The Fourth Amendment Implications of “U.S. Imitation Judges”

By Mary Holper. Full Text.

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 immigration 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, every person who authorizes a noncitizen’s arrest and detention is a law enforcement official, causing one to wonder who exactly is exercising independent judgment over decisions concerning noncitizens’ physical freedom. In this Article, I propose that federal magistrate judges make such a probable cause finding in in order to resolve the Fourth Amendment violations that occur when the only supposedly “neutral” judge, who authorizes the jailing a human being, is regularly critiqued as not so “neutral.”