The Role of ICE and the Limits of Civil Enforcement Authority

Understanding immigration enforcement powers and the legal boundaries that protect due process

Engage For Democracy | June 11, 2025

✏️ Update Notice — June 20, 2025
This explainer has been updated to clarify key constitutional limits on ICE authority, especially regarding U.S. citizens. New sections address ICE's lack of criminal enforcement power, First Amendment protections during public observations of enforcement activity, and the civil liability framework for federal overreach. We have also added analysis of an emerging tactic in which ICE reportedly dismisses immigration court cases to facilitate immediate detention, a practice that, while authorized, raises additional constitutional due process concerns. All additions are footnoted and marked (Updated June 20, 2025) where relevant.

✏️ Editor’s Note:

In the wake of recent events, understanding the federal role of U.S. Immigration and Customs Enforcement (ICE) in immigration enforcement—and what the agency is and is not authorized to do—is critical to safeguarding due process, equal protection, and the rule of law. This explainer breaks down ICE’s civil enforcement authority and the constitutional limits that govern its actions.

In upcoming editions, we’ll release companion explainers on:

• The Right to Peaceful Protest and First Amendment Protections, and

• The Role, Authority, and Constitutional Limits of the President of the United States.

This is the first in a three-part explainer series that will culminate in a special edition focused solely on the civic actions we can take in response to the constitutional crossroads we face—where immigration enforcement, protest rights, and presidential authority now intersect.

Engage For Democracy exists to help connect the dots between what is legal, what is happening, and what is possible. Understanding the law is the first step toward changing it.

📜 The Mission and Legal Foundation of the U.S. Immigration and Customs Enforcement (ICE) Agency

🎯 Key Takeaway: Immigration enforcement is civil, not criminal law. This means different constitutional protections apply, but fundamental rights like due process still govern all ICE actions.

U.S. Immigration and Customs Enforcement (ICE) is a sub-agency of the Department of Homeland Security (DHS), created by the Homeland Security Act of 2002 (Pub. L. No. 107–296, § 442(a)(2), codified at 6 U.S.C. § 251).¹

ICE's mission is to enforce federal laws related to border control, customs, trade, and immigration to promote homeland security and public safety. Within ICE, the Enforcement and Removal Operations (ERO) division is responsible for identifying, arresting, detaining, and removing individuals subject to removal (formerly deportation) under U.S. immigration law.²

🔍 Note on Terminology: U.S. immigration law previously distinguished between exclusion (denial of entry) and deportation (removal from within the U.S.). Since 1996, both processes have been unified under the term removal. This explainer uses "removal" except when referencing historical legal terms or quoted statutes.

🔍 Critical Distinction: Civil vs. Criminal Enforcement

Immigration enforcement is civil, not criminal.³ This means:

• ICE detention is administrative custody, not criminal incarceration

• No right to a public defender (though individuals may hire private attorneys)

• Different constitutional protections apply than in criminal cases

• ICE cannot criminally prosecute - only immigration courts can order removal

• Violations of immigration law are civil infractions, not crimes (unless involving fraud or other criminal conduct)

• ICE agents cannot criminally prosecute individuals or enforce criminal law independently—they must coordinate with the Department of Justice for any criminal enforcement actions. (Updated June 20, 2025)

📜 Legal Authorities Governing ICE

The two key areas we'll cover in this overview are the agency's Detention and Enforcement Authorities and limits to those authorities.

I. Detention Authority

Pre-Removal Detention (8 U.S.C. § 1226)⁴

What it is: Detention WHILE an individual's immigration case is being decided in court

How long: Can last months or even years

Protection: Individuals detained for over 6 months may be entitled to a bond hearing, depending on the circumstances.

While the Ninth Circuit required these under Rodriguez v. Robbins, the Supreme Court in Jennings v. Rodriguez held that the law does not mandate such hearings—but constitutional challenges may still succeed on a case-by-case basis.

