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Deportation Arrest Warrants

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Deportation Arrest Warrants Stanford Law Review Volume 73 February 2021 ARTICLE Deportation Arrest Warrants Lindsay Nash* Abstract. 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 largest federal law-enforcement agency—the Department of Homeland Security (DHS)—is on pace to issue over 150,000 administrative “warrants” annually, authorized by only its own enforcement officers. More than sixty years ago, in Abel v. United States, the Supreme Court recognized that administrative warrants authorizing arrest for deportation proceedings—“warrants” issued not by neutral magistrates, but by immigration-enforcement officers—give rise to a significant constitutional question. The Court went on to muse in dicta that “deportation arrests” pursuant to this type of authorization have the “sanction of time” and that the constitutional validity of this practice is “confirmed by uncontested historical legitimacy.” DHS and lower courts have relied heavily on this “forceful” dictum in the years since. But Abel missed and misunderstood critical aspects of the relevant history. This Article takes a closer look at expulsion laws from the Framing era, including likely the most prevalent removal laws in the early Republic. This examination shows that, in widely shared and deeply rooted expulsion laws of the time, arrest for purposes of civil removal proceedings—including for expulsion beyond sovereign borders—was not left to the unfettered discretion of the officers responsible for enforcement; these removal laws * Assistant Clinical Professor of Law, Benjamin N. Cardozo School of Law. Many thanks to Kara Nowakowski, Jaynah Ross-Mendoza, and Keith Fernandes for excellent research assistance. I owe a debt of gratitude to Gregory Ablavsky, Spencer Amdur, Chris Buccafusco, Mary Fan, David Feldman, Myriam Gilles, Hirota Hidetaka, Kyron Huigens, Michael Kagan, Peter L. Markowitz, Gerald Newman, Kristin O’Brassill-Kulfan, Marisol Orihuela, Devin Slack, Stewart Sterk, Michael Wishnie, and the participants in both the AALS New Voices in Immigration Law Workshop and Cardozo’s Junior Faculty Workshop for helpful feedback and discussions. My thanks also to Ruth Wallis Herndon for generously sharing her primary research materials; the archivists at the Massachusetts and Georgia State Archives; Orin Kerr for valuable comments at an early stage of this project; and, last but not by any means least, Andrew Ascencio, and the staff of the Stanford Law Review for their incisive suggestions and editing. 433 Deportation Arrest Warrants 73 STAN. L. REV. 433 (2021) only authorized arrest pursuant to warrants, and those warrants were issued by magistrates or tribunals with judicial power. Ultimately, this Article argues that while Abel’s dictum may be forceful, it should no longer persuade. This excavation is important in correcting the record, but it has significant practical implications as well. It undermines the centerpiece of DHS’s defense of arrests pursuant to administrative warrants: Abel’s affirmation of this practice’s uncontested historical legitimacy and the subsequent case law that has relied on it. More broadly, this Article gives courts a reason to consider the constitutional issue anew and casts doubt on the constitutional validity of a significant portion of interior immigration arrests. 434 Deportation Arrest Warrants 73 STAN. L. REV. 433 (2021) Table of Contents Introduction ............................................................................................................................................................ 436 I. Arrest Warrants in Removal Proceedings Today ................................................................... 449 A. Warrants Generally ....................................................................................................................... 449 B. DHS-Issued Arrest Warrants .................................................................................................... 453 II. Arrest Warrants in Removal Proceedings in the Framing Era ....................................... 462 A. Relevance of Framing-Era Law ............................................................................................... 463 B. English Law......................................................................................................................................... 466 1. Criminal-history-based removal .................................................................................. 469 2. Public-charge-based removal .......................................................................................... 470 C. Contemporaneous State Law .................................................................................................... 474 1. Criminal-history-based removal laws ....................................................................... 478 2. Public-charge-based removal laws ............................................................................... 481 3. Removal as deportation ..................................................................................................... 492 D. Earliest Federal Law ....................................................................................................................... 498 III. Implications ................................................................................................................................................... 503 A. Implications for Abel ....................................................................................................................... 503 B. Broader Implications...................................................................................................................... 506 Conclusion ................................................................................................................................................................ 509 435 Deportation Arrest Warrants 73 STAN. L. REV. 433 (2021) 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 agency1—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 enforcement3 but are common when it comes to civil immigration 1. CONNOR BROOKS, U.S. DEP’T OF JUST., FEDERAL LAW ENFORCEMENT OFFICERS, 2016— STATISTICAL TABLES 3 tbl.1 (2019), https://perma.cc/G7XV-TZ4U (showing that DHS has the most federal law-enforcement officers with firearm and arrest authority of any agency in the federal government). 2. According to reports issued by Immigration and Customs Enforcement (ICE), which is just one of DHS’s subcomponents, it now issues administrative warrants to accompany “all” detainers that it issues, and it reported issuing 177,147 detainers in fiscal year 2018 and 165,487 in fiscal year 2019. U.S. IMMIGR. & CUSTOMS ENF’T, FISCAL YEAR 2018 ICE ENFORCEMENT AND REMOVAL OPERATIONS REPORT 9 (2018), https://perma.cc/3D77- Z24Y; U.S. IMMIGR. & CUSTOMS ENF’T, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT FISCAL YEAR 2019 ENFORCEMENT AND REMOVAL OPERATIONS REPORT 16 (2019), https://perma.cc/YCQ6-D3J8. These administrative warrants include both administrative arrest warrants and administrative removal warrants, see infra notes 62-70 and accompanying text (discussing the difference in these types of warrants), but a significant portion are administrative arrest warrants. ICE itself seemingly has no information regarding the precise number of administrative arrest warrants (versus removal warrants) issued annually. See Letter from Catrina M. Pavlik- Keenan, FOIA Officer, U.S. Dep’t of Homeland Sec., U.S. Immigr. & Customs Enf’t, to author (Dec. 17, 2019) (on file with author) (explaining that when obligated to provide records showing precisely how many administrative arrest warrants it issued in FY 2018 and FY 2019 (as of the date of the request), ICE was unable to identify any records reflecting how many it had issued). 3. While many federal law-enforcement officers are authorized to make arrests based on judicially issued warrants, it appears from a combination of Westlaw searches and Freedom of Information Act requests that federal law enforcement’s use of administrative arrest warrants is largely confined to DHS and the U.S. Parole Commission. See, e.g., 28 C.F.R. § 2.44 (2020) (permitting the U.S. Parole Commission to issue warrants of arrest for parolees alleged to have violated conditions of release); see also Sherman
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