Fed Judge Throws Up Roadblocks on ICE Stops, Arrests in L.A.

On July 11, Judge Maame Ewusi-Mensah Frimpong of the U.S. District Court for the Central District of California (CD Calif.) issued a temporary restraining order (TRO) in Perdomo v. Noem, imposing limits on what the plaintiffs in that case referred to as “roving patrols” of ICE agents who were allegedly targeting worksites, parking lots, and bus stops in her district. That order is exceptional in its application, so don’t be surprised if it’s overturned on appeal. In the interim, here’s a primer on the laws governing ICE detention stops and arrests.

ICE Arrest Powers Under the INA

Congress gave immigration officers expansive powers in the Immigration and Nationality Act (INA).

For example, section 236(a) of the INA permits officers to issue administrative warrants to take into custody aliens believed to be removable from the United States, pending a decision on whether they are to be removed.

To be clear, nothing in the INA requires ICE officers to seek a judicial warrant from a federal judge or magistrate before taking an alien into custody (regardless of what some politicos may think the law requires), and in fact — as I have explained in the past — there is no mechanism in the INA for seeking a judicial warrant for an alien’s arrest.

Administrative warrants aside, section 287(a)(1) allows immigration officers to “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States”, and paragraph (2) therein allows officers to “arrest any alien in the United States”, if they have “reason to believe that the alien so arrested is in the United States in violation of the INA and regulations” and “is likely to escape before a warrant can be obtained for his arrest”.

That said, section 287 requires immigration officers to take aliens arrested without a warrant for a determination by an examining officer “without unnecessary delay” on whether those aliens have a “right to enter or remain in the United States”.

“Reasonable Suspicion”

The foregoing doesn’t mean ICE officers can arrest or even just temporarily stop individuals based on whim.

The leading decision on immigration arrests is INS v. Lopez-Mendoza, which involved two worksite arrests — one in an area agents were allowed to access with the employer’s permission, the other without — issued by the Supreme Court in 1984.

At issue in Lopez-Mendoza was whether the “exclusionary rule” — a judge-made principle that “prevents the government from using most evidence gathered in violation of the United States Constitution” in criminal cases — also applies in civil deportation cases.

Long story short: it doesn’t.

The purpose of the exclusionary rule is to deter misconduct by investigating officers by barring the use of improperly obtained evidence, but as the Court held, “Several factors significantly reduce the likely deterrent value of the rule in such [deportation] proceedings.”

Specifically, the majority noted that “regardless of how the arrest is effected, deportation will still be possible when evidence not derived directly from the arrest is sufficient to support deportation”, given that the primary question in deportation proceedings is the respondent’s identity and alienage.

As the Court noted, the identity of a suspect can’t be suppressed under the exclusionary rule, and (as there is no presumption of citizenship under the INA), immigration judges can draw adverse inferences from the respondent’s silence after receiving other proof of alienage.

In addition, as the Court explained, few arrestees ever challenge the lawfulness of their arrests, and therefore applying the exclusionary rule in civil deportation proceedings likely wouldn’t do much to change agents’ behavior.

As an aside, note that at this juncture in its opinion, the majority underscored the fact that: “In the course of a year, the average INS agent” was then-arresting “almost 500 illegal aliens”. If ICE were arresting aliens at the same pace today, there would be more than three million immigration arrests per annum.

Keep that in mind the next time you hear that there is something unusual about the Trump administration’s so-called “mass deportation” program.

Simple Questioning and Brief Detentions

Most critically, however, the majority in Lopez-Mendoza concluded it wasn’t necessary for the Court to apply the exclusionary rule in civil deportation proceedings because the then-INS had “its own comprehensive scheme for deterring Fourth Amendment violations by its officers”.

That scheme was thereafter promulgated in regulation, and at 8 C.F.R. § 287.8 has carried over to ICE enforcement operations.

As paragraph (b)(1) therein explains:

Interrogation is questioning designed to elicit specific information. An immigration officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.

