 154–55 (2017) (opining, but not deciding, that policy considerations “suggest that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities”).

      [251].     Internal Revenue Serv., IRM § 1.20.4 (2020), https://www.irs.gov/irm/part1/irm_01-020-004 [https://perma.cc/7YLD-V3QC] (noting Civil Rights unit); see also id. § 1.1.10 (2015), https://www.irs.gov/irm/part1/irm_01-001-010 [https://perma.cc/9L4V-J63M].

      [252].     Internal Revenue Serv., Protecting Taxpayer Civil Rights, IRS (2023), https://www.irs.gov/about-irs/protecting-taxpayer-civil-rights [https://perma.cc/NK6P-UW8T].

      [253].     Internal Revenue Serv., IRM § 1.20.4.1.3 (2020), https://www.irs.gov/irm/part1/irm_01-020-004#idm139946605965472 [https://perma.cc/L2PK-ZVL7].

      [254].     See generally Treasury Inspector Gen. for Tax Admin. (TIGTA), Strategic Plan FY 2022–2026 18 (2022) (articulating a strategic objective of “[i]nvestigat[ing] complaints of criminal or serious administrative misconduct by IRS employees in a thorough, fair, and timely manner”).

                    While others have acknowledged the ability of inspectors general to promote transparency, identify misconduct, and hold government officials accountable, there are limitations, including political interference in their independence, limitations on the power to enforce recommendations, and the general inability to provide individualized relief. See e.g., Shirin Sinnar, Protecting Rights from Within? Inspectors General and National Security Oversight, 65 Stan. L. Rev. 1027, 1074–78 (2013) (highlighting the strengths of inspectors general).

      [255].     See, e.g., infra note 260 and accompanying text. See generally Daniel Farbman, “An Outrage Upon Our Feelings”: The Role of Local Governments in Resistance Movements, 42 Cardozo L. Rev. 2097, 2104 (2021) (describing “how local governments can and should participate in resistance movements,” including against federal hostility towards immigrants).

      [256].     This idea is related to, but distinct from, what scholars have described as “federalism within federal agencies.” Miriam Seifter, States as Interest Groups in the Administrative Process, 100 Va. L. Rev. 953, 983 n.133 (2014). The latter may refer to how “federal dependency on state administrators . . . means taking state interests into account.” Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485, 1544 (1994). My conception of intra-agency federalism centers federal employees stationed in, and responsive to, states rather than Kramer and Seifter’s discussion of state-employed administrators. Intra-agency federalism also differs from regional variations in administrative policies, as described by Fatma Marouf and Dave Owen, in that intra-agency federalism reflects substantive engagement with varying state laws and actors, rather than independent regional variation within agencies. See Fatma Marouf, Regional Immigration Enforcement, 99 Wash. U. L. Rev. 1593 (2022) (discussing their work on the regional facets of federal administration).

      [257].     Amy Held, Oakland Mayor Stands by ‘Fair Warning’ of Impending ICE Operation, NPR: The Two Way (Mar. 1, 2018), https://www.npr.org/sections/I-way/2018/03/01/589948064/oakland-mayor-stands-by-fair-warning-of-impending-ice-operation [https://perma.cc/S75P-5DFJ].

      [258].     See John Bowden, Feinstein, Harris call for probe of ICE after employee resigns, The Hill (Mar. 22, 2018), https://thehill.com/homenews/senate/379874-feinstein-harris-call-for-probe-of-ice-after-employee-resignation/ [https://perma.cc/A2HA-3BHD].

      [259].     Id.

      [260].     See Marouf, supra note 256, at 1619 (analyzing the regional dimension of immigration enforcement by arguing that, while “ICE field offices are supposedly enforcing the same body of federal laws,” field offices are “physically, socially, and politically rooted in localities and states”); Dave Owen, Regional Federal Administration, 63 UCLA L. Rev. 58, 88 (2016) (describing how some Army Corps staff members have lived near their field offices for their whole life and may reflect the “environment and culture of the place where they worked”).

