About Those Warrants: CNN Gets It Bigly Wrong on the Details

CNN recently published a “get to know the law” piece attempting to lay out the parameters of what federal officers (generally speaking, the Border Patrol, CBP inspectors, and ICE) can and cannot do in enforcing the immigration laws: “What immigration lawyers want you to know about ICE and criminal warrants”.

Because immigration law is incredibly complex with its interwoven strands of criminal and administrative/civil enforcement provisions often moving forward in tandem with one another, the article is kinda-sorta right, and kinda-sorta wrong because it’s fuzzy on the details. And the devil is always in the details, which makes the article pretty much useless as a guide. I have neither the time nor patience for complete defenestration, so I’ll select just a few things from this smorgasbord of offerings. Take for example this bit of wisdom:

The [Fourth] amendment [against unreasonable searches and seizures] “ensures everyone’s privacy is protected, regardless of immigration status,” said Ana Valenzuela, senior attorney at Minsky McCormick & Hallagan, P.C., a Chicago-based immigration law firm. 

“Law enforcement does not have the right to just enter” a home or a private business unless they have a warrant signed by a judge, Valenzuela told CNN. 

Just off the top of my head, I can think of several occasions when federal officers can do exactly such a thing. For instance, they are always free to enter without warrant the public areas of a privately owned business, such as the dining room of a restaurant. Similarly, Border Patrol agents may enter onto private lands without warrant anywhere within 100 miles of the physical border. 

In a third scenario officers can without warrant enter ordinarily off-limits premises when in hot pursuit of a felon who is likely to escape or represent a danger to the public. Consider: during their duties, ICE agents encounter an alien (not the subject of their initial lead) who was previously deported for having committed offenses classified as aggravated felonies under the Immigration and Nationality Act (INA). The reentry after deportation is itself a federal felony offense. If the individual flees, officers are entitled to follow in pursuit through back yards and private driveways, alleys, or wherever he leads them, despite lack of a warrant. Speaking from experience, if you think that scenario’s a stretch, you’d be wrong.

Then there’s this—

[Administrative warrants] are also not enforceable, according to [Atlanta-based immigration attorney Charles] Kuck. That means, for instance, that if an immigration officer uses an administrative warrant to request work documents from an employer, the company doesn’t have to comply, he said. 

In the context, that makes no sense. If ICE wishes to demand an employer’s documents, they will not be using an administrative “warrant” for arrest of an alien. Rather, they will serve a notice of inspection demanding to see the I-9s and supporting documents of employees, to ascertain that the employer is in compliance with Section 274A of the INA. They can also serve an administrative subpoena for records and, in either case, if the employer fails to comply, these processes are enforceable in U.S. District Court under penalty of contempt.

The subsection of the CNN piece entitled “What is a criminal warrant” is also a bit of a mish-mash insofar as it suggests that criminal warrants and judicial warrants are one and the same. That’s not true. For instance, so-called “Blackie’s Warrants” are civil search warrants signed by U.S. District Court judges authorizing federal officers to search for and seize illegal aliens found within the named premises.

Finally, we come across the following in the subsection called, “Does ICE need a warrant to arrest you?”:

[I]n practice, officers have needed little pretext to make arrests. Just matching with a photo in an ICE database can lead to an arrest, according to Gihon. 

That’s John Gihon, “a former ICE attorney and current co-chair of the American Immigration Lawyers Association’s national ICE committee”, according to the article.

The unsubtle implication is that “matching with a photo” is somehow a shady or anomalous law enforcement tactic. Quite the contrary. Imagine two detectives out searching for a fugitive. Would not best practice be to carry with them photographs, either in physical or digital form, to avoid mix-ups resulting in a wrongful arrest?

Enough. You get the idea. The article is so poorly drafted that one almost wonders why CNN isn’t being charged with (mal)practice of law without a license.