Immigration Arrests in the Interior of the United States: A Primer
Legal Sidebari
Immigration Arrests in the Interior of the
United States: A Primer
Updated November 30, 2021
U.S. Immigration and Customs Enforcement (ICE), a component of the Department of Homeland
Security (DHS), is primarily responsible for immigration enforcement in the interior of the United States.
ICE has authority to arrest and detain non-U.S. nationals (“aliens,” as the term is used in federal law)
identified for removal because of immigration violations. In recent years, there had been a marked
increase in arrests and removals conducted by ICE. As discussed in this Legal Sidebar and as compared to
prior administrations, the Trump Administration made enforcement a touchstone of its immigration
policy, and ICE generally sought to enforce federal immigration laws against a broader range of aliens
who had committed immigration violations. A recalibration of priorities by the Biden Administration has
led ICE to focus its immigration enforcement actions on a narrower category of aliens; namely, those who
present national security concerns, those who pose a threat to public safety, and those considered a threat
to border security (e.g., recent unlawful entrants). While immigration enforcement priorities may change
over time, the governing authorities for ICE’s activities have largely remained constant. This Legal
Sidebar provides an overview of ICE’s authority to conduct arrests and other enforcement actions. (A
separate DHS entity, U.S. Customs and Border Protection [CBP], enforces federal immigration laws at or
near the border and at U.S. ports of entry; a discussion of CBP’s authorities can be found here.)
ICE’s General Authority to Arrest and Detain
ICE was established following the creation of DHS in 2003. The agency’s stated mission is “to protect
America from the cross-border crime and illegal immigration that threaten national security and public
safety.” ICE officers’ authority to arrest aliens believed to have committed immigration violations derives
primarily from two federal statutes: Sections 236 and 287 of the Immigration and Nationality Act (INA).
INA § 236(a) provides that an immigration officer may arrest and detain an alien who is subject to
removal upon issuance of a “Warrant for Arrest of Alien.” This administrative arrest warrant (ICE
Warrant) may be issued with a Notice to Appear (NTA), the charging document that initiates formal
removal proceedings, or “at any time thereafter and up to the time removal proceedings are completed.”
DHS regulations provide that the ICE warrant may be issued only by certain designated immigration
officials (e.g., a supervisory officer). In addition, an ICE warrant is issued exclusively for use by
immigration officers. Reviewing courts have recognized that this administrative warrant may not serve as
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the basis for state or local law enforcement officials to arrest and detain an alien, except when done under
the terms of a cooperative agreement with federal authorities under INA § 287(g).
While an immigration-related arrest generally requires an ICE warrant, INA § 287(a)(2) lists two
circumstances when an ICE warrant is not required for an immigration officer to arrest an alien for a
suspected immigration violation:
1. the alien, in the presence or view of the immigration officer, is entering or attempting to
enter the United States unlawfully; or
2. the immigration officer has “reason to believe” that the alien is in the United States in
violation of law and is likely to escape before a warrant can be obtained.
The immigration officer must also have completed immigration law enforcement training and be one of
the designated immigration officers who have the warrantless arrest authority under DHS regulations.
While this Legal Sidebar focuses on ICE officers’ authority to arrest aliens for immigration violations that
render them removable, it bears mentioning that ICE frequently investigates and arrests persons who may
potentially be subject to both criminal prosecution and removal proceedings (e.g., transnational criminal
street gangs). INA § 287(a) permits designated immigration enforcement officers, during the course of
their immigration enforcement duties, to make warrantless arrests of aliens and other persons for criminal
offenses in specified circumstances (e.g., when the offense is committed in the officer’s presence, or the
officer has reason to believe the suspect committed a felony and would likely escape before a warrant
could be obtained). DHS regulations require the immigration officer to advise the person being arrested of
his or her legal rights, and to arrange promptly for that person’s initial appearance before a federal
magistrate or district court judge.