The Jennings decision rejected the statutory interpretation route to bond hearings but explicitly left the constitutional question open, remanding the case for lower courts to consider whether prolonged detention without hearings violates due process rights. This means individual detainees can still challenge prolonged detention on constitutional grounds, even without a statutory right to hearings.⁵

At the bond hearing:

• The government must prove by "clear and convincing evidence" that the individual is either a flight risk or a danger to the community⁶

• If they can't prove this, the person must be released (usually with conditions like check-ins or GPS monitoring)

• Additional bond hearings are required every 6 months if the person remains detained⁷

Post-Removal Detention (8 U.S.C. § 1231)⁸

What it is: Detention AFTER a judge has ordered the person's removal

The 90-day rule: ICE has 90 days to actually remove the individual from the country⁹

Protection: If removal becomes impossible or unlikely, the person cannot be held longer than 6 months total¹⁰

🔍 Key Limits on Removal:

• No removal to persecution: ICE cannot deport someone to a country where their life or freedom would be threatened based on race, religion, nationality, political opinion, or membership in a particular social group (8 U.S.C. § 1231(b)(3))¹¹

• No removal to torture: ICE cannot deport someone to a country where there are substantial grounds to believe they would be tortured (Convention Against Torture)¹²

• No indefinite detention: If removal isn't "reasonably foreseeable," continued detention violates due process¹³

What "impossible removal" means: The person's home country won't take them back; no country will accept the individual; there are no diplomatic relations with their country; removal would violate non-refoulement protections (non-refoulement is the prohibition against forcing a refugee or asylum seeker to return to a country where they are likely to face persecution)¹⁴; or other circumstances make removal not "reasonably foreseeable."

II. Enforcement Authority

8 U.S.C. § 1357 (INA § 287) – Search, Arrest, and Interrogation Powers

Grants ICE agents broad enforcement powers, but these are constrained by constitutional protections and geographic limitations.

What ICE Can Do:

• Interrogate any person "believed to be an alien" about their right to be in the U.S. (§ 1357(a)(1))

• Arrest without warrant if they witness someone entering illegally or have reason to believe someone is unlawfully present and likely to escape (§ 1357(a)(2))

• Search vehicles and vessels within a "reasonable distance" from any external boundary (including airports and seaports) (§ 1357(a)(3))

• Access private lands (but not dwellings) within 25 miles of any external boundary for border patrol (§ 1357(a)(3))

• Make arrests for immigration-related felonies and other federal offenses under specific circumstances (§ 1357(a)(4)-(5))

🔍 Key Constitutional Limits:

• No racial profiling: The "believed to be an alien" standard cannot be based solely on race, ethnicity, accent, or appearance¹⁵

• The First Amendment protects the right of individuals, including elected officials and concerned citizens, to observe and speak to law enforcement officers in public spaces, provided they do not physically interfere with an arrest or obstruct lawful duties.” (Updated June 20, 2025) [22]

• Fourth Amendment applies: All searches and seizures must be "reasonable" and based on articulable facts¹⁶

• U.S. citizens may bring civil rights claims against federal officers under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), if their constitutional rights are violated without lawful justification.” (Updated June 20, 2025) [21]

• 100-mile limitation: Enhanced search powers only apply within 100 miles of external boundaries (including the entire U.S. coastline, which encompasses major cities like New York, Los Angeles, and Miami, affecting roughly two-thirds of Americans) - beyond this zone, normal Fourth Amendment standards apply¹⁷

• Dwelling protection: Cannot enter homes or other dwellings without consent or a judicial warrant

• Agricultural worker protection: Cannot enter farm premises without owner consent or warrant (§ 1357(e))

The Complete ICE Process Timeline

1. ICE Arrest → Individual is detained (may or may not have an existing removal order)

2. Removal Proceedings → The case goes through immigration court (Pre-removal detention)

   • If detained 6+ months: Bond hearing may be required depending on jurisdiction and constitutional challenges

