Kyle Cheney in Politico reports on a nationwide judicial revolt against the Trump administration’s policy mandating detention for nearly all immigrants in deportation proceedings. In July, DHS aggressively expanded the conditions under which persons can be detained for violating immigration laws. Over 700 emergency challenges have entered federal courts, with at least 225 judges in 35 states,  including many Trump appointees,  finding the policy likely unlawful and a breach of due process. Only eight judges have sided with the administration.

Per Cheney, at the core of the legal fight is the administration’s reading of the term “seeking admission.” That phrase used to apply mainly to newly arrived migrants at the border. DHS now claims that millions of long-settled immigrants, even those here for decades with citizen families and pending legal claims for normalization of status, still count as “seeking admission” and can therefore be detained without bond. New class actions and appellate rulings, sought by district courts, may soon determine the policy’s fate.

The expansion of definition was made in an internal July 8 memo the full contents of which are apparently not public. It appears to have said the pretty much all persons who “have not been admitted” (regardless of any knowledge or how arrived, or when) are subject to mandatory detention and can be released only through a formal act of granting parole.

Here is a New Jersey court case involving the expanded definition.

 

Trump wants to not only bar persons from certain countries but to remove people from certain countries, even from the entire “third world,” who are legally in the United States.

The White House rhetoric and some technical steps undertaken on November 27 indicate that the administration aims to violate a key provision in law (the Immigration and Naturalization Act) barring nationality-based discrimination Let’s look at Trump’s actions starting in his first administration.

Baseline: how the law reads

“Except as specifically provided in this Act, no person shall… be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” INA § 202(a)(1)(A) (8 U.S.C. § 1152(a)(1)(A)) Immigration and Nationality Act (INA) of 1952 (The McCarran–Walter Act, as amended in1965).

The 2017 “Muslim ban”

The ban on entry from certain countries was initially issued in January 2017. The Supreme Court affirmed the constitutionality of country-wide bans for entry in 2018. (Go here and here).

Trump’s 2024 campaign rhetoric:  attack in principle on countries

Trump’s nationality-focused approach was evident in his 2024 campaign speeches – using terms such as “poisoning” and animals (found here).

“They’re poisoning the blood of our country. That’s what they’ve done. They poison — mental institutions and prisons all over the world. Not just in South America. Not just the three or four countries that we think about. But all over the world they’re coming into our country — from Africa, from Asia, all over the world. They’re pouring into our country.” — Dec. 16, 2023, New Hampshire rally

“They’re rough people, in many cases from jails, prisons, from mental institutions, insane asylums. You know, insane asylums — that’s ‘Silence of the Lambs’ stuff.” — March 4, 2024, interview with Right Side Broadcasting Network

“The Democrats say, ‘Please don’t call them animals. They’re humans.’ I said, ‘No, they’re not humans, they’re not humans, they’re animals’ … Nancy Pelosi told me that. She said, ‘Please don’t use the word animals when you’re talking about these people.’ I said, ‘I’ll use the word animal because that’s what they are.’” — April 2, 2024, Grand Rapids, Michigan, campaign event.

(Collected by the ACLU here)

Trump’s June 6, 2025  list of countries

On June 6, 2025, Trump singled out 19 countries banning or restricting new entries. : Fully banned (12 countries): Afghanistan; Myanmar (Burma); Chad; Republic of the Congo; Equatorial Guinea; Eritrea; Haiti; Iran; Libya; Somalia; Sudan; Yemen. Partially restricted (7 countries): Burundi; Cuba; Laos; Sierra Leone; Togo; Turkmenistan; Venezuela

The common rationale was that the country government was not trustworthy in dealing with the United States on immigration matters. The halt was not explained in terms of criminals, mis-fits.etc.

November 27/28, 2025: wholesale attack on all migration from third world countries, including cancelling green cards

 Trump on X: “I will permanently pause migration from all Third World Countries to allow the U.S. system to fully recover, terminate all of the millions of Biden illegal admissions, including those signed by Sleepy Joe Biden’s Autopen, and remove anyone who is not a net asset to the United States, or is incapable of loving our Country, end all Federal benefits and subsidies to noncitizens of our Country, denaturalize migrants who undermine domestic tranquility, and deport any Foreign National who is a public charge, security risk, or non-compatible with Western Civilization.”

Trump on Truth Social. “I will permanently pause migration from all Third World Countries to allow the U.S. system to fully recover,” he wrote on Truth Social…..Only REVERSE MIGRATION can fully cure this situation.” (Go here.)

Joseph Edlow, director of U.S. Citizenship and Immigration Services, wrote on social media that he had been directed to conduct “a full scale, rigorous reexamination of every Green Card for every alien from every country of concern.” (press report here.)

November 27, 2025 higher denial rates based on country of origin

USCIS issued instructions to staff adversely take into account the person’s country of origin for any step in the process of entry and stay, green card issuance, etc. It does not affect assessment of an application for citizenship.

To meet the White House’s goals to remove upwards of one million persons (out of a total of about 14 million) this will largely be the work of ICE enforcement in the interior.  I’ll post shortly a historical analysis of interior deportation (“removal”). Here I address a significant relaxation of constraints on ICE discretion as to who to arrest and detain.  Photo and video images of overuse of force by masked personnel in public spaces have created a trademark of the deportation campaign.

I posted in June commentary on ICE’s legal discretion to arrest and detain persons. In September ICE was granted a green light to expand its scope for arrests. It is using latent power granted in the past to detain persons. One can infer that the replacement of ICE officials by CBP officials was done because the law enforcement culture of ICE is less amenible to seize every opportunity and stretch legal boundaries. (See the Gregory Bovino case.)

