Introduction
Three officers greeted Mr. Osny Sorto-Vasquez Kidd’s mother when she answered the door one October morning in 2018.
One officer identified herself as a detective with the local police and said they were investigating a dangerous criminal who had purportedly been using the Kidd family’s address to ship contraband through the mail.
After showing Mr. Kidd’s mother a picture of an unknown man who was potentially putting her family in danger, the detective sought permission to enter their home.
In shock, Mr. Kidd’s mother immediately gave her consent and invited the officers in.
Once inside the home, the officers began banging on doors and searched every room of the apartment.
And upon encountering Mr. Kidd’s younger siblings, who at the time were between the ages of eleven and sixteen, they demanded to see their identification.
Realizing that Mr. Kidd was not on the premises, the detective reached Mr. Kidd by phone with the help of his mother.
On the call, the officer once again identified herself as a detective, explained the investigation, and requested that they meet in person in order to guarantee his family’s safety.
Two days later, as Mr. Kidd was exiting his apartment complex to meet with the detective, four officers wearing tactical vests with the word “POLICE” emblazoned on them approached him.
After checking Mr. Kidd’s identification, the officers then revealed that they were not “detectives” from the local police but rather ICE agents who were tasked with arresting and detaining him.
At the time of his arrest, Mr. Kidd was a twenty-four-year-old undocumented immigrant from Honduras with Deferred Action for Childhood Arrivals (DACA) status.
However, he was deemed removable because he was considered a “fugitive” immigrant for failing to show up to immigration court sixteen years prior—he was eight years old at the time—and for having a misdemeanor DUI on his record.
Mr. Kidd’s experience is one of many stories that have emerged and shed light on the practice of civil ICE agents using strategic deception to locate and detain immigrants—a tactic internally known as a “ruse.”
Ruses became an officially sanctioned ICE practice in 2005, when the then-Acting Director, John P. Torres, issued a memorandum formally endorsing ruses as an enforcement tool to be used by those in the Office of Enforcement and Removal Operations (ERO)—the civil, rather than criminal, enforcement division of ICE
—in immigration arrest operations.
While most ERO agents act pursuant to an arrest warrant when conducting immigration arrests, the warrant is only administrative in nature, as opposed to judicial, effectively precluding agents from entering into a target’s home without first obtaining consent.
Thus, since 2005, civil ICE agents have deployed ruses to lure targets outside of their homes to make immigration arrests or, more controversially, to elicit consent to gain entry into the target’s residence without judicial warrants.
Although ICE’s ruse policy has been in effect for over fifteen years, the practice came under renewed public scrutiny when home raids proliferated under the Trump Administration and stories such as Mr. Kidd’s emerged in mainstream media.
Five days after his inauguration, President Trump signed an executive order that reversed the Obama Administration’s policy of prioritizing enforcement against convicted criminals, suspected gang members or terrorists, or people apprehended at the border, and instead placed any and all civil immigration violators, including those without any criminal history, as a priority for deportation.
Equipped with a broader authority to detain a more sweeping set of potential targets and encouraged by the Trump Administration’s hardline stance against immigration and sanctuary cities,
ICE escalated its use of ruses in both frequency and nature,
reigniting objections from immigrant rights advocates and the general public on the grounds that such practices are both inhumane and unconstitutional.
Despite the public outcry and questions surrounding their legality, ICE ruse practices have rarely faced court review, let alone court sanction.
And although the Biden Administration has reverted to the Obama-era immigration priorities
and there has been an overall decline in interior civil immigration enforcement since 2019 (in part due to the COVID-19 pandemic),
there is no indication that the Biden Administration has abandoned or repealed the 2005 memo. Thus, the ICE ruse policy remains in place and fully operative.
While courts have nationally upheld law enforcement ruses and deceptive practices to be permissible,
the authority to deceive is not unbounded and must stay within the constitutional limits delineated by a robust body of law.
But many of the established principles contemplated by existing law apply to the legality of ruses within the criminal context, in which the underlying assumptions are that law enforcement officers are armed with criminal enforcement powers and are employing deceptive tactics against purported criminals. Analysis on the use of deception in the civil immigration context, in which the officers’ authority is administrative in nature and the targets are violators of civil immigration laws, is almost entirely lacking, largely because immigrants often forego challenging potential constitutional violations.
Among several reasons underlying this choice is the Supreme Court’s decision in INS v. Lopez-Mendoza, which found that the exclusionary rule—the judicially created remedy that precludes the government from introducing evidence obtained in violation of an individual’s constitutional rights
—does not automatically apply in deportation proceedings, rendering constitutional challenges almost entirely moot.
Thus, while constitutional protection is said to be highest against warrantless government intrusion into one’s home,
the use of ICE ruses during home-raid operations have largely escaped judicial scrutiny.
This Note closes this gap by addressing both the legal and policy questions that are raised when a civil government agency employs deceptive tools, such as ruses, against those who have committed a civil immigration infraction.
This Note proceeds in three parts. Due to the dearth of law in the civil immigration context, Part I borrows the better-established criminal Fourth Amendment doctrinal framework to lay out the different analytical strands governing the Fourth Amendment and deceived-consent cases—including the circuit split that is at the center of ICE’s most popular ruse of choice. It then proceeds to outline current ICE ruse policies and practices, illustrating the extensive range of artifice afforded to ERO agents. Part II assesses the constitutionality of ICE ruse tactics against the Fourth Amendment framework governing criminal use of deception that Part I delineates. It explores the interaction between valid consent pursuant to a ruse and the scope of consent analysis that informs ICE’s conduct once inside the home, highlighting how ICE’s civil authority to execute collateral arrests introduces unique legal challenges beyond those contemplated by ruses employed in the criminal context. Drawing on areas where ICE’s conduct poses the most severe constitutional concerns, Part III proposes two limitations on ICE ruses and shows how these constraints are also supported by public policy.