Thursday, September 28, 2017
President Trump, during his campaign, promised a “deportation task force” to swiftly deport the eleven million undocumented noncitizens in the United States. Within his first week in office, he issued two Executive Orders calling for stricter immigration enforcement and a stronger border. The Department of Homeland Security (“DHS”) Memos implementing his interior and border enforcement executive orders indicate that DHS will use every tool to enforce the immigration laws, expanding the use of procedural tools that bypass immigration courts and ensuring that noncitizens remain detained during these “shadow” deportations. Two of these procedural tools, administrative removal and expedited removal, allow an Immigration and Customs Enforcement (“ICE”) officer or Customs and Border Protection (“CBP”) officer – the immigration police – to sign off on arrest and detention with no involvement of an immigration judge. Such a seizure without a probable cause finding by a neutral, detached magistrate, if occurring within the criminal justice system, would clearly violate the Fourth Amendment.
In this article, I build off of prior scholarship and litigation examining Fourth Amendment violations in immigration law to argue that the arrest and detention pursuant to administrative and expedited removal is an unreasonable seizure. I propose a framework for thinking about the Fourth Amendment violations at issue in these shadow deportation procedures. This framework focuses on the reasonableness of the seizure, not the status of the person harmed by the seizure, and not whether the proceedings that follow are punishment. In doing so, this article examines how the Fourth Amendment’s core concerns are present in the immigration law enforcement context notwithstanding immigration law’s plenary power. As such, the article contributes to the scholarship that has both challenged immigration law’s historical exceptionalism and mapped where the plenary power has not trumped.