Federal court recognized arrests of illegal immigrants unconstitutional: what does this mean - ForumDaily
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Federal court ruled the arrests of illegal immigrants unconstitutional: what does it mean

When police arrest people on suspicion of a crime, the US Constitution requires that the reason for the arrest be given to the judge within 48 hours. But the Immigration and Customs Enforcement (ICE) does not meet these deadlines. When ICE arrests people, it usually detains them for several weeks before any judge assesses whether ICE had a legal basis for the arrest. It so happened that this format of their actions was taken for granted, but, as the newspaper writes The Hill, recently everything has changed.

Photo: Shutterstock

The California Federal Court of Appeals recently did something simple and radical at the same time. The 9th Circuit Court of Appeals said the standard constitutional rules that apply to conventional police across the country also apply to ICE.

“The Fourth Amendment requires a prompt determination of the reasonableness of the reason for an arrest by a neutral and independent judge,” the court said. “This shouldn’t become a problem.” Prompt, independent review by a judge of whether the government has a legal basis for depriving a person of his liberty is an important safeguard against tyranny. We should all take it for granted."

When ICE arrests people, the only immediate action is taken by the ICE staff themselves. It may take several weeks for the Immigration Court to hold a hearing, and usually at the first hearing, the judge only considers procedural issues, not the substance of the case and the justification for the arrest.

Eventually, at a hearing a few weeks later, the immigration judge will ask the person what he thinks about the charges brought against him by ICE. Only then, long after the initial arrest, may ICE be required to present any evidence to the judge to support the agency's version. The person spends all this time in detention, probably in a private temporary detention center for immigrants in a remote area of ​​the country.

This is a gaping hole in the US constitutional armor. It effectively gives the federal government shadow legal protections that can be used at its discretion. And everyone in the United States should be concerned about a mechanism that allows the federal government to arrest and detain thousands of people out of sight of a court conducting even a cursory check on the validity of the arrest.

A federal court's requirement to apply ordinary constitutional guarantees to ICE actions should in theory not be difficult to enforce. It simply obliges ICE and the Immigration Courts to do what the local police and courts do every day across the country. However, in practice, this can be a serious problem.

On the subject: Quarantine is not a hindrance: ICE arrested 2000 illegal immigrants in a month

American immigration courts were almost at their limit even before the COVID-19 crisis, with more than a million cases accumulating and the situation only getting worse after the pandemic forced the courts to partially close. At present, a decision in a common deportation case has to wait for many years. Appeals are even more difficult.

The immigration court system is hardly ready for judges to now be held accountable for reviewing the justification for arrests within 48 hours. In this litigation, the simple introduction of basic constitutional rules may seem radical. But it doesn't have to be that way. However, in the short term, a startling question looms over federal immigration controls: Are most immigration arrests unconstitutional? The answer may well be yes.

ICE recently announced that it has resumed large-scale law enforcement operations, reporting approximately 2000 arrests in a few weeks at the end of the summer. The 9th Circuit ruling raises an obvious question: How many of these people were detained for more than 48 hours without a court hearing? Were many of these arrests actually unconstitutional?

The government can appeal the decision of the 9th Circuit Court to the Supreme Court. The regulation, although it has a huge potential for changing immigration law, from a legal point of view, is simple and straightforward. This should become the law of the country and should push the government to reform the immigration court system.

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