Natalia Trotter, Associate Member, University of Cincinnati Law Review
As the current administration sanctions aggressive actions taken by Immigration and Customs Enforcement (ICE) while searching for immigrants unlawfully present in the U.S., it is clear that Fourth Amendment rights have little meaning in the immigration context. With increasing stories about ICE agents using force or coercive tactics to enter the homes of immigrants to execute arrests without warrants, the need for constitutional protections for non-citizens grows. For many years, the Plenary Power Doctrine has insulated the immigration system and actions by the government from constitutional scrutiny. However, as immigration and criminal law increasingly meld and the abuse of immigrants by the Executive Branch expands, lower courts, as well as the Supreme Court, should find that the Fourth Amendment protections against unreasonable searches and seizures apply within the immigration context. The government should no longer be permitted to violate the rights of immigrants under the cover of the Plenary Power Doctrine.
The Historical Force of the Plenary Power Doctrine
For more than a century, a baffling structure has emerged, where the actions of the government within the immigration system are protected almost entirely from constitutional scrutiny. The Plenary Power Doctrine sanctions the operation of the government outside the bounds of the Cnstitution, within the immigration context. The Doctrine “holds that the political branches – the legislative and the executive – have sole power to regulate all aspects of immigration as a basic attribute of sovereignty.” The Doctrine first emerged in Chae Chan Ping, where the Supreme Court provided Congress with tremendous power to legislate in the immigration context because of the government’s interest in national security. Although Chae Chang Ping has since been recognized as a highly discriminatory decision, the Plenary Power Doctrine remains. In many regards, “immigration policy is not held to the same constitutional standards as domestic law and indeed at times escapes constitutional review entirely” due to the power of the Doctrine. The discrepancies in the application of constitutional principles in the immigration and non-immigration contexts are readily apparent, especially in the Fourth Amendment context.
Individual Rights Under the Fourth Amendment
The purpose of the Fourth Amendment is to protect people from abuse by law enforcement. While the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,” one of the strong protections interpreted from the Amendment is the right of persons to feel secure in their homes. In Payton v. New York, the Court stated: “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” While the Court provided for some exceptions to the warrant requirement, such as exigent circumstances and hot pursuit, it reiterated that absent an exception, a warrantless entry into the home would amount to a clear constitutional violation. According to the language of the Fourth Amendment, a valid warrant requires probable cause, particularity, and support by an oath or affirmation. The Court also stipulated that a “neutral and detached magistrate” must provide the warrant “instead of being judged by the officer.” Absent a warrant, the Court provided a consent exception, allowing a person to agree to a search by a law enforcement officer. The Court held that consent must be “voluntarily given, and not the result of duress or coercion, express or implied.” In addition, to avoid abuse after an arrest, the Court in Gernstein v. Pugh found that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty.” The Fourth Amendment thus requires law enforcement to provide a neutral and detached magistrate with particular evidence of probable cause and swear an oath affirming that the information is true in order to receive a search or arrest warrant. The officer must execute the arrest warrant outside of the home or within the home only after voluntary consent is given to enter. If law enforcement seeks to detain the person for more than forty-eight hours, a judge must determine whether there is probable cause to extend the restraint of liberty. The rights provided under the Fourth Amendment serve to protect individuals within the U.S. from the invasion of their homes and the violation of their privacy.
Should the Fourth Amendment Apply in the Immigration Context?
Although the Court had, for over a century, consistently sustained the Plenary Power Doctrine in the immigration context, judicial decisions in the twenty-first century have emerged that challenge the longstanding view that immigration policies are entirely insulated from constitutional scrutiny. With the decision of Zadvydas v. Davis in 2001, the Supreme Court opened up the possibility of a constitutional challenge to the immigration practices of the Executive and Legislative Branches. In an unprecedented decision, the Court stated: “we believe that an alien’s liberty interest is, at the least, strong enough to raise a serious question as to whether, irrespective of the procedures used, the Constitution permits detention that is indefinite and potentially permanent.” Although the Court in Zavydas focused on the constitutional issue of indefinite detention of immigrants without bond hearings, the decision created a possibility for immigrants to raise constitutional claims for the violation of their liberty interests. In addition, the Court also restricted the unfettered use by the Government of the Plenary Power Doctrine by stating: “that power is subject to constitutional limits.” In its decision, the Court signaled a movement towards increased judicial discretion to control the previously unencumbered use of the Plenary Power Doctrine by the Executive and Legislative Branches.
