Excerpted From: Talia Peleg, The Dangers of ICE's Unchecked Rearrest Power, 86 Albany Law Review 517 (2022-2023) (512 Footnotes) (Full Document)

TaliaPeleg.jpegLess than thirty-six hours after reading his poem, “Dear America,” at a public hearing before the Kern County Board of Supervisors, Immigration and Customs Enforcement (ICE) officers unilaterally revoked bond and arrested its author, Jose Bello, for a second time. His testimony criticizing local law enforcement's cooperation with ICE and calling for community resistance was live-streamed and publicized widely. The twenty-two-year-old Dreamer and farmworker quickly found himself back in immigration jail, under the very same conditions he had been freed from five months prior. While at liberty, Mr. Bello increased his activism, speaking out against ICE's enforcement tactics. One day after his public remarks, ICE arrested him again, surrounding him as he left his home at 6:30 a.m.

ICE rearrested Mr. Bello without needing to demonstrate probable cause to a neutral adjudicator in a pre-deprivation hearing. ICE did not need to obtain a warrant issued by an Article III judge before acting, as is the general standard for criminal arrest. Neither was the agency required to substantiate a change in circumstance to rearrest him, before or even after his arrest. Even more shocking, the agency was able to arrest Bello despite an immigration judge having previously ordered his release on $10,000 bond after an adversarial evidentiary hearing. Community members had raised the money to secure his release. Upon rearrest, ICE unilaterally and administratively set a new bond in the amount of $50,000. According to Bello's pleadings, an ICE agent remarked, “We'll see if you can get your friends to raise the bond money again.” Remarkably, Bello was discretionarily granted bond for the second time. He was unlike thousands of immigrants who are deemed categorically ineligible for bond and remain detained while fighting their cases. Nevertheless, he was not automatically entitled to have a hearing to review his newfound custody. In no other context--criminal or civil--does this practice exist: a system where an individual can be taken into jail-like custody for a second time for little to no reason and with no process whatsoever.

In this Article, I examine what happened to Mr. Bello, a phenomenon I call rearrest and detention in the middle. This Article is the first to examine the practice closely and considers the limitations to immigration enforcement in the middle. By this I mean rearrest before an adult non-citizen has been ordered removed or potentially even found to be removable, claiming such authority under 8 U.S.C. § 1226(b) and 8 C.F.R. § 236.1(c)(9). People subjected to this practice share these common characteristics: they have been previously arrested by the U.S. Department of Homeland Security (DHS) (either ICE or U.S. Customs and Border Protection [CBP]) or processed by ICE after arrest by another subagency like Homeland Security Investigations [HSI]; were held in DHS custody briefly or for an extended period; were then released, either by DHS or an immigration judge; and were arrested for a second time. The new arrest and what often happens next is the focus of exploration herein.

The stakes of rearrest are high--not only due to the deprivation of liberty itself, but also because rearrest frequently leads to a new period of detention, often prolonged. It is for this reason that I link rearrest and detention, as they so often go hand in hand, and it would be inadequate to focus on rearrest alone. There are vastly poorer outcomes for those who fight their cases while detained, including extremely high rates of orders of deportation. Properly understood, rearrest leads to an increased likelihood of deportation.

An important caveat before going deeper: this Article is focused on rearrest and detention authority over those who have been arrested and detained pursuant to INA section 236. This Article excludes discussion of rearrest of those deemed “arriving aliens” or those who are post-removal order. The arrest, detention and rearrest of “arriving aliens” and non-citizens who are post-removal order are governed by different statutory schemes. While rearrests of these populations raise very similar concerns and are relevant, they also raise specific nuances. They are beyond the scope of this Article but are worthy of analysis in later works as they raise interrelated issues.

Turning back to rearrest and detention in the middle, DHS interprets 8 U.S.C. § 1226(b) and 8 C.F.R. § 236.1(c)(9) in such a way that it may revoke a noncitizen's release “at any time” pre-removal order, even where the individual has previously been released by an immigration judge. Such a person “may be taken into physical custody and detained.” Under the statutory regime, ICE need not establish probable cause before an arbiter for the new arrest or any change in circumstance before an arbiter. It can do so without regard for a prior release, or conditions and/or a bond order set by ICE itself or even an immigration judge from a wholly different agency, the EOIR.

