Class Action Says ICE Confiscation of Government-Issued Documents Is Unconstitutional

New to ClassAction.org? Read our Newswire Disclaimer

Department of Homeland Security Secretary Alejandro Mayorkas and acting U.S. Immigration and Customs Enforcement (ICE) Director Tae D. Johnson face a proposed class action over ICE’s apparent confiscation of government-issued documents held by certain individuals facing removal proceedings. 

The 12-page lawsuit argues that ICE’s “standard-less implementation” of its policy that purports to give certain officers discretion to retain government-issued documents regardless of whether the holder is legitimately entitled to them places “extreme burdens” on non-detained, asylum-seeking individuals in removal proceedings. Per the case, these burdens include the imposition of additional obstacles toward obtaining, for example, employment authorization, public education and other benefits. 

The suit also contends that the ICE document-confiscation policy at issue imposes additional cost burdens on organizations such as the plaintiff, the Children’s Legal Center, in connection with their representation of individuals in removal proceedings. More specifically, the case says such organizations are forced to undertake additional work to obtain original or duplicate documents seized by ICE. 

“This unlawful holding of aliens’ property violates the aliens’ constitutional right to be free from unreasonable seizures of property and it has impeded their access to federal, state, and local government benefits to which they are entitled but for which the documents must be provided,” the lawsuit alleges. 

At the center of the lawsuit is a 2006 memo issued by then-acting director of ICE John Torres. Per the case, the memo both notes that when individuals are placed in removal proceedings, ICE “typically confiscates identification documents,” and sets forth guidelines to determine whether and when to return the documents. 

The memo provides that in making the determination to return confiscated documents, an ICE officer is to consider whether the individual in question may legally possess the document and whether ICE has an “operational need” to retain it, the lawsuit states. For documents possessed by illegal aliens, the memo said that the determination to return the paperwork should depend on “the alien’s need for the document and whether the release of the document will compromise ICE operations,” according to the complaint. 

The suit adds that the memo further provides that for individuals who are not lawful permanent residents, ICE may keep domestically issued government documents at its discretion on the basis that the person’s possession of the papers gives the holder “the appearance of legitimacy.” The lawsuit says, however, that the memo does not detail specifically an ICE officer’s exercise of or limits on discretion with regard to seized documents. 

According to the complaint, ICE, under its current procedures, may indefinitely hold valid documents belonging to individuals in removal proceedings “based on the perfunctory conclusion that it has an operational need to do so.” 

“Thus, ICE has held and continues to hold identification documents for aliens in removal proceedings who were lawfully permitted to have such documents without valid justification for doing so,” the suit alleges. 

From there, the complaint reiterates that certain benefits such as work authorization are critical to those seeking asylum in the U.S. and looking to take root in the country. Without work authorization, aliens in removal proceedings are dependent on family, friends and aid agencies, the case says. The suit argues that this burden “would not exist if they were able to timely obtain work authorization.” 

The lawsuit looks to represent: 

“a. All individuals seeking asylum in the United States of America who are in removal proceedings and who have been unable to submit complete applications for work authorization because ICE has retained their identification documents;  

b. All individuals seeking asylum in the United States of America who are in removal proceedings and whose work authorization applications have been denied or delayed due to a lack of identification documents, provided that ICE has retained the identification documents; and 

c. All non-profit agencies located in the United States of America that have expended resources assisting individuals in either of the preceding subclasses.” 

Get class action lawsuit news sent to your inbox – sign up for ClassAction.org’s free weekly newsletter here.