Limitations to ICE’s Arrest Authority for Civil Immigration Violations
Generally, upon issuance of an ICE warrant, or “reason to believe” that an alien is removable and likely to
escape, an authorized immigration officer may arrest and detain an alien. There are constitutional
restrictions on this arrest authority. The Fourth Amendment’s protections against unreasonable searches
and seizures apply to immigration-related arrests and detentions. Thus, reviewing courts have interpreted
the “reason to believe” standard for warrantless immigration arrests to be the equivalent of probable
cause. Under this standard, the immigration officer must have sufficient facts that would lead a reasonable
person to believe, based on the circumstances, that the alien has violated federal immigration laws and is
likely to escape before an ICE warrant can be obtained.
The Supreme Court also has held that the Fourth Amendment’s prohibition against unreasonable seizures
precludes the use of excessive force during an arrest. Thus, DHS regulations provide that “non-deadly
force” may be used only when the immigration officer reasonably believes that such force is warranted,
and that a “minimum” level of non-deadly force should be employed unless circumstances warrant a
greater degree of force. The regulations instruct that “deadly force”—defined as “any use of force that is
likely to cause death or serious physical injury”—may be used only when the officer reasonably believes
that such force is necessary to protect the officer or others from death or serious harm. The regulations
also prohibit the use of threats or physical abuse to compel an individual to make a statement or waive his
or her legal rights.
The Supreme Court has also long held that the Fourth Amendment prohibits the government’s
nonconsensual entry into a person’s home without a judicial warrant. This restriction may also extend to
other areas where there is a reasonable expectation of privacy, such as the non-public part of a workplace
or business. Unlike judicial warrants, ICE warrants are purely administrative, as they are neither reviewed
nor issued by a judge or magistrate, and therefore do not confer the same authority as judicially approved
arrest warrants. Applying these principles, some courts have ruled that ICE agents violated the Fourth
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Amendment by forcibly entering homes without a judicial warrant, when no exigent circumstances or
other exceptions to general Fourth Amendment requirements existed. Thus, immigration authorities
would generally be unable to enter homes and non-public parts of a business absent exigent circumstances
(e.g., risk of harm to the public, potential destruction of evidence) or the owner’s consent.
Additionally, ICE historically has restricted immigration enforcement actions (e.g., arrests, interviews,
searches, and surveillance) in certain locations, and the range of these locations has changed over time.
Until recently, a “sensitive locations” policy in place since 2011 barred ICE enforcement actions (with
certain exceptions) at or near schools (including postsecondary institutions), hospitals, places of worship,
public demonstration sites (e.g., a march, rally, or parade), and funerals, weddings, or other public
religious ceremonies. In October 2021, DHS announced a new “protected areas” policy that expands the
locations where enforcement actions will not occur to include any medical or mental health care facilities
(including vaccination and testing sites); places of religious study; places “where children gather” (e.g., a
playground, school bus stop); social services establishments (e.g., domestic violence and homeless
shelters); disaster and emergency response locations; and the sites of any religious or civil ceremony or
observance (this policy applies to both ICE and CBP enforcement actions). Enforcement action at or near
a protected area is permitted if there is a national security threat; an imminent risk of death, violence, or
physical harm to a person; a hot pursuit of a person who poses a public safety threat or unlawfully crossed
the border; an imminent risk of destruction of evidence material to a criminal case; or if a safe alternative
location for enforcement does not exist. Absent these circumstances, an enforcement action at or near a
protected area requires prior supervisory approval.
ICE also currently restricts enforcement actions at or near courthouses unless there is a national security
threat; an imminent risk of death, violence, or physical harm to any person; a hot pursuit of a person
posing a threat to public safety; or imminent risk of destruction of evidence material to a criminal case.
Alternatively, an enforcement action may be taken at or near a courthouse against a person who poses a
threat to public safety if a safe alternative location for such action does not exist or is impracticable, and
the action has been approved by a supervisory official.
