From the abstract:
Scholars, immigration judges, attorneys, and congressional committees have been calling for a truly independent immigration adjudication system for decades, critiquing a system in which some judges describe themselves as “U.S. imitation judges.” This article examines the lack of truly independent immigration judges through the lens of the Fourth Amendment, which applies when a noncitizen is arrested for deportation. In 1975, the Supreme Court held in Gerstein v. Pugh that to continue detention after an initial arrest in the criminal context, the detached judgment of a neutral judge is necessary; a prosecutor’s finding of probable cause is insufficient to protect the important Fourth Amendment rights to be free from an unreasonable seizure. In contrast, in the immigration detention context, no such neutral judge has any role in the process. Every person who authorizes a noncitizen’s arrest and detention works for a law enforcement agency, causing one to wonder who exactly is exercising independent judgment over decisions concerning noncitizens’ physical freedom.
This article begins with an overview of the relevant Fourth Amendment law, which requires a neutral judge to review a law enforcement officer’s warrantless arrest in order to continue detention, and demonstrates why the Fourth Amendment applies to immigration arrests, although nominally “civil.” Thus, the lack of a truly neutral judge available to review DHS arrest decisions exposes the entire immigration detention system to a Fourth Amendment challenge. To resolve this issue, I propose that, in order to continue pretrial detention for deportation, federal magistrate judges, rather than immigration judges, must make a probable cause finding. This proposal resolves the Fourth Amendment violations that occur when the only supposedly “neutral” judge, who authorizes the jailing of a human being, is regularly critiqued as not so “neutral.” While others have effectively argued that the entire immigration adjudication system needs a judge who is untethered from a law enforcement agency, in this article I focus only on the initial decision to continue pretrial detention, as this is where, in the criminal pretrial context, the Fourth Amendment’s probable cause hearing requirement attaches.