Senate Democrats are threatening to shut down the government again, this time claiming that “reforms” must be made to the Department of Homeland Security before they will approve spending that includes DHS appropriations. Specifically, the party of the Left is demanding that the law be changed so federal law enforcement officials must get a judicial warrant before arresting any illegal immigrants. This is a clever and cynical demand that would functionally end all interior immigration enforcement, which has always been the Democratic Party’s goal.
Under current law, specifically 8 USC 1226, immigration enforcement personnel may obtain an administrative warrant to “arrest and detain” an alien not authorized to be in the United States. Furthermore, regulation 8 CFR § 287.5 empowers certain named immigration officials, including Border Patrol watch commanders, to issue such arrest warrants. This is not a new power. This is how interior immigration law has been enforced for decades.
Once immigration law enforcement personnel have obtained an administrative arrest warrant, they are legally authorized to arrest and detain the named illegal immigrant. This appears to be what Border Patrol was trying to do to Jose Huerta-Chuma, who has been charged with domestic assault and infliction of bodily harm, before he ran into a doughnut shop and the patrons inside barred the door.
Now, armed with an administrative warrant, immigration law enforcement may ask a property owner to let them in and arrest the person they are pursuing. They are even allowed to say they have a warrant to arrest the person. But they may not enter the property by force or tell the owner of the property they have a warrant to enter and search the premises until they have a judicial warrant that says they may do so. Since the Border Patrol agents chasing Huerta-Chuma had no such judicial warrant to enter the doughnut shop, they waited for backup, and that is when Alex Pretti and his activists surrounded them, shouting epithets and blowing whistles.
Democrats want to require judicial, not administrative, warrants for all immigration arrests, which would make all interior immigration enforcement impossible. That is because mere illegal presence in the country is not a crime. Crossing the border illegally is a crime that is expunged after five years under a statute of limitations. There is no way immigration law enforcement can prove to a federal judge when and where an illegal immigrant crossed the border.
This means the only way Immigration and Customs Enforcement or Border Patrol could arrest an illegal immigrant is if he or she first committed another federal crime. So, for example, if ICE wanted to arrest and deport an illegal immigrant who had been arrested for DUI, it would be unable to get a judicial warrant because DUI is a state law.
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Under the Democrats’ proposed judicial warrant mandate, the only realistic way an illegal immigrant could be arrested and deported would be if Border Patrol caught him or her in the act of crossing the border unlawfully. Anyone who made it past that moment would, for all practical purposes, be shielded from removal permanently. Such a policy would amount to the largest mass amnesty in American history, which is what Democrats have wanted all along.
By insisting on judicial warrants for all immigration arrests, Senate Democrats aren’t reforming immigration enforcement; they are eliminating it. Mere unlawful presence, a civil violation, cannot trigger a judicial arrest warrant. The result would be de facto amnesty for millions living in the interior, leaving Border Patrol and ICE with authority only at the border. This isn’t due process — it is open-borders policy wrapped in legal procedure.
