Thursday, April 4, 2024

Immigration Article of the Day: The Dangers of ICE's Unchecked Rearrest Power by Talia Peleg

Talia Peleg Headshot

The Dangers of ICE's Unchecked Rearrest Power by Talia Peleg, Albany Law Review, Vol. 86, No. 3, 2023


While challenges to immigration enforcement from the front and back ends have been explored in scholarship and litigation, few have examined challenges to immigration enforcement in the middle. This Article explores the phenomenon I call "rearrest and detention in the middle" and the important questions it raises. Does the Constitution limit ICE’s ability to rearrest and detain in the middle of a removal case, and if so, how? What are the social and other policy implications of ICE’s broad unilateral rearrest authority that most often results in prolonged detention and a higher likelihood of deportation? Are there unique considerations that arise in rearrest that are distinct from initial arrest and merit heightened attention? And in what ways is rearrest power symptomatic of a damaged immigration enforcement system that engages in legally questionable and problematic practices?

Part I of the Article provides background on the development of modern immigration detention and alternatives to detention, and it explores ICE’s arrest and rearrest authority. It also describes how the enforcement system creates a presumption of detention even for those who are theoretically eligible for release. Part II explores numerous constitutional problems raised by ICE’s broad rearrest practices, specifically regarding procedural due process and the Fourth Amendment. Because the statute and agency are silent as to what procedures govern, constitutional principles fill this gap. Given the erosion of the criminal–civil distinction in immigration law and the limiting of plenary power doctrine in immigration detention doctrine, constitutional challenges to rearrest and detention are ripe. Analogous contexts—like revocation of criminal bail and/or supervised release and some civil areas—are instructive as to when and how the government may infringe on a non-citizen’s liberty. Part III considers other legal theories and social policy considerations that further support limiting ICE’s rearrest authority. ICE exercises rearrest power—without clear standards and absolute discretion—more certainly assuring the removal of groups of individuals the agency deems undesirable. ICE utilizes rearrest in these interrelated ways: (1) as a tactic of crime control and prevention, (2) to remove those it deems a national security threat, and (3) in retaliation against immigrant activists. Lastly, Part IV outlines the case for limiting ICE’s power to rearrest and detain in the middle, and it suggests several solutions that would eliminate, or at a minimum restrain this practice.


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What else do you think ICE should stop doing? Enforcement actions have been cut back a lot already. For instance, according to the ICE Annual Report for Fiscal 2023, ICE only removed 142,580 of the 1,292,830 migrants who were subject to final orders of removal.

Posted by: Nolan Rappaport | Apr 4, 2024 9:04:28 PM

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