With the decision by the Court in Zavydas, immigrants now have the possibility of pursuing a claim under the Fourth Amendment. The rise in the arrest and mass detention of immigrants within the past decade creates a situation where the civil immigration system more closely resembles the criminal system. While the government maintains that immigration falls within the civil arena, the arrest procedures in immigration are uncomfortably similar to those used with criminal suspects. When persons are detained for immigration violations, they are handcuffed and transported to local jails where they are held until provided with a bond hearing or until transferred to a private detention center. Although the procedure of handcuffing individuals and depriving them of their liberty is the same in both the immigration and criminal contexts, “ICE does not obtain judicial warrants before it arrests immigrants for deportation. Nor is there any immediate probable cause finding.” The inconsistent application of the Fourth Amendment “raises an obvious question: if local police cannot detain noncitizens because there is no judicial warrant and no probable cause, why can ICE do exactly the same thing?” This inconsistency is also evident in situations where law enforcement is not permitted to enter a person’s home to execute an arrest without a warrant, however ICE is permitted to enter the same home, without a warrant or consent and arrest the individuals inside. Providing a non-citizen Fourth Amendment protection when arrested for committing a criminal act, while denying the same non-citizen Fourth Amendment protection when arrested for an immigration violation creates grave inconsistency and sanctions abuse by law enforcement in the immigration context.
If the Fourth Amendment were applied to the immigration context, ICE agents would need to conduct a preliminary investigation to obtain specific evidence demonstrating an individual’s violation of immigration law. ICE could then present the evidence to a neutral and detached magistrate, an immigration judge, and affirm that the information was obtained in good faith. If the magistrate issued a warrant for the arrest and detention of the person, ICE would then be permitted to execute the warrant outside of the home or within the home after receiving non-coerced, voluntary consent to enter. After the arrest, if ICE sought to hold the person for an extended period of time, an immigration judge would evaluate the case and determine if probable cause existed to justify prolonged privation of liberty. Following Fourth Amendment Constitutional procedures would protect the rights and interests of immigrants in liberty and privacy.
Application of the Fourth Amendment to Morales v. United States
The need for extending Fourth Amendment protection to immigrants within an immigration context is evident in Morales v. United States, a case recently filed in the Northern District of Georgia, where ICE demonstrated an unfettered abuse of power in its search and arrest practices. In January 2016, ICE implemented “an Enforcement and Removal Operation (“ERO”) entitled ‘Operation Border Resolve.’” The purpose of the operation was to detain and deport family units from Central American countries. The operation focused on several major cities including Atlanta, GA. The plaintiffs in Morales v. United States represent three families, the Vargas family, the Gutierrez family, and the Padilla family, who were all targeted during the raids in Atlanta.
In regard to the practices of ICE, the cases of the three families are very similar. In each case, ICE arrived at the family’s home in the early morning. Agents banged on the door, rang the doorbell, and shined lights into the house. In each case, the agents impersonated police officers and told the residents that they were searching for a criminal suspect whom they had reason to believe was hiding inside the house. In two of the situations, the residents allowed the officers to enter the house out of fear that a criminal suspect might be hiding inside. In the other case, officers pushed the door open after an explicit denial of permission by a resident to enter the home. Once inside the three homes, the agents detained the families in their living rooms under the watch of armed agents, and conducted searches of the rooms without ever producing valid search warrants. While detaining the families in their own homes, ICE agents participated in other questionable activities such as denying members of the family access to their phones to call their lawyers. After a temporary detention within the home, ICE agents arrested certain members of the families, without producing arrest warrants, and transferred them to detention facilities. In all three cases, ICE provided nebulous reasons for arresting the individuals. The detained immigrants were eventually all released and their removal proceedings cancelled. In the case of all three families, if the Fourth Amendment were applied in the immigration context, ICE would clearly have acted in violation of the Constitution.
