In 2005, the Immigration and Customs Enforcement (ICE) agency enacted a policy sanctioning its civil ICE agents to use strategic deception, known as “ruses,” to facilitate community immigration enforcement operations. This policy provided agents a means to overcome the limitation that civil immigration arrest warrants are administrative as opposed to judicial in nature, which effectively precluded agents from entering a target’s home without first obtaining consent. Since, civil ICE agents have deployed various ruses to lure targets outside of their homes or, more controversially, elicit consent to gain entry into their homes. Once inside, agents often conduct sweeping searches and execute “collateral arrests” of nontarget bystanders who are also suspected to be undocumented.

The Fourth Amendment has always tolerated some degree of law enforcement deception. But the existing body of law that delineates the constitutional limits of government deceit contemplates the use of ruses in only the criminal context, which assumes that criminal law enforcement officers are employing subterfuge only against purported criminals. Legal analysis of the use of deception in the civil immigration context is almost entirely lacking, largely because ICE ruse practices have escaped judicial scrutiny. This Note seeks to close this gap by examining both the legal and policy questions raised when a civil government agency uses deception against those who have committed a civil immigration infraction. It then proposes two limitations on the current policy that would address the constitutional concerns and better align it with the policy justification underlying the use of government deception.

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Three officers greeted Mr. Osny Sorto-Vasquez Kidd’s mother when she answered the door one October morning in 2018. 1 Kidd v. Mayorkas, No. 2:20-cv-03512-ODW (JPRx), 2021 WL 1612087, at *1 (C.D. Cal. Apr. 26, 2021); see also Betsy Swan, DREAMer: ICE Used an Elaborate Ruse to Arrest Me, Daily Beast (Nov. 14, 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. 2 Swan, supra note 1. 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. 3 See id.; Kidd, 2021 WL 1612087, at *1. In shock, Mr. Kidd’s mother immediately gave her consent and invited the officers in. 4 Kidd, 2021 WL 1612087, at *1. Once inside the home, the officers began banging on doors and searched every room of the apartment. 5 Id. 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. 6 Id. Realizing that Mr. Kidd was not on the premises, the detective reached Mr. Kidd by phone with the help of his mother. 7 Id. The detective asked Mr. Kidd’s mother if she could call her son. When Mr. Kidd answered his mother’s call, he could hear his siblings crying and his mother frantically stating that the police were at their house because there was a dangerous criminal “out to get” their family. Id. (internal quotation marks omitted). 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. 8 Id. 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. 9 Complaint at 20, Kidd v. Mayorkas, No. 2:20-cv-03512-ODW (JPRx) (C.D. Cal. Apr. 26, 2021), 2021 WL 1612087 [hereinafter Kidd Complaint]. 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. 10 Id. 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. 11 Id. DACA is an executive order issued by the Obama Administration that temporarily defers deportation for certain individuals who came to the United States as children and are able to meet several guidelines. See Consideration of Deferred Action for Childhood Arrivals (DACA), USCIS, [] (last updated July 19, 2021). It also provides authorization of employment for a period of two years, subject to renewal. Id. 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. 12 Swan, supra note 1.

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.” 13 See, e.g., Felipe De La Hoz, The ICE Ruse: How Agents Impersonate Local Law Enforcement and Lie to Make Arrests, Documented (June 18, 2018), []. The word “ruse” is defined as “a wily subterfuge” and is considered synonymous with words like “trick,” “stratagem,” “maneuver,” “artifice,” “wile,” and “feint.” Ruse, Merriam-Webster Dictionary, [] (last visited Sept. 22, 2021). While all these words generally mean “an indirect means to gain an end, . . . ruse stresses an attempt to mislead by a false impression.” Id. 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 14 ERO was formerly known as the Office of Detention and Removal Operations (DRO). DHS, Privacy Impact Assessment Update for the Enforcement Integrated Database: Risk Classification Assessment (RCA 1.0), ENFORCE Alien Removal Module (EARM 5.0), and Crime Entry Screen (CES 2.0) 2 n.2 (2012),
/privacy/privacy_piaupdate_EID_april2012.pdf []. ICE has two primary enforcement components: Homeland Security Investigations (HSI), which investigates criminal activity, and Enforcement and Removal Operations (ERO), which handles interior enforcement of civil immigration laws. See Joan Friedland, How ICE Blurs the Line Between Enforcement of Civil Immigration Violations and Enforcement of Criminal Laws, Nat’l Immigr. L. Ctr. (Aug. 27, 2019), [].
