LOCATION — In recent months, ICE agents have appeared across the country engaging in aggressive enforcement actions with little apparent accountability, according to The Atlantic.
The magazine reports that ICE agents have detained suspected undocumented immigrants — including U.S. citizens and lawful residents — without cause, using tactics ranging from seizing people off the street to breaking into vehicles to make arrests.
Agents have also used tear gas and pepper spray against nonviolent protesters, The Atlantic reported. In multiple cases, ICE personnel refused to identify themselves, wore masks, used unmarked vehicles and switched license plates, actions that appear aimed at avoiding detection.
According to The Atlantic, people have been detained without access to lawyers and questioned for “appearing Latino, speaking Spanish, and being in areas believed to be frequented by illegal immigrants.”
Many of these tactics are “plainly illegal,” The Atlantic reported, noting that federal immigration officers are bound by the Constitution. The Fourth Amendment protects against unreasonable searches, seizures and excessive force and requires a warrant to enter a private home. The Fifth Amendment guarantees due process and prohibits self-incrimination, and the Sixth Amendment guarantees the right to counsel.
The question, The Atlantic asks, is why ICE repeatedly avoids consequences when those constitutional limits appear clear. The answer, the publication argues, lies in two Supreme Court decisions that place excessive trust in ICE’s self-regulation and leave people with limited options when their rights are violated.
Under ordinary criminal law, illegally obtained evidence may be excluded from court under the exclusionary rule, and victims of misconduct may sue for damages. The Atlantic reported that those safeguards largely do not apply to immigration enforcement.
The first case, INS v. Lopez-Mendoza (1984), removed immigration courts from the exclusionary rule. In a 5-4 decision, Justice Sandra Day O’Connor wrote that applying the rule would undermine what the Court described as a “deliberately simple deportation hearing system.”
In criminal cases, the exclusionary rule is intended to deter misconduct by law enforcement, The Atlantic reported. The Court concluded that such deterrence was unnecessary for immigration officers, ruling that evidence obtained unlawfully could still be used in immigration court unless the violation was “egregious.”
The decision relied in part on the assumption that Fourth Amendment violations by immigration officers were not widespread and that the Immigration and Naturalization Service had taken adequate steps to deter misconduct, The Atlantic reported.
The second decision, Egbert v. Boule (2022), sharply limited the ability of individuals to sue federal immigration officers for damages after unlawful searches, detentions or the use of excessive force.
Writing for the majority, Justice Clarence Thomas denied plaintiffs the right to sue Border Patrol agents for excessive force, citing national security concerns, according to The Atlantic.
The magazine reported that the Court’s reasoning in Boule is likely to be extended to ICE, effectively shielding the agency from liability even when conduct mirrors constitutional violations committed by police officers.
Both rulings rest on the agency’s claimed ability to police itself, The Atlantic reported, leaving people harmed by ICE with few meaningful avenues for relief.
Individuals may file claims under the Federal Tort Claims Act, but the process can take years. Complaints can also be filed with the Department of Homeland Security’s Office of Inspector General or Office for Civil Rights and Civil Liberties, but The Atlantic reported that “the chances of redress for misconduct are slim to none” under the current administration.
Practical barriers compound the problem, including where a person is detained, which facility is involved and whether the individual has access to legal counsel, The Atlantic reported.
Those barriers are most acute under expedited removal, a process in which a low-level immigration officer can order deportation after a single interview by determining that a person lacks proper documents and cannot prove two years of continuous presence in the United States.
Exceptions exist for people with credible fears of persecution or who seek asylum, but The Atlantic reported that those exemptions have been significantly narrowed.
Originally limited to people apprehended within 100 miles of the border, expedited removal has been expanded nationwide to apply to anyone who cannot prove two years of residency, The Atlantic reported. The process provides no right to appeal and little opportunity to obtain counsel or gather evidence.
Even when people reach immigration court, ICE attorneys have increasingly sought to dismiss proceedings, a move that can expose individuals to immediate rearrest and expedited removal, The Atlantic reported. U.S. District Judge Jia Cobb in Washington, D.C., observed that people have been detained and removed shortly after their cases were dismissed.
Taken together with expanded mandatory detention policies that eliminate eligibility for bond, The Atlantic reported, these practices have effectively turned immigration courts into a “deportation pipeline.”
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