Although the plaintiffs in this case are bringing claims under the Federal Tort Claims Act, this case and cases with similar fact patterns present opportunities to request that courts extend Fourth Amendment protection to immigrants within the immigration context. In this case, ICE officers did not obtain search or arrest warrants from their own agency, much less from a neutral and detached magistrate. Additionally, it appears that there was little evidence of probable cause because the immigrants detained were ultimately released from detention and their removal proceedings cancelled. In two of the cases, ICE did obtain consent to enter the home; however, the consent was not voluntary because it was obtained through fraud and coercion. In the third case, ICE officers physically pushed the door open, ignoring the denial of consent by the resident. Inside the home, ICE searched through the rooms without producing any valid search warrants and then arrested residents without providing a clear reason for the arrests or any arrest warrants. After the arrests, the immigrants were detained for over a month without a preliminary hearing to decide whether their detention was backed by probable cause. The situation in Morales is a clear demonstration of the need to extend constitutional protection to immigrants. ICE should not be permitted to enter a home without the consent of the residents or to gain entrance through coercion or fraudulent tactics. Similarly, ICE should not have the unrestrained authority to arrest any individual without a judicial warrant backed by probable cause.
Although the Plenary Power Doctrine insulated the Government from constitutional attack in the immigration arena for over a century, courts should extend the Supreme Court’s decision in Zavydas to afford immigrants protection under the Fourth Amendment. As ICE strategies grow more aggressive, the need for the protection of immigrants from unreasonable searches and seizures also grows. Allowing immigrants’ access to Fourth Amendment protections will provide a more uniform system of law enforcement control, will safeguard the right of individuals to feel secure in their homes, and will prevent the abuse of power present in Morales, from proliferating.
 Matthew Haag & Christine Hauser, ICE Arrested Man in Oregon Without a Warrant. Senators Want to Know Why., New York Times (Oct. 24, 2017), https://www.nytimes.com/2017/10/24/us/oregon-ice-arrest-immigration.html; SPLC Sues Federal Government Over Unconstitutional ICE Raids, Southern Poverty Law Center (Dec. 11, 2017), https://www.splcenter.org/news/2017/12/11/splc-sues-federal-government-over-unconstitutional-ice-raids; Lisa Rein, Abigail Hauslohner, & Sandhya Somashekhar, Federal Agents Conduct Immigration Enforcement Raids in at Least Six States, The Washington Post (Feb. 11, 2017), https://www.washingtonpost.com/national/federal-agents-conduct-sweeping-immigration-enforcement-raids-in-at-least-6-states/2017/02/10/4b9f443a-efc8-11e6-b4ff-ac2cf509efe5_story.html?utm_term=.90797e9a785e.
 Marisa Antos-Fallon, The Fourth Amendment and Immigration Enforcement in the Home: Can ICE Target the Utmost Sphere of Privacy? 35 Fordham Urban L. J. 1000, 1012 (2007); Michael Kagan, Immigration Law’s Looming Fourth Amendment Problem, University of Nevada, Las Vegas 126, 129 (2015).
 Kagan at 129.
 Jon Feere, Plenary Power: Should Judges Control U.S. Immigration Policy? Center for Immigration Studies (Feb. 25, 2009), https://cis.org/Report/Plenary-Power-Should-Judges-Control-US-Immigration-Policy.
 The Chinese Exclusion Case, 130 U.S. 581, 609 (1889).
 Antos-Fallon at 1012.
 U.S. Const. amend. IV.
 445 U.S. 573, 586 (1980).
 Id. at 587-588.
 U.S. Const. amend. IV.
 Payton at 586.
 Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973).
 420 U.S. 103, 114 (1975).
 U.S. Const. amend. IV; Payton at 586.
 Payton at 586; Schneckloth at 248.
 Gernstein at 114.
 Id. at 142.
 Id. at 143; Zadvydas v. Davis, 533 U.S. 678, 695 (2001).
 Zavydas at 696; Kagan at 143.
 Kagan at 129.
 Zavydas at 682; Kagan at 143.
 Detention Bed Quota, National Immigrant Justice Center, https://www.immigrantjustice.org/eliminate-detention-bed-quota (last visited, Jan. 26, 2017).
 Kagan at 127.
 Compaint at 1, Morales v. United States (1:16-mi-99999-UNA).
 Id. at 5.
 Id. at 2-4.
 Id. at 6, 13, & 16.
 Id. at 7, 13, & 16.
 Id. at 8, 13, & 17.
 Id. at 9, 13, & 17.
 Id. at 14, & 17.
 Id. at 9-10, 14-15, & 18.
 Id. at 10, 15, & 18.