DHS’s Is Wrong on ‘Administrative Warrants’

The department’s general counsel should know that those non-citizens subject to a final order of removal have Fourth Amendment rights

Letter to The WSJ.

"The Jan. 23 op-ed “‘How the Deep State Thwarted ICE for Years” by Jimmy Percival, Department of Homeland Security general counsel, attempts to justify searches of private homes by immigration enforcement officers with only administrative warrants by relying upon two false claims.

First, Mr. Percival says that “illegal aliens aren’t entitled to the same Fourth Amendment protections as U.S. citizens.” The Supreme Court has never held as much; to the contrary, it has repeatedly suggested that the Bill of Rights’ references to protecting “persons” from particular government action, rather than “citizens,” mean what they say. A 1990 ruling held that the Fourth Amendment didn’t protect a Mexican national against a warrantless search of his home—but that was entirely because his home was located in Mexico, not Minnesota.

Second, Mr. Percival argues that “administrative warrants” (pieces of paper signed by an immigration officer rather than a judge) suffice to enter the homes of non-citizens subject to final removal orders because those individuals “are fugitives from justice.”

Nothing could be further from the truth. Although the government may detain non-citizens with final orders of removal pending their physical removal from the country, most non-citizens subject to such orders are allowed to remain at liberty until the government orders them to report for removal—through a so-called “bag-and-baggage letter.” And with a large number of removal proceedings conducted in absentia, there are also countless non-citizens who don’t even know that they’re subject to a final removal order—and therefore couldn’t possibly be a “fugitive” from one.

As the top lawyer of the department responsible for overseeing immigration enforcement, Mr. Percival either knows that even those non-citizens subject to a final order of removal have Fourth Amendment rights and that most aren’t analogous to fugitives from justice, or he doesn’t. Neither possibility is reassuring.

Prof. Stephen I. Vladeck

Georgetown University Law Center"