Today, ICE issued a new policy regarding use of immigration detainers. Sometimes called immigration holds, detainers are requests by ICE that a local law enforcement agency continue holding someone in the LEAs custody. The purpose of continued confinement is to give ICE time to pick up the individual. The policy announced today instructs immigration officers, including local police deputized as immigration officers pursuant to a 287(g) agreement, to issue detainers against anyone who they have probable cause to believe is removable from the United States.

Though couched in carefully crafted language, ICE’s new policy remains legally problematic. Like past detainer policies, today’s announced policy does not conform to key Fourth Amendment principles.

First, the Fourth Amendment requires probable cause to arrest someone. Arrest without probable cause is unconstitutional. That much is plain and simple. ICE’s newly released policy asks LEAs to ignore that basic constitutional limitation on the government’s power to deprive people of their liberty. The new detainer form asks LEAs to “maintain custody…for a period not to exceed 48 hours beyond the time when he/she would otherwise have been released.” The policy guidance released today includes similar language.

The Fourth Amendment has no forty-eight exception. Either there is legal basis to arrest someone or there isn’t. Numerous courts have concluded that continued confinement like this violates the Fourth Amendment. ICE is essentially asking local police to violate the Fourth Amendment in order to help the federal government perform its immigration law enforcement duties. That is an unacceptable request.

Second, ICE continues to exclude neutral third-parties from deciding whether probable cause exists to arrest someone. The Fourth Amendment is very clear that judges need to be involved. In the traditional criminal policing context, local cops don’t get to decide whether probable cause exists to issue a warrant. Judges are involved precisely because the founding generation was keenly aware that law enforcement officers can easily stray toward excessiveness if left unchecked. Judges play that role in the traditional criminal policing context. There is no legal reason for ICE to be exempted.

ICE suggests that an immigration warrant satisfies the Fourth Amendment’s warrant requirement. It doesn’t. There is a vast gulf between a judicial warrant and an ICE administrative warrant. Judicial warrants are issued by judges after reviewing evidence gathered by law enforcement officers. ICE administrative warrants are issued by ICE officers after reviewing evidence gathered by ICE, CBP, or other law enforcement officers. In other words, no judge is involved in issuing an ICE administrative warrant and no judge reviews the warrant after the fact to ensure that there was sufficient evidence to justify an arrest.