A document sent by El Salvador on April 3 to an official entity of United Nations shows that the United States had a controlling hand over the deported persons on March 15. The documents pertains to a short list of persons whose identity is obscured.  Abrego Garcia fits into the category of persons covered by this document.

The document’s existence impacts Abrego Garcia’s case in two ways. First, is exposes the Trump administration to have lied in court cases that it had no formal control over these persons while in prison in El Salvador.  The case most pertinent here is the one overseen by Judge James E. Boasberg. This case, J.G.G. v Trump brought by the ACLU, deals with the use of the Alien Enemies Act as the legal basis for deporting persons on March 15 to El Salvador. Boasberg has been threatening to hold the Administration in contempt.

Second, it shines a light on the case as a case of forced or involuntary disappearances, a matter that has been addressed by the international community for some time.

A “forced disappearance” as defined by the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) involves the following core elements: the person is arrested, detained, abducted, or otherwise deprived of their liberty, by agents of a state or with its authorization, support, or acquiescence. This can include not only official actors but also those acting indirectly on behalf of the state. And, refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person.  What was concealed in this case is the United State’s control over the imprisoned persons.

What the El Salvadoran government wrote on April 3:

The State of El Salvador wishes to refer to communications from the Working Group on Enforced or Involuntary Disappearances, which state that the Group has received information on alleged enforced disappearances in El Salvador, in the context of mass deportations carried out between the Government of the United States of America and El Salvador. The Salvadoran State has conducted a detailed analysis of the claims presented, which indicate that the persons mentioned were in the custody of United States Immigration and Customs Enforcement (ICE), were allegedly deported to El Salvador on March 15, 2025, ceased to appear in ICE’s Online Detainee Locator System as of that date, were identified on a list of deportees published by a local media outlet, and that their fate and whereabouts are unknown.

The State of El Salvador emphasizes that it has not arrested, detained, or transferred the persons referred to in these communications. Its role has been limited to the implementation of a bilateral cooperation mechanism with another State, through which it facilitated the use of Salvadoran prison infrastructure for the custody of persons detained under the jurisdiction of that other State. In this context, jurisdiction and legal responsibility for these persons lie exclusively with the competent foreign authorities, in accordance with international agreements and principles of sovereignty and cooperation in criminal matters. Therefore, El Salvador cannot be held responsible for any violation of the principle of non-refoulement concerning these individuals.

On June 11, Assistant Attorney General Brett A. Shumate wrote a memo titled “Civil Division Enforcement Priorities.” The memo begins, “President Trump and Attorney General Bondi have directed the Civil Division to use its enforcement authorities to advance the Administration’s policy objectives. This memorandum describes those policy objectives and directs Civil Division attorneys to prioritize investigations and enforcement actions advancing these priorities.”

Topics covered are 1. Combatting Discriminatory Practices and Policies, 2. Ending Antisemitism, 3. Protecting Women and Children, 4. Ending Sanctuary Jurisdictions, and 5. Prioritizing Denaturalization.

Regarding denaturalization, the causes for DOJ action include many which are expected, such as war criminals, terrorists, or human rights violators; fraudulent or corrupt naturalizations, and human trafficking, sex crimes, violent offenses.

In addition are causes which provide to DOJ justification to come after persons whose naturalization process was 100% in order but who committed legal offences AFTER being naturalized. These include: involvement in financial fraud (e.g., PPP, Medicare), criminal gang affiliates, fraud against private persons or entities; and “other important referred cases.”

In other words a naturalized person who ten years after naturalization defrauds a private person in a land purchase and sale, or a doctor who violates Medicare reimbursment rules, could be denaturalized.

The memo ends with “These categories guide priorities but are not exclusive or ranked by importance. Case assignments will consider experience and subject-matter expertise.”

Abrego Garcia was brought back by the United States from El Salvador on June 6, charged with criminal offenses relating to human smuggling and incarcerated in prison in Tennessee, where he is today.  (Here is a narrative of the case from March 12 through June 7).  Garcia is awaiting trial for operating a smuggling ring for undocumented migrants from Central America into the U.S. and moving them across state lines primarily into Maryland. There is as yet no released evidence supporting this charge other than allegations by other migrants, mostly in American prisons.

