Enforcing Final Orders of Removal in the Face of Civil Disobedience

By Dan Cadman on January 11, 2016

The recent immigration raids, which were leaked in advance for whatever reason (possibly to limit their effectiveness) and that were so much remarked upon, often with hysteria and supercharged rhetoric, have come and gone, at least for the moment, and proved to be as over-hyped as one expected that they might be. Of the thousands of scofflaws with outstanding orders of removal who might have been taken into custody, only about 350 were targeted, of whom only 121 persons were arrested.

Yet nothing this administration does that on the surface appears to be enforcement-related is really as it seems. No sooner had these aliens been picked up than the Board of Immigration Appeals ordered several released, leaving one to ponder why the Board waited until after the "raids" to act. If the members of the appellate tribunal believed there was something improper or inadequate in the hearings held by immigration judges that led to the final orders, why did they not stay them in the first place?

It has been reported in some quarters that at least a portion of the stays were granted because the aliens' new lawyers convinced the BIA that they should get another bite at the appeals apple due to ineffective assistance from their former lawyers because they didn't file appeals. Examined dispassionately, this defies logic. Sometimes the essence of being a wise counsel is in knowing when not to appeal because there is no leg left to stand on. In fact, one of the bases of disciplining or disbarring lawyers from practicing before the immigration courts and the BIA is for filing frivolous, meritless appeals. (See 8 CFR 1003.102(j).) If this reason for granting the stays is true, then the BIA has turned itself into a caricature of an administrative appellate board and made a mockery of its own rules.

What's more, apparently only 77 of these "bag-and-baggage ready" aliens have actually been deported. Why would the government be holding back on removing the others? Will they be quietly released to disappear once again into the community?

Note that Immigration and Customs Enforcement (ICE), the agency that arrested the aliens and that is responsible for the physical removals, is under the control of Obama appointee and Secretary of Homeland Security Jeh Johnson. The BIA is under the jurisdiction of Attorney General Loretta Lynch, another Obama appointee. Did these two not coordinate prior to the raids? To the cynical of disposition (such as me) it smacks of a classic shell game.

But to get back to the overblown rhetoric put out by open borders and anti-enforcement advocates, one such group, the Immigrant Legal Resource Clinic (ILRC), sent out an all-hands broadcast email to hundreds of erstwhile supporters in anticipation of the enforcement action. Embedded in the email was this bit of over-the-top language:

On Tuesday, January 5, 2016, the Department of Homeland Security confirmed that Immigration and Customs Enforcement (ICE) began immigration raids targeting Central American families who recently arrived to the United States and with final orders of deportation. These raids only serve to further victimize those escaping severe violence in their home countries and who have faced a deeply unjust and inadequate U.S. immigration system.

For years, ICE has used tactics of intimidation, coercion, threats, and sometimes even force, in violation of the U.S. Constitution, to deport community members. In response to increased ICE activity, and to provide the resources for people to protect themselves against ICE and its tactics, the ILRC developed Know Your Rights Red Cards.

What Are Red Cards?

The red card provides information that all persons in the United States are protected by the Constitution. This includes the right to not permit ICE agents to enter their home, without a warrant signed by a judge, and the right to refuse to answer the agents' questions. This card provides instructions on how community members can exercise their constitutional rights on one side (available in Spanish).

The email goes on to say, "Red cards are available free of charge, and in Spanish (upon request). To place an order, send an email to [email protected] with your name, name of the organization you're working with, your mailing address, the number of cards you would like to receive, whether you would like the cards in Spanish or English only, and specify if the cards will be distributed in a different county than your address."

Among other things, the "red card" asserts that the alien presenting it to an immigration official (by handing it over from the threshold of the door?) will not answer questions based on the constitutional Fifth Amendment privilege, and will not permit agents to enter his or her residence based on the Fourth Amendment privilege against unreasonable searches or seizures. I've been pondering these two items since reading the card.

Fifth Amendment. As open borders advocates are so quick to point out, deportation proceedings are civil in nature, whereas the right against self-incrimination invoked by the Fifth Amendment only applies in criminal circumstances. It is settled law that immigration authorities may make adverse inferences from an individual's refusal to answer questions — so one wonders what exactly is gained by this assertion of silence.

Fourth Amendment. The operative phrase is in the prohibition "unreasonable". If a wanted alien under a final order of deportation stands at the threshold of his house handing an agent a red card, nothing in the world stops that agent from yanking him across the threshold, cuffing him, and transporting him to the office for processing and removal. And if an alien under a final order of removal flees into the home to avoid arrest, it is arguably reasonable that the agents may cross the threshold in hot pursuit for the limited purpose of making the arrest.

Be that as it may, under this topsy-turvy administration, I would be reluctant to take this step as an agent, for fear that I and my fellow agents would be the ones to pay the penalty for expecting an alien to obey the law and taking the steps necessary to obtain that obedience. So what to do? Two thoughts:

Suggestion 1. It's time for the agency to bring back use of so-called Blackie's warrants. A Blackie's warrant is a civil search warrant authorizing immigration agents to enter private premises for the purpose of enforcing the civil/administration provisions of law relating to exclusion and deportation. It derives its name from the cases that established their validity — in which a restaurant chain in the metropolitan Washington, D.C., area called Blackie's House of Beef repeatedly denied entry to immigration agents to search for, and take custody of, illegal aliens in the public and non-public areas of the restaurants.

On review by the circuit court, the use of such warrants was upheld, and even though Blackie's was a commercial establishment, it is noteworthy that a) the warrant applied to both the public and non-public areas of the restaurant(s), and b) in its opinion and order, the appellate court asserted:

In styling the warrant as an "Order for Entry on Premises To Search for Aliens in the United States Without Legal Authority," and in invoking the Immigration and Nationality Act ("the Act") as authority for the search, the magistrate made clear his understanding that the INS gains its authority to search from its general statutory authority to question aliens suspected of entering the United States illegally. The Act does not by its terms authorize INS entries of private premises for this purpose. Nonetheless, we agree with the magistrate that there is ample authority to infer such a power from the general provisions of the Act. (Emphasis added.)

Speaking from experience, I can say that procuring such warrants is time-consuming and troublesome — and under circumstances such as those that the "red card" brings to mind, some agents would have to remain behind to secure the house and ensure the wanted alien did not flee while others attended to the business of typing up and obtain judicial sign-off on the warrant, thus tying up limited resources. Even so, it would not take many such warrants, I think, to call the bluff and show that the assertion of this "right" gains the wanted alien nothing.

Suggestion 2. There is a statutory provision within the Immigration and Nationality Act that criminalizes willful attempts by an alien to impede his own removal. It can be found at 8 U.S.C. § 1253(a). The prohibitions include "conniv[ing] or conspir[ing], or tak[ing] any other action, designed to prevent or hamper or with the purpose of preventing or hampering the alien's departure pursuant to such, or ... willfully fail[ing] or refus[ing] to present himself or herself for removal at the time and place required by the Attorney General pursuant to such order." The crime is punishable by up to four years in prison (10 years for felons, terrorists, and other more serious cases). It is time that the agency selectively used this provision of law to send the clear message that it will not tolerate aliens making a mockery of the due process system when they do not obtain the relief that they seek, and think that therefore they can simply ignore demands for their surrender for the purpose of deportation.

These two suggestions, though, have left me to ponder something else: Is there is enough institutional knowledge and expertise left around the agency (to mention nothing of will) to develop the strategies needed take either of these courses of action — or has it been reduced after so many years of mismanagement and failed leadership to the status of a hand puppet with nothing inside?