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1917 Arrest, Search, and Seizure by Immigration Officers

The general rules concerning arrest, search and seizure applicable to other federal officers are, of course, applicable to immigration officers. The Immigration and Naturalization Act, 8 U.S.C. §§ 1101 et seq., authorizes immigration officers to make arrests either for the purpose of holding an alien for civil administrative proceedings or for a crime, or both. Title 8 U.S.C. § 1225 provides that all aliens arriving at United States ports must be examined by immigration officers who are authorized, without a warrant, to board and search any conveyances believed to carry aliens, and to detain for further inquiry anyone "who may not appear . . . at the port of arrival to be clearly and beyond a doubt entitled to land." Title 8 U.S.C. § 1252(a) authorizes the arrest upon warrant of the Attorney General of any alien, pending a determination of his/her deportability. Title 8 U.S.C. § 1252(c) authorizes arrest of an alien at any time within six months after a final order of deportation has been entered. Title 8 U.S.C. § 1324(b) authorizes immigration officers to seize, without a warrant, conveyances used to transport illegal aliens. Title 8 U.S.C. § 1357 sets out their authority to interrogate, arrest, search, and seize aliens without a warrant.

Subsection 1357(a)(1) of Title 8, authorizing immigration officers "to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States," has a deceiving simplicity. It is deceiving because in practice the courts have strained to give the section a reasonable and meaningful interpretation in light of the Fourth Amendment. The appellate courts have evinced a reluctance to believe that such interrogations occur without a detention, however brief. Since there is usually some kind of stop or detention, the question arises as to whether immigration officers may stop persons reasonably believed to be aliens when there is no reason to believe they are illegally in the country. The Supreme Court has declined to give that question a general answer. See United States v. Brignoni-Ponce, 422 U.S. 873, 884 n. 9 (1975). However, it has answered the question with respect to "factory surveys," that is, worksite inspections to discover illegal aliens. See Immigration and Naturalization Service v. Delgado, 466 U.S. 210 (1984).

The "open fields" doctrine, which defines the rights of law enforcement officers to enter or observe open fields and certain non-residential structures without a search warrant is often relevant to INS enforcement efforts. The doctrine is discussed in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134 (1987); Dow Chemical Co. v. United States, 476 U.S. 227 (1986); and California v. Ciraolo, 476 U.S. 207 (1986). However, the 1986 amendments added new subsection 8 U.S.C. § 1357(d) which prohibits INS officers from entering a farm without a search warrant.

The INS Office of General Counsel has available for distribution its memorandum entitled, "The Law of Arrest, Search, and Seizure for Immigration Officers," Publication No. M-69.

COMMENT: Further discussion of the authority of Immigration Officers is set forth in Chapter 10 of Immigration Law, published as part of the Office of Legal Education's Litigation Series, and as part of the USABook computer library.

October 1997 Criminal Resource Manual 1917