A July 2 plaintiff’s complaint in Abrego Garcia v. Noem, ( 8:25-cv-00951) describes conditions for prisoners in El Salvador’s CECOT prison and the specific ordeal of Abrego Garcia, who was held there from March 15 until April 10, when he was moved to another prison, and before his June 6 return to the U..S.

Here is a summary of key passages in this complaint:

CECOT— Centro de Confinamiento del Terrorismo (Terrorism Confinement Center)  — has 256 cells intended for about 80 inmates, but often holds up to twice that number. Prisoners are confined for 23.5 hours a day, with no access to the outdoors, no windows, and constant artificial lighting. Bunks lack mattresses, and inmates are forced to sleep on metal frames. The air is hot and humid, with no ventilation. Sanitation is primitive, limited to two washing basins and two open toilets per cell. Meals are handed through bars and visits are prohibited.

A 2023 human rights report by Cristosal documented deaths caused by torture, beatings, and untreated medical conditions. It noted widespread electric shocks, forced feeding from the floor, untreated fungal infections, and asphyxiation. (Here is a State Department executive summary of its review of conditions, published in 2023).

Abrego Garcia was among 23 Salvadoran nationals transported directly to CECOT. Upon arrival, he was pushed from the plane, chained, beaten, and frog-marched under blinding lights while being filmed. He was stripped, kicked, shaved, and struck with wooden batons before being locked in Cell 15. In that cell, he and roughly 20 others were forced to kneel overnight without food, water, or bathroom access. Those who collapsed were beaten. Garcia soiled himself and was left unwashed. Within two weeks, he lost over 30 pounds.

Despite early claims that Garcia was gang-affiliated, Salvadoran officials soon acknowledged his tattoos were benign and removed him from cells housing known gang members. Nonetheless, prison guards psychologically tortured him, threatening to send him into violent cells where he would be “torn apart.”

On April 10, he was transferred to the Centro Industrial prison in Santa Ana. There, he was hidden from visitors and barred from contact with his family or legal counsel until U.S. Senator Chris Van Hollen (Dem, Maryland), visited him on April 17.

 

 

The Senate bill passed (51-50, tie-breaking vote by Vance) on July 1 and the House bill passed (215-214) in May are heading for reconciliation.  The Senate’s budget for immigration law enforcement is about $163B; the House bill $170B.

Here is an incomplete summary of the Senate bill’s provisions on enforcement of immigration laws. I have relied in part on the American Immigration Council (here and here).

Mexican Border: $46.5 billion toward fortifying the U.S.-Mexico border wall and interdicting migrant smugglers at sea. Additional staffing funding for CBP, apparently including adding 3,000 more Border Patrol staff. Total CBP staffing at the Mexican border appears to be around 15 – 20,000.

ICE Staffing: $32 billion for immigration enforcement, including staffing of ICE and expanding so-called 287(g) agreements, in which state and local law enforcement agencies partner with federal authorities to deport immigrants. Current staffing of agents appears around 6,000; the Senate and House bills appear to increase agent staffing by 10,000; hence an increase of 160%.

Detention: $45 billion to build and operate immigrant detention facilities and to transport those being deported. This is intended to increase detention capacity from about 50,000 to over 100,000.  (In prior administrations, roughly 35,000 persons were detained on any given day). 62% larger budget than the entire federal prison system. The budgets include funds to reimburse states and localities for use of their detention facilities.

The bill allows for families to be detained indefinitely, pending a removal decision. This dismantles the Flores settlement agreement, in place since 1977 and limiting to 20 days the duration children can legally be detained.

Local assistance: $13.5 billion to reimburse states and local governments for immigration-related costs. Most of these funds are to be given to Texas. These funds appear to be on top of reimbursement for detention facilities

Immigration courts: caps the number of judges at 800; current staffing is about 700.