Whom to arrest

Before the ruling in Noem v. Vasquez Perdomo and concurrence by Brett Kavanaugh (in his opinion on Sept. 8, 2025, the law on immigration arrests under the Fourth Amendment was settled by United States v. Brignoni‑Ponce (1975). That held that “Mexican appearance … standing alone does not justify stopping all Mexican-Americans to ask if they are aliens.” In his concurrence Kavanaugh reaffirmed that “apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ when considered along with other salient factors.”

Justice Kavanaugh wrote that ICE officers make “rapid, on-the-ground assessments” in settings where citizenship and immigration status are not visible. He wrote that the Constitution does not require officers to ignore “common indicators that may bear on probable cause or reasonable suspicion,” and that ethnicity, national-origin appearance, or language may be among those indicators when combined with other facts. Accordingly,  federal immigration officers are permitted to consider “the totality of the circumstances,” and ethnicity “cannot be categorically removed from that set of observable circumstances.”

The effect of that shift was to give ICE discretion which it has used as follows. ICE raided a Chicago South Shore apartment, including baroque expressions such as men scaling down from a hovering helicopter.  In Charlotte, North Carolina ICE has performed sweeps near Home Depot sites.  It strikes me that ICE is using its broader discretion to not just arrest persons but to instill fear in city, as evidenced by significant sudden declines in school enrollments.

Power to detain

The key point is that there is nothing expressly stated in law that prohibits ICE from detaining persons on the grounds of a suspected immigration law infraction, however minor. ICE has received no new authority; it is just maximizing its to-date latent power.

In the past, ICE detained tended to detain persons only if they had a criminal record. There no way that ICE can meet one million a year deportations by relying only or even mostly on capturing persons with a criminal record, or even those with removal orders. ICE  appears to be using detention to not only increase its numbers of those in detention but also to instill fear. It appears to be willing to accept a large number of “false positives” in its arrest and detention practices – that is, to grab persons who are not subject to removal and may only have committed a civil violation – being in the country without authorization.

The governing statute is 8 U.S.C. §1357(a)(2). Per this provision an immigration officer may arrest a noncitizen without a judicial warrant if the officer has “reason to believe” the person is in the U.S. in violation of immigration law and is likely to escape before a warrant can be obtained. This is a civil arrest authority and it allows ICE to seize someone on the spot during workplace raids, home operations, traffic-stop referrals, or collateral encounters.

After the arrest, ICE satisfies the “warrant” language in INA §236 by issuing its own administrative arrest warrant—Form I-200—which is signed only by an ICE supervisory official, not a judge. The combination of §1357(a)(2)’s warrantless-arrest power and the internally approved I-200 is what enables ICE to detain large numbers of people based solely on suspected civil immigration violations.

Typical ICE encounters 

Reported on X: ICE surrounded judge’s car, threatening to smash windows, then detain his high school intern. Agents handcuffed teenager to arrest him, until judge fights loudly to demand they check ID to confirm they have the wrong person. Court security noticed masked men sneaking pictures of the boy, so the judge stepped up to offer him a ride home because he was so scared he was visibly shaking. After a heated argument, ICE agents finally admit they made a mistake and just quietly left the courthouse empty handed. Judge Joseph J Mcburney is an Associate Justice of the Rhode Island Superior Court, located in Providence, RI. November 23, 2025.

Reported on Politico: In Charlotte, CBP officers entered the Myers Park Country Club, one of the City’s oldest country clubs, without prior notice, warrant or permission and briefly detained an employee. The club, according to the manager, sought legal advice to “ensure privacy, security and well-being of out employees and members.” (This from a article about how an ICE campaign in the City was riling up Republicans.)

 

ICE has in the past arrested people primarily through transfers from local law enforcement. This is why 287(g) agreements are so important, and explains why in past years the great majority of deportations involve persons with a criminal record – they are found in jail. As of November 2025, ICE has signed 1,155 agreements, compared to less than 200 before Trump 2.  Workplace raids are highly publicized but yield relatively tiny numbers of deportations. Transfers from Customs and Border Control have also been a source of ICE deportations.

With this background, it is easy to see why ICE began to show up at asylum hearings. The large majority of persons applying for asylum arrived illegally in the U.S. – “without inspection.” They are illegally in the U.S. There is no red line barring ICE from arresting and deporting asylum applicants. In DHS v. Thuraissigiam (2020), the Court severely restricted judicial review of expedited removal proceedings.  There are yet to be any decisions at a higher-level federal court that sets some constraints on courthouse arrests.

ICE agents began to show up to arrest people before or after immigration hearings in May 2025. These are persons in the U.S. for under two years and thereby subjectable to expedited removal. This tactic spread nationwide. They have been using expedited removal practices.  About 70% of the courthouse arrests appear to be people who came into the country “without  inspection” .i.e. not overstays.  Of the total ICE removals through October, which is estimated at about 525,000, 20% are estimated as having pended pending asylum cases. One can expect that courthouse arrests will expand because it is so easy to find some on to arrest.

Tim Rohn wrote for Politico, What I Saw at the Epicenter of Trump’s War on ‘Illegals’. Here is an excerpt: “What I learned from reporting both in those hallways and outside them is that whatever direct connection between a migrant’s behavior and a decision to arrest them might once have existed, that connection is now broken. In effect, it seems to me, the United States government has decided mercy is no longer part of the plan, that there is no longer any distinction between “applying for asylum” and “entering illegally.” No new law was needed to make this shift, or for the government to set a goal to increase the numbers of deportations to thousands per day. Millions of people who thought they were following the law are learning the hard way that they are “illegal” and fair game for deportation.”

The application for asylum

A description of how ICE works to find, arrest and deport people.