Deportation Arrest Warrants.

• Date: 01 February 2021
• Author: Nash, Lindsay

Table of Contents Introduction I. Arrest Warrants in Removal Proceedings Today A. Warrants Generally B. DHS-Issued Arrest Warrants II. Arrest Warrants in Removal Proceedings in the Framing Era A. Relevance of Framing-Era Law B. English Law 1. Criminal-history-based removal 2. Public-charge-based removal C. Contemporaneous State Law 1. Criminal-history-based removal laws 2. Public-charge-based removal laws 3. Removal as deportation D. Earliest Federal Law III. Implications A. Implications for Abel B. Broader Implications Conclusion Introduction

The common conception of a constitutionally sufficient warrant is one reflecting a judicial determination of probable cause, the idea being that the warrant process serves to check law enforcement. But neither the Constitution nor the Supreme Court has fully defined who can issue arrest warrants within the meaning of the Fourth Amendment, the constitutional significance of arrest "warrants" that are not within it, or when (if ever) warrants of any type are constitutionally required for deportation-related arrests. In that void, the federal government's largest law-enforcement agency (1)--the Department of Homeland Security (DHS)--is on pace to issue over 150,000 administrative "warrants" annually, authorized by only its own enforcement officers with no judicial or even neutral review whatsoever. (2)

Administrative arrest warrants are unusual in the world of federal law enforcement (3) but are common when it comes to civil immigration enforcement. (4) In some respects, the administrative arrest warrants used in the immigration context resemble ordinary (judicial) arrest warrants: They are labeled "warrant," they authorize a law-enforcement officer to seize an individual who has allegedly violated the law, and they purport to be based on a finding of probable cause. (5) And, like ordinary arrest warrants, these administrative warrants have important signaling effects, as the existence of a warrant--even an administrative one--lends an air of legitimacy to on-the-ground enforcement. (6) But the purpose of an ordinary arrest warrant is, at bottom, "to allow a neutral judicial officer to assess whether [law enforcement has] probable cause to make an arrest." (7) And in that sense the warrants that DHS uses differ significantly: They are issued by DHS enforcement officers with no probable cause review by a judge or a neutral arbiter of any kind. (8)

Although the federal government's use of administrative arrest warrants in connection with removal proceedings is not new, the current scale of its use, impact of its use, and way it leverages them are new. These warrants are the linchpin of DHS's largest interior enforcement program: its force-multiplying partnerships with state and local law-enforcement agencies. (9) In the past, these partnerships operated through immigration detainers--requests from Immigration and Customs Enforcement (ICE) that the federal government claimed gave nonfederal officers the authority to detain people for suspected violations of civil immigration law. (10) But as courts across the nation held that detention by local law enforcement pursuant solely to immigration detainers violated the Fourth Amendment, (11) and ICE's local partners became reluctant to participate, ICE has successfully used administrative warrants to persuade these local law-enforcement officers that they can make constitutionally permissible arrests. (12) As a result, the question whether these law-enforcement-issued warrants alleviate the Fourth Amendment concerns that arise from these arrests is now enormously consequential both for the subjects of these warrants and for a major component of the immigration-enforcement regime. (13)

The question whether arrest warrants issued by federal immigration-enforcement officers can claim "constitutional validity" is not a new one. More than sixty years ago, the Supreme Court recognized that these warrants give rise to a significant and open constitutional question. The issue arose in Abel v. United States, which involved a challenge in criminal proceedings to evidence obtained when federal immigration officers arrested Abel, a suspected Soviet spy, and commenced civil deportation proceedings using an arrest warrant issued by an executive officer responsible for immigration enforcement. (14) The Abel Court observed that it had never addressed "the constitutional validity" of administrative warrants like the one used in Abel's arrest and that that type of arrest authorization "ha[d] never been directly challenged in reported litigation," (15) but it ultimately declined to decide the issue because it had been waived.