      [261].     Cal. Gov’t Code § 7285.13; see also Cal. Lab. Code §§ 90.2, 1019.2; Jennifer M. Chacón, Immigration Federalism in the Weeds, 66 UCLA L. Rev. 1330, 1353 (2019) (describing AB 450 as an “immigrant-protective measure . . . short-circuiting state and local participation in federal enforcement efforts”).

      [262].     Cal. Gov’t Code § 7285.1(b).

      [263].     Id. § 7285.1(d).

      [264].     8 C.F.R. § 274a.2(b)(2)(ii) (“Any person or entity required to retain Forms I-9 in accordance with this section shall be provided with at least three business days [sic] notice prior to an inspection of Forms I–9 by officers of an authorized agency of the United States.”).

      [265].     Cal. Lab. Code § 90.2

      [266].     Id. § 1019.2.

      [267].     Id. § 1019.2(b)(1).

      [268].     See U.S. v. California, 921 F.3d 865, 880 (9th Cir. 2019).

      [269].     Id. at 880.

      [270].     Id. at 881.

      [271].     Id.

      [272].     Id. at 881–82.

      [273].     Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C.).

      [274].     Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 138 (2002); see also Motomura, supra note 12, at 547 (describing “immigration law” as “the body of law governing the admission and expulsion” of noncitizens and arguing that it should be “distinguished from the more general law of aliens’ rights and obligations, which includes . . . their tax status”).

      [275].     See, e.g., Hoffman, 535 U.S. at 140 (holding that the National Labor Relations Board’s awarding of backpay to a worker who had never been legally authorized to work in the United States is “foreclosed by federal immigration policy, as expressed by Congress in . . . IRCA”); Arizona v. United States, 567 U.S. 387, 406 (2012) (“The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment.”).

      [276].     See, e.g., Arizona, 567 U.S. at 406 (finding aspects of Arizona’s state regulation of immigrants unconstitutional); see also U.S. v. California, 921 F.3d 865, 873 (9th Cir. 2019) (concluding that a California law requiring observation and review of immigration detention facilities “discriminates against and impermissibly burdens the federal government, and so is unlawful under the doctrine of intergovernmental immunity”).

      [277].     S.B. 54, 2017–2018 Leg., Reg. Sess. (Cal. 2017).

      [278].     California, 921 F.3d at 886.

      [279].     Id. at 887–88.

      [280].     See, e.g., Printz v. United States, 521 U.S. 898, 925 (1997) (“[T]he Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.”).

      [281].     California, 921 F.3d at 889.                               

      [282].     See id. Cities, including Huntington Beach, also sued in state court, arguing that the state violated the rights of charter cities. A state appellate court rejected this claim, finding that the relevant section of SB 54 “is constitutional as applied to charter cities because it addresses matters of statewide concern—including public safety and health, effective policing, and protection of constitutional rights—is reasonably related to resolution of those statewide concerns, and is narrowly tailored to avoid unnecessary interference in local government.” City of Huntington Beach v. Becerra, 44 Cal. App. 5th 243, 248 (2020); see also Gulasekaram, Su & Villazor, supra note 117, at 883 (analyzing how “cities like Los Alamitos, Huntington Beach, and Santa Clarita, along with counties like Orange County, have voiced their displeasure with state sanctuary laws and announced their willingness to bolster federal enforcement efforts”).

      [283].     See, e.g., K. Sabeel Rahman, Democracy Against Domination 145 (2016) (defining administrative constitutionalism as including “the evolution of legal norms and moral rights claims by bureaucrats faced with pressure from social movements”).

      [284].     In jurisdictions where judicial challenges may strike down some reforms, the very attempt at reform may foster needed attention and dialogue about the plight of immigrants caught in federal tax statutes’ crosshairs. Benjamin Ewing & Douglas A. Kysar, Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 Yale L.J. 350, 355 (2011) (describing how localities and states can adopt divergent policies concerning immigrants “knowing well that their attempts . . . may be swiftly overruled by superior authorities, but hoping in the process to prompt sustained democratic engagement with their perceived area of need”).

