Michael Kagan warned lawyers for municipalities that immigration enforcement is riddled with constitutional problems, and that local governments risk liability if they detain people at the request of the Immigration and Customs Enforcement.
Speaking on Oct. 5 to the International Municipal Lawyers Association in Las Vegas, Professor Kagan explained that unlike routine law enforcement by local police, ICE does not normally obtain any neutral finding of probable cause before placing people in immigration detention.
At the municipal lawyers conference, Kate Desormeau, an attorney with the American Civil Liberties Union's Immigrant Rights Project, warned that recent federal court decisions had found local governments liable for civil rights violations when they kept people detained on the basis of "ICE detainers." ICE detainers are requests from ICE to local police to hold a person, but are not neutral findings of probable cause as is normally required to deprive someone of liberty under the Fourth Amendment prohibition against unreasonable searches and seizures.
Professor Kagan has recently analyzed what he calls "immigration law's looming Fourth Amendment problem" in a forthcoming article in the Georgetown Law Journal. He advised the municipal lawyers that the Department of Homeland Security could fix the problem by seeking review by neutral Immigration Judges before arresting or holding people on immigration grounds. But until DHS does so, he advised that municipalities would be wise not to risk their own liability by detaining people on behalf of ICE.
Professor Kagan co-directs the Immigration Clinic and the Boyd School of Law.