An interesting question has arisen in the context of the much-ballyhooed recent Immigration and Customs Enforcement (ICE) enforcement operations to apprehend alien fugitives: when can ICE agents enter private premises to effect an arrest?
By way of background, there are a million-plus aliens residing in the United States right now who are under final orders of removal. This is, of course, a huge and unacceptable number that signifies a breakdown of our immigration court system. The reason there are so many aliens under final orders who are loose on the streets is because they were not in detention at the time the order was issued, and they have chosen to defy that order by an immigration judge (IJ) to depart the United States.
Some of these orders of removal occur when the alien fails to appear in court for his due process hearing at the time and place ordered, in which case the IJ is entitled to proceed to a judgement in absentia, upon a showing by the government that the alien was properly notified by personal service, or by mail delivery to the address of record he provided to the government. Other orders of removal occur after an alien actually appears for his hearing(s), at least up to the point at which it becomes clear that he will not be granted whatever form of relief from deportation that he was seeking (often via asylum), at which point he flees.
Such a large number of absconders would seem to suggest—contrary to the argument of immigrant advocacy groups that alien detention is somehow cruel and unjustifiable—that absent a robust regimen for holding many individuals up to the point of an IJ decision, there is no credible and viable way to ensure that when an alien is ordered removed, he will do so of his own volition.
This has led to the instant state of affairs, and official recognition that to reinstill any integrity into the immigration due process system, agents must expend the effort needed to find those who have absconded, take them into custody, obtain the requisite travel documents needed from their home countries, and effect the repatriation. That is what these "raids" are all about.
As many readers know, a host of advocates (including, dismayingly, some members of Congress) have publicly encouraged aliens under final orders of removal to actively avoid, if not downright evade, arrest by ICE agents. There are even multilingual pamphlets to guide aliens. One key point that is often made in the advisals is to refuse to allow agents to enter their property, usually a residence. Is that a valid tactic and does it work? Here's a short primer on the "rules of engagement":
In civil removal, the phrase "with a warrant" generally means either a Warrant for Arrest of Alien, form I-200, which is used to initiate deportation or exclusion proceedings; or a Warrant of Removal, form I-205, which is issued after a final order of removal is ordered by an IJ. It is this latter form I-205, the Warrant of Removal, that is most relevant to the enforcement operations that have engendered such a firestorm among activists.
It is a general rule of law in our country, founded on the Fourth Amendment to the Constitution, that individuals—including illegal aliens and aliens under a final order of removal—may be free from "unreasonable" searches and seizures, whether of their property or person. Translated into everyday practice, this means that officers with an arrest warrant, regardless whether it is civil or criminal in nature, may not enter the premises of a wanted person without a search warrant concurrently authorizing them to do so.
There are exceptions to this doctrine that have been recognized by the Supreme Court, having to do with the doctrine of hot pursuit—circumstances in which time is of the essence, a suspect may escape or evidence may be destroyed, and it is unreasonable and impractical to expect officers to stop what they're doing to prepare, request, and receive a search warrant, and assume that the status quo has remained in the meantime. But such exceptions are carefully scrutinized in courts after the fact, and for this reason, in criminal cases officers and agents often as a matter of course will procure a search warrant—presuming they know where the suspect is located—concurrent to obtaining the arrest warrant.
There are also other pertinent exceptions to the search warrant doctrine. An alien may not assert a Fourth Amendment privilege if he is in premises not under his control, for instance at the workplace or while in someone else's property who may give ICE agents permission to enter. In fact, if the alien shares the premises with others, such as roommates, they too may give consent to enter over that alien's objections.
In civil removal cases, obtaining search warrants to enter the premises of a wanted alien are rare. As a practical matter, there are just too many such cases for that to be the rule rather than the exception. As noted at the beginning, there are over a million fugitive aliens under final orders of removal walking American streets right now. Routinely applying to the federal courts for search warrants on that scale would drown district court judges in a sea of paperwork, as it would ICE agents as well.
But can search warrants be sought and obtained in civil cases? They can. The Supreme Court made this clear in a series of cases known as Blackie's House of Beef. There are cogent arguments for doing so, at least in exceptional cases if not as a norm, something the author suggested in a couple of blog postings three-and-a-half years ago, see here and here.
Even if not procured in advance, a search warrant can be procured on an exigent basis using the telephonic application rule.This might apply, for example, when agents approach a residence, and are denied entry by the suspect who slams the door in their face (as suggested by the pamphleteers). Now in full possession of probable cause to believe that their wanted alien is physically present, they might surround the home to prevent escape while a colleague procures the warrant via telephone using auspices of the U.S. Attorney's Office. This being done, they may then enter the residence, using forcible entry if required, to take custody of the alien.
One last point worth observing: an alien who willfully fails or refuses to depart within 90 days of a final order of removal is committing a federal felony—see 8 U.S.C. Section 1253. An alien who slams the door in the faces of ICE agents who announce to him that they are there to take him into custody on a lawful warrant of removal may be laying the basis for a criminal charge against himself. Thus, in seeking a search warrant to enter the premises and effect an arrest, ICE agents may have two bases to present to the court: the one described above relating to the solely civil aspects of removal, and another based on the felony violation of law. One wonders whether these advocates who urge wanted aliens to engage in civil disobedience are fully aware of the potential consequences of acting upon their ill-considered advice.