Airports Are ICE’s Latest Target, Raising 4th Amendment Concerns From Airlines

Federal immigration officers have dramatically stepped up the number of arrests inside airport terminals, leading to viral videos, criticism from immigrant rights groups, and pushback from U.S. airlines and airline employee groups.

The New York Times reported on July 28 that the Trump administration was targeting foreign nationals with expired visas as they traveled through airports. The story followed videos showing Immigration and Customs Enforcement (ICE) agents tackling a Ukrainian woman at San Francisco International Airport and arresting an Ecuadorian au pair in Denver, whose lawyer said she filed a pending application allowing her to stay in the country. In another video, ICE agents attempted to arrest a Vietnamese man at Harry Reid International Airport in Las Vegas on July 13, but retreated as bystanders began to arrive and film the scene, leaving the man with a pair of handcuffs hanging off one of his wrists. A University of Maryland “teacher of the year” was detained on July 21, and a researcher for Baltimore’s Johns Hopkins University was detained on July 28 by federal immigration officers while boarding a domestic flight.

Although the Department of Homeland Security (DHS) told news outlets that arrestees were in the country illegally, many of the reported cases of airport arrests appear to involve immigrants whose visas had expired but who were awaiting official adjudication of applications to change their status.

Immigrant rights groups believe the escalation is an attempt to meet the White House’s steep daily quota for immigration arrests, which last month reached their highest level since President Donald Trump returned to office. The Trump administration’s mass deportation campaign has not only targeted immigrants who are in the country illegally, but has attempted to end or raise the requirements for all possible legal and temporary means of immigration for millions of foreigners who have or are attempting to migrate to the country—from legal asylum to the right to a bond hearing in detention to birthright citizenship, even marriage.

“We think it’s because ICE is pursuing detention quotas with regard to underlying eligibility for relief, applications for relief, and also because many of those people are already in the system,” Kelly Rojas, a co-director at the Amica Center for Immigrant Rights, told CBS News. They “are easy targets for ICE.”

As Felipe De La Hoz wrote in The New Republic, it’s in fact common for immigrants on temporary visas to apply for a change in status and be explicitly instructed by the government to remain in the country while their application is pending. Although their visa is technically expired, the federal government typically considers this an authorized stay, and if the immigrant leaves the country, it’s considered an abandonment of their petition.

“There are many versions of this circumstance,” De La Hoz writes. “There are people who might be in affirmative asylum processes who have overstayed tourist visas. There might be those who had a status which the government subsequently attempted to terminate who are exercising their right to contest that termination. There are people who might have conditional green cards and are petitioning to remove those conditions (a situation that arises out of certain marriages), during which time the green card expires. What all these people have in common is that they are following the law—and they are in the country lawfully.”

The apparent policy shift is causing headaches for U.S. airlines and airline employees. The Wall Street Journal reported last week that airline-industry representatives met with staffers from the DHS seeking clarity on whether ICE officers can use administrative warrants to board airplanes and make arrests.

The Journal also reported that the Association of Flight Attendants wrote to airlines in March expressing concern about immigration enforcement at airports.

“The actions that federal enforcement authorities have taken in our workplaces have raised glaring workplace, safety and legal concerns for flight attendants,” Sara Nelson, international president of the union, wrote in the letter.

According to the Journal, Nelson cited reports of ICE agents gaining access to jet bridges without authorization, including one instance in which an agent in Minneapolis boarded a flight “in order to interrogate and threaten removal of a person who criticized their presence in the airport.”

Trump administration officials repeatedly claimed earlier this year that ICE agents could rely on administrative warrants to enter private residences, not judicial warrants signed by Article III judges. However, the administration walked its rhetoric back under fierce bipartisan criticism. DHS Secretary Markwayne Mullin said during his March confirmation hearings that “a judicial warrant will be used to go into houses, into places of business, unless [agents] are pursuing someone that enters in that place.”

As Reason‘s Autumn Billings wrote, Mullin’s statement left quite a lot of wiggle room for immigration officers.

“Given the Trump administration’s comfort skirting constitutional and legal lines in the name of mass deportations, however, it’s not outside the realm of possibility that Mullin’s vague carveout for pursuit could open the door for future abuses by immigration officers,” Billings wrote.

Apparently, that door is a jetbridge.