      [285].     Others, with little awareness of the IRS’s distracting immigration nexus, have criticized IRS CI’s misplaced focus on other grounds. See, e.g., John J. Tigue, Jr., The Tax System is Breaking Down, and We Need to Fix It, 94 J. Tax’n 318, at *2, 2001 WL 476112 (proposing to “[g]et the special agents of the IRS Criminal Investigation Division back on the job of detecting and prosecuting tax crimes”) (emphasis in original); Leandra Lederman, The Use of Voluntary Disclosure Initiatives in the Battle Against Offshore Tax Evasion, 57 Vill. L. Rev. 499, 527 (2012) (suggesting that, in the context of offshore tax evasion, the IRS was “collecting the low-hanging fruit” and that to pursue larger targets, increased criminal investigations were necessary).

      [286].     See, e.g., Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 935 (2006) (describing how district attorneys “face electoral pressure to maximize convictions” and may “push their unelected subordinates to increase conviction rates”).

      [287].     See supra notes 44–46 and accompanying text.

      [288].     While mandatory, three important elements of the FIP curriculum for the NYPD were that it was mandatory, the scientific foundations were stressed, and a non-accusatory tone was encouraged. Robert E. Worden, Cynthia J. Najdowski, Sarah McLean, Kenan Worden, Nicholas Corsaro, Hannah Cochran & Robin S. Engel, The Impacts of Implicit Bias Awareness Training in the NYPD 41 (2020).

      [289].     Id. at 109, 155 (“Our analyses of enforcement behavior spanned a number of forms of enforcement, including stops, frisks, searches, arrests, summonses, and use of force.”).

      [290].     Id. at 158.

      [291].     Cf. Edward H. Chang, Katherine L. Milkman, Dena M. Gromet, Robert W. Rebele, Cade Massey, Angela L. Duckworth & Adam M. Grant, The Mixed Effects of Online Diversity Training, 116 Proc. Nat’l Acad. Sci. 7778 (2019) (evaluating a field experiment of a science-based online diversity training and finding some, but limited, effects on attitudes and behaviors). The authors use their results to argue for more significant interventions including (i) recruiting more under-represented minorities into leadership roles, (ii) changing structures to mitigate the effects of bias, (iii) and considering more involved trainings spanning months. Id. at 7781.

      [292].     See supra notes 87–88 and accompanying text.

      [293].     See, e.g., Bernstein & Rodríguez, supra note 53, at 1600 (2023) (using thirty-nine open-ended, semi-structured interviews with current and former agency employees to describe a “decision-making web, which facilitates continual justification and negotiation among officials with different roles inside the state” and “stands in stark contrast to the strict hierarchy often attributed to government bureaucracy”); Blake Emerson & Jon D. Michaels, Abandoning Presidential Administration: A Civic Governance Agenda to Promote Democratic Equality and Guard Against Creeping Authoritarianism, 68 UCLA L. Rev. 104, 122 n.65 (2021) (cautioning that career officials may not always be “public-spirited and impartial” by referencing how “officials in Immigration and Customs Enforcement (ICE) and Customs and Border Protection have often used unnecessarily punitive, sometimes lawless, enforcement and detention practices”). It is unclear how deeply such behaviors have been transplanted across agencies.

      [294].     Internal Revenue Serv., IRM § 1.1.6.1 (2015), https://www.irs.gov/irm/part1/irm_01-001-006#idm139671254027632 [https://perma.cc/5NXM-WAA7] (describing the review and legal advisory functions of the office, and the general commitment to “interpret the law with complete impartiality so that the American public will have confidence that the tax law is being applied with integrity and fairness”).

      [295].     See Karen M. Tani, Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor, 100 Cornell L. Rev. 825, 848–50 (2015) [hereinafter Administrative Equal Protection] (describing how agency lawyers used equal protection to challenge state-level welfare administration). See generally Karen Tani, States of Dependency: Welfare, Rights, and American Governance, 1935–72 (describing how federal agency officials interpreted and implemented the Constitution). This, of course, may not always be the case. See Jerry Mashaw, Due Process in the Administrative State 260–61 (explaining how, after the Supreme Court’s decision in Goldberg v. Kelly, 397 U.S. 254 (1970), the federal Department of Health, Education, and Welfare scrapped planned procedures, returning to constitutional minimums rather than ambitions).

