Immigration Article of the Day: A Minimum Degree of Protection: A Fourth Amendment Common Law Challenge to the Use of ICE Detainers by Nicole Plante

Kevin R. Johnson

27 Feb 2026 — 1 min read

A Minimum Degree of Protection: A Fourth Amendment Common Law Challenge to the Use of ICE Detainers by Nicole Plante

Abstract

The number of people being seized by Immigration and Customs Enforcement (ICE) has skyrocketed in recent years. ICE is increasingly relying on ICE detainers to seize and arrest immigrants. An ICE detainer requests that local law enforcement notify ICE prior to releasing an individual and continue to detain that individual for up to forty-eight hours past the time they would typically be released. Unlike criminal arrest warrants, these detainers are not issued by a neutral magistrate and are not supported by neutral review of probable cause. As such, the use of ICE detainers to deprive someone of their liberty raises serious Fourth Amendment concerns.

This Essay proposes a new litigation strategy for advocates to challenge ICE detainers. Specifically, it argues that relying on common law could prove fruitful in litigation that attacks ICE detainers for violating the Fourth Amendment. The Supreme Court has repeatedly held “that the Fourth Amendment ‘must provide at a minimum the degree of protection’ the common law afforded at the time of its adoption.” At common law, warrantless arrests were subject to strict limitations and continued detention without neutral review was prohibited. Beyond that, arrest for civil removal required prior neutral review of removability. Within this historical context, advocates can challenge ICE detainers by arguing that their use does not meet the minimum degree of protection required by the Fourth Amendment.

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Immigration Article of the Day: Sanctuary and the Data State by Fatma Marouf & Huyen Pham

In an anti-fraud measure, U.S. government freezes Microsoft, Adobe, Infosys lawful permanent resident applications

Human Rights Watch: "To Scare People": US Expulsions of Third-Country Nationals to Countries in Africa

Immigration Article of the Day: Recalibrating the Plenary Power Doctrine After Trump v. Hawaii, Thuraissigiam, and Loper Bright by Abdul Aziz Meslat