 

 

The rise and fall of border encounters

As Biden took office, U.S. Border Patrol reported a sharp increase in encounters—over 1.7 million in FY 2021 compared to about 400,000 in FY 2020. Encounters continued climbing, reaching 2.9 million in FY 2023.  In December 2023 there were over 250,000 deportation or apprehension events in December alone. Following a June 4, 2024 restriction on asylum, southern border encounters fell. During the first months of the Trump administration,  encounters virtually collapsed to under 10,000 a month (these being encounters of persons crossing between official ports of entry).

Pre- Operation Lone Star actions by Governor Abbott

In 2017, Abbott signed a law allowing local police to check the immigration status of anyone they arrested, similar to Arizona’s earlier SB 1070. Texas’s version went further by threatening sheriffs and police chiefs with fines or removal if they didn’t inquire about immigration. A federal court halted these penalties.

After President Biden took office in 2021 and moved away from Trump-era border policies, migrant crossings into Texas spiked. Abbott accused Washington of abdicating its duty and vowed that Texas would “not be an accomplice” to federal “open border policies. ”

Operation Lone Star

In March 2021 Abbot declared a disaster in dozens of border counties thereby empowering him to deploy the National Guard to the border.  This was the official start of Operation Lone Star. “Governor Greg Abbott and the Texas Department of Public Safety today launched Operation Lone Star to combat the smuggling of people and drugs into Texas. The Operation integrates DPS with the Texas National Guard and deploys air, ground, marine, and tactical border security assets to high threat areas to deny Mexican Cartels and other smugglers the ability to move drugs and people into Texas.” (Go here and here.)

The Texas legislature first budgeted funds for the undertaking in House Bill 9 in September, allocating funds that eventually by mid 2022 added up to $5 billion. (Go here.) Between May and November, the number of National Guard troops deployed at the border rose from 500 to 10,000.

The trespassing strategy

In 2012 The Supreme Court in Arizona v. United States, 567 U.S. 387 (2012) had firmly assigned immigration enforcement as the exclusive domain of the federal government. Texas sought creative ways to arrest and remove migrants under state law. Operation Lone Star’s architects hit on a trespassing strategy: charging migrants with state misdemeanors for crossing private land. Abbott’s office enlisted ranchers and landowners to sign agreements granting Department of Public Safety (DPS) troopers authority to patrol their properties for border-crossers.  Troopers and National Guard were trained to induce border crossers to step onto private property at which point they were arrested for trespass.

Those taken into state custody (often single adult men) were jailed in state prisons converted into immigration detention centers. To be released, defendants had to post a bond averaging $2,700. Once released from state custody, migrants were handed over to federal immigration agents for deportation or asylum processing. The trespassing charge was not lifts, resulting in many persons having been deported could not get their bond back.

In July 2022 Abbott issued an executive order (GA-41) authorizing Texas state troopers and National Guard units to apprehend migrants and return them to ports of entry at the Mexico border. This unilateral “turn-back” policy was in effect a state-driven expulsion without federal involvement. When President Biden halted further construction of Donald Trump’s border wall, Abbott directed Texas to resume building barriers on its own. in late 2022, Texas state personnel installed concertina wire and shipping containers along the Rio Grande in Eagle Pass and seized control of a riverside public park to use as a hardened staging ground, at one point even barring U.S. Border Patrol agents from entering the area.

A dozen Republican governors dispatched their own state Guard troops or law enforcement officers to assist Texas.

Bussing migrants

The idea surfaced in the summer of 2021, when border city officials in Del Rio pleaded for relief from an overwhelming migrant influx. In September 2021, Del Rio housed 15,000 migrants, mostly Haitians, camped out under the international bridge.

A few weeks earlier, Abbott had convened a Border Security Summit in Del Rio, where nearly a thousand local officials, ranchers and residents aired grievances. There was bipartisan support for busing migrants to other major Texas cities. Abbott staff conceived the idea of sending them out of state, to so-called sanctuary cities. In April 2022 the first state chartered buses left Texas for Washington DC. The passengers had signed voluntary waivers in multiple languages saying they chose their destination. Between 2022 and mid 2024, Texas bussed 120,000 persons, to Washington, D.C., New York City, Chicago, Philadelphia, Denver and Los Angeles.