—in immigration arrest operations. 15 Memorandum from John P. Torres, Acting Dir., ICE, to All Field Off. Dirs., ICE Acad. 1 (Aug. 15, 2005), (on file with the Columbia Law Review) [hereinafter Torres, Ruse Memo Aug. 2005]; see also Kari Burns, Hiding in Plain Sight: ICE’s Deceptive Use of Ruses and False Personation, IMM Print (June 8, 2020), []. 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. 16 Memorandum from Anthony J. Benedetti, Chief Couns. & Wendy S. Wayne, Dir., A Practice Advisory on INA Use of Administrative Warrants and True Warrants in Immigration and Criminal Enforcement 1–2 (Feb. 19, 2013),
iiu/wp-content/uploads/sites/15/2014/07/ICE-Warrants-Practice-Advisory.pdf [https://] (distinguishing between administrative warrants and judicial warrants); ICE Ruses, Immigrant Def. Project, [] [hereinafter ICE Ruses, Immigrant Def. Project] (last visited Aug. 29, 2021) (“ICE agents use ruses to gain entry to homes without judicial warrants or to obtain information about the individual for whom they are looking . . . . ICE agents rarely have judicial warrants, so they need consent to be able to enter a home.”).
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. 17 Immigrant Def. Project, Ways That ICE Pretends to Be Local Police 1 (2020), https:
// []. ERO officials can only obtain an administrative Warrant of Removal, which is civil in nature. Unlike a judicial warrant, an administrative warrant does not allow agents to enter a home absent exigent circumstances or voluntary consent. See infra section I.B.

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. 18 See, e.g., De La Hoz, supra note 13 (reporting that ICE officers have been known to misrepresent themselves as local law enforcement officers and probation officers for years); Meagan Flynn, ICE Arrested an Undocumented Immigrant on Church Grounds. They Lied to Coax Him Out, Family and Attorney Say., Wash. Post (Sept. 17, 2020),
/2020/09/17/e57febd8-f855-11ea-be57-d00bb9bc632d_story.html (on file with the Columbia Law Review) (reporting how ICE agents allegedly lied to coax an undocumented immigrant from his home by saying they needed to check his ankle monitor, then detained him); Adam Harris, When ICE Raids Home, Atlantic (July 17, 2019), [https://] (explaining that, over the past several years, there has been a shift in ICE policies from focusing on workplaces as targets of their raids to people’s homes); Nausicaa Renner, As Immigrants Become More Aware of Their Rights, ICE Steps Up Ruses and Surveillance, Intercept (July 25, 2019), [] (reporting that ICE’s use of ruses “has been more noticeable in the aftermath of President Donald Trump’s repeated threats this summer to round up immigrants in 10 major U.S. cities”); Swan, supra note 1 (reporting that immigration lawyers say ICE ruses have become more common under the Trump Administration).
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. 19 See Exec. Order No. 13,768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799 (Jan. 25, 2017) (“We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”); see also McKenzie Funk, How ICE Picks Its Target in the Surveillance Age, N.Y. Times (Oct. 2, 2019), (on file with the Columbia Law Review) (last updated June 7, 2021) (describing how “[o]ne of Trump’s first acts as president was to throw out his predecessor’s priority list”); Tal Kop, Trump’s Executive Orders Dramatically Expand Power of Immigration Officers, CNN (Jan. 28, 2017), [] (explaining that Executive Order No. 13,768 “lays out a series of categories of undocumented immigrants that immigration law enforcement officials should prioritize for removing from the country” but that “experts say the descriptions include virtually every person in the country illegally”). While the administration has said that it would focus on targeting criminal immigrants, ICE has repeatedly stated that it would not “exempt classes or categories of removable [immigrants] from potential enforcement.” See e.g., Press Release, DHS, Written Testimony of ICE Acting Director Thomas Homan for a House Committee on Appropriations, Subcommittee on Homeland Security Hearing Titled “Immigration and Customs Enforcement & Customs and Border Protection FY18 Budget Request” (June 13, 2017), []. 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, 20 Sanctuary cities are jurisdictions with policies that limit the collaboration between local law enforcement and ICE. Sanctuary Policies: An Overview, Am. Immigr. Council (Oct. 21, 2020), []. For a broader discussion on the tension between sanctuary cities and aggressive immigration enforcement policies, see generally Kristina Cooke & Ted Hesson, What Are ‘Sanctuary’ Cities and Why Is Trump Targeting Them?, Reuters (Feb. 25, 2020), [] (explaining how the Trump Administration has been intensifying its fight against Democratic-led sanctuary jurisdictions); Regarding a Hearing on “Sanctuary Jurisdictions: The Impact on Public Safety and Victims” Before the U.S. S. Comm. on the Judiciary, 116th Cong. 1 (2019) (statement of Timothy S. Robbins, Acting Exec. Assoc. Dir., ERO), [
U7-TJ2T] [hereinafter Robbins Testimony] (testifying that sanctuary jurisdictions hinder ICE’s immigration law enforcement efforts and lead ICE to make arrests in the communities instead of a “secure jail environment”). For a list of sanctuary cities, see Sanctuary Jurisdictions, Ballotpedia, [
XTZ7-N6P3] (last visited Sept. 1, 2021).
