Why IJ Is Suing ICE

Over the course of our history, IJ has sued a wide range of governmental bodies—from city councils and local zoning boards to state governments and agencies to such federal behemoths as the IRS, the DEA, and the TSA. This past year we added a new defendant to our lawsuits: Immigration and Customs Enforcement (ICE).

I am sometimes asked whether IJ is now stepping into the contentious issue of immigration policy, and my answer is always no. While we’ve long championed the rights of recently arrived immigrants to pursue the American Dream, we are not experts in the intricacies of immigration law—and many issues surrounding the fight over immigration don’t touch on the constitutional rights at the core of IJ’s mission.

So why are we suing ICE? Quite simply, the agency is flagrantly violating the Constitution in areas IJ cares about passionately. Two cases show how those violations arise in areas where we have strategic expertise. 

For decades, IJ has made defending Fourth Amendment rights against unreasonable searches and seizures a major part of our property rights mission, and we expanded our work even further in this area in 2021 with the launch of our Project on the Fourth Amendment. Today, though, ICE agents routinely enter private property without a warrant or probable cause to detain and often arrest individuals who are working there. 

That’s what happened to IJ client and American citizen Leonardo Garcia Venegas—twice—when ICE agents entered a clearly marked and private construction site. Leo, like everyone else, has the right to earn an honest living. He could prove that he is an American citizen, doing his job at his place of employment. Yet the agents came onto private property without justification and detained him anyway.

Through our Project on Immunity and Accountability, we’ve taken on numerous cases challenging wrong-house raids and mistaken-identity arrests, all with the goal of holding government accountable for wholly unreasonable mistakes. That same principle applies to ICE. So our second case involves George Retes, another American citizen—and Army veteran—who was arrested and unlawfully held for three days during an immigration raid at the farm where he works. 

From the very beginning of the encounter with ICE, George identified himself as a citizen, veteran, and employee—and had the documents to prove it. He calmly asked to pass through the barricades to get to his job. Instead, ICE agents smashed his window, shouted contradictory commands at him, dragged him out of his car, and then detained him for days without allowing him a hearing before a judge, a phone call, or access to a lawyer. He was eventually released—without any charges, apology, or explanation.  

What a video on George’s case here:

Someone can come down on either side of the current administration’s policies and priorities concerning the enforcement of our immigration laws. But one principle must be upheld throughout: Government cannot carry out the enforcement of any law, no matter how important one might think it is, in a manner that violates the rights guaranteed in the Constitution. 

Indeed, the whole point of our Bill of Rights is to ensure that the ends don’t justify the means when it comes to government actions. For instance, virtually everyone agrees that combatting crime is a legitimate function of government, but over half of the Bill of Rights comprises protections for the rights of those accused of crimes to ensure that individuals are not steamrolled by law enforcement, whether it’s the local sheriff or a federal agent.

As I promised a few issues back, we will take on the current administration—as we have other administrations, regardless of political or party affiliation—in areas where we have institutional knowledge and that are within our wheelhouse. Moreover, IJ always looks to bring unique, principled alternatives to the often-unreasonable positions of today’s warring partisan factions.

In the context of ICE, rather than trying to get people out of detention facilities or fight over the wisdom of current deportation policy, IJ is bringing high-profile, high-impact, and principled cases in areas that we have litigated for years to ensure that constitutional rights are protected during the enforcement process.

Not surprisingly, given the importance of immigration policy to the current administration, our lawsuits have big stakes and are already intense. Like with every IJ case, we will never back down even when the pressure is ratcheted up. 

If we are successful in this litigation, we will not only put the brakes on current abuses by ICE but also set important precedent that reinforces the rights of all Americans and reins in the power of administrative agencies that try to operate outside of constitutional constraints.

Scott G. Bullock is IJ’s president and chief counsel.