(Governor de Santis flew some migrants to Martha’ Vinyard, a stunt that Abbott distanced himself from.)

SB 4

In late 2023, the Texas Legislature passed Senate Bill 4 to create a state-level immigration offense. SB 4 made it a Class B misdemeanor on first offense to illegally enter the state from Mexico between ports of entry. Abbott signed SB 4 in December 2023 In February 2024, a federal district judge enjoined SB 4 before it could take effect. As of mid-2025, SB 4 remains tied up in court.

 

Deputizing state officials

On January 31, 2025, the Trump administration signed an memorandum of understanding with Texas invoking a “mass-influx provision” of the Immigration and Nationality Act. This allowed Texas to deputize state law enforcement officers to act with the powers of immigration agents during an immigration emergency. Texas National Guard troops and state police were granted authority to apprehend and deport migrants directly.

“The Guard authority to act as immigration officers in a State Active Duty status under Title 8. Under this agreement, Texas officials are authorized…to perform specified immigration functions that include investigating immigration violations, arresting individuals for immigration violations, and transporting noncitizens for detention and removal. DHS waived all immigration-training requirements for Guard personnel exercising these authorities. CBP retains the authority to supervise and direct Guard activities.”

Federal reimbursement

The One Big Beautiful Bill has a $12 billion provision designed to be paid to Texas.

Credit: Texas Roundup, by Jonathan Blitzer, New Yorker, March 17 2025

 ICE arrests

The New York Times used data from the Deportation Data Project at UC Berkeley to track the pace of daily arrests. During 2024, arrests averaged about 300 a day. At the outset of the Trump administration the pace jumped to 750, the settled in at about 600. The pace began to rise in late April, and then in early June jumped to over 1,000 a day. Thus, the pace of arrests now are triple over 2024.

In the first week of June, ICE data analyzed by Cato showed an average daily arrests of about 1,200 with 29% involving persons with convictions.  Since January, the share of arrests (or detentions) without a conviction has risen from about half towards three quarters. More than 93 percent of ICE book-ins were never convicted of any violent offenses. About nine in ten had no convictions for violent or property offenses. Most convictions (53 percent) fell into three main categories: immigration, traffic, or nonviolent vice crimes. The appendix table at the end of this post has data by detailed crime and broad crime categorization.

This posting is on ICE’s power to arrest and detain.

Detentions

The number of persons in detention went over 50,000 in early June, rising from an average in 2024 of about 35,000. As of June 14, ICE had booked into detention 204,297 individuals (since October 1, 2024, the start of fiscal year 2025).  This comes to an average of about persons a day.  15% of these cases involve property theft, violence or non-violent vice (such as drug offences).

During May, 28,000 were placed in detention – a daily average of about 950. While the number detained by Customs and Border Patrol has dropped, due to the collapse of the volume of persons crossing the Mexican border illegally (from 24,356 to 17,085), ICE detentions have soared (from 14,882 to 39,314). (These figures at January 26 and June 15.) The total of 53, 397 is comparable to the average of about 35,000 during 2024.  71% did not have a criminal record.

As of end of May, 185,825 persons were released by ICE with homing devices

(Go here, here and here.)

Deportations

There is a wide gap between what DHS says and what the actual data show.

On June 10, the Department of Homeland Security provided TIME with updated figures from Assistant Secretary Tricia McLaughlin: more than 207,000 deported. That represents a significant increase in the Administration’s deportations and may reflect the more sweeping and intrusive actions immigration officials have taken in recent weeks. For context, the federal government deported 271,484 people in the 2024 fiscal year, which ended on Sept. 30.

According to a careful tracking of ICE data, between January and early June, 106,465 persons were deported. 99,481 were sent to western Hemisphere countries.   The largest destination countries were Mexico (48,578), Guatemala (14,193), Honduras (12,214), El Salvador (4,697), and Colombia (3,858). These figures very roughly reflect their share of unauthorized persons in the U.S. except that Mexicans are estimated to comprise about 40% of unauthorized persons. (Go here.)