A non-citizen is not entitled to a hearing to review the reasons for rearrest or whether they merit release. Similar problematic rules govern initial ICE arrests as well: ICE need not show probable cause, nor is there any guarantee for a hearing to review one's custody status in the first instance. Concerns regarding the lack of process for initial ICE arrests have received recent attention in scholarship and litigation. This Article builds on that work but narrows in on rearrest after initial release, which has largely gone unexamined and raises unique concerns worthy of exploration.

The lack of meaningful review of a second arrest--particularly after a determination has already been made to release an individual--is troubling. It flies in the face of deeply held principles regarding when and how the state can strip an individual of their liberty, especially for a second time. According to ICE, rearrest can occur in any case, at any time, even well before the conclusion of removal proceedings where a non-citizen can litigate their claims or even challenge removability.

There is little available data as to who is subjected to rearrest before the conclusion of removal proceedings. In general, ICE fails to keep and release data, and the quality of the data that is released is poor. While rearrested individuals may constitute a relatively small number of those detained nationwide, many individuals live at liberty who have been released from DHS custody and could be subject to rearrest. Immigrants are increasingly fearful of arbitrary rearrest much so that individuals have begun suing to enjoin ICE from rearresting them while they remain at liberty. The sheer threat of rearrest has a chilling effect on immigrants living under release; it also has other First Amendment implications touched upon below. Thus, considering the limits of this practice is critical.

Under its interpretation of 8 U.S.C. § 1226(b) and 8 C.F.R. § 236.1(c)(9), ICE need not demonstrate any change in conduct or behavior whatsoever to justify a second arrest. ICE may rearrest if there is a change in the immigration case, when there's a new criminal arrest or conviction, if ICE believes the individual has violated conditions of release, or for no asserted reason whatsoever. The fact that there need not be any reason for rearrest casts doubt on the obsessive narrative of immigrant criminality and recidivism that has taken hold in recent years.

Regardless of the exact numbers, recent litigation and anecdotal evidence reveals the practice exists and is ongoing. Even if those rearrested prior to removal order constitute a relatively small number of the overall detained population, the potential harms of the practice, including the looming threat of rearrest, are so grave that it warrants urgent examination. While in some ways rearrest raises unique problems, it is also a symptom of an immigration enforcement system that has few rules governing DHS's conduct, gives immense power to low-level officers, has no statute of limitations, and utterly lacks transparency. It is my hope that some of the issues raised in examining this practice may shine a light on other problematic areas of immigration enforcement.

ICE's rearrest authority is more relevant now than ever because there is an imminent risk that its use may be expanded. Given the Biden administration's expansion of Alternatives to Detention (ATDs) and the release of many immigrants in detention at the beginning of the COVID-19 outbreak, many immigrants previously arrested, screened, and vetted for release from custody are particularly vulnerable to rearrest and detention. This is not merely hypothetical. ICE has used its rearrest powers to detain and try to deport individuals like Mr. Bello in recent years. For example, the law school clinic that I co-direct represents an individual who has been arrested by ICE and subsequently released on bond by an immigration judge on three separate occasions in eight years. There were no allegations of new criminal arrests or violations of the conditions of his bond release. Each time, the immigration judge released our client after a lengthy adversarial bond hearing. Nevertheless, our client was rearrested and put into custody while awaiting his hearing despite the judge's previous order. Thankfully there has been recent federal litigation against this practice, which has at least raised awareness.

The Trump administration flaunted its ability to rearrest and detain immigrants as one strategy in its mass removal agenda. The threat that this trend may continue is all too real. Under President Biden's watch, detention numbers have steadily increased again despite reaching decade lows at the beginning of the COVID-19 pandemic. The Biden administration has reinforced that it still sees detention as appropriate for certain classes of immigrants, like those with criminal convictions, despite the prohibition on civil detention's use as a form of punishment. Little suggests that ICE's enforcement practices and engrained culture of punishment and impunity have meaningfully changed with the Biden administration.