      [296].     Tani, Administrative Equal Protection, supra note 295, at 833.

      [297].     While I focus on immigration enforcement largely through agencies within the federal government—a “uninational” approach—other immigration scholars depart from this approach and highlight the use of bilateral labor agreements and coordination across borders. See, e.g., Eleanor Marie Lawrence Brown, Outsourcing Immigration Compliance, 77 Fordham L. Rev. 2475, 2480–83 (2009) (arguing for “binational intervention” as opposed to a uninational approach to immigration law). State agencies, like Departments of Motor Vehicles, can also play an important role in immigrant integration. For example, they might promote “naturalization in the manner that they promote voter registration under ‘motor voter’ laws.” Chen, Pursuing Citizenship, supra note 10, at 119.

      [298].     Caroline D. Ciraolo & John D. Fort, The New Age of International Criminal Tax Enforcement, 22 J. Tax Prac. & Proc. 43, 56 (2020) (remarking on GIFT’s “unique and innovative approaches to this fast-evolving and complex area of [international] tax enforcement”).

      [299].     See, e.g., Internal Revenue Serv., Criminal Investigation Annual Report 17 (2017) (describing “a global foreign bribery resolution and total penalty of more than $965 million levied against Stockholm-based Telia Company AB and its Uzbek subsidiary, Coscom LLC, to resolve charges arising out of a scheme to pay bribes in Uzbekistan and a former business professor who amassedm [sic] a $200 million fortune in secret foreign accounts”).

      [300].     The IRS reported a successful tax evasion prosecution against a lawyer who had failed to pay taxes on income from a law practice that involved paying bribes to a special agent with ICE-HIS to obtain immigration benefits for clients. Internal Revenue Serv., Criminal Investigation Annual Report 79 (2017) (describing how “Charles Thomas Busse was sentenced to 37 months in prison, three years of supervised release and ordered to pay restitution of $575,753”).

      [301].     Memorandum of Understanding Between the Internal Revenue Service and the Department of Labor 1, 7 (2022), https://www.dol.gov/sites/dolgov/files/WHD/MOU/MOU-WHD-IRS-22-signed.pdf [https://perma.cc/W2HR-8ELJ] (specifically discussing the privacy limitations of 26 U.S.C. § 6103).

      [302].     Dep’t of Com. v. New York, 139 S. Ct. 2551, 2574 (2019) (describing how the secretary of commerce “subsequently contacted the Attorney General himself to ask if DOJ would make the request[] and adopted the Voting Rights Act rationale late in the process,” leading the court to affirm the district court’s remand to the agency).

      [303].     Of course, immigration enforcement under the Department of Homeland Security can employ multiple component agencies and therefore interagency disagreement. See Ming H. Chen, Administrator-in-Chief: The President and Executive Action in Immigration Law, 69 Admin. L. Rev. 347, 370 (2017) [hereinafter Administrator-in-Chief] (describing how the secretary of the Department of Homeland Security “may prod his assistants and deputies within the office to secure agreement between agency components such as ICE, Customs and Border Patrol (CBP), and USCIS”).

      [304].     See Michael M. Oswalt & César F. Rosado Marzán, Organizing the State: The “New Labor Law” Seen from the Bottom-Up, 39 Berkeley J. Emp. & Lab. L. 415, 435 (2018) (arguing that MOUs “as procedural documents exempt from notice and comment and legally unenforceable, . . . offer flexibility and low transaction costs but also inherent instability and sometimes tentativeness”); Hiba Hafiz, Interagency Coordination on Labor Regulation, 6 ALR Accord 199, 206 (2020) (characterizing MOUs as “[t]he most common and pervasive coordination instruments agencies use”).

