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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 (IJs) 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.

This Article builds off of prior scholarship examining the Fourth Amendment’s application in the immigration context, introducing a further problem: immigration adjudicators’ lack of independence. In this Article, I propose that federal magistrate judges make such a probable cause finding in order to continue pretrial detention for deportation. 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 pre-trial context, the Fourth Amendment’s probable cause hearing requirement attaches.


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6 Sep 2022
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  • Subject
    • Fourth Amendment

    • Immigration Law

    • Judges

    • President/Executive Department

  • Journal title
    • Minnesota Law Review

  • Volume
    • 104

  • Issue
    • 3

  • Date submitted

    6 September 2022