By Michael Kagan
The manner in which Immigration and Customs Enforcement (ICE) takes people into custody at the outset of removal proceedings fails to meet the constitutional requirements for seizure of a person under the Fourth Amendment. In other words, immigration arrests are unconstitutional.
This may seem like an ambitious argument because it would upend the manner by which federal authorities have enforced immigration law since the 19th Century. But the constitutional analysis is in in fact quite simple. Indeed, the constitutional problems with immigration arrests are so straightforward that, in some ways, the important question may not be whether immigration arrests violate the Fourth Amendment, but rather why these arrests have been shielded from constitutional scrutiny for so long.
In my recent article in the Georgetown Law Journal, Immigration Law’s Looming Fourth Amendment Problem, I explain why immigration arrests are constitutionally problematic and why they are now, at long last, likely to be subject to constitutional challenge.
Consider the way in which immigration arrests are carried out right now: According to the Immigration and Nationality Act, a “warrant” may be issued to arrest someone at the beginning of the removal process. But this “warrant” would be signed by an ICE officer, not by a neutral magistrate. Alternatively, ICE may arrest someone without a warrant, in which case the applicable regulations require a prompt review by “by an officer other than the arresting officer.” But, again, there is no requirement for any neutral adjudicator to be involved, just a different officer who works in the same law enforcement agency.
If ICE decides that the person should be subject to mandatory detention with no right to bond, the detainee may ask the Immigration Court for a Joseph hearing to review this decision. But in a context in which there is no government-provided counsel, the detainee would have to know to ask for this hearing. Making matters even more difficult, the detainee will be given an official “Notice of Custody Determination,” or Form I-286, which falsely states that “you may not” request review by an Immigration Judge. If the detainee nevertheless has the knowledge and assertiveness to ask for the Joseph hearing, the hearing might not actually be held for several weeks.
Any law student enrolled in a Criminal Procedure course should be able to spot the problems presented by this system. Unlike the typical criminal context, here there is no automatic, neutral review within a prescribed period of time of the basis for depriving a person of liberty. If ICE arrests someone on immigration grounds, there may be no independent review of whether there is an actual legal basis for holding them in custody for weeks, and possibly longer. But under Gerstein v. Pugh, 420 U.S. 103 (1975), if the local police were to arrest the same person for homicide, there would have to be a neutral, judicial review of probable cause within 48 hours.
Why have the courts not yet addressed this? The only answer is that the manner in which federal authorities enforce immigration law has long been insulated from constitutional scrutiny by the plenary power doctrine and by the longstanding formalistic distinction between criminal procedure and supposedly civil immigration cases.
But plenary power is not what it once was, and nor is the civil-criminal distinction. In fact, a long line of Supreme Court cases stretching back decades suggests that immigration arrests must abide by Fourth Amendment norms. In Camara v. Municipal Court, 387 U.S. 523 (1967), the Court found that Fourth Amendment warrant requirements apply to administrative searches and seizures. In United States v. Salerno, 481 U.S. 739 (1987), the Court explicitly analogized pre-trial criminal detention to civil immigration detention. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Court held that plenary power is subject to constitutional limits, and that depriving immigrants of liberty triggers special constitutional concerns. In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Court analogized deportation to penal imprisonment. As a result of these and other cases, there is little reason to think that immigration arrests should be immune from Fourth Amendment attack.
Beginning with the Supreme Court’s 2001 decision in Zadvydas, many constitutional challenges to immigration detention have focused on the duration of custody. This is not surprising, since Zadvydas found that indefinite detention of a person after a final order of removal posed a constitutional problem. Applying the doctrine of constitutional avoidance, the Supreme Court reinterpreted the INA to permit only six months of detention after a removal order.
Zadvydas attacked immigration detention at the back end, and directly affected only a minority of ICE detainees. But the constitutional attack on immigration detention has been inching closer to the front end of immigration enforcement. In Rodriguez v. Robbins, 578 F.3d 1032 (9th Cir. 2013), the Ninth Circuit found that even someone subject to mandatory detention while a removal case is still pending may ask for a bond hearing after six months. As Alina Das described recently on this blog, the Second Circuit reached the same conclusion a few weeks ago.
While the Zadvydas line of cases is grounded in potential concerns about treading on the Fifth Amendment Due Process Clause, other successful challenges emanate directly from the Fourth Amendment. In several district court cases challenging local police who held people in detention on the basis of ICE detainers (see, e.g., a case discussed on this blog here), courts have found that state and local authorities cannot rely on ICE detainers to hold people in custody because ICE detainers do not represent a judicial warrant finding probable cause.
Given these concerns, the next logical question to ask about immigration arrests is: If local police cannot detain someone based on an ICE detainer, why can ICE detain the very same person, also without seeking any independent finding of probable cause? They can’t.
The good news for the government, and for the courts, is that the unconstitutionality of immigration arrests can be fixed. Using the same doctrine of constitutional avoidance that the Supreme Court used in Zadvydas, the INA should be interpreted to require either that ICE release people from custody while their removal cases are pending, or that the detention be automatically reviewed by a neutral immigration judge within a prescribed period of time. This will require more immigration judges (and the immigration courts are already overburdened). But it should not require asking Congress to rewrite the statute. It simply requires that we do in the immigration context what police routinely do in routine law enforcement in order to comply with the Fourth Amendment.
Immigration arrests are a gap in our constitutional safeguards against the government’s power to deprive people of liberty. It is time to ask the courts to fix it.
Michael Kagan is Associate Professor at the University of Nevada, Las Vegas William S. Boyd School of Law. He co-directs UNLV’s Immigration Clinic.