ICE escalated its use of ruses in both frequency and nature, 21 Burns, supra note 15; De La Hoz, supra note 13. reigniting objections from immigrant rights advocates and the general public on the grounds that such practices are both inhumane and unconstitutional. 22 See, e.g., Burns, supra note 15; Joel Rubin, It’s Legal for an Immigration Agent to Pretend to Be a Police Officer Outside Someone’s Door. But Should It Be?, L.A. Times (Feb. 20, 2017), (on file with the Columbia Law Review). Despite the public outcry and questions surrounding their legality, ICE ruse practices have rarely faced court review, let alone court sanction. 23 The Kidd v. Mayorkas class action, the case discussed at the start of the Introduction, is the first case that has brought attention to agency-wide ICE ruse practices and challenged the practice as a whole. See supra notes 1–12. Prior to the Kidd case, there were only two cases that have either acknowledged or addressed ICE’s use of ruses to gain entry into an immigrant’s home for civil deportation purposes. See Argueta v. Immigr. & Customs Enf’t, No. 08–1652 (PGS), 2009 WL 1307236, at *2 (D.N.J. May 7, 2009); United States v. Hernandez-Juarez, No. SA-09-CR-19-XR, 2009 WL 693172, at *2 (W.D. Tex. Mar. 16, 2009). And although the Biden Administration has reverted to the Obama-era immigration priorities 24 Memorandum from David Pekoske, Acting Sec’y, DHS, to Troy Miller, Senior Off. Performing the Duties of the Comm’r, U.S. Customs & Border Prot., Tae Johnson, Acting Dir., USCIS, Tracey Renaud, Senior Off. Performing the Duties of Dir., ICE, Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities 2 (Jan. 20, 2021) (on file with the Columbia Law Review) (prioritizing enforcement against those who pose a national security, border security, or public safety threat). For a full review of President Joseph R. Biden’s immigration-related executive orders, see President Biden’s Executive Actions on Immigration, Ctr. for Migration Stud., [] (last visited Sept. 1, 2021). and there has been an overall decline in interior civil immigration enforcement since 2019 (in part due to the COVID-19 pandemic), 25 For example, in FY2020, ERO made 28% fewer administrative arrests compared to FY2019. ICE, U.S. Immigration and Customs Enforcement Fiscal Year 2020 Enforcement and Removal Operations Report 4,
annual-report/eroReportFY2020.pdf [] [hereinafter ERO Fiscal Year 2020] (last visited Sept. 1, 2021). The report notes that pandemic-related policies and concerns played a part in the decline in numbers. Id.
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, 26 See Lewis v. United States, 385 U.S. 206, 207–10 (1966). The Court, holding that the use of deception by an undercover police officer did not render consent invalid, refused to hold that the use of deception by law enforcement agents is per se unconstitutional. Id. the authority to deceive is not unbounded and must stay within the constitutional limits delineated by a robust body of law. 27 Pagán-González v. Moreno, 919 F.3d 582, 591–92 (1st Cir. 2019); see also Lewis, 385 U.S. at 209 (“The various protections of the Bill of Rights, of course, provide checks upon such official deception for the protection of the individual.”). 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. 28 Immigr. & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1044 (1984) (stating that over 97.5% of immigrants agree to voluntary deportation without a formal hearing). Another potential reason as to why this may be the case is the lack of a right to counsel guaranteed in deportation proceedings. See Access to Counsel, Nat’l Immigrant Just. Ctr., [] (last visited Sept. 1, 2021). 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 29 Exclusionary Rule, Black’s Law Dictionary (11th ed. 2019). —does not automatically apply in deportation proceedings, rendering constitutional challenges almost entirely moot. 30 468 U.S. at 1038 (stating that the exclusionary rule does not apply in a civil deportation proceeding absent two narrow exceptions: the egregious violation and widespread violation exceptions). Immigrants in civil deportation proceedings do not enjoy the same constitutional safeguards as defendants in criminal trial. Abel v. United States, 362 U.S. 217, 237 (1960); see also Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952) (“Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure.”). For discussion of the Lopez-Mendoza case, see Nathan Treadwell, Fugitive Operations and the Fourth Amendment: Representing Immigrants Arrested in Warrantless Home Raids, 89 N.C. L. Rev. 507, 521–27 (2011). Thus, while constitutional protection is said to be highest against warrantless government intrusion into one’s home, 31 Kyllo v. United States, 533 U.S. 27, 31 (2001) (“‘At the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.’” (quoting Silverman v. United States, 365 U.S. 505, 511 (1961))); Minnesota v. Carter, 525 U.S. 83, 99 (1998) (Kennedy, J., concurring) (“[I]t is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.”). the use of ICE ruses during home-raid operations have largely escaped judicial scrutiny. 32 See supra note 23. 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.