The general counsel for the Department of Homeland Security has published a Wall Street Journal op-ed with some interesting observations. I think this is the key passage because it hinges on the claim that “reasonableness” under the Fourth Amendment can substitute for judicial oversight in the specific context of immigration enforcement, a claim that is doing a great deal of work in justifying administrative entry into private residences:
Under federal immigration law, officers may issue an administrative warrant, which means that the probable-cause finding is made by an executive-branch officer rather than a judicial officer. This is consistent with broad judicial recognition that illegal aliens aren’t entitled to the same Fourth Amendment protections as U.S. citizens. It is also consistent with the Supreme Court’s admonition that the touchstone of the Fourth Amendment is whether the search or seizure is “reasonable,” not whether it is supported by a judicial warrant. In Abel v. U.S. (1960), the justices recognized that there is “overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens.”
While administrative warrants may satisfy the Fourth Amendment for any arrest of an illegal alien, ICE currently uses these warrants to enter an illegal alien’s residence only when the alien has received a final order of removal from an immigration judge. That means the alien has already seen a judge, presented his case, received due process, and been ordered removed from the country. Aliens in this context are fugitives from justice, and the Eighth U.S. Circuit Court of Appeals, which has jurisdiction over Minnesota, has expressly recognized that administrative warrants may be used to enter a residence to capture a fugitive.
His primary complaint and apparent reason for the op-ed is:
Although the law is clear, deep-state actors in the federal government have for decades told ICE officers that they may not enter a fugitive alien’s home even with a final order of removal and administrative warrant. Because Congress hasn’t created a mechanism to obtain a judicial warrant, this meant that under previous presidential administrations, ICE would sit outside the homes of fugitive aliens waiting for them to come outside before arresting them. Illegal aliens quickly identified this loophole. Some would openly taunt ICE officers by waving through the window or passing notes under the door.
No serious country would tolerate this clear aberration of its laws or allow its national security to be jeopardized and mocked in this manner. Congress never intended the immigration laws to operate this way and the Fourth Amendment doesn’t require it.
I think that the central argument of many of the critics of the ongoing ICE operations is lack of due process. But “due process” is not a singular, uniform requirement of judicial warrants or individualized hearings; it varies across legal domains. His claim, in effect, is that in this context due process consists of the prior deportation order itself.
ICE agents should be better-trained and more merciful in carrying out even legitimate enforcement operations; that doesn’t negate the legitimacy of enforcing our laws. Assessing the ultimate legality of these claims is for the courts, but the argument is worth examining on its own terms because it illustrates how much executive power now rests on administrative interpretations of “reasonableness” rather than on explicit judicial authorization.
The issue of whether “knock and arrests” can be performed pursuant to an administrative warrant is one that is currently on appeal to the 9th Circuit after a California district court judge ruled that a judicial warrant was required to arrest a person in their home. The case started during Trump’s first term and resolved with an injunction that resembles the type of Fourth Amendment injunction that the SCOTUS has disapproved. Injunctions are difficult to get in Fourth Amendment cases and it is quite possible that the substantive question about the lawful scope of administrative judgments is never adjudicated in a court.
The Supreme Court case (Abel) referenced in the op-ed stemmed from an administrative warrant to deport an alien served in his hotel room, which resulted in discovering information that he was a spy. The case got to the SCOTUS based upon the issue of whether information obtained from the invasion of the room should be suppressed in the criminal case. The SCOTUS ruled in the early 90s that there is categorically no right to suppress evidence in a civil immigration case based upon an unlawful arrest.
At one time, the Supreme Court authorized damage suits against the federal government for violations of constitutional rights. Bivens v. Six Unknown Named Agents J (1971) Most people think that the SCOTUS has stealth reversed _Bivens_ and clearly a majority of the current Court believes that it was a violation of separation of powers to create a legal remedy, a legislative function. A case seeking damages against Border Patrol operations during the Obama administration was rejected, including the added claim that the immigration enforcement violated a First Amendment right against retaliation.
On top of that, the Immigration and Naturalization Act precludes judicial review of immigration proceedings until after they are completed, at which time they may directly appeal to the Court of Appeals (not the district courts). The Third Circuit Court of appeals just vacated the district court judgment for Mahmoud Khalil to permit the usual immigration process to continue, subject to a right to appeal to the Fifth Circuit Court when the final administrative order is entered.
Mostly, I see civil rights lawyers working very had against overwhelming odds — the work put to getting Khalil’s case outside of the ordinary immigration process or more importantly out of the Fifth Circuit’s oversight, says a lot about the odds.