      [305].     See Catherine Y. Kim, Presidential Control Across Policymaking Tools, 43 Fla. St. U. L. Rev. 91, 97 (2015) (explaining how guidance documents and the exercise of enforcement discretion are policymaking tools not subject to the formal constraints of notice-and-comment rulemaking); Sinnar, supra note 254, at 1054–64 (describing how, in the national security context, agency discretion can be rights extinguishing and constraints on that discretion, including through inspectors general, can be rights protective). Cf. Blake Emerson, The Claims of Official Reason: Administrative Guidance on Social Inclusion, 128 Yale L.J. 2122, 2196–97 (2019) (discussing how collective claims against the government can “generate new legal rights and duties . . . [which] in turn give the social movement institutional and discursive tools” and arguing that, in the immigration context, this happens not only through binding legal rights, but also “at a lower normative altitude [with] nonbinding administrative policies” like memoranda).

      [306].     See, e.g., Chicago Mercantile Exch. v. S.E.C., 883 F.2d 537, 544 (7th Cir. 1989) (describing how Congress enacted and formalized an interagency agreement between the Securities and Exchange Commission and Commodity Futures Trading Commission “almost verbatim”).

      [307].     See Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2317 (2006) (describing how “[w]hen the State and Defense Departments have to convince each other of why their view is right . . . better decision-making results”); see also Daphna Renan, Pooling Powers, 115 Colum. L. Rev. 211, 279 (2015) (“Fragmentary administration in some instances might reflect the idea that diffuse power preserves liberty and other fundamental rights.”).

      [308].     See Stephen Lee, Private Immigration Screening in the Workplace, 61 Stan. L. Rev. 1103, 1121 (2009) (describing judicial decisions that “highlight the degree to which employers and the DHS work collaboratively to detain and remove unauthorized immigrants despite apparent violations by the employers themselves”).

      [309].     See Kathleen Kim, Beyond Coercion, 62 UCLA L. Rev. 1558, 1577 (2015) (arguing that these memoranda and protections “are an important and perhaps necessary response given the traditional civil rights framework” requiring private plaintiffs “to act as private attorneys general”).

      [310].     Revised Memorandum of Understanding Between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites, Dep’t of Lab. (Dec. 7, 2011), https://www.dol.gov/sites/dolgov/files/ofccp/regs/compliance/directives/files/DHSICE-DOLMOU-Final3-31-2011ESQA508c.pdf [https://perma.cc/YVS7-EGJN].

      [311].     See Addendum to the Revised Memorandum of Understanding Between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites, Dep’t of Lab. 2 (May 5, 2016), https://www.dol.gov/sites/dolgov/files/OASP/MOU-Addendum_4.19.18.pdf [https://perma.cc/P5VU-GAND]. “[W]here their commitments and exchanges apply with respect to DOL in the MOU, those commitments and exchanges shall apply with respect to the EEOC and the NLRB as well.” Id. at 4 (including ICE, DOL, EEOC, and NLRB as signatories).

      [312].     Memorandum from Sec. Alejandro Mayorkas, Dep’t of Homeland Sec., Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual 3 (Oct. 12, 2021) [hereinafter Mayorkas] (describing how the raids shift attention away from the most significant concern of the undocumented workforce: “exploitative employers”).

                    Some commentators have characterized the DHS’s abandonment of such raids as “reversing a Trump Administration policy.” Kristen Eichensehr, Biden Administration Continues Efforts to Change Immigration Policy Amidst Surges of Migrants and Court Losses, 116 Am. J. Int’l L. 197, 204 (2022).

      [313].     Mayorkas, supra note 312, at 3.

      [314].     See Lee, supra note 309, at 1127 (arguing that “as soon as IRCA was passed, the INS embraced a recruitment and hiring strategy that could best achieve a cordial, professional relationship with employers” and “replaced law-and-order border enforcement officers, who historically had conducted confrontational and aggressive workplace raids, with high-achieving college graduates who offered a skill set geared towards conciliatory regulation”).

