A June 2025 Congressional Research Service analysis addresses the legal framework for interior immigration enforcement ICE. It derives its authority from two statutes—8 U.S.C. §§ 1226 and 1357—which allow immigration officers to arrest and detain individuals believed to be removable, typically with an administrative (not judicial) warrant.  The following is based on but goes beyond the CRS report.

Encounters in public and private areas, briefly detain

The Supreme Court has not decided whether immigration authorities may briefly detain individuals solely on a reasonable suspicion that they are unauthorised aliens, absent reasonable suspicion of their unlawful presence. However, some lower courts have ruled that an immigration officer may not detain an alien to investigate his or her immigration status (e.g., stopping a pedestrian on the street) absent reasonable suspicion of the alien’s unlawful presence. The officer may not rely solely on “generalizations,” such as an individual’s appearance, ethnicity, or inability to speak English, to establish reasonable suspicion.

An immigration officer conducting an inspection may not enter the non-public areas of a business, a residence, a farm (excluding private lands near the border) to question the occupants or employees about their immigration status in the absence of a warrant or the property owner’s consent. The immigration officer may enter publicly accessible parts of a business without any warrant, consent, or reasonable suspicion of the unlawful presence of aliens.

Interrogation

ICE may conduct interrogations and brief detentions as part of an investigation into possible immigration violations. Section 1357(a)(1) states that an immigration officer may, without a warrant, “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.” But this cannot be done simply on a superficial ground, such as dress, tattoos and language spoken.

Arrests

Note the distinctions between civil violation, misdemeanor, and felony.  A civil violation includes being present in the U.S. without lawful status and overstaying a visa. The following are usually classified as felonies: identity fraud, document fraud, harboring unauthorized workers, or knowingly hiring them. The great majority of unauthorized persons who work as employees and not independent contractors have committed identity and document fraud.

ICE can arrest some one in public without a warrant  then they have “reason to believe” the person is in the U.S. illegally, and the person is likely to escape before a warrant can be obtained. This “reason to believe” must be based on facts, not just appearance or presence in a particular area.

An administrative warrant, always for a civil not a criminal violation, is often used to arrest someone inside a home or other protected private place such as a worksite. An administrative warrant is issued by an official or officer within an administrative agency, such ICE and OSHA.  Is it usually based on reasonable suspicion, not full probable cause. It cannot be used to enter private dwellings without consent of the person controlling the site, for example to forcibly enter someone’s home –a constraint established by courts. not the law itself. A judicial warrant, used in criminal cases, is issud by a judge or magistrate.

Worksite raids to arrest multiple persons are typically undertaken using a judicial warrant, i.e. for felonies, and must be based on evidence of criminal activity. Permission of the party controlling the site is not needed. Arrest and deportation actions can be and typically are challenged post raid on the basis of lack of due process, such as fast tracking to detention and deportation without substantial case-by case-assessment and failure in declaration of right to attorney. If an administrative warrant is used, the persons can be arrested only for a civil violation, typically being present without legal status, and permission of the person controlling the site is required.

ICE officers may arrest without a warrant if the individual is observed entering unlawfully or is likely to escape arrest. These powers are constrained by the Fourth Amendment, which requires probable cause and prohibits warrantless home entries absent exigent circumstances or consent.

Detention

Detention is mandatory for certain limited categories, such as those with major felonies or terrorist involvement.

The Laken Riley Act (March 9, 2024) greatly expanded detention options as it allows ICE at its discretion to detain persons arrested for illegal presence (a civil violation) and charged with, arrested for, or convicted of non-violent offenses like burglary, theft, larceny, shoplifting, or assaulting a police officer, or any crime causing death or serious injury. Note that being charged is sufficient.

ICE is authorized, while removal proceedings go on, to release the person from detention on a bond or on the person’s own recognizance subject to specified conditions. The statute provides that the bond or parole may be revoked at any time, and that the alien may be rearrested and detained under the original warrant.

1-9 inspections

In workplaces, ICE may inspect I-9 forms with three days’ notice, without needing a warrant, but may not enter private areas without consent or a judicial warrant.

“Sensitive” or”protected” places

In 2011, ICE issued “sensitive locations” guidance via internal memoranda. The policy limited immigration enforcement actions—such as arrests, interviews, searches, and surveillance—at or near places of worship, schools, hospitals. funeral services and public religious or civil ceremonies. In DHS Policy on Enforcement Actions in or Near Protected Areas (Oct. 27, 2021), “sensitive” locations was replaed by “protected areas” and the scope broadened to include, for example, courthouses, playgrounds and disaster response centers.

Note, however, that persons can be detained if arrested while in removal proceedings (i.e., have been issued a Notice to Appear).

On January 20, 2025, DHS rescinded the 2011 and 2021 guidelines. A court subsequently ordered ICE to reinstate the protections for places of worship.