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.