ICE’s Enforcement and Removal Operations branch has primary responsibility for immigration enforcement in the interior of the U.S., which includes “the identification, arrest, detention, and removal of deportable aliens.”
The specific policies of Immigration and Customs Enforcement change whenever a new president is in the White House, but the statutory enforcement provisions have remained relative stable since the enactment of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.
Reuters reporters Ted Hesson and Kristina Cooke claim that the changes under the current administration are due to White House demands to increase daily arrest statistics. The White House announced recently that it wants Enforcement and Removal Operations to triple the average number of daily arrests — an increase from 1,000 to 3,000.
The reporters claim that community members and Democrats are pushing back against the administration’s focus on increasing arrests, “arguing that ICE is targeting people indiscriminately and stoking fear.” But is this really the problem, or is it that the current administration’s policy is to arrest anyone found in the U.S. illegally?
The previous administration’s policy was to limit enforcement to aliens “who pose a threat to national security, public safety, and border security and thus threaten America’s well-being.” It would be more appropriate, however, to judge ICE on the basis of whether officers are complying with the statutory enforcement restrictions — and I suspect that few people know what these restrictions are.
ICE Enforcement and Removal Operations enforcement authority comes primarily from two sections in the Immigration and Nationality Act.
Section 1226 provides that, upon issuance of an administrative arrest warrant, an ICE Enforcement and Removal Operations officer may arrest and detain an alien “pending a decision on whether the alien is to be removed from the United States.” Administrative arrest warrants are issued by officers.
It also provides that an illegal immigrant can be released on a bond of at least $1,500, or on his own recognizance. Some criminal aliens are subject to mandatory detention.
Section 1357 provides authority for officers to act without a warrant in specified situations. For example, an officer can question any “person believed to be an alien as to his right to be or to remain in the United States.” Section 1304(e) requires aliens 18 years of age and over to carry specified immigration documents with them at all times.
An Enforcement and Removal Operations officer can “arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law.”
And perhaps the most controversial one is that officers can arrest any alien they have “reason to believe” is in the United States unlawfully “and is likely to escape before a warrant can be obtained for his arrest.”
The Fourth Amendment, meanwhile, provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A search is considered “unreasonable” if there was a reasonable expectation of privacy in the area searched. A “reasonable expectation of privacy” means that there is an actual (subjective) expectation of privacy, and the expectation is “one that society recognizes as (objectively) reasonable.”
Consequently, immigration officers are required to obtain consent or to have a judicial warrant to enter spaces that are “not open to the public, including homes, schools, and areas labeled ‘private.’” But Enforcement and Removal Operations officers do not need a warrant or consent to enter areas that are open to the public. Judicial warrants are issued by judges, not by ICE officers.
Section 1357(g), also known as 287(g), permits the secretary of the Department of Homeland Security to enter into a written agreement authorizing state or local law enforcement officers “to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States.”
ICE operates three programs with these agreements. The first is a Jail Enforcement Model “to identify and process removable aliens — with criminal or pending criminal charges — who are arrested by state or local law enforcement agencies.”
The second is a Task Force Model, “a force multiplier for law enforcement agencies to enforce limited immigration authority with ICE oversight during their routine police duties.” The third is a Warrant Service Officer program that “allows ICE to train, certify and authorize state and local law enforcement officers to serve and execute administrative warrants on aliens in their agency’s jail.”
DHS regulations govern the use of force. They provide that non-deadly force may be used when an ICE officer has a reasonable basis for believing that such force is necessary.
“Deadly force” is defined as “force that is likely to cause death or serious physical injury.” This is only permitted when an ICE officer “has reasonable grounds to believe that such force is necessary to protect the … officer or other persons from the imminent danger of death or serious physical injury.”
I think the concern over the White House’s call for Enforcement and Removal Operations to triple the daily arrest statistics is overstated. The administration is preparing appropriately to be able to handle the increase. It is going to hire 10,000 new ICE officers, in addition to a major increase in agreements with local authorities. As of April 2025, the administration had increased the program from 151 to 456 agreements.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