These deportation figures reflect longstanding migration patterns from Latin America and the Caribbean into the United States. When considering the entire Western Hemisphere—which includes nations across North, Central, and South America, as well as the Caribbean—the total number of citations amounts to 99,481. This accounts for a substantial share of the dataset, underscoring the regional concentration of deportation cases.

On January 20, 2025, President Donald J. Trump issued an Executive Order titled “Protecting the Meaning and Value of American Citizenship.”  It declard that the children of certain noncitizen mothers would no longer be considered U.S. citizens at birth unless the father was a citizen or lawful permanent resident. Specifically, it targeted U.S.-born children whose mothers were either unlawfully present or in the country only temporarily, including those on tourist, student, or work visas.

Many suits were filed to block the implementation of the Executive Order.  One was a class action suit was by the immigrant-rights organization CASA and others, in the federal District Court for District of Maryland. This suit and others obtained an injunction halting enforcement of the Executive Order.

The Supreme Court’s lifted the injunction in its decision in Trump v. CASA, Inc. on June 27, 2025. The majority questioned the pursuit of a nationwide class action.  It was skeptical about whether the plaintiffs, particularly plaintiffs such as CASA, could represent the interests of a broad class of unborn children potentially affected by the Order.

CASE et al immediately reformulated its legal strategy and filed an amended class action suit  on the same day of the Supreme Court decision. They abandoned, at least temporarily, the pursuit of a broad nationwide class action. The amended complaint (8:25-cv-00201-DLB) focused on a narrower set of plaintiffs with clearly articulated, individualized harms. Plaintiffs included two non-profit groups, CASA and the Asylum Seeker Advocacy Project, along with five pregnant women referred to by pseudonyms (Maribel, Juana, Trinidad Garcia, Monica, Liza)

CASA’s argument summarized

The complaint asserts that the foundational American legal principle of jus soli—the right of the soil—establishing that all persons born within U.S. territory, regardless of their parents’ immigration status, are citizens at birth. It contends that this principle, enshrined in the Citizenship Clause of the 14th Amendment, was adopted specifically to prevent discriminatory denials of citizenship based on ancestry or legal status, such as those at the heart of the infamous Dred Scott decision. United States v. Wong Kim Ark (1898) is invoked.

On the matter of “subject to the jurisdiction” provision of the 14^th Amendment, “At the time the Fourteenth Amendment was adopted, “subject to the jurisdiction” was a commonly used phrase with “a clear meaning and scope.” ….And nearly everyone present in a sovereign’s territory, including noncitizens, is subject to that sovereign’s power of “governing or legislating,” entitled to that sovereign’s protection, and thus “subject to the jurisdiction” of that sovereign.”….“Regardless of the immigration status of their parents, children born in the United States are undoubtedly “subject to the jurisdiction of the United States” at the moment of their birth. Both federal and state governments today extend to children born in the United States—as well as their parents while physically present in the United States—the equal protection of the laws and assert regulatory authority over them.”

The plaintiffs include organizations plaintiffs, CASA and the Asylum Seeker Advocacy Project (ASAP), and individual pregnant women who fear that their children will be denied citizenship under the Executive Order. These individuals face the prospect of statelessness for their children, unequal treatment of siblings born under different administrations, and legal uncertainty that could bar their children from education, healthcare, voting, and the ability to remain in their country of birth. “If denied United States citizenship, U.S.-born babies may lack citizenship in any country, leaving them stateless, “a condition deplored in the international community of democracies.” (Trop, 356 U.S. at 101.) Without a homeland, a stateless person’s “very existence is at the sufferance of the country in which he happens to find himself.”

Also, the suit emphasizes the societal and economic costs of this policy, noting that birthright citizenship has historically contributed to U.S. prosperity by ensuring full integration and civic participation of native-born children, regardless of their parents’ legal status. Plaintiffs seek a declaratory judgment that the Executive Order is unlawful and unconstitutional.

