DOJ Official: We’re Following the Law When Arresting Fugitive Migrants in Their Homes
Senior Justice Department officials say federal immigration officers are acting within the law when they arrest migrants with final deportation orders inside their homes without first obtaining a judge’s signature, according to comments given to Breitbart News.
Chad Mizelle, chief of staff and Acting Associate Attorney General at the Department of Justice, said existing case law allows such arrests when dealing with fugitives. “In cases of fugitives, courts have recognized that administrative warrants are perfectly okay” for entering a residence without a judicial warrant, he said.
The policy applies to migrants who have received final orders of removal after exhausting the full legal process. Once those rulings are issued, Mizelle said, the individuals are considered fugitives under the law. Over the past several decades, judges have ordered more than one million migrants to leave the country, yet many remained in the United States. During that time, enforcement of immigration law stalled as successive administrations and lawmakers declined to carry out removals, a failure Mizelle said undermined the civil rights of Americans.
Democrats have reacted angrily to the policy, which significantly streamlines ICE’s ability to locate and detain fugitives — including those with violent records — at known addresses and quickly return them to their countries of origin. Under the revised approach, ICE agents no longer need to wait for a judicial warrant, which Mizelle said is often delayed or denied by judges hostile to deportations, and can instead rely on administrative warrants issued by agency attorneys.
Mizelle weighed in publicly as the issue sparked debate online, telling one critic, “Read the en banc court’s decision in US v Lucas. The court held, plain as day, admin [not judicial] warrants suffice for entering the home of a fugitive. Case closed.”
That assertion drew a sharp response from Rep. Ted Lieu (D-CA), who challenged the comparison. “You’re wrong,” Lieu wrote, adding: “Lucas involved an escaped prisoner who had been convicted. Court reasoned he didn’t have expectation of privacy because he wouldn’t have had it in jail cell. In contrast, Supreme Court has held 4th Amendment applies to non-citizens. Case closed.”
Mizelle replied directly, rejecting the distinction Lieu attempted to draw. “You’re arguing that Lucas is different because it involved a fugitive? And what would you call an illegal alien who has been ordered deported by a court of competent jurisdiction, who has exhausted all appeals, who nonetheless is still in the country, and who is actively evading law enforcement? “Fugitive” would be the word you’re searching for.”
The dispute is expected to play out in the federal appeals courts and eventually before the U.S. Supreme Court, a process that could take at least a year as judges grapple with complex and overlapping precedents. Even so, libertarian legal scholar Orin Kerr suggested the government’s argument may ultimately prevail, writing in Reason.com:
“It’s always hard to offer a take on a legal argument when you have to speculate about what the legal argument is, so my take on this is tentative. But if I had to summarize my current thinking, it seems to me that the DHS policy is likely wrong in light of Coolidge, Shadwick, and Payton, although the DHS position is not frivolous in light of Abel as interpreted in Malagerio.”
While the legal battle unfolds, Mizelle said ICE continues to face resistance on the ground. He noted that judges aligned with Democrats have ordered migrants released shortly after detention, while Democratic officials have pulled local police support and allied activists have interfered with enforcement operations.
Mizelle said the policy change emerged from a broader review of immigration enforcement aimed at speeding up deportations of millions of inadmissible migrants admitted during the Biden administration. “They’re looking through all of their policies and trying to really revamp immigration enforcement, and they realize, “Wait a second, like, why are we handcuffing ourselves here?” And so they changed the policy, not because the old policy was required by law. I mean, there’s certainly some inside lawyers, Deep Staters, who for years, have given bad advice. But then whenever [department lawyers] dug in on it [they] said, “Wait a second, we don’t need it — an administrative warrant is perfectly fine.”
He added that the constitutional analysis hinges on reasonableness, not the existence of a judicial warrant. “The reason is … the Fourth Amendment never mentions warrants. It mentions “unreasonable” searches and seizures. So the key question is, what’s reasonable? And what’s reasonable depends on your legitimate expectation of privacy.”
Mizelle argued that migrants who are in the country illegally and have already been ordered removed have little remaining privacy interest. “So if you’re illegally present in the country, you have less of a legitimate claim to privacy, plus you’ve now actually been fully and finally adjudicated to be removed by a court of competent jurisdiction. You basically now have no privacy interests … You are a fugitive from justice … In cases of fugitives, courts have recognized that administrative warrants are perfectly okay.”
He also said the policy is necessary to counter misinformation that has encouraged migrants to evade arrest. “The thing that is actually very compelling, that people don’t realize, is that the ACLU has been telling [migrants] — wrongly, of course, — that if you stay in your house, ICE can’t get you, even if you have a final order of removal, that is, you’re a fugitive from justice. So these [illegal migrants] have not only been staying in their house, but in some instances, they’re literally taunting ICE agents. They’re waving through the windows or passing notes under the doors. I mean, it is as in-your-face as humanly possible.”
{Matzav.com}
