A couple of weeks ago, a panel of the infamously liberal Ninth Circuit Court of Appeals ruled in a case that federal immigration authorities exceeded the scope of their criminal arrest and search warrants when they executed them in a worksite enforcement operation that resulted in the apprehension of about 130 illegal aliens working unlawfully. According to court records, the search warrants executed that day were issued to permit agents to obtain employment records, and eight individual-specific criminal arrest warrants were issued against aliens (probably for reentry after removal or the like; the reasons aren't clear).
Note that the operation took place in 2008 — 11 years ago — and the matter is only now being "disposed" of by the circuit court. It is this kind of delay that renders immigration enforcement so ineffectual. I use quotes around the word "disposed" because it's possible that the Justice and Homeland Security Departments may wish to appeal this case to the Supreme Court, as they have been obliged to do so often in recent years with immigration litigation, given its ramifications, in which case even more delay is in store.
One of those apprehended at the worksite that day in 2008 was Gregorio Perez-Cruz, a citizen of Mexico who admitted entering the United States without inspection as a child many years earlier. There were apparently eight criminal arrest warrants of individuals specifically identified, but Perez-Cruz was not one of them; like many of the others, he happened to be present on the job when Immigration and Customs Enforcement (ICE) agents came calling, and got caught in the net.
In the course of time, he was ordered removed by an immigration judge, and that order was appealed to the Board of Immigration Appeals, which also upheld the order. This was the trigger that ultimately brought the matter to the Ninth Circuit. I encourage readers to view the entire decision, but to cut to the chase, the decision of the ruling panel can be found in its summary:
Granting Gregorio Perez Cruz's petition for review of a decision of the Board of Immigration Appeals, the panel held that Immigration and Customs Enforcement (ICE) agents were not permitted to carry out preplanned mass detentions, interrogations, and arrests at a factory, without individualized reasonable suspicion, and reversed and remanded to the BIA with instructions to dismiss Perez Cruz's removal proceedings without prejudice.
Here's my take on all of this:
First, we need to recognize that there are two undesirable aspects to illegal immigration. One is qualitative, i.e., the possibility that alien criminals, terrorists, and other dangerous individuals will effect an entry and harm our citizenry. The other is quantitative. Mass illegal immigration strains the finite resources available for our social safety, health, education, and other nets. It also feeds on itself, as we have seen in the past few years: When large groups are able to evade the consequence of illegal entry, it only encourages more large groups to make the trek.
There is a legitimate societal interest in effective governmental responses to illegal immigration, which leads me to my second point: It's self-evident that the entity where all of these 130-plus apprehended individuals worked was an egregious employer of illegal aliens who were taking jobs that could have been occupied by Americans and lawful workers. If, as is often said, unlawful employment is the magnet that draws aliens across our border without permission, then shutting off the magnet is critical to effective immigration control. This by its nature implies engaging in exactly the kind of worksite operation that took place in the instant case. It sends a message both to flagrant employers of illegal aliens, as well as to the aliens themselves, that breaking the law will not be tolerated.
Third, the panel gave no recognition to the fact that agents went to extraordinary lengths to obtain information sufficient to procure criminal arrest and search warrants from a federal judge or magistrate, which makes abundantly clear that they were not engaging in rogue activities, or being slipshod or evading their responsibilities in any way. It is unreasonable — and would, in fact, have been a virtual impossibility — to expect that the ICE agents would be able to identify in advance, by name, each and every alien working illegally whom they were possibly going to encounter that day on the worksite when the employer was obviously in the business of using a large proportion of unauthorized workers in his workforce.
And yet the panel uses inflammatory and emotionally laden language to describe the operation ("mass detentions", "without individualized ... suspicions", etc.). This suggests not only a studied naiveté of how the real world works but, in my view, an obvious bias against any kind of immigration enforcement. Much is made of the fact that the agents wore uniforms and had guns. So do police officers and sheriff's deputies throughout the country when they go about their duties. How is that relevant?
Much is also made of the fact that agents positioned themselves at key points of the property. City or state police conducting an enforcement operation on an illegal gambling enterprise or a brothel or any other illicit activity would do the same. This serves two purposes: It prevents individuals from fleeing until they have been properly identified, lest suspects escape, and it also provides for a modicum of control over what could otherwise quickly become chaotic, and therefore dangerous to the officers, as well as law-abiding individuals who happen to be within or adjacent to the facility.
Fourth, the panel cites a federal regulation to suggest that the agents rounded up illegal aliens without any individualized suspicion of illegal status. The panel's position misperceives both the regulation and the law itself, which of course supersedes regulation. Here is what the relevant portion of the law says:
(a) Powers without warrant
Any 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 to 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. [Emphasis added.]
The very fact that only a portion of the workforce (admittedly a significant number, which speaks more to the employer's status as a scofflaw than to any flaw in the agents' assessment of the circumstances prevailing at this worksite) was taken into custody, and only after questioning, suggests that the agents hewed to their statutory authorities, which are broad, and deliberately so given the enormity of the mission they are expected to undertake.
One wonders whether there is any way that ICE agents operating inside the boundaries of the Ninth Circuit could ever measure up, given that court's proclivity toward squelching proactive efforts toward immigration enforcement. While it is a responsibility of judicial officers to engage in oversight of law enforcement officers in our country, that oversight cannot become so onerous that it acts to functionally block any enforcement at all, even in the face of good faith efforts to operate within the boundaries of our legal system.
Finally, we are left with this conundrum: The Ninth Circuit has ordered that the removal proceedings against Gregorio Perez-Cruz be terminated. By its nature, that means cutting him loose. But, in a very real sense, the evidence of illegal alienage is the alien himself. Letting him walk back onto the streets is counterintuitive. He doesn't stop being an illegal alien. If and when he is next encountered, what is ICE to do? Will the next court find that because the Ninth Circuit ordered his release before, taking him back into custody is either malicious prosecution (in the civil context), or "fruit of the poisoned tree"?
Suppressing the "evidence", as the court has done here, is on its face an absurdity — especially when it is clear that the agents so obviously tried in advance to satisfy federal judges of the legitimacy of their basis for having an interest in this particular worksite.