Additionally, President Biden has greatly expanded the use of ATDs, to place hundreds of thousands of non-citizens under conditions. ICE's primary ATD program is called the Intensive Supervision Appearance Program (ISAP) and includes a variety of electronic surveillance components, from facial recognition to GPS monitoring. Shockingly, there were over 324,000 people on ISAP as of February 20, 2023, which grew from around 87,000 when Biden took office. While some scholars have advocated for ATDs in lieu of detention, others have emphasized the growing scope of immigration surveillance perpetuates a dangerous “violence of invisibility” that while incremental, becomes normalized and neutral over time.

Individuals released onto ISAP, or other release mechanisms, often face onerous and vague conditions as part of their so-called release. Noncompliance can include breaking a curfew, failure to return a voice verification call, voice mismatch, or the inability of the technology to verify the location of the participant. Currently, there are very few procedures the agency must follow to revoke ISAP or release if there is an alleged violation of a condition. The administration's expanded use of ISAP not only results in excessive surveillance, but it may very well increase the number of immigrants potentially rearrested and detained for alleged violations of release conditions. ICE officers have wide discretion in the facilitation of ISAP and in determining if a violation of release has occurred and to assign the appropriate consequence.

Given these factors, it is hard to imagine the practice of rearrest and detention in the middle lessening soon. The standards permitting rearrest and prolonged detention and the growth of ATDs suggest the opposite may be true-- the practice may very well grow. Indeed, using this authority, the agency has sought to rearrest some non-citizens who were released at the beginning of the COVID-19 pandemic.

ICE's rearrest power over adults has barely been touched upon in scholarship and has only recently been challenged in litigation. ICE's ability to rearrest previously released non-citizens began to receive some scrutiny in 2017. Immigration officers arrested, based on allegations of gang affiliation, Central American minors who had been previously vetted and released to adult sponsors by the Office of Refugee Resettlement. The young people were sent to high security facilities across the country, often thousands of miles from their homes. A class action lawsuit, Saravia v. Sessions, resulted in years of litigation. The case centrally questioned ICE's rearrest authority and the circumstances under which it could use this power. The court examined the rights of non-citizen minors to challenge their rearrest and subsequent detention. The litigation grappled with the constitutionality of ICE's actions. Ultimately, the parties agreed, through settlement, that each class member is entitled to a hearing before an immigration judge promptly after rearrest. The government bears the burden of proving a changed circumstance since the initial release and that the child poses a danger or flight risk to justify redetention. hearings include additional procedural protections for the child.

Although Saravia dealt with minors, whose detention is subject to distinct rules, it begged the question: how often does ICE rearrest previously vetted and released adults? And what rights do adults have to challenge such actions? Saravia provides a lens through which to consider ICE's similar conduct against previously released adults. Since the lawsuit, several adults have brought individual habeas challenges to ICE's rearrest authority, seeking to enjoin the agency from redetaining them. Unlike in Saravia, all of these individuals remained at liberty and sought court intervention before an arrest could be made. District courts have started to grapple with this issue and have come out wildly differently. Appellate courts have rarely touched the question, and none have squarely answered what process is due for an individual facing rearrest.

Scholars have not yet deeply engaged with the legality of ICE's rearrest power, specifically, the issues that arise from rearrest before the issuance of a removal order. The literature has focused on the legality and operation of the modern immigration detention system. Scholars have evocatively critiqued the rapid expansion of immigration detention and explored its constitutional limits and justifications, with specific attention paid to the growth of mandatory detention.

Scholars have also critiqued the systematic way that DHS arrests most often lead to detention (usually prolonged). Litigation unearthed that the risk management tool used by ICE to determine whether an arrested individual should be released in the first instance was rigged and defaulted to continued detention. Scholars had previously documented how this tool leans in favor of ongoing detention. Other scholars have suggested there is a presumption of continued detention even for the narrow subset of immigrants eligible for custody redetermination hearings before an immigration judge. Professor Denise Gilman suggests these hearings are inadequate to challenge one's custodial status due in large part to the standard of proof resting with the non-citizen. Collectively, the scholarship paints a detention system with little room to attain freedom once a non-citizen enters custody.

