\n<\/p>\n
Untold numbers of ICE agents have appeared on America\u2019s streets in recent months, and many of them have committed acts of aggression with seeming impunity. ICE agents have detained suspected illegal immigrants without cause\u2014including U.S. citizens and lawful residents. They have, in effect, kidnapped people, breaking into cars to make arrests. They have used tear gas and pepper spray on nonviolent protesters. They have refused to identify themselves, wearing masks, using unmarked cars, and switching license plates, presumably to avoid detection. They have kept people in detention without access to lawyers. They have questioned people simply for appearing Latino, speaking Spanish, and being in areas believed to be frequented by illegal immigrants.<\/p>\n
Many of these tactics are plainly illegal. The Constitution incontestably applies to federal immigration officers: The Fourth Amendment protects against unreasonable searches and seizures and excessive force and requires a warrant to search a private home. The Fifth Amendment guarantees due process and bans self-incrimination. The Sixth Amendment establishes a person\u2019s right to counsel. Why, then, are they getting away with not following the Constitution?<\/p>\n
Their impunity traces back to two Supreme Court decisions that put far too much faith in ICE\u2019s commitment to respecting people\u2019s constitutional rights. As a result of these cases, people whose rights are violated by ICE agents have little to no recourse. Contrast that with the rules for police officers. If a police officer kicks down your door and searches your home without a warrant, questions you without a Miranda warning, or illegally arrests you, a provision known as the exclusionary rule may prevent the evidence gathered through those tactics from being admitted in your prosecution. And if you happen to be acquitted, you can sue for damages. None of that is true when it comes to ICE.<\/p>\n
The first of these two cases is a 1984 decision, INS v. Lopez-Mendoza, that untethered ICE from the exclusionary rule. In a 5\u20134 opinion, Justice Sandra Day O\u2019Connor rejected the exclusionary rule for immigration courts, favoring, instead, \u201ca deliberately simple deportation hearing system.\u201d In a typical criminal case, the exclusionary rule is designed to deter police misconduct\u2014the idea being that the police will avoid such conduct if it risks undermining a conviction. But for ICE, the Court decided, such deterrence is not necessary. Unless ICE conduct amounts to an \u201cegregious\u201d violation of the Fourth Amendment, the evidence that agents gather even through illegal means can be used in immigration courts. Key to the Court\u2019s decision was a presumption that Fourth Amendment violations by ICE officers were not \u201cwidespread\u201d and that the Immigration and Naturalization Service \u201chas already taken sensible and reasonable steps to deter Fourth Amendment violations by its officers.\u201d Such assumptions may not have been reasonable then; they are certainly not reasonable now.<\/p>\n
A second Court decision appears to have eliminated, or at least seriously limited, the possibility of lawsuits for damages after individuals are unlawfully detained, searched, or experience excessive force at the hands of ICE. When the police engage in misconduct, the victim can sue the responsible officers for damages. Again, not so for ICE. In the 2022 decision Egbert v. Boule, Justice Clarence Thomas, writing for the majority, denied the rights of plaintiffs to sue Border Patrol agents for excessive use of force in the name of \u201cnational security.\u201d There is every reason to believe that the Supreme Court would extend the rationale in Boule to shield ICE from liability as well. The Court would effectively be greenlighting ICE\u2019s abusive tactics and insulating agents from damages when they are, in fact, no different from any state or city police officer who violates a person\u2019s constitutional rights. As in INS v. Lopez-Mendoza, the rationale in Boule relies on the agency\u2019s purported ability to self-regulate; after all, Thomas suggested, Border Patrol \u201cmust investigate \u2018alleged violations\u2019 and accept grievances.\u201d Can anyone count on such care to come from Border Patrol under this administration? Again, the faith in these institutions to self-regulate seems tragically misplaced.<\/p>\n
The remaining options for someone mistreated by ICE are inadequate, to say the least. An individual could file a lawsuit under the Federal Torts Claims Act against federal officers, but that law has its shortcomings: A person must submit a detailed claim to the government and wait for a response before they can go to court. That process can take years and years. An individual could also file a complaint with the DHS Office of Inspector General or the Office of Civil Rights and Civil Liberties, which would theoretically launch an investigation, but in this administration, the chances of redress for misconduct are slim to none. Nothing drives the point home more than the case of a CBP commander, Gregory Bovino. U.S. District Judge Sara Ellis found that he had lied to the court about whether he had used excessive force against protesters in Chicago. Was he dismissed or disciplined? Neither; he went on to lead another immigration sweep, this time in New Orleans.<\/p>\n
Then there are the practical problems with contesting ICE misconduct. Where in the United States is the immigrant? In which detention facility? Do they have a lawyer? Worse, what if they have already been deported through a process known as expedited removal? Expedited removal generally involves a determination by a low-level immigration officer who, in many cases during a single interview, determines that the noncitizen arrived in the U.S. without proper documents and therefore cannot prove that he or she has been physically present in the U.S. for two years. (Exceptions are made only for people who have a credible fear of persecution or torture, or who intend to apply for asylum\u2014exceptions that have been severely limited under this administration.) Although expedited removal used to apply only to noncitizens within 100 miles of the border, Trump\u2019s Department of Homeland Security has expanded the policy to apply to any unlawful noncitizen anywhere in the country who cannot prove two years of residency, giving them no time to secure counsel or gather evidence, no right to appeal, and surely no meaningful due process.<\/p>\n
Even for those who manage to get before an immigration judge, the process is formidable. ICE attorneys have been systematically asking immigration judges to dismiss proceedings in order to strip individuals of even the limited protections those hearings afford. Judge Jia Cobb, a federal judge in Washington, D.C., noted in a recent decision that people have been arrested immediately following dismissals, subjected to expedited removal, and shortly removed. These tactics, combined with the administration\u2019s expanded policy of mandatory detention\u2014meaning the immigrant is not entitled to bail\u2014have turned immigration courts into what the former chief counsel for Joe Biden\u2019s Citizenship and Immigration Services characterized as a \u201cdeportation pipeline.\u201d<\/p>\n
Much of what ICE is doing is not remotely constitutional. The Court decisions that laid the groundwork for the agency\u2019s lawlessness no longer stand up to basic scrutiny. As Justice O\u2019Connor said in INS v. Lopez-Mendoza, \u201cour conclusions concerning the exclusionary rule\u2019s value might change, if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread.\u201d There\u2019s more than good reason; there\u2019s every reason.<\/p>\n","protected":false},"excerpt":{"rendered":"
Untold numbers of ICE agents have appeared on America\u2019s streets in recent months, and many of them have committed acts of aggression with seeming impunity. ICE agents have detained suspected illegal immigrants without cause\u2014including U.S. citizens and lawful residents. They have, in effect, kidnapped people, breaking into cars to make arrests. They have used tear<\/p>\n","protected":false},"author":1,"featured_media":39512,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[55],"tags":[160,1718,2466,1664,159],"class_list":{"0":"post-39511","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-social-issues","8":"tag-court","9":"tag-giving","10":"tag-ice","11":"tag-power","12":"tag-supreme"},"_links":{"self":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/posts\/39511","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=39511"}],"version-history":[{"count":0,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/posts\/39511\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/media\/39512"}],"wp:attachment":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=39511"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=39511"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=39511"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}