Legality of ICE detainments increasingly murky -- though there is relevant case law
With ICE roundups now including legal immigrants, with the President threatening to denaturalize and deport U.S. citizens, and with national quotas for arrests, the potential for almost anyone to be detained is growing.
As the Washington Post reported, the Immigration and Nationality Act grants ICE officers broad powers, many of which involve discretion. Legally, for agents to arrest someone without a warrant requires probable cause that the person is in the U.S. illegally and is likely to flee before a warrant can be obtained.
By law, officers cannot use race, ethnicity or profession as the sole basis for concluding that a person has violated immigration law — they must have factual findings, such as a criminal record.
Yet, as Forbes reported, agents of the Florida Highway Patrol called Customs and Border Protection because a subject “looked Hispanic.” According to the article, a Florida Highway Patrol officer arrested a Honduran immigrant who owns a construction company after he stopped at a weigh station in Tampa so his truck could be weighed.
“The client had a valid Florida driver’s license,” Forbes quoted Magdalena Cuprys, of Cuprys & Associates, saying of the man, who contracted with the company. “The patrol officer called Customs and Border Protection on him. The client called me, and the officer took the phone from him and spoke to me.”
Cuprys said that when she asked why CBP was alerted, “I was advised that the client looked Hispanic, had a Hispanic name, and now they are collaborating with Immigration and Customs Enforcement and CBP, and their orders are to call CBP any time they encounter anyone they suspect is an immigrant. I asked if they would have followed the same process if it had been me driving, and the response was it depends if you look Hispanic.”
Trump border czar also told CNN that ICE agents can detain people “based on appearance.”
“Probable cause” is a legally debatable term, and ICE under the Trump administration has disregarded many institutional norms and, in some cases, legal precedents and court rulings.
The requirements for a warrantless arrest are different from those for a detention. According to the Washington Post analysis, if someone is being briefly detained but not formally arrested or charged, officers only need “reasonable cause,” which requires less evidence than probable cause and can be based on 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 question them, though individuals have the right to remain silent, and anything they say can be used to build a case against them. 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. Officers cannot make arrests at a private business or home without a judicial warrant, though there are exceptions for areas that can be construed as public spaces. As the Post reported: “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.”
It is legal for officers to use deceptive tactics to access someone’s private property, such as by pretending to be from another agency and saying they are investigating a crime as a pretext to being allowed inside to ask questions. But they cannot misrepresent themselves specifically as a probation officer or a member of a health or safety organization, nor coerce people through threats or intimidation, according to internal memos outlining ICE procedures cited by the Post.
There is no legal requirement for immigration officers to provide their names, though there are general guidelines regarding what information they should provide. When someone is approached but has not yet been detained or arrested, officers can identify themselves as “federal officers” or “police,” according to ICE regulations cited in the article. Once someone is being arrested, U.S. law stipulates that federal agents from ICE, Border Patrol and other agencies with authority under Title 8 of the U.S. code must identify themselves as an “immigration officer” as soon as is “practicable.”
ICE internal policies generally require agents to display their badges, but they do not have to comply with that guideline “if officer safety is at issue,” the Post reported. 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 belt so that it is in plain sight.
All of these requirements and guidelines are open to some level of discretion, and, in some cases, both have been disregarded, as have certain constitutional protections including due process. There is no constitutional protection or prohibition regarding immigration officers’ use of masks or face coverings, though those have historically not been standard practice.
ICE can detain a person who is applying for legal status or being given temporary legal status. Immigrants can express a fear of persecution and request asylum, but if the request is denied, their only recourse is a cursory review by an immigration judge, not a full hearing. Again, this protocol is not always followed under the current administration.
Though the agency maintains an online detainee locator, and officers must record each individual’s personal data and biometrics and assign them what’s known as an “A-number,” the Post noted that it can take several days for a detainee’s information to appear on the site. Family members can contact an ICE field office directly, according to the outlet, but it often takes several attempts to obtain information. In the meantime, there is no legal requirement for ICE to immediately inform family members of a relative’s detention or their location. 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 these are rarely free. The rules for how such contact can occur, and its frequency, 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 but detainees often cannot receive incoming calls. The Post analysis does not describe what a lawyer or loved one can do if the request to visit is denied or receives no response.
Children who are not citizens can be placed in detention with their parents, and there are two ICE detention facilities designed for that purpose. Those centers must comply with the Flores settlement, an agreement that sets basic standards for detaining migrant children and prohibits them from being detained for more than 20 days. The Trump administration is seeking to terminate the agreement.
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 to leave the United States with them.
Immigration officers are trained to avoid using force when making an arrest, but they can use it if they have “reasonable grounds” to believe that someone’s safety is at risk, such as if a suspect or detainee is assaulting an officer. This determination is discretionary, and even if a court later rules that there were no reasonable grounds, the detainee may already have been deported. Agents can use deadly force if they have reason to believe an officer faces “imminent danger of death or serious bodily injury.” The bar for using that level of force has not been made public. ICE is currently updating its use-of-force directives, according to the Post.
Due to immigration authorities expanding the boundaries of detainment, the ACLU of Mississippi has compiled a guide for people who encounter ICE, CBP or affiliated agents (the guide is illustrated in this Mississippi Independent animation).
The ACLU of Mississippi also notified public schools by letter about potential ICE encounters. According to the organization, one of the first things Trump did when he took office as president on Jan. 20, 2025, was rescind the longstanding policy that deemed schools “sensitive locations.” Prior to this federal policy change, ICE agents were restricted from carrying out enforcement actions at public K-12 schools.
The letter notes that although schools need to verify a child’s age prior to enrollment, there is no requirement for parents to provide a social security number, nor are schools required to retain information that would reveal a family’s citizenship status.
In Plyler v. Doe (1982), the U.S. Supreme Court determined that “discrimination on the basis of immigration status in access to basic public education violates the Constitution, denying access to education imposes a lifetime of hardship on a discrete class of children not accountable for their disabling status.”
The ACLU’s position is that public school districts must create and maintain procedures to protect sensitive information in order to defend student rights under a number of longstanding federal laws. The school letter states that if someone witnesses an ICE or CBP enforcement action within their school district they should direct the agent(s) to the superintendent, who should request to see legal authorization and verify the identity of the agent(s).
If agents do not supply a judicial warrant, signed by a judge, the letter recommends requesting a legal review before permitting agents further into the school. Only a judicial warrant — not an administrative warrant — will allow ICE agents to enter locations in which there is a reasonable expectation of privacy.
The letter further instructs:
The superintendent should advise agents of the school district’s Plyler obligations, refer agents to ICE/CBP sensitive locations memos, and request that officers not conduct the enforcement action at schools or school activities.
Consistent with the school district’s Plyler obligations, school officials must not affirmatively aid in removing a student from school based upon their immigration status.
If agents detain a student, the school district should promptly notify the student’s parent or guardian.
As soon as possible, anyone who witnesses such an encounter should notify the ACLU of Mississippi. They can also lodge a complaint with ICE or CBP through their websites.
Additional reporting by Kelcy Higgins.
Image: ICE agents detain a Tufts University student (screencap of Washington Post video)