Most successful challenges to immigration enforcement and detention had historically come from the back end. Courts have found, in limited circumstances, that the length of detention may raise constitutional concerns meriting an opportunity to seek release. Whether or not prolonged detention without a right for a bond hearing violates the Constitution remains an open question. However, because detained immigrants face practical and procedural hurdles to filing individual habeas petitions and the Supreme Court has restrained the ability to bring class actions, the relief that could come from back-end challenges remains elusive for many in detention.

Recently, scholars have raised front-end challenges to immigration enforcement and detention, citing the constitutional shakiness of initial ICE arrest and detention practices. Professor Lindsay Nash questioned the origins of immigration arrest authority and the reliability of specific authority to support warrantless immigration arrests. Professors Michael Kagan and Mary Holper have raised grave Fourth Amendment concerns regarding ICE's initial arrest practices wherein ICE takes non-citizens into custody without a showing of probable cause before a neutral adjudicator. In recent years, courts have found some state and local municipalities to have violated the Fourth Amendment where immigrants were detained by local authorities pursuant to ICE detainers. The courts concluded so because there was no probable cause or judicial warrant to justify the custody. These outcomes were anticipated in Professor Christopher Lasch's scholarship documenting the Fourth Amendment problems surrounding the use of detainers as mechanisms for immigration arrests.

A similar challenge was brought against the federal government arguing that ICE violated the Fourth Amendment by issuing detainers based on unreliable databases without probable cause. The Gonzalez v. ICE class action is ongoing, but the Ninth Circuit remanded the case to the lower court to properly assess if the databases used to issue detainers were insufficient to provide probable cause. Significantly, the Ninth Circuit held that the Fourth Amendment requirement that arrests be reviewed by a neutral magistrate within forty-eight hours applied to immigration arrests.

While challenges to immigration enforcement from the front and back ends have been explored, few have examined challenges to immigration enforcement in the middle. This Article explores the practice of rearrest and detention in the middle and the important questions it raises. Does the Constitution limit ICE's ability to rearrest and detain in the middle, and if so, how? What are the social and other policy implications of ICE's broad unilateral rearrest authority that most often results in prolonged detention and a higher likelihood of deportation? Are there unique considerations that arise in rearrest that are distinct from initial arrest and merit heightened attention? And in what ways is rearrest power symptomatic of a damaged immigration enforcement system that engages in legally questionable and problematic practices?

Part I of the Article provides background on the development of the modern immigration detention system and alternatives to detention, and it explores ICE's arrest and rearrest authority. It also describes how the modern enforcement system creates a presumption of detention even for those who are theoretically eligible for release. Part II explores numerous constitutional problems raised by ICE's broad rearrest practices, specifically regarding procedural due process and the Fourth Amendment. Because the statute and agency are silent as to what procedures govern, constitutional principles fill this gap. Given the erosion of the criminal-civil distinction in immigration law and the limiting of plenary power doctrine in immigration detention doctrine, constitutional challenges to rearrest and detention are ripe. Analogous contexts--like the revocation of criminal bail and/or supervised release and some civil areas--are instructive as to when and how the government may infringe on a non-citizen's liberty. Part III considers other legal theories and social policy considerations that further support limiting ICE's rearrest authority. ICE exercises rearrest power--without clear standards and absolute discretion--more certainly assuring the removal of groups of individuals the agency deems undesirable. ICE utilizes rearrest in these interrelated ways: (1) as a tactic of crime control and prevention, (2) to remove those it deems a national security threat, and (3) in retaliation against immigrant activists. Lastly, Part IV outlines the case for limiting ICE's power to rearrest and detain in the middle, and it suggests several solutions that would eliminate, or at a minimum restrain, this practice.

[. . .]

In sum, ICE's rearrest practices fuel detention and ultimately deportation. This power operates in such a way that ICE, in effect, makes unilateral removal determinations by rearresting and detaining people without clear standards and with absolute discretion. In practice today, the agency does this nearly free of input or checks from other branches of government or even immigration judges, who are meant to oversee at least some custody determinations. However, the Constitution limits ICE's rearrest authority and fills in the gaps to establish what kind of process must govern before ICE can rearrest a previously released individual. Social and humanitarian policy further suggest that the practice should be abandoned or seriously curtailed imminently.

Associate Professor of Law and Co-Director, Immigrant and Non-Citizen Rights Clinic, City University of New York (CUNY) School of Law.