In other words, ICE officers — like any member of the public — can walk up to anyone and start asking them questions, provided those questioned feel free to walk away.

That ICE questioning, only becomes subject to legal standards when the subject in question doesn’t feel free to leave, which brings me to section 287.8(b)(2):

If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.

Those brief detentions are often referred to as “Terry stops”, after Terry v. Ohio, the 1968 case that created the “reasonable suspicion” standard.

More broadly, the Court there explained that “in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion”.

Formal Arrests

On the other hand, a formal arrest, under the restrictions in section 287.8(c)(2), can only occur pursuant to the warrantless arrest authority in section 287(a)(2) of the INA “when the … immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States”.

As the nonpartisan Congressional Research Service (CRS) has explained, “reviewing courts have interpreted the ‘reason to believe’ standard for warrantless immigration arrests” under section 287(a)(2) (and by extension the regulation) as “equivalent to the Fourth Amendment’s probable cause standard”.

CRS continues:

Under this [probable cause] standard, courts have held that an immigration officer must have sufficient facts that would lead a reasonable person to believe, based on the circumstances, that the alien has violated federal immigration laws and is likely to escape before an ICE warrant can be obtained.

The TRO

Which brings me to Judge Frimpong’s TRO.

It includes two separate orders, one having to do with arrestees’ access to counsel (an issue for a separate analysis) and the other having to do with stops and arrests.

Specifically, the second order bars ICE from “conducting detentive stops” in the CD Calif. “unless the officer has reasonable suspicion that the person to be stopped” is here illegally.

That’s unexceptional because as noted above, that’s already the regulatory standard.

But then Judge Frimpong placed restrictions on four factors officers may not — “alone or in combination” — rely solely upon to form that “reasonable suspicion”: “apparent race or ethnicity”; “Spanish speaking or speaking English with an accent”; “presence at a particular location”; and “the type of work one does”.

Among those “particular locations” that are out of bounds for this assessment are bus stops, car washes, tow yards, agricultural sites — and “day laborer pick up sites”.

For those who are not familiar, day laborer pick-up sites are places where individuals congregate to find temporary unskilled work, usually unskilled labor paid under the table and off the books in fields as diverse as trash hauling and lawn care.

So, even if ICE officers have intelligence that large numbers of illegal aliens are congregating at a specific known labor pick-up site (or bus stop, or car wash, or tow yard, or agricultural site, etc.) and go there and encounter large numbers of individuals who don’t speak English, those officers must develop other “articulable facts” to stop those individuals and speak to them.

Not arrest them — to stop and speak to them.

According to the Census Bureau, 55.1 percent of the residents of Los Angeles County speak a language other than English at home, but only 33.5 percent are foreign-born, meaning a lack of English fluency alone wouldn’t usually constitute reasonable suspicion for a detention stop.

But it’s beyond cavil that illegal aliens are more likely to be at known labor pick-up sites and similar locations and are more likely to work in specific fields. When that lack of fluency coupled with those other factors are now off limits for the immigration version of a Terry stop, ICE officers’ ability to question anyone in the CD Calif. will be largely negated.

“The Criminal May Go Free, but He Should Not Go Free Within our Borders”

Judge Frimpong’s TRO does state that officers can continue to do such stops even based upon the aforementioned factors when “permitted by law”, but she never explains what the law permits. Accordingly, expect any alien who is stopped to come back to her court for relief.

As the Supreme Court held in Lopez-Mendoza, the exclusionary rule was a poor fit in the immigration context because, “The purpose of deportation is not to punish past transgressions, but rather to put an end to a continuing violation of the immigration laws.”

The majority continued:

The constable’s blunder may allow the criminal to go free, but we have never suggested that it allows the criminal to continue in the commission of an ongoing crime. When the crime in question involves unlawful presence in this country, the criminal may go free, but he should not go free within our borders.

The purpose of this TRO is to make it more likely that aliens unlawfully present will continue to be able to live, free from restraint and removal, in this country. Not surprisingly, DOJ has already filed its notice of appeal.