Questions and Answers Regarding Immigration Officer’s Authority to Apprehend and Remove Noncitizens
What gives immigration officers authority to stop people and inquire about their immigration status?
Section 287(a) of the Immigration and Nationality Act empowers immigration officers with the broad authority to “interrogate” noncitizens or those believed to be noncitizens regarding their “right to be or remain in the United States.” It also affords them the authority to arrest any noncitizen in the United States where the officer has “reason to believe” the person is present in violation of federal immigration law.
The Fourth Amendment of the Constitution prohibits “unreasonable searches and seizures,” and thus limits officials’ practical application of their authority. For example, to “interrogate” aliens about their right to be present, immigration officials are generally not permitted to enter homes or other nonpublic areas without consent, extenuating circumstances, or a warrant signed by a judge (not a more common “administrative arrest warrant” signed only by an immigration official).
Likewise, an immigration officer usually needs “probable cause” to arrest a person whom they have “reason to believe” is unlawfully present in the US. Probable cause can only exist in cases “where the facts and circumstances within [an officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in belief that an offense has been or is being committed.” This is a very fact-specific inquiry.
As a practical matter, it is usually impossible to avoid deportation by arguing that the arrest or search was unlawful. In criminal court, judges will often suppress (throw out) evidence and statements gathered by officers who conducted an unlawful search or arrest. In immigration court, suppression is usually not available as a remedy, and therefore a person can often be removed from the country even if the immigration judge finds that the officer arrested her illegally, or learned that she was unlawfully present in the country after an unconstitutional search or interrogation.
How can immigration officials detain and remove a person quickly, without a right to a hearing?
Most people who arrested in the interior of the United States have a right to request a hearing before an immigration judge. At this hearing, the noncitizen can challenge the government’s allegation that she is present in the country unlawfully (or, if she is here lawfully, she can challenge the government’s contention about why she is deportable for a violation of her status, criminal conviction, etc). At the hearing, even if the judge finds that she is removable, she may be able to ask permission to remain if she is eligible to file certain “applications for relief” – for example, an asylum application if she is afraid to return to her country, or an application for lawful permanent residence in certain circumstances.
However, certain noncitizens are not eligible for a hearing in front of a judge, and immigration authorities can remove them in days or weeks without a hearing.
For example, a noncitizen who already has a “final removal order” usually does not have a right to see a judge again before authorities remove her. Some people may not even know that they have a final removal order, for example, if an immigration judge ordered removal “in absentia” because the person failed to attend an immigration court hearing.
Unless a court or immigration enforcement officer issues a “stay of removal,” authorities can remove a person with a final order at any time.
Immigration officials can also “reinstate” a final removal order for someone who has been deported in the past, and who re-enters the country without permission.
Anyone who is present in the country without permission needs to find out if she already has a final removal order, and if so, whether there are options to “reopen” removal proceedings and apply for relief, and whether it is advisable to apply for a “stay” or removal.
Customs and Border Protection officers can issue an “expedited order of removal” without a hearing for people who are arriving at the border or ports of entry (including airports); however, if the noncitizen tells the officer that she is afraid of being persecuted in her home country, she is entitled to be screened by an asylum officer, and if she passes the initial screening, she is eligible for a hearing with an immigration judge.
Under current policy, expedited removal only applies to people arriving the border and ports of entry, and those who are caught within 100 miles of the border who cannot show that they have been in the United States for at least two weeks. However, President Trump has announced via executive order that he intends to dramatically expand expedited removal to the full scope allowed by existing law, which would include anyone in the interior of the country who cannot show that she has been in the United States for at least two years. The administration has not yet implemented this major change.
Certain other categories of noncitizens are not eligible for a hearing before an immigration judge; this includes people who entered the United States through the Visa Waiver Program.
Does a jurisdiction’s designation as a “sanctuary” limit immigration officials’ authority to conduct enforcement actions?
The concept of “sanctuary” is an ancient one, where sovereign states or religious institutions would physically protect the persecuted from harm. This concept evolved into modern-day asylum law established by the Universal Declaration on Human Rights and the UN Refugee Convention. However, the idea that a church or local jurisdiction could be exempt from law enforcement authority was abolished in England in 1623 and is not a part of American common law. Therefore, a private institution or government’s self-designation as a “sanctuary” does not prohibit federal law enforcement agents from conducting otherwise-legal operations there. A “sanctuary city,” “sanctuary state,” or “sanctuary church / mosque / synagogue” cannot prevent immigration officials from making arrests and removing people from the country.
However, sanctuary jurisdictions can limit state and local participation in federal immigration enforcement. For example, sanctuary jurisdictions may train police officers not to ask any questions about immigration status, and can decline to hold people in a state or local jail for pickup by immigration authorities beyond when they would otherwise be released. Sanctuary jurisdictions can also refuse contracts to hold immigration detainees in local jails. The Tenth Amendment’s constraints upon federal “commandeering” of state and local governments means that the federal government can request state assistance, but cannot force states to use their own resources to enforce federal law.
Similarly, a religious building or school can attempt to act as a “sanctuary” by refusing to allow immigration authorities to enter without a warrant. Immigration authorities have longstanding directives to avoid enforcement operations in “sensitive locations” such as schools and religious institutions. While the Trump administration has not yet formally revoked this policy as of this writing, recently-publicized arrests near schools and homeless shelters may indicate a shift in practice.
Private actors who hope to provide “sanctuary” should be aware that the Immigration and Nationality Act prohibits “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceal[ing], harbor[ing], or shield[ing] from detection. . . such alien in any place, including any building or any means of transportation.” It is still unclear what actions would constitute unlawful “harboring” as prosecution under this statute is very rare; however, in one highly-publicized case in Arizona, authorities arrested and convicted members of a church group during the 1980’s “sanctuary movement.”
For further reading, see the Congressional Resource Services (CRS) Q & A.
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CBP Releases FY 2017 Statistics on Southwest Border Migration
On March 8, United States Customs and Border Protection (CBP) submitted statistical data regarding the migration at the Southwest border. The numbers provided suggest a drastic decline in traffic, evidenced by a 40 percent decline in apprehensions at the Southern border. Historically, the number of apprehensions from January to February increases by approximately 10 to 20 percent, making the 40 percent decrease even more staggering. In December of 2016, 43,255 individuals were apprehended between entry ports at the Southwestern border; January saw that figure drop to 31,578, and In February the number fell 40 percent to 18,762. The number of apprehensions is trending toward the lowest monthly figure in the last 5 years. Individuals deemed inadmissible who attempted to go through a port of entry also saw a sharp decline. The figure went from 15,176 in December of 2016 to 10,899 in January of this year, then saw a 55 percent decrease to 4,808 in February.
For more information, view the statistics.
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