President Donald Trump’s officers are operating within federal law when they arrest fugitive “Final Order” migrants in their homes without first getting a judge’s signature, a top Justice Department official told Breitbart News.
“In cases of fugitives, courts have recognized that administrative warrants are perfectly okay” for home arrests without a judge’s signature, Chad Mizelle, the chief of staff and Acting Associate Attorney General of the Department of Justice, said.
The policy applies to migrants who been given “Final Orders” of deportation after full due process in the courts. The orders make them fugitives under the law, he said. Over the last few decades, more than one million migrants have been ordered home by judges, but have stayed in the United States. During that period, various presidents, appointees, and legislators have failed to uphold the civil rights of Americans by refusing to enforce America’s immigration laws.
Democrats claim to be outraged by the new policy, which greatly simplifies ICE’s task of picking up fugitives — including violent migrants — from known locations for quick deportations back to their home countries. This process ensures that ICE officials do not have to wait for a judge — many of whom oppose deportations — to sign a judicial warrant, but can instead get administrative warrants from agency lawyers.
Mizelle quickly jumped into the online debate, 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.”
“You’re wrong,” Taiwan-born Rep. Ted Lieu (D-CA) tweeted back to Mizelle, 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 responded to Lieu:
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 issue will be sorted out as both sides fight in the appeals courts and the U.S. Supreme Court. But that legal fight will likely take at least one year as lawyers and judges sort through their increasingly complicated rules. But even libertarian lawyer Orin Kerr seemed to suggest in Reason.com that Mizelle could win:
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.
In the meantime, many Democrat-leaning judges are directing ICE agents to release migrants as soon as they are detained, and Democrat politicians keep withholding their police officers while their allied activists harass and obstruct ICE enforcement officials in the street.
The policy change was decided when officials looked for ways to accelerate the deportation of millions of inadmissible migrants welcomed by President Joe Biden’s deputies, Mizelle told Breitbart News on Friday:
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.”
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.
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.
The policy is needed so law enforcement officers can enforce the law, he added:
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.
