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In 2014, a wave of federal court decisions found that local police violate the Fourth Amendment when they rely on requests from the Department of Homeland Security to detain people suspected of being deportable immigrants. The problem with these requests, known as “detainers,” was that they were not based on any neutral finding of probable cause. But this infirmity is not unique to DHS requests to local police. It is characteristic of the normal means by which Immigration and Customs Enforcement (ICE) arrests people and detains them at the outset of deportation proceedings. These decisions thus signal a glaring constitutional problem with the way America’s immigration enforcement apparatus has been constructed. This problem developed because for more than a century the plenary power doctrine permitted immigration law to exist in a parallel constitutional universe. But recent Supreme Court jurisprudence has substantially reduced the power of the plenary power doctrine to shield immigration enforcement from constitutional scrutiny. This article traces how immigration arrests have suddenly become vulnerable to challenge, and how the problem may be remedied by reinterpreting the Immigration and Nationality Act according to the doctrine of constitutional avoidance.

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104 Geo. L.J. 125 (2015).