IMMIGRANTS FOURTH AMENDEMENT RIGHTS HAVE BEEN CURTAILED BY HOME RAIDS?

On January 4, 2016, Immigration and Customs Enforcement (ICE) conducted home raids affecting 121 mothers and children who had been recently ordered removed. The raids spanned seven states, including Florida, Georgia and Texas, and they targeted Central American families from the Northern Triangle of El Salvador, Guatemala and Honduras. In a rare move, ICE had announced these raids ahead of time. On November 20, 2014, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, publically stated that recent arrivals were designated priority for removal. Still wide-scale home raids ? as opposed to say, workplace arrests or apprehensions of individually targeted fugitives  were a new phenomenon. The act of rounding up mothers and children was perceived as particularly harsh, and the raids sent shockwaves of terror through the US immigrant community. As of yet, these raids have not been repeated, but their occurrence has raised important legal and policy considerations.

The right of the people to be secure in their persons, homes, papers and effects, against unreasonable searches and seizures is guaranteed by the Fourth Amendment of the Constitution. These raids, in particular, call the Fourth Amendment into play. Pursuant to the Supreme Court's decision in INS v. Lopez-Mendoza, evidence may be suppressed in immigration proceedings when a violation of the Fourth Amendment is determined to be 'widespread' or 'egregious.' If the accounts in the human rights reports are accurate, some or all of these home raids may have occurred without any arrest warrant from either a court or DHS. On that basis alone, some courts have designated that suppression is warranted. And if home entry occurred by trick or force, as some anecdotes also claim, they could even more easily be designated 'egregious.'

Even if each of the raids complied with the Fourth Amendment, however, a question remains regarding their efficacy as a matter of public policy. From the Obama?s Administration standpoint, enforcement of the existing removal orders, in compliance with publicly stated priorities, is necessary to preserve the integrity of the legal immigration system. According to this view, there was fair warning of apprehension to all who constitute removal priorities in the official public memorandum issued in November 2014 by Secretary Johnson. A second aspect of this policy is aimed at non-meritorious asylum claims, which tend to cause long delays in Immigration Courts.

Immigration advocacy groups maintain that deterrence is, in fact, the central objective of the raids. According to the CARA pro-bono project at family detention centers, ICE is engaged in a wholesale policy shift from a policy of deterrence through deportation to a policy of deterrence through detention. CARA and other immigrant advocacy groups have condemned the home raids as unnecessarily inhumane and reflective of 'deep misunderstanding of the refugee crisis south of the Texas-Mexico border.' According to CARA, all but 32 individuals apprehended in the raids have been removed; the 12 remaining families have secured stays of deportation. Immigration advocates have raised legal arguments regarding due process, but objections to the raids have also policy arguments, with a strong element of moral condemnation that mothers and children fleeing brutal violence should be targeted for the harsh experience of home invasion.

DHS should be wary that this country's immigration system can only tolerate a certain level of disenchantment before it starts to crumble. Adjudicators count on full disclosure from those who seek asylum not to mention their actual presence for court hearings and other application procedures. If enforcement is perceived to be overly aggressive, arbitrary, or unpredictable it discourages that participation and instead can lead to avoidance or even fraudulent behavior. This tension between the need for enforcement and the need for immigrants' participation has long existed at the heart of the US immigration system. Unless or until we obtain a legal regime that is wholly, consistently enforceable, these tensions will continue to occur, and sometimes the right balance might not be struck.

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