<shrug> My wallet currently contains a passport card, my NY state drivers license, a military ID and a social security card. If they check my finger prints, they will find a number of prior security clearances [I can recite one of my security clearance numbers off the top of my head, my husbands social security number, both my dad’s SS number and his old pre SS# military ID number and my old DEERS dependent military record number from the preTri-Care system.] I also have a card in several languages that states my medical needs, my power port ID card and a listing of my assorted doctors, medical conditions, medications and prior hospitalizations [can save time when filling out paperwork] much of all the info is also duplicated on a USB stick medicalert necklace.
ICE releases letter claiming they do not need a warrant for arrests - are Gestapo comparisons valid?
I don’t believe ICE can violate the 4th amendment, so I don’t have to rationalize their doing so. But to be fair, one of the few examples would be if an agent possesses some specific fact, like a tip from an informant, that a person has violated federal law.
If the appeal to consequences is your thing, and you find yourself thinking “what’s the point of having ICE if they can’t randomly arrest brown people in Texas”, I would suggest that the default position toward that should be skepticism instead of justification.
I’m sure the police would appreciate your helpfulness here, but nobody is required to carry any of this (unless your driver’s license if you are operating a motor vehicle).
Normality should be that the police are responsible for establishing probable cause to arrest.
Normality should never involve people having to carry papers explaining why they shouldn’t be arrested.
Yes that is precisely the expectation. “Due process” is a flexible concept. The procédural protections required to comply with due process will vary with the circumstances, the type of legal proceedings and the consequences.
Consequences for being found in the country without valid legal authority: the State deports you.
Consequences for murdering someone: the State kills you.
Yes, due process requirement will be higher in the second case.
This is tiring. I’m on record as being very much in favor of allowing anyone to immigrate who wants to, but that’s not the current law. It seems self evident that the actual day-to-day operations of a border patrol agent would involve things like, say, rounding up and arresting people who pile out of a van when stopped at a checkpoint near the border. That, again, seems like a perfectly reasonable probable cause. I don’t like border patrol checkpoints, I don’t like US policy on immigration, but for some reason you’re trying to twist my acceptance of border patrol agents doing what I assume is a job we’ve asked them to do with being OK with racial profiling and indiscriminate harassment of minorities. Thinking I’m not bothered by ICE agents “randomly arresting brown people in Texas” is such a strawman. Please.
Good for you, but most people don’t carry a manila folder full of ID with them, and there’s no law that says they have to.
I suspect most Americans would be shocked to realize that the expectation that they carry a photo ID is exactly the sort of “show me your papers” principle that they would reflexively recoil at if an openly totalitarian state did it. Same goes for making schoolkids recite the Pledge of Allegiance.
How could the pledge to the flag look at all totalitarian? 
Sure, in total, but what the is argument supporting the idea that in the first case the accused can languish in a filthy cell for a month without legal representation, while in the second case a lawyer is immediately assigned and the accused can appear before a judge within a couple of days?
Civil cases don’t usually include being locked up among their possible consequences.
How nice for you that you don’t personally feel in danger of being mistakenly arrested for being a non-citizen.
There is absolutely nothing that requires a US citizen to be carrying any proof of identity whatsoever (except while driving a car.)
And there are many US citizens who don’t have either a passport or a drivers’ license, let alone a military ID and security clearances; and most recommendations say that you shouldn’t be carrying your social security card. Even if you are, neither that card nor your having memorized a batch of numbers are proof of anything whatsoever.
The State is not necessarily going to kill you for murdering someone, even if you’re convicted. The death penalty has gotten quite rare, and even when theoretically imposed is often not carried out.
And people have indeed died of being deported. Not at the immediate hands of ICE, no; but as a foreseeable consequence.
Plus which, the Constitution doesn’t say there’s only a right to be free of unreasonable seizure of the person if the likely consequence of such seizure is death.
Running from ICE is probable cause.
I’m sorry if I falsely painted you as racist but I genuinely don’t know how to characterize someone who says ICE probably can round up people on the border carrying their possessions around because they probably need to.
Yes, immigration is illegal.
No, that doesn’t mean ICE can write its own guidelines on probable cause.
If ICE can’t do its job without violating the 4th and 5th amendments, the right remedy is to admit we’ve invented an agency that can’t lawfully achieve its stated mission, and start over with a different solution.
Characterize me as someone who thinks that running from ICE is probable cause, because that’s literally the only point I was trying to make – that there are situations around the border where it seems like a given to me that ICE agents will have PC to arrest people. Perhaps my example of someone “walking near the border in the desert carrying a suitcase” was simply inarticulate.
OK. Yes, that’s an issue, I was reading you saying “ICE should be able to do these sorts of things”. Probable cause is an articulated and restricted thing, there is no “these sorts of things”.
I feel like it’s important to state this, because ICE, anti-immigrant partisans, and police in general like to portray this as a big gray-area issue full of situational judgment calls, so that they can operate as they want.
Just for the record, I had a hard time finding an explicit list, but here is a fact sheet from Cornell that seems pretty reliable. It’s pretty eye-opening.
