DREAM Act Portal Forum - A federal court may have declared immigration arrests unconstitutional

https://thehill.com/opinion/immigrat...constitutional

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When police arrest people for suspected crimes, the U.S. Constitution requires them to show probable cause to a judge within 48 hours. But Immigration and Customs Enforcement (ICE) does not do that. When ICE arrests people, it typically holds them for weeks before any judge evaluates whether ICE had a valid legal basis to make the arrest.

That may need to change.

A federal appellate court in California recently did something that is at once simple and radical. The 9th Circuit Court of Appeals said the usual constitutional rules that apply to normal police all over the country also apply to ICE. “The Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate,” the court said. This really shouldn’t be a big deal. Prompt independent review by a judge of whether the government has a legal basis to take away a person’s freedom is an essential safeguard against tyranny. It’s something we all should be able to take for granted.

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The federal court’s demand for the usual constitutional safeguards to apply to ICE should not be difficult for the government to meet, in theory. It just asks ICE and the immigration courts to do what local police and courts do every day, all over the country. Yet it may prove to be a significant challenge. America’s immigration courts were nearly at the breaking point even before the COVID-19 crisis, with a backlog of more than a million cases that has only grown worse since the pandemic forced the courts to partially close down. It is now common for routine deportation cases to languish in court for years before getting an initial decision, much less appeals.

The immigration court system is hardly prepared for judges to now bear the responsibility of reviewing arrests within 48 hours. In immigration, merely imposing basic constitutional rules can seem radical. But it shouldn’t be that way. Nevertheless, in the short run, a startling question looms over federal immigration enforcement: Are most immigration arrests unconstitutional? The answer may very well be yes.

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The government may appeal the 9th Circuit’s decision to the Supreme Court, and that may be for the best. The ruling, while sweeping in its potential to reshape immigration enforcement, is legally simple and straightforward. It ought to become the law of the land, and it ought to spur the government to reform the immigration court system at long last.