In an outrageous expansion of its authority, US Immigration and Customs Enforcement (ICE) is now authorizing its agents to arrest anyone they suspect of being undocumented, even if the officers do not have a warrant and the person is not a flight risk.
The directive, contained in a memo obtained by the New York Times, reverses long-standing ICE policy and effectively renders the warrant requirement itself empty.
Coming on the heels of another legally indefensible memo, which purported to allow ICE agents to enter the homes of suspected undocumented people without a judicial warrant, the new policy shows that ICE is not just exploiting legal loopholes to create massive sweeps. Instead, it reveals an agency actively attempting to change the legal landscape to turn itself into an all-powerful police force.
Federal law permits ICE to make warrantless arrests under only two circumstances. The first is when an agent sees someone actively crossing the border illegally. That scenario is not relevant to the current ICE sweeps, which take place in cities far from the border.
The second situation in which the law allows a warrantless arrest, the one addressed by the new memo, is if an ICE officer “has reason to believe” that someone is in the US without legal authority and “is likely to escape before a warrant can be obtained for his arrest.”
As even ICE has been forced to acknowledge, the phrase “reason to believe” in the statute means that the agent must have probable cause to think that the person is undocumented. That standard, borrowed from the context of criminal arrest, appears protective of individual rights.
However, in a decision in its emergency docket in September last year, the US Supreme Court disastrously eroded this protection by allowing street stops based merely on “reasonable suspicion” — a standard lower than probable cause. A solo opinion by US Supreme Court Justice Brett Kavanaugh then extended reasonable suspicion to include factors like appearing Latino and speaking Spanish.
That brings us to the new memo, which addresses whether ICE agents can then arrest the person who has been stopped. Until now, it has been the long-standing practice of ICE to permit warrantless arrests only when the officers determined that the person stopped was a flight risk, meaning that they would be unlikely to show up for a court hearing.
Until now, ICE has acknowledged that this rule was required by the statute’s demand that someone be “likely to escape” before they can be arrested without a warrant. In practice, that made it relatively unusual for ICE agents to carry out a warrantless arrest.
The new memo fundamentally transforms the meaning of the words “likely to escape.” It claims that a person who has been stopped is likely to escape if they are “unlikely to be located at the scene of the encounter” by the time an arrest warrant could be obtained. Since just about anyone would walk away from an ICE arrest if they could (at least under current circumstances), it follows from this interpretation that anyone stopped by ICE is “likely to escape” — and thus may be subjected to warrantless arrest.
The memo says that ICE’s previous position about the meaning of the statute was “unreasoned” and “incorrect,” but it is the new interpretation that is unreasoned and incorrect. Based on ICE’s interpretation, there would be no reason to ever require the issuance of a warrant, given that ICE agents can, under the new theory, effectively arrest anyone who would not stick around once stopped. Put another way, ICE’s new interpretation turns the statute into a dead letter.
I realize all these legal technical details are a lot. So let me put it simply: Under the new memo, ICE agents can detain anyone they think might be undocumented, based on factors such as ethnic appearance, language and where you happen to be when they stop you. Once they have stopped you, they can claim to have probable cause that you are undocumented (for example, because you do not have proof of citizenship on you). Then the officers can simply arrest you, without a warrant. The total package amounts to a sweeping authorization for ICE agents to roam the streets, grab just about anyone they want, arrest and detain them.
Such proceedings are plainly unlawful under the legal regime that is supposed to apply. The warrant requirement for an ICE arrest, established by statute, is meant to function as a protection against exactly the kind of massive, non-specific sweeps ICE is now performing. Similarly, the requirement of a judicial warrant before entering a home is a foundational safeguard of individual liberty.
The good news about ICE’s attempts to get around the law is that they would come before the courts. The courts should affirm that the statute means what it says: “Likely to escape” means that ICE cannot arrest a person without a warrant unless they are a flight risk. Judicial interpretation of federal law is a cornerstone of preserving the rule of law itself. ICE’s actions are terrifying, and meant to be, but the law remains one of the tools that can be used to resist a descent into a police state.
Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University. This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
In the first year of his second term, US President Donald Trump continued to shake the foundations of the liberal international order to realize his “America first” policy. However, amid an atmosphere of uncertainty and unpredictability, the Trump administration brought some clarity to its policy toward Taiwan. As expected, bilateral trade emerged as a major priority for the new Trump administration. To secure a favorable trade deal with Taiwan, it adopted a two-pronged strategy: First, Trump accused Taiwan of “stealing” chip business from the US, indicating that if Taipei did not address Washington’s concerns in this strategic sector, it could revisit its Taiwan
The Chinese Communist Party (CCP) challenges and ignores the international rules-based order by violating Taiwanese airspace using a high-flying drone: This incident is a multi-layered challenge, including a lawfare challenge against the First Island Chain, the US, and the world. The People’s Liberation Army (PLA) defines lawfare as “controlling the enemy through the law or using the law to constrain the enemy.” Chen Yu-cheng (陳育正), an associate professor at the Graduate Institute of China Military Affairs Studies, at Taiwan’s Fu Hsing Kang College (National Defense University), argues the PLA uses lawfare to create a precedent and a new de facto legal
Chile has elected a new government that has the opportunity to take a fresh look at some key aspects of foreign economic policy, mainly a greater focus on Asia, including Taiwan. Still, in the great scheme of things, Chile is a small nation in Latin America, compared with giants such as Brazil and Mexico, or other major markets such as Colombia and Argentina. So why should Taiwan pay much attention to the new administration? Because the victory of Chilean president-elect Jose Antonio Kast, a right-of-center politician, can be seen as confirming that the continent is undergoing one of its periodic political shifts,
The stocks of rare earth companies soared on Monday following news that the Trump administration had taken a 10 percent stake in Oklahoma mining and magnet company USA Rare Earth Inc. Such is the visible benefit enjoyed by the growing number of firms that count Uncle Sam as a shareholder. Yet recent events surrounding perhaps what is the most well-known state-picked champion, Intel Corp, exposed a major unseen cost of the federal government’s unprecedented intervention in private business: the distortion of capital markets that have underpinned US growth and innovation since its founding. Prior to Intel’s Jan. 22 call with analysts
RSS