When is ICE even allowed to question someone about immigration status?
When can ICE detain someone?
I mean a finding of probable cause by a neutral magistrate, not necessarily arraignment (or a master calendar hearing). Neither must the detained actually see the judge; the requirement would be that a judge “promptly” finds probable cause to detain the alleged alien, who is notified of such a determination and given a date and time for their first hearing.
The legal question isn’t so much whether the 48-hour rule applies or not (it does), but whether the existing statutes satisfy due process by having a separate ICE agent, or the same one, make the “neutral” finding of probable cause within 48 hours.
The authority for these claims are forthcoming, when I get off from work. But it does involve cases with criminal contexts.
~Max
I believe you are misinterpreting that ruling. The Court specifically said the circuit court, which tried a doctrine where you interpret the statute in such a way as to satisfy constitutional requirements, had twisted the statute too much for that doctrine.
Holding alleged aliens in pretrial detention for over six months without a hearing for bail is fine with the statute. The Court did not address whether that is fine with regard to the Constitution.
~Max
If that were the case, I would come back to this thread and say, “that’s horrible”.
And then maybe write a token letter to my representative saying “you should change this”.
And then nothing.
Sorry to disappoint,
~Max
That is true, but I don’t think civil commitment requires proof beyond a reasonable doubt, either. I think… Addington v. Texas controls in such cases, which would be clear and convincing evidence. Whether that applies in immigration context I am not sure. I know the exclusionary rule doesn’t apply in removal proceedings, but I can’t remember the case.
~Max
To reiterate, the Fifth Amendment reads:
“No person… shall… be deprived of… liberty… without due process of law” (U.S. Const. amend. V).
The Fifth Amendment applies to “all persons within the territory of the United States”, including aliens (Wing Wong v. United States, 1896).
Due process requires “at a minimum… that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing” (Mullane v. Central Hanover Bank Trust Co., 1950). For example, ‘when a State seeks to terminate an interest such as [a driver’s license], it must afford “notice and opportunity for hearing appropriate to the nature of the case” before the termination becomes effective’. (Bell v. Burson, 1971).
“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action” (Foucha v. Louisiana, 1992; see also Boumediene v. Bush, 2008). “[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection” (Addington v. Texas, 1979). “[T]o permit indefinite detention of an alien would cause a serious constitutional problem” (Zadvydas v. Davis, 2001). “[D]ue process requires individualized procedures to ensure there is at least some merit” to immigration authorities’ assertion that a person is deportable (Demore v. Kim, 2003)(Kennedy, A.M., dissenting).
But that’s not all, we also have the Fourth Amendment:
“the right of the people to be secure in their persons… against unreasonable… seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing… the persons… to be seized” (U.S. Const. amend. IV).
“The Fourth Amendment applies to all seizures of the person”. Custodial interrogation of individuals in the civil immigration context triggers Fourth Amendment rights, specifically, the officer “must have a reasonable suspicion” that the person is an illegal alien; “any further detention… must be based on… probable cause” (United States v. Brignoni-Ponce, 1975). “Detaining individuals solely to verify their immigration status would raise constitutional concerns” (Arizona v. United States, 2012; citing probable cause case Arizona v. Johnson, 2009).
The courts have held that the Fourth Amendment requires probable cause for warrantless searches and seizures (Brinegar v. United States, 1949). Such a requirement applies even in the context of immigration enforcement, which may in practice affect citizens and legal immigrants as well as illegal immigrants (United States v. Brignoni-Ponce, 1975; Almeida-Sanchez v. United States, 1973; ).
The Fourth Amendment also requires a neutral magistrate to agree with the officer who made that determination, preferably before the arrest, but if necessary then “promptly” after the arrest has been made. “[T]he Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest” (Gerstein v. Pugh, 1973). Neutral determination of probable cause may be consolidated with bail hearings or arraignment, but such consolidation is no excuse to providing a prompt determination. If such a ‘Gerstein hearing’ is not made within 48 hours of arrest, the burden of proof (in a Bivens claim, I think) as to whether the wait is reasonable falls on the government, which must show exceptional circumstances to justify the delay (County of Riverside v. McLaughlin*, 1991).
The specific constitutional question is whether Fifth Amendment due process requires a procedural guarantee of a Fourth Amendment probable cause determination in a civil context within 48 hours (barring exceptional circumstances). This question has not directly been answered by the Supreme Court, to my knowledge. Nevertheless, the rulings and rationale behind Gerstein and County of Riverside is written broadly enough to accommodate civil detentions.
The Seventh Circuit entertained applying the 48-hour limit to a civil commitment case, but ultimately found that they didn’t have to (Villanova v. Abrams, 1992). Either way, the Immigration and Customs Enforcement agency sidesteps (concedes?) that issue and argues that their current policy under 8 U.S.C. § 1357(a)(2) and 8 CFR § 287.3 satisfies the Fourth Amendment, and that 8 U.S.C. § 1252(b)(9) removes the issue from Article III jurisdiction entirely (eg, Cancino-Castellar v. Nielsen, 2018). Below are spoilers containing the relevant texts.
