The Problem of Deportation without Due Process

Immigration and Customs Enforcement (ICE) stands accused of detaining citizens and terrorizing local communities in the name of law enforcement. In Kansas City, Florencio Millian-Vasquez and Cheyenne Hoyt were preparing to take their son and their infant daughter to a doctor’s appointment.

They were approached by two ICE agents who claimed they had an arrest warrant for Millian-Vasquez. ICE alleges that Millian-Vasquez had re-entered the country after being deported in 2011.

In the Facebook video of the incident, the parents repeatedly ask the officers for a copy of the arrest warrant. The agents refused to produce the warrant and call the Kansas City Police Department officers instead.

The KCPD officers attempt to break down the couple’s window while the family sit in shock. Finally, the officers break the window and the ICE agents drag Millian-Vasquez away from his car and his family. Millian-Vasquez is now in a federal detention camp while Hoyt is left to raise her two children by herself.

Do Non-Citizens Have Constitutional Rights?

Under the 4^th Amendment, persons have a right to be secure in their homes, papers, and effects against unreasonable searches and seizures. No warrants shall be issued without probable cause supported by oath and the warrant shall describe the place to be searched and the persons or things to be seized.

The most notable aspects of the 4^th amendment is that it a right of persons, not just citizens. All residents in the country, whether they are citizens, undocumented persons, tourists, student or work visas, or illegal aliens, have a 4^th amendment to be secure in their homes and property. The 5^th amendment right of due process contains similar language regarding persons rather than citizens.

The rationale, other than the Constitution’s plain text, is that the burden must be on the government to prove that they have a warrant and/or that the accused is here illegally. It would be a significant loophole if the government could argue that the Constitution does not apply to criminal defendants merely because the government claims they are not citizens.

What Kind of Warrant Does ICE Need to Arrest Someone?

Under the 4^th Amendment, the government needs a valid warrant to arrest someone. The text of the 4^th Amendment is silent on whether a valid warrant requires a judge’s signature. However, the warrant must be supported by the government’s oath or affirmation that they have probable cause to request the warrant.

Logically, a judge’s signature should be required for two reasons. First, the judicial branch provides an independent check against the executive branch’s potential abuse of the 4^th amendment. It would be easy for law enforcement to lie and claim they have probable cause when they actually do not, without a court to verify that they have actually met the probable cause requirement.

Second, it is difficult to verify that law enforcement has actually obtained a judge’s approval absent the judge’s signature. Nevertheless, case law is split on the issue because the 4^th amendment does explicitly require a judge to sign a warrant.

As a result, ICE will often attempt to execute two different types of warrants. The first type of warrant is judicial warrants, which have a court’s approval. Immigration law presents somewhat of a gray zone in terms of what types of judge can sign the warrant. The point of obtaining a judicial warrant is to provide independent verification that law enforcement has probable cause to execute the warrant.

However, immigration judges are not members of the judicial branch. Immigration judges draw their authority from a law enacted by Congress and their appointments are different from federal judges who draw their authority directly from Article III of the Constitution. There are two big distinctions between a federal judge and an immigration judge.

First, immigration judges are appointed by the Attorney General of the United States without Senate approval whereas federal judges are appointed by the President and approved by the Senate.

Second, federal judges have the power of judicial review while immigration judges do not. Administrative courts are courts created by Congress rather than the Constitution. It is arguable that an arrest warrant signed by an immigration judge would not count as a judicial warrant because immigration judges are executive officers rather than judicial officers.

The second kind of warrants is administrative warrants. Administrative warrants, as their name suggests, are issued by the agency itself and do not have prior judicial verification. Administrative warrants are permissible if the agency has a statutory basis for them.

ICE is empowered by the Immigration and Nationality Act (INA) to make arrests without judicial warrants under certain circumstances. Indeed, the ICE agents in the Millian-Vasquez video cited INA as justification for the arrest.

The problem for ICE is that the INA does not supersede the Constitution. The Supremacy Clause makes the Constitution the supreme law of the country. If there is any conflict between a regular law and the Constitution, the Constitution will be the controlling body of law. The Supreme Court has ruled that under the 4^th Amendment, a vehicle search requires probable cause.

The ICE agents were purposefully looking for Millian-Vasquez that day. They did not happen to find Millian-Vasquez because he was caught speeding or running a traffic light. As such, ICE did not have probable cause unless they had a warrant proving the agency had probable cause to arrest him as an illegal alien.