By Arelis R. Hernández
Undocumented immigrants are being swept off the streets by masked officersin plainclothes who refuse to give their names. Parents are being handcuffed in front of young children and escorted together onto buses and into detention centers. Officers are tackling people and smashing car windows as they make arrests.
Videos of arrests like these have gone viral on social media and sparked protests and outrage as the United States reckons with the ramifications of the Trump administration’s push to deport millions of unauthorized immigrants.
So what is and isn’t illegal when ICE makes an arrest?
U.S. Immigration and Customs Enforcement was created after the Sept. 11, 2001, terrorist attacks as part of a major overhaul of the federal national security apparatus. Congress gave the agency substantial authority over how immigrants who do not have a legal status in the United States are detained and deported. And while the Trump administration has upended norms, much of what the public is seeing is permitted under U.S. law.
If President Donald Trump’s massive spending bill is approved, undocumented immigrant arrests and deportations are expected to dramatically ramp up. Here’s what to know about how officers conduct an arrest.
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Can federal officers make immigration arrests without a warrant?
Yes, under certain circumstances.
While the Immigration and Nationality Act grants officers broad powers, they must have “probable cause” to believe that person is in the U.S. illegally and likely to flee before a warrant can be obtained to arrest them without one.
Officers cannot use race, ethnicity or someone’s profession as the sole basis of their belief that an individual has violated federal immigration law. They must have factual findings such as a criminal record. And officers should consider a broad array of factors in determining if someone is a flight risk. If the individual, for example, owns a property and has children in the U.S., that would indicate deep ties to a community.
The requirements for a warrantless arrest are different from a detention. In the event someone is being briefly detained, but not formally arrested or charged, officers only need what’s known as “reasonable cause.” Reasonable cause is different from “probable cause” in that it requires less evidence and can be based off an officer’s subjective determination that there are sufficient grounds to believe a crime may have been committed.
Officers can approach anyone in a public space and attempt to ask them questions. Individuals have the right to remain silent, and anything they say can be used to build a case against them. For example, if someone provides a fake ID, tries to run away or admits to being in the country illegally, those actions could be used as part of the grounds to arrest them.
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Can ICE officers make arrests at a private business or home?
No, not without a judicial warrant. But there are exceptions.
Federal officers recently showed up at several Los Angeles-area businesses and arrested suspected undocumented immigrants. While those were private businesses, there are areas within, for example, a car wash or restaurant that are considered publicly accessible. The space where customers are eating, or an office lobby, may both be considered places where ICE can arrest people.
Officers who want to enter the kitchen of a restaurant or an employee break room – locations where the public is generally not allowed – cannot do so unless they receive the owner’s consent or have a judicial warrant. A judicial warrant is a document signed by a judge who has independently reviewed an officer’s reasons for wanting to enter.
If a business owner or manager allows ICE inside without a warrant, the rules around search and arrest get murkier. Immigration officers would then be free to walk around and engage people for voluntary questioning, though they would still need to have reasonable suspicion to do so.
Similar restrictions apply when entering an individual’s home. Officers could enter the lobby of an apartment building if it is publicly accessible. But they would need a judicial warrant to enter any private areas.
ICE officers can legally employ ruses – or deceptive tactics – to access someone’s private property. For example, officers could pretend to be from another agency and say they are investigating a crime as a pretext to being allowed inside to ask questions. But they cannot misrepresent themselves as a probation officer or a member of a health or safety organization. They also cannot coerce people through threats or intimidation, according to internal memos outlining ICE procedures.
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Do ICE officers have to identify themselves?
There is no legal requirement for immigration officers to provide their personal names, though there are some general guidelines regarding what information they should provide.
When someone is approached – but not yet detained or arrested – officers can identify themselves generally as “federal officers” or “police,” according to ICE regulations. Once someone is being arrested, U.S. law indicates federal agents from ICE, Border Patrol and other agencies given authority under Title 8 of the U.S. code must identify themselves as an “immigration officer” as soon as is “practicable.”
In most cases, “practicable” is interpreted as the moment when an officer feels safe or that a threat has subsided.
