ICE has broad energy to detain and arrest noncitizens – however remains to be sure by constitutional limits

Information experiences of noncitizens unexpectedly being detained by Immigration and Customs Enforcement, or ICE, have dominated headlines in current weeks. These being detained embrace noncitizens who maintain lawful everlasting residency standing.

One story considerations the March 8, 2025, arrest of Mahmoud Khalil, a lawful everlasting resident and up to date Columbia College graduate, who was initially detained in New Jersey and transported to Louisiana. He stays there whereas he challenges his detention and the immigration decide’s April 11 choice that he may be deported

And on March 25, ICE brokers arrested Rumeysa Ozturk, a Turkish nationwide and doctoral scholar at Tufts College, whereas she was strolling on the streets of Somerville, Massachusetts. She is presently detained in Louisiana.

ICE brokers have additionally detained and eliminated, amongst different individuals, a whole lot of Venezuelan noncitizens to El Salvador since March, leading to high-profile authorized circumstances which can be making their means by the court docket system. And the U.S. has revoked the visas of a minimum of 300 international college students this 12 months.

As a scholar of immigration and citizenship legislation, I feel that it is very important assist the general public perceive the scope and limitations of ICE’s authority.

On the most simple stage, ICE has broad, sweeping powers to query, arrest, detain and course of the deportation any noncitizen. However ICE remains to be sure by sure constitutional and different authorized restrictions, together with noncitizens’ rights to make their case in court docket to stay within the U.S.

ICE’s mission and work

Created as a part of the Division of Homeland Safety in 2003, ICE is without doubt one of the federal businesses answerable for implementing immigration legal guidelines.

ICE’s working price range from Oct. 1, 2024 by Sept. 30, 2025 is roughly US$8 billion, a comparatively small portion of Homeland Safety’s $107.9 billion complete price range for that very same time interval.

With greater than 20,000 immigration enforcement officers stationed throughout the nation, ICE’s day-to-day work is split into three principal areas – homeland safety investigations, enforcement and elimination operations, and authorized illustration for the federal government in an immigration court docket.

The department targeted on homeland safety investigations probes transnational crime and terrorism-related actions. ICE’s second space of labor focuses on apprehending and eradicating noncitizens who’re in violation of immigration legal guidelines. Lastly, employees on the Workplace of the Principal Authorized Advisor signify the federal government in immigration hearings, significantly what known as elimination proceedings, or deportation.

ICE’s energy to implement immigration legislation is primarily granted by the Immigration and Nationality Act, which Congress handed in 1952 amid the Chilly Conflict.

This act outlines the federal authorities’s authority to control immigration and gives immigration businesses, together with these established at a later date, like ICE, broad powers to implement these restrictions. One key a part of the Immigration and Nationality Act permits ICE officers to interrogate any particular person they imagine to be a noncitizen relating to their proper “to be or stay” within the U.S.

The Immigration and Nationality Act additionally says that any noncitizen may be deported for participating in actions that the secretary of state believes “would have doubtlessly critical antagonistic international coverage penalties for the US.”

Secretary of State Marco Rubio cited this provision when he revoked Ozturk’s visa. Ozturk was co-author on an op-ed in March 2024 calling for Tufts College to acknowledge genocide towards the Palestinian individuals.

Rubio used the identical provision to assert that Khalil’s involvement in protests at Columbia College had unfavourable U.S. international coverage penalties.

Detain and arrest

ICE officers have broad energy to arrest noncitizens within the U.S.

With a warrant, they might arrest noncitizens who’re within the nation with out authorized permission, together with international college students whose visas are revoked. These warrants are administrative warrants signed by an immigration enforcement supervisor – not a decide.

ICE officers have lengthy been in a position to perform these arrests in plain garments – though utilizing face coverings, as ICE officers who arrested Ozturk and Khalil did, is a brand new and, I feel, startling improvement.

Nonetheless, ICE’s powers to interrogate, arrest and detain noncitizens aren’t absolute.

For one, immigration legislation requires noncitizens to be notified in writing that they’re being processed for a elimination continuing, to allow them to seem earlier than an immigration decide and have the chance to problem the federal government’s declare that they need to be deported.

Noncitizens have the precise to authorized illustration – albeit not paid for by the U.S. authorities – in an immigration court docket. In the end, an immigration decide, and never ICE, determines if a noncitizen must be deported.

The Constitutional limits on ICE

Crucially, ICE is sure by varied constitutional provisions that defend particular person rights, together with the rights of noncitizens who’re residing within the U.S. with out authorized authorization.

Three specific constitutional amendments impose totally different checks on ICE’s energy.

The First Modification, for instance, protects people’ rights to free speech, meeting and faith. Consequently, ICE can not goal people – even when they’re noncitizens residing within the U.S. with out authorized permission – for merely taking part in peaceable protests or writing one thing for the general public. Rubio has mentioned that he revoked Ozturk’s visa not due to her writing, however as a result of she participated in “actions which can be counter to our international … coverage.” He additionally relied on this provision to help the deportation of Khalil.

However Ozturk and Khalil’s legal professionals contend that their actions have been protected speech. In the end, a federal district decide has the facility to find out whether or not ICE focused them for exercising their First Modification rights.

The Fourth Modification safeguards the precise of people “to be safe of their individuals, homes, papers, and results, towards unreasonable searches and seizures.” ICE should first get hold of a search warrant, signed by a decide, earlier than getting into an individual’s residence or personal areas of a office.

The Fourth Modification’s safety towards unreasonable searches and seizures additionally applies in public areas. So, legislation enforcement officers will need to have affordable suspicion to cease an individual – or have possible trigger to not have a warrant once they arrest an individual they imagine is responsible of a criminal offense or in violation of a legislation and more likely to escape. The Immigration and Nationality Act additionally requires ICE officers to have an arrest warrant except they’ve motive to imagine that the noncitizen could flee earlier than they get a warrant.

It’s not clear whether or not ICE officers introduced Khalil and Ozturk with arrest warrants earlier than they have been detained exterior their residence and on the road, respectively.

The Fifth Modification ensures the precise of all people towards self-incrimination. Because of this individuals detained by ICE have the precise to stay silent throughout interrogations.

It additionally implies that earlier than noncitizens may be deported, they will need to have the chance to go earlier than an immigration decide to problem the federal government’s plan to take away them, or could file a case earlier than a federal decide to problem their detention and deportation.

ICE’s energy just isn’t absolute

Even with an annual price range of roughly $8 billion, ICE doesn’t have the capability to pursue all immigration legislation violations.

On this context, current Trump administration initiatives might considerably improve ICE’s attain. For instance, an April 2025 memorandum of understanding between the Inner Income Service and DHS permits the IRS to share tax data of immigrants residing within the U.S. with out authorized authorization. This might assist ICE extra simply determine, find and arrest noncitizens residing within the U.S. illegally.

Regardless of its appreciable energy, ICE’s authority just isn’t with out checks and balances.

However as a longtime scholar of immigration legislation, I imagine ICE officers’ current actions elevate critical considerations that it’s exceeding the bounds of its authorized authority and the constitutional limits which can be meant to guard particular person rights.