San Diego Criminal Lawyers Blog
Immigration is a touchy subject these days, as the administration has begun aggressively seeking out and deporting individuals suspected of criminal activity. Recently, that has involved warrantless arrests and no due process to allow suspects to defend themselves against charges. It’s all based on an 18th-century law called the Alien Enemies Act. Newark, New Jersey, was one of the first workplace raids of the new administration. Immigration and Customs Enforcement (ICE) detained multiple individuals—citizens as well as undocumented individuals—even though they did not have a warrant. The city’s mayor claimed it to be a clear violation of the Fourth Amendment to the Constitution, which guarantees the right to be free of unreasonable searches and seizures. And, to be clear, the U.S. Constitution applies to anyone living in the country, whether they are documented or not, whether they are sterling citizens or the most hardened criminals. So what was it that seemingly gave ICE the ability to make arrests?
The Alien Enemies Act
According to the Alien Enemies Act, citizens of an alien nation may be held, and even deported, without a hearing. Historically, it is the legal authority behind German, Japanese, Italian, and other detentions and expulsions during the World Wars. Infamously, it played a major role in arresting and detaining individuals of Japanese descent during WWII.
In 1798 the Alien Enemies Act was intended to be a deterrent to foreign sabotage and/or espionage in wartime. Today, the law is being used to target immigrants who reside in the U.S., both lawfully with Green Cards or Visas and illegally, with no documentation at all. In some case,s individuals have broken no laws or even indicated a disloyalty to the United States. Because these people are being arrested and sent out of the country without hearings to determine the legitimacy of charges against them, we simply do not know what they may or may not be guilty of. Notably, the Alien Enemies Act may be invoked only in times of war. Equally important, the Constitution gives Congress, not a president, the power to declare a war. On the other hand, however, a president may invoke the law based on the threat of a predatory incursion or invasion. In modern times, the administration sees the infiltration of drugs and/or gangs as exactly that.
A Balancing Act
So how do we weigh the Constitutional rights of citizens and immigrants of all stripes against the Alien Enemies Act, which allows for the arrest, detention, and deportation of individuals, even with no specific charges? While some argue that there is no place for the Alien Enemies Act, even during a war, others believe it is an essential tool to protect America.
Facing the Unknown
If you are concerned about possible detention or deportation, it is important to note that ICE agents have already entered homes and workplaces without a warrant in order to make arrests of individuals they suspected were in the country illegally, and many of those individuals have been unable to contact an attorney after the fact. The time to acquire legal help is before an arrest takes place. At Boertje & Associates, looking out for your Constitutional rights is what we do best. Schedule a confidential consultation in our San Diego Office today.