      [315].     See Oswalt & Rosado Marzán, supra note 304; see also Catherine L. Fisk & Diana S. Reddy, Protection by Law, Repression by Law: Bringing Labor Back into the Study of Law and Social Movements, 70 Emory L.J. 63, 134 (2020) (bemoaning the “limits to the ability of even the most robust belief in legal rights to resist the power of state-sanctioned repression backed by the force of law,” including for “immigrants arrested by Immigration and Customs Enforcement for protesting their mistreatment”).

      [316].     See, e.g., Jennifer J. Lee, Legalizing Undocumented Work, 42 Cardozo L. Rev. 1893, 1940–41 (2021).

      [317].     Chen, Administrator-in-Chief, supra note 303, at 369–70.

      [318].     See Kaufman, supra note 125, at 1443 (suggesting “a bigger role in regulating the interagency dynamics of immigration enforcement” and offering “a cautionary tale about what happens when two agencies ‘pool’ the federal immigration power”). Cf. Emerson, supra note 305, at 2128 (discussing how the “struggle over [administrative] guidance on social inclusion is primarily a political battle over the meaning of civil rights and the boundaries of the American political community” but also implicates the “boundaries of law itself in the administrative state”); Milligan, supra note 20, at 937–38 (“[I]t is by no means clear that progressive goals or rights expansion represent the dominant tendency of the American administrative state.”).

      [319].     Cf. Kim, supra note 309, at 1563 (arguing that “in the undocumented workplace, worker-employer inequities are amplified through an immigration enforcement system that is insufficiently counterbalanced with stable immigration relief for aggrieved workers”).

      [320].     In 2023, DHS announced the use of its discretionary authority to provide a deferred action process for noncitizens who are victims of, or witnesses to, labor violations. Press Release, Dep’t of Homeland Sec., DHS Announces Process Enhancements for Supporting Labor Enforcement Investigations (Jan. 13, 2023), https://www.dhs.gov/news/2023/01/13/dhs-announces-process-enhancements-supporting-labor-enforcement-investigations [https://perma.cc/PE8Q-7EZQ] (“‘Unscrupulous employers who prey on the vulnerability of noncitizen workers harm all workers and disadvantage businesses who play by the rules,’ said Secretary of Homeland Security Alejandro N. Mayorkas.”).

      [321].     See, e.g., supra note 83 and accompanying text.

      [322].     See Pub. L. No. 106-386, § 1513, 114 Stat. 1518, § 1502 (a)(3).

      [323].     See 8 U.S.C. § 1101(a)(15)(U).

      [324].     As such, a U-visa petitioner found to be inadmissible would need to seek a waiver. 8 C.F.R. § 214.14(c)(2)(iv) (describing evidence for U Nonimmigrant Certification Strategy); id. at § 212.17 (describing applications of waiver of inadmissibility for U-visa applicants).

      [325].     See id.  § 214.14(a)(2).

      [326].     Id.

      [327].     U Visa Law Enforcement Resource Guide 3 (“Such agencies may include state and local agencies that enforce relevant labor and employment laws (when such violations are also qualifying criminal activities).”), https://www.uscis.gov/sites/default/files/document/guides/U_Visa_Law_Enforcement_Resource_Guide.pdf [https://perma.cc/CN9T-9DEQ].

      [328].     See 8 U.S.C. § 1101(a)(15)(U)(iii).

      [329].     United States v. Kozminski, 487 U.S. 931, 948 (1988).

      [330].     See Leticia M. Saucedo, A New “U”: Organizing Victims and Protecting Immigrant Workers, 42 U. Rich. L. Rev. 891, 925 (2008) (describing how “[o]ne example of legal coercion is a threat to call immigration officials if an employee refuses to work”).

      [331].     Daniel E. Walters, The Administrative Agon: A Democratic Theory for A Conflictual Regulatory State, 132 Yale L.J. 1, 12 n.40; see also Bernstein & Rodríguez, supra note 53, at 1621 n.63 (quoting a former agency employee as describing “[a]nything dealing with immigration” as a “hot political issue” that attracts attention across agencies and the White House).