‘Blackie’s Warrants’ and Sanctuary Jurisdictions

My colleague Andrew Arthur recently outlined a new legal opinion from the Justice Department’s Office of Legal Counsel which finds that illegal entry cases may be prosecuted anywhere the alien is found in the United States.

I am happy to see new lines of reasoning applied to the multi-dimensional problem of illegal immigration, which reached critical levels under the Biden administration, because without new approaches (and perhaps even with them), the adverse aftershocks will be felt in our nation for decades to come.

I have no doubt that Arthur is accurate in predicting a skyrocketing docket in the federal courts as criminal warrants are sought to push back heavily on sanctuary jurisdictions that have held steadfastly to the line that the only time they will honor ICE detainers or warrants is if they have been issued by a U.S. district court judge.

Once this starts to happen, one can’t help but wonder whether they have a fallback position readied, since it has been obvious all along that the intent was always to throw a wrench into the machinery of immigration enforcement, not to split hairs on what constitutes legal process under federal immigration laws.

But, as I pondered clear back in 2016, I am still left wondering what happened to another invaluable tool in the immigration enforcement toolbox: Blackie’s warrants. Has the institutional knowledge within ICE so atrophied that they’ve been forgotten?

These warrants are a curious hybrid in that – while civil, not criminal in nature – they are nonetheless reviewed and approved by U.S. district court judges. This being the case, it precludes any arguments by sanctuary advocates that the federal judiciary is not on board with the proposed operations of ICE and Border Patrol agents. Any official in a jurisdiction that was so foolish as to defy the order of a district court judge would risk being jailed for contempt, and quite possibly criminal charges of impeding federal officers, or obstruction of court orders.

One last note: Although these “civil search warrants” were developed with worksite investigations in mind, I see no reason why they shouldn’t have similar application to other situations, say for instance, by service on a county or municipal jail in order to put hands on an alien or group of aliens whose detainer(s) would not otherwise be honored.