Immigration-Related Arrest and Detention Process
DHS regulations provide that, upon an arrest (with or without an ICE warrant), the immigration officer
must promptly identify himself if it is practical and safe to do so, and inform the alien of the reason for
the arrest. If the arrested individual claims to be a U.S. citizen, ICE guidelines require the immigration
officer to assess any evidence of citizenship before taking that individual into custody. Before transporting
the alien to an ICE facility, the officer may search the alien “as thoroughly as circumstances permit.” The
alien must be transported “in a manner that ensures the safety of the persons being transported,” and the
alien “shall not be handcuffed to the frame or any part of the moving vehicle or an object in the moving
vehicle,” or left unattended during transport.
Typically, an alien arrested under an ICE warrant is taken into custody pending removal proceedings. At
any time during those proceedings, ICE may decide to release the alien (but in some cases, such as when
aliens have committed specified crimes, detention is mandatory). If an alien is arrested without an ICE
warrant, DHS regulations require the alien to first be “examined by an officer other than the arresting
officer,” unless no other qualified immigration officer is “readily available.” If the examining officer
determines there is sufficient evidence that the alien has committed an immigration violation, the alien is
to be issued an NTA and placed in removal proceedings. ICE must decide within 48 hours of a
warrantless arrest whether to issue an NTA and whether to keep the alien detained. In “an emergency or
other extraordinary circumstance,” the regulations permit ICE to exceed the 48-hour time limitation and
make its charging and custody determinations “within an additional reasonable period of time.”
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If an alien is placed in formal removal proceedings and then issued a final order of removal, the alien is
generally subject to detention pending efforts to secure removal (though aliens usually must be released
from custody if removal is not effectuated within a certain period). If the alien is not in ICE’s physical
custody, the agency will typically issue a “Bag and Baggage” letter directing the alien to report to ICE so
removal may be effectuated. If the alien fails to surrender, ICE may arrest the alien under an
administrative Warrant of Removal. An administrative warrant does not confer authority to enter a home
or private area. The immigration officer’s ability to arrest the alien may also be restricted by ICE’s
“protected areas” policy.
Routine Questioning and Brief Investigative Detentions
ICE also has authority to conduct interrogations and brief detentions as part of an investigation into
possible immigration violations. INA § 287(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.” The exercise of this authority is subject to constraint under the Fourth Amendment. The
Supreme Court has declared that law enforcement officers do not violate the Fourth Amendment by
merely questioning individuals in public places. Therefore, in INS v. Delgado, the Court held that
immigration officers did not violate the Fourth Amendment by entering factory buildings (which the
Court treated as “public places” because the officers had acted on either a warrant or the employer’s
consent) and questioning employees about their citizenship, even if there were armed officers stationed
near the exit doors. The Court reasoned that the questioning was “nothing more than a brief encounter”
that did not prevent the employees from going about their business.
The Supreme Court, however, has long held that certain, more intrusive encounters that do not rise to the
level of an arrest, such as a brief detention or “stop and frisk,” may be justified only if there is reasonable
suspicion that a crime is afoot. This standard, lower than the probable cause threshold for an arrest,
requires specific, articulable facts—rather than a mere hunch—that reasonably warrant suspicion of
unlawful activity. The Supreme Court has applied this standard to immigration-related detentions. For
example, in United States v. Brignoni-Ponce, the Court held that random automobile stops near the border
to question the occupants about their immigration status require reasonable suspicion that the occupants
are aliens who may be unlawfully present in the United States. (Conversely, in INS v. Delgado,
immigration authorities did not require any individualized suspicion to question factory employees
because they were not being detained.)
The Supreme Court has not decided, more generally, whether immigration authorities may briefly detain
individuals solely on a reasonable suspicion that they are aliens, absent reasonable suspicion of their
unlawful presence. Some lower courts, however, 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. Some courts have held that the officer may not rely
solely on “generalizations,” such as an individual’s appearance, ethnicity, or inability to speak English, to
establish reasonable suspicion.
