ADecember 28 Washington Post article is breathlessly headlined “ICE shift in tactics leads to soaring number of at-large arrests, data shows”. The paper attributes the rise to “a significant change in strategy” that’s part of “the Trump administration’s mass deportation campaign”, but it ignores the elephant in the detention cell: so-called “sanctuary” jurisdictions that won’t honor ICE detainers and bar the agency from their jails and prisons, forcing immigration officers onto the streets to find “the worst of the worst” criminal aliens. And that’s just one of the flaws in the Post’s reporting.
How Immigration Arrests Work
By way of background, here’s a quick recap of how immigration arrests work.
Section 236(a) of the Immigration and Nationality Act (INA) permits immigration officers to arrest and detain aliens with an administrative warrant “pending a decision on whether the alien is to be removed from the United States”.
Section 287(a)(2) of the INA, on the other hand, authorizes an immigration officer “to arrest any alien in the United States” without first obtaining a warrant “if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest”.
Regardless of whether it’s an arrest on warrant or a warrantless arrest, the immigration officer must first have “probable cause” that the individual is: (1) an alien; and (2) is inadmissible to the United States under section 212(a)(2) of the INA or deportable under section 237(a)(2) of the INA, i.e., “removable”.
To close the loop, as the Legal Information Institute explains: “Probable cause exists when the facts and circumstances within an officer’s knowledge would lead a reasonable person to believe that a crime has been committed”, or in this context that the individual is a removable alien.
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