ICE arrests: What's the agency's legal burden for making them?
Federal agents patrol the halls of immigration court at the Jacob K. Javitz Federal Building in August in Manhattan. Credit: Sipa USA via AP/Michael Nigro
Donald Trump hadn’t yet been inaugurated for his second presidential term when his border czar, Tom Homan, promised a more muscular approach to immigration enforcement.
“ICE is finally going to go out and do their job. We’re going to take the handcuffs off ICE and let them go arrest criminal aliens. That’s what’s going to happen,” Homan said on Fox News, days before Trump was sworn in.
In the eight months since, the administration has indeed arrested “criminal aliens” — from accused killers to people who have committed traffic offenses.
But among those nabbed by ICE are also asylum-seekers, those paroled into the nation by the Biden administration, high schoolers, college students on visas, green card holders, tourists, Israel critics whose visas the Trump administration revoked and even some U.S. citizens.
Here are questions and answers about what the law allows immigration enforcers to do.
What burden of proof must be met before someone can be arrested on an immigration matter?
Generally, warrants issued by the Immigration and Customs Enforcement agency are based on the probable cause standard used in everyday criminal contexts.
However, people are mostly arrested by ICE without a warrant, with the agency “invoking an exception based on having ‘reason to believe’ that the person is in the United States unlawfully and is likely to escape before a warrant can be obtained.” said Fatma E. Marouf, a law professor at Texas A&M University School of Law.
ICE can detain a person at its discretion, she said.
How are the immigration warrants different from a criminal warrant?
In a criminal context, a neutral arbiter — a judge who is part of a different branch of government — issues the warrant. Not in immigration matters, where issuers of administrative warrants are employees of the executive branch.
“They’re not taking it to a judge,” Marouf said. “They’re just signing it themselves.”
Can a person be arrested by ICE based solely on race or ethnicity?
No, but the basis for the arrest can include “alienage” — suspicion of being a foreigner, not being an American citizen. And race can be a factor in deciding whether to stop someone, the U.S. Supreme Court ruled earlier this month in temporarily overturning a lower-court ruling originating in California to limit the practice. The court did not reach a final conclusion on the question but the court, 6 to 3, voided the lower court’s prohibition.
Can those arrested by ICE be freed on bond, or must they be detained?
Marouf said the Board of Immigration Appeals — which is part of a presidential administration — recently handed down a decision finding anyone who came into the United States without inspection is ineligible for bond and must be detained. That holding, she said, “has never been how the law was interpreted” before the Trump administration interpretation.
How is the Trump administration fast-tracking deportations, and who is subject to expedited removal?
By more widely applying a law dating to the Clinton era, the Trump administration can have an immigrant who has been in the United States for less than two years quickly deported “rather than having to wait to go through the clogged immigration court system," said retired Cornell Law School Professor Stephen W. Yale-Loehr, who co-authored the treatise "Immigration Law & Procedure."
Someone who is subject to this so-called expedited removal is not entitled to mount a challenge in court.
As interpreted by the Trump administration, anyone who’s in expedited removal must be detained.
Matthew Chayes, a Newsday reporter since 2007, covers New York City.