Yet the Court went on to make its instincts clear in dictum, devoting five pages of the opinion to the belatedly raised Fourth Amendment challenge. (16) In so doing, the Court focused on the historical pedigree of this type of arrest but cited only federal statutes--virtually all of which were enacted almost a century after the Fourth Amendment was framed. (17) It observed that "[statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time," are "confirmed by uncontested historical legitimacy," and are part of a "long-sanctioned practice." (18) Ultimately, it concluded that even apart from the waiver problem, the issue required no further consideration given the "impressive historical evidence of acceptance of the validity of statutes providing for administrative deportation arrest from almost the beginning of the Nation." (19)

Since Abel, the Supreme Court has recognized that a detached and neutral magistrate is a critical feature of the process for issuing a warrant within the meaning of the Constitution. (20) In the criminal context, the Court has also found that even where officers are not required to obtain a warrant before making an arrest, the Fourth Amendment requires that a detached and neutral magistrate review the officer's determination of probable cause promptly after an arrest. (21) But although DHS's administrative warrant regime has no neutral probable-cause-review mechanism at either the front or back end, (22) the Supreme Court has not revisited the issue left open in Abel That is, it has not explained whether administrative arrest warrants have any constitutional significance or whether neutral probable cause review is constitutionally required for deportation arrests.

Abel is now the centerpiece of DHS's defense of these warrants, (23) and lower courts have often followed its "forceful" dictum in finding that arrests pursuant to warrants issued by immigration-enforcement officers are consistent with the Fourth Amendment. (24) Indeed, many courts have relied almost entirely on Abel in holding that arrests based on DHS-issued arrest warrants satisfy the Fourth Amendment, though their reasoning--beyond the tea leaves they read from Abel--is not always clear or uniform. (25) A recent Fifth Circuit decision makes the ramifications of Abel's dictum plain: Citing only Abel, the court stated that "federal immigration officers may seize aliens based on an administrative warrant attesting to probable cause of removability" and--finding that this probable cause could be "imputed to local officials"--rejected a challenge to a law requiring localities to comply with ICE detainers. (26) Of course, not all courts have simply deferred to the government's reliance on Abel: At least one court has pointedly rejected the argument that an arrest pursuant to a DHS-issued warrant establishes probable cause for purposes of immunity from suit, reasoning that the arrest must be considered warrantless where the warrant was issued by a "non-neutral executive official[]." (27) And, just recently, a divided Ninth Circuit panel attempted to harmonize Abel with its conclusion that neutral, postarrest probable cause review was required for deportation arrests by deciding that such review could be performed by neutral executive officers. But the court remanded for the district court to decide whether and how this conclusion might change if, as in Abel, the arrest was conducted based on an administrative warrant. (28) Other courts, perhaps recognizing the unsettled issue, have sidestepped the constitutional question entirely. (29) However, on the whole, Abel's dictum has played a decisive role in jurisprudence involving these administrative arrest warrants.

But, as this Article shows, Abel missed and misunderstood important aspects of the relevant history when it concluded that deportation arrests pursuant to this type of warrant or law-enforcement authorization have been sanctioned since the beginning of the nation. (30) Abel looked only to federal law--largely to laws enacted from the late nineteenth century onward. (31) But if history is to be our guide, the more relevant historical question--at least given originalist trends in constitutional interpretation today (32)--is what was considered reasonable when the Amendment was framed. Abel did not adequately consider or, in some respects, accurately assess that history: It misunderstood the significance of the only early federal law that it cited and entirely missed a critical source of relevant law--removal laws adopted by the states, the primary entities that regulated migration during the Framing era. This Article seeks to rectify those mistakes. Its survey is not exhaustive, but it shows that--with remarkable consistency--neither warrantless arrests nor warrants issued by officers responsible for enforcement were the norm in the civil expulsion laws it identifies. On the contrary, those laws authorized arrest for removal proceedings--including for expulsion beyond sovereign borders--only pursuant to warrants, and those warrants were issued by magistrates and tribunals with judicial power. Ultimately, this Article argues that while Abel's dictum may be forceful, it should no longer persuade.

To be clear, this...