 

 

Since 2000, international student attendance at American colleges and universities rose from 300,000 to over one million. It appears that over 200 colleges and universities have at least 10% of their student body made-up of international students (primarily visa category, F-1). Here is a log of steps the administration has taken to impact this flow.

Revocation and reinstatement of 1,800 + student visas

The Statement Department began sometime, perhaps in March, to revoke student visas without giving notice to the educational institution. By late April 280 institutions reported  1,879 revocations; there may have been as many as 4,700.

Secretary of State Rubio said that some 300 student visas have or are being cancelled: “We do it every day. Every time I find one of these lunatics, I take away their visa“….”I hope at some point we run out because we have gotten rid of all of them, but we’re looking every day for these lunatics that are tearing things up.”(Go here). Also he said, “Rubio alleged that students came “not just to study but to participate in movements that vandalize universities, harass students, take over buildings and cause chaos.”

On April 25, in the face of hundreds of lawsuits and temporary restraining orders, the administration reversed all revocations. The methodology for visa revocations was not fully revealed but appears to be identifying students with often minor infractions such as driving violations. It is possible that Jewish activist groups, such as Betar, had suggested to the administration persons it wanted removed.

All student visa applications under review suspended for a few weeks

On May 27, the State Department temporarily halted review of new student visa applications with the explanation that vetting guidelines needed to be reviewed.

Per Boundless, the State Department cable on June 18, told consular officers to renew the review of student visa applications and conduct a “comprehensive and thorough vetting” of each applicant’s online activity. Officers are instructed to look for “hostile attitudes toward our citizens, culture, government, institutions, or founding principles.”

Harvard University

ICE oversees the Student and Exchange Visitor Program. SEVP was created after 9/11 in order to manage international student enrollment. Educational institutions must meet standards of record keeping, instructional programming, accreditation, control over illegal entry and other features to receive certification.  Removal of certification normally is the result of audits by ICE. Total and permanent removal of certification has been rare and always associated with some form of visa fraud engineered by the school.

Harvard’s international student enrollment in 2024-2025 was 6,793, or 27% of total enrollment.  These figures in 2006-2007 were 3,941 and 20%.

On May 22, the administration revoked Harvard SEVP certification.  This came a month after DHS demanded from Harvard information about “criminality and misconduct” of international students. The revocation was justified by DHS as “Harvard’s leadership has created an unsafe campus environment by permitting anti-American, pro-terrorist agitators to harass and physically assault individuals, including many Jewish students, and otherwise obstruct its once-venerable learning environment. Many of these agitators are foreign students. Harvard’s leadership further facilitated, and engaged in coordinated activity with the CCP, including hosting and training members of a CCP paramilitary group complicit in the Uyghur genocide.”

On May 23 Harvard obtained a temporary stay.

On June 4, Trump issued a proclamation banning Harvard from enrolling international students. The proclamation cited statutes authorizing the “President to suspend entry of any class of aliens whose entry would be detrimental to the interests of the United States.  I have determined that the entry of the class of foreign nationals described above is detrimental to the interests of the United States because, in my judgment, Harvard’s conduct has rendered it an unsuitable destination for foreign students and researchers.”

This proclamation as well has been suspended by a court. Both federal actions are addressed in one suit, President and Fellows of Harvard College v. DHS, Case No. 1:25-cv-11472 (D. Mass., filed May 23, 2025).

Partial revocation of Chinese student visas

On May 28 the administration began to revoke visas of some Chinese students with the justification that the Chinese Communist Party is exploiting American universities. On June 4 the administration appears to have suspended this revocation. It remains unclear what this was all about.

Post-graduation work visas

About 300,000 international students who graduated from an American college or university are today working under the Optional Practical Training program. It provides up to 12 months of work authorization in a student’s field post-degree. A STEM OPT extension provides an additional 24 months for STEM graduates.

The expected head of United States Citizenship and Immigration Services, Joseph Edlow, testified to Congress in May that he wants to terminate OPT.

 

 

 

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.