Reflecting some of these Fourth Amendment constraints, DHS regulations provide that an immigration
officer may question an individual so long as the officer “does not restrain the freedom of an individual,
not under arrest, to walk away.” An immigration officer may “briefly detain” an individual for
questioning only if there is reasonable suspicion that the person is “engaged in an offense against the
United States or is an alien illegally in the United States.” The information obtained from the immigration
officer’s questioning “may provide the basis for a subsequent arrest” (e.g., if the immigration officer
forms probable cause that the alien is unlawfully present in the United States).
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Worksite Inspections
ICE also has statutory authority to conduct worksite inspections to enforce federal immigration laws on
the employment of aliens. Under INA § 274A, it is unlawful for “a person or other entity” knowingly to
employ an “unauthorized alien,” defined as an alien who is not lawfully admitted for permanent residence
or otherwise authorized to be employed in the United States. The statute requires an employer to complete
a Form I-9 attesting that a person hired for employment is not an unauthorized alien. The employer must
also retain the I-9 form for inspection for three years after the hiring. DHS regulations allow ICE to
conduct the inspection at the employer’s place of business with at least three business days’ notice. I-9
site inspections do not require an administrative or judicial warrant, or probable cause of an immigration
violation. Under DHS regulations, ICE may conduct a worksite inspection so long as there is reasonable
suspicion that there are aliens at the site who are “illegally in the United States” or “engaged in
unauthorized employment.”
Mirroring the Fourth Amendment’s restrictions, DHS regulations provide that an immigration officer
conducting an inspection may not enter the non-public areas of a business, a residence, a farm, or other
outdoor agricultural operation (excluding private lands near the border) to question the occupants or
employees about their immigration status in the absence of a judicial 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. As noted above, the Supreme Court in
INS v. Delgado held that immigration officers who had legally entered worksites could briefly question
employees about their citizenship as long as the employees were not restrained. Some lower courts have
ruled that detaining employees during such questioning, without permitting them to leave, is
unconstitutional absent reasonable suspicion.
In 2021, DHS Secretary Alejandro Mayorkas directed ICE to cease “mass worksite operations” (which
may result in the arrest of hundreds of workers simultaneously), and to refocus its workplace enforcement
efforts on “unscrupulous employers who exploit the vulnerability of undocumented workers.”
Congressional Activity
Legislative proposals have been introduced in the 117th Congress concerning ICE’s conduct of
immigration enforcement actions. Some bills would constrain immigration enforcement activities. For
example, the Protecting Sensitive Locations Act (H.R. 529) would codify ICE’s current “protected areas”
policy and expand areas where the agency may not engage in enforcement actions, to include, for
instance, law offices, public assistance offices, Social Security offices, and congressional district offices.
The New Way Forward Act (H.R. 536) and the Dignity for Detained Immigrants Act (S. 1186) would
restrict ICE’s ability to indefinitely detain aliens placed in removal proceedings and require the release
from custody of “vulnerable persons” (e.g., persons over 60 years of age, pregnant women, crime victims,
aliens found to have a credible fear of persecution) and “primary caregivers” (e.g., a parent or close
relative caring for or traveling with a child). In addition, the New Way Forward Act would require ICE to
establish Alternatives to Detention programs, limit the time period in which ICE may commence formal
removal proceedings, and prohibit state and local authorities from engaging or assisting in immigration
enforcement functions. Similarly, the PROTECT Immigration Act (S. 1336) would bar ICE from entering
into agreements with state and local authorities to enforce federal immigration laws.
Other legislative proposals would expand ICE’s immigration enforcement powers. For instance, the
Criminal Alien Gang Member Removal Act (S. 1056) and the Protecting Our Communities from Gang
Violence Act (H.R. 1995) would broaden the classes of aliens who would be subject to removal or
mandatory detention (e.g., aliens associated with criminal gangs). Another bill, the Empowering Law
Enforcement Act (S. 1582), would give state and local law enforcement officials some immigration
enforcement powers and permit ICE to extend the detention of aliens who committed certain crimes.
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Author Information
Hillel R. Smith
Legislative Attorney
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