ICE internal policies generally require agents to display their badges, but they don’t have to comply with that guideline if officer safety is at issue. Agency operations manuals suggest that whenever an officer’s weapon is visible, their ICE badge must also be visible either on a chain, a lanyard around their neck or clipped to their beltso that it is in plain sight.
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Can federal officers making immigration arrests wear masks over their faces?
It’s unclear. There is no constitutional protection or prohibition for immigration officers’ use of masks or face coverings. However, it is not a standard law enforcement practice in part because it creates a sense of intimidation and fear, and some state and federal lawmakers are pushing for legislation to bar the practice.
Federal officials defend the use of coverings as a way to protect immigration officers from doxing while they are under intense public scrutiny.
Tricia McLaughlin, an assistant secretary for the Department of Homeland Security, said officers “clearly identify themselves as law enforcement while wearing masks to protect themselves from being targeted by highly sophisticated gangs” and criminals.Trump officials say agents have been increasingly assaulted by angry bystanders as they go about their work.
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Can ICE detain a person who is applying for legal status or given a temporary one?
People with an ongoing asylum claim or a temporary status like humanitarian parole have been put in deportation proceedings under previous administrations but were not the focus. Under Trump, some of these individuals have become a target.
Those who have been in the United States for less than two years are being put in expedited removal proceedings. Expedited removal was created in 1996 and has typically been used at the border to quickly expel those who cross illegally. Now it is being used throughout the country. Migrants can express a fear of persecution and request asylum, but if they are denied, their only recourse is a cursory review by an immigration judge, not a full hearing.
The president and his Cabinet have also invoked arcane laws to try to quickly remove other immigrants, and canceled the temporary status of hundreds of thousands of others. In short, the administration is utilizing a range of laws and policy changes to make a wider group of people eligible for deportation – even those who may qualify for some form of legal status.
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Does ICE have to share where someone is being held?
ICE maintains an online detainee locator, but it can take several days for someone’s information to appear on the site.
The delay is a result of the agency’s limited capacity to process the number of people being arrested. Officers must record each individuals’ personal data, biometrics and assign them what’s known as an “A-number.”Family members can contact an ICE field office directly but it can often take several attempts to obtain information.
In the meantime, there is no legal requirement for ICE to immediately inform family membersof a relative’s detention or their location. And under the Trump administration, ICE has been moving detainees quickly to detention centers hundreds of miles from the arrestee’s home.
The detention facility should permit phone calls to loved ones but they are rarely free. The rules for how the contact happens, its frequency, its confidentiality and cost vary from one facility and state to the next. A lawyer or loved one may request to visit the detainee in person or virtually. Detainees often cannot receive incoming calls.
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Can ICE detain children?
It depends on the circumstances.
Children who are not citizens can be placed in detention with their parents. There are two ICE detention facilitiesthat are designed for families.
Those detention centers must comply with the Flores settlement, an agreement that sets basic standards for detaining migrant children. It also prohibits them from being detained for more than 20 days. The Trump administration is seeking to terminate the agreement. Advocates are deeply opposed. Previous administrations have also tried to amend or get rid of parts of it.
ICE does not have the authority to detain or remove an immigrant’s U.S. citizen children. If the parent is being deported, ICE policy requires the agency to make every effort to ensure all legal guardians are involved in determining what is in the child’s best interest. An immigrant can request that their U.S. citizen children be allowed toleave the United Stateswith them.
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Can ICE officers use force in making an arrest?
Immigration officers are trainedtoavoid using force when making an arrest. But they can use force if someone’s safety is at risk. If a suspect or detainee, for example, is assaulting an officer, the ICE officer may have “reasonable grounds” to use force.
Agents can use deadly force if they have reason to believe an officer faces “imminent danger of death or serious bodily injury.” However, the bar for using that level of force has not been made public. ICE is currently updating its use-of-force directives.
A number of confrontations between immigration officers and the public have been captured on video as Trump seeks to ramp up arrests. In some cases, immigrants or their attorneys have said the officer’s conduct was disproportionate to any threat an individual may have posed.
ICE said in a statement that its officers are “highly trained” in de-escalation tactics and regularly receive use-of-force training. “Any violation of policy is investigated and, if substantiated, appropriate disciplinary actions are taken,” the agency said.