8 U.S.C. § 1357(a)(2):
(a) POWERS WITHOUT WARRANTAny officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant-
(1) to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States;
(2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien should be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;
(3) …
8 CFR § 287.3:
(a) Examination. An alien arrested without a warrant of arrest under the authority contained in section 287(a)(2) of the Act will be examined by an officer other than the arresting officer. If no other qualified officer is readily available and the taking of the alien before another officer would entail unnecessary delay, the arresting officer, if the conduct of such examination is a part of the duties assigned to him or her, may examine the alien.
(b) Determination of proceedings. If the examining officer is satisfied that there is prima facie evidence that the arrested alien was entering, attempting to enter, or is present in the United States in violation of the immigration laws, the examining officer will refer the case to an immigration judge for further inquiry in accordance with 8 CFR parts 235, 239, or 240, order the alien removed as provided for in section 235(b)(1) of the Act and § 235.3(b) of this chapter, or take whatever other action may be appropriate or required under the laws or regulations applicable to the particular case.
(c) Notifications and information. Except in the case of an alien subject to the expedited removal provisions of section 235(b)(1)(A) of the Act, an alien arrested without warrant and placed in formal proceedings under section 238 or 240 of the Act will be advised of the reasons for his or her arrest and the right to be represented at no expense to the Government. The examining officer will provide the alien with a list of the available free legal services provided by organizations and attorneys qualified under 8 CFR part 1003 and organizations recognized under § 292.2 of this chapter or 8 CFR 1292.2 that are located in the district where the hearing will be held. The examining officer shall note on Form I-862 that such a list was provided to the alien. The officer will also advise the alien that any statement made may be used against him or her in a subsequent proceeding.
(d) Custody procedures. Unless voluntary departure has been granted pursuant to subpart C of 8 CFR part 240, a determination will be made within 48 hours of the arrest, except in the event of an emergency or other extraordinary circumstance in which case a determination will be made within an additional reasonable period of time, whether the alien will be continued in custody or released on bond or recognizance and whether a notice to appear and warrant of arrest as prescribed in 8 CFR parts 236 and 239 will be issued.
8 U.S.C. § 1252(b)(9):
(9) CONSOLIDATION OF QUESTIONS FOR JUDICIAL REVIEW
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.
My own analysis is short. I start by saying I think § 1252(b)(9) plainly violates the suspension clause, Jennings v. Rodriguez (2018) notwithstanding. At least one judge in New Hampshire agrees with me (Compere v. Nielsen, 2019). Neither do I think another ICE agent is “neutral and detached” enough to serve as the Fourth Amendment adjudicator of probable cause. As the Supreme Court wrote in Johnson v. United States (1948), probable cause should be determined with an independent examination of the facts by “a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime”. For a separate immigration officer who has similar enforcement duties to act as judge (let alone the same officer), probably one who works in the same department as the officer took the person into custody, is contrary to the common law and the Fourth Amendment. If such a determination does not satisfy the Fourth Amendment, the next impartial hearing is the master calendar hearing in front of an immigration “judge” (the equivalent of arraignment), which can occur months after detention begins. I am putting aside the question of whether an immigration judge, an agent of the Department of Justice, is actually impartial. If this master calendar hearing is the Gerstein hearing, it needs to happen “promptly”, that is, within 48 hours or less of detention. The lack of procedural safeguards ensuring this violate the due process clause of the Fifth Amendment.
Wing Wong v. United States, 163 U.S. 228 (1896)
U.S. Const. Amend. V
Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306 (1950)
Bell v. Burson, 402 U.S. 535 (1971)
Foucha v. Louisiana, 504 U.S. 71 (1992)
Boumediene v. Bush, 553 U.S. 723 (2008)
Addington v. Texas, 441 U.S. 418 (1979)
Zadvydas v. Davis, 533 U.S. 678 (2001)
Demore v. Kim, 538 US 510 (2003)
U.S. Const. Amend. IV
United States v. Brignoni-Ponce, 422 U.S. 873 (1975)
Arizona v. United States, 567 U.S. 387 (2012)
Arizona v. Johnson, 555 U.S. 323 (2009)
Brinegar v. United States, 338 U.S. 160 (1949)
Almeida-Sanchez v. United States, 413 U.S. 266 (1973)
Gerstein v. Pugh, 420 U.S. 103 (1975)
County of Riverside v. McLaughlin, 500 U.S. 44 (1991)
Villanova v. Abrams, 972 F.2d 792 (1992)
8 U.S.C. § 1357(a)(2)
8 CFR § 287.3
8 U.S.C. § 1252(b)(9)
Cancino-Castellar v. Nielsen, 338 F.Supp.3d 1107 (2018)
Jennings v. Rodriguez, 583 U.S. ___ (2018)
Compere v. Nielsen, 358 F.Supp.3d 170 (2019)
Johnson v. United States, 333 U.S. 10 (1948)
~Max
Thanks very much, Max. Very instructive.
But, that is pretty much what they are doing.