Imagine an undocumented immigrant to the United States who has lived peacefully and lawfully in the United States for more than five years after his or her unlawful entry into the United States. That non-citizen remains subject to forced “removal” from the United States pursuant to federal civil procedure laws, see 8 U.S.C. Sections 1229 and 1229a, but he or she has never been notified that a civil “removal” proceeding has been brought against him by immigration authorities. In fact, none has. After the expiration of five years, an immigration agent approaches this person without an arrest warrant, and demands to know if he or she is a “citizen” or an “alien.” If he or she gives an honest answer, or else refuses to answer the agent’s questions, the agent will take the person into custody for violating the United States’ immigration laws. In many cases like this, the “alien” is forcefully removed from the United States. Question: Does the United States Constitution say anything about this hypothetical case, and if so, what?
The Fourth Amendment prohibits “unreasonable searches and seizures” by federal law enforcement agents. For much of our nation’s history, the security against “unreasonable searches and seizures” explicitly promised by the Fourth Amendment[1] primarily consisted of the agent’s compliance with the “warrant” requirements of the Fourth Amendment. Although the warrant requirements of the Fourth Amendment have always been subject to court recognized exceptions for circumstances equivalent to warrants, those requirements were substantially relaxed by the United States Supreme Court in 1968, when the Court approved a temporary “stop-and-frisk” procedure, without a warrant, for suspicious persons. Basically, when a police officer formulated a reasonable, fact-based suspicion in his own mind that a specific person might be up to some kind of criminal activity, the officer may “stop-and-frisk” that person without a warrant, or a warrant equivalent. See Terry v. Ohio, 392 U.S. 1 (1968). This kind of temporary arrest of a person without a warrant is now called a “Terry Stop.”
Federal immigration law authorizes a Terry Stop of “any alien or person believed to be an alien.” See 8 U.S.C. Section 1357(a)(1). Instead of a “frisk” for concealed weapons, Section 1357(a)(1) authorizes an “interrogation” of the suspected “alien” “as to his right to be or to remain in the United States,” all without a warrant, or any legally recognized equivalent to a warrant.
Now recall the facts of the hypothetical case presented here. The “alien” being questioned has lived peacefully and legally in the United States for more than five years since the date of his or her illegal entry into the United States. If arrested for that illegal entry, he or she now has a five-year statute-of-limitations defense to further prosecution for that crime, under 18 U.S.C. Section 3282(a). Coming from a foreign country, the “alien” would have no reason to know have that legal information while under intense interrogation about his or her legal status by a visibly well-armed immigration agent. At the same time, the “alien” was not engaged in any suspicious activity that might imply criminal activity on his part. The community-at-large had no interest in stopping and questioning that individual under those circumstances. The exercise of a “Terry Stop” under those circumstances would be patently “unreasonable.” (As would a Terry Stop based solely upon the person’s apparent ethnicity)
To the extent the federal immigration statute codified at 8 U.S.C. Section 1357(a)(1) undertakes to authorize a Terry Stop of an “alien” or even a suspected “alien” under these circumstances, it should be declared “void,” i.e., totally ineffectual, as a “law repugnant to the Constitution.” (The Supreme Court has never adjudicated this issue.)
/s/ Dan D. Rhea
[1] “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const., Amendment IV.
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