3. Final Removal Order → Judge orders the person's removal (or they have an old order)

4. 90-Day Removal Period → ICE tries to remove the individual (Post-removal detention begins)

5. Extended Detention → If removal isn't possible after 6 months total, the person must be released under supervision

Emerging Tactic: Dismiss-and-Detain

An emerging enforcement tactic has raised serious due process concerns: DHS attorneys are increasingly dismissing immigration cases in court, sometimes citing vague, unexplained terms like “improvidently issued”, and immediately detaining the individual outside the courtroom. In one well-documented case, an Afghan interpreter lawfully paroled into the U.S. was detained by ICE following such a dismissal, despite having an active asylum claim and no criminal record.¹⁸ Legal experts warn that this strategy, while not explicitly prohibited by regulation, may violate constitutional guarantees of fair notice, legal representation, and meaningful opportunity to be heard.¹⁹ (Updated June 20, 2025)

Summary

✅ ICE Is Authorized To:

• Arrest and detain individuals for violations of immigration law

• Hold individuals in civil (administrative) detention pending removal proceedings

• Conduct removal proceedings through immigration courts with due process protections

• Search vehicles and vessels within 100 miles of external U.S. boundaries

• Interrogate individuals believed to be in violation of immigration law (with constitutional limits)

• Deport individuals with final orders of removal—only after due process and screening for asylum or CAT eligibility

❌ ICE Is Not Authorized To:

• Enter homes or dwellings without consent or a judicial warrant (administrative warrants are insufficient)

• Conduct searches or interrogations based solely on race, ethnicity, accent, or appearance

• Punish or incarcerate noncitizens under criminal law (immigration detention is civil)

• Deport individuals to countries where they may face torture or persecution

• Detain individuals indefinitely without bond hearings (after 6 months) or judicial review

• Break into vehicles without constitutional justification (probable cause, exigent circumstances, or consent)

• Transfer deported individuals into foreign criminal custody without lawful extradition procedures

• Arrest U.S. citizens without probable cause of a criminal act and cannot enforce criminal law without coordination with the Department of Justice. (Updated June 20, 2025) [20]

What This Means in Plain Language:

• Individuals cannot be held indefinitely without court review

• Time limits exist even in immigration detention

• The government must justify continued detention after certain time periods

• Constitutional protections apply to all immigration enforcement

• Different rules apply depending on what stage of the process the person is in

ICE has a mandated role in immigration in the United States. ICE agents, like all federal employees, are public servants who have taken an oath to uphold the Constitution and are working to fulfill their agency's mission within a complex legal framework. Understanding both what the law authorizes and what it prohibits helps ensure that immigration enforcement serves its intended purpose while protecting the constitutional rights that safeguard all people in the United States.

📣 What You Can Do
Through civic engagement, Americans can both support and when necessary direct their elected representatives to continually ensure that the Constitution is adhered to. Contact civil rights organizations like the ACLU, Southern Poverty Law Center, National Immigration Law Center, or Campaign Legal Center. Encourage them to explore the apparent disconnect between ICE's authorizing legislation and the Constitutional protections for search and seizure and due process. (Updated June 20, 2025)

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📚 Footnotes

¹ Homeland Security Act of 2002, Pub. L. No. 107–296, § 442(a)(2), 116 Stat. 2135 (2002), codified at 6 U.S.C. § 251. https://www.dhs.gov/sites/default/files/2025-04/25_0315_HSA-2002-updated-through-Mar2025.pdf.pdf

² U.S. Immigration and Customs Enforcement. "Who We Are – Enforcement and Removal Operations (ERO). https://www.ice.gov/about-ice/ero

³ INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) ("A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry"). https://supreme.justia.com/cases/federal/us/468/1032/; Reno v. Flores, 507 U.S. 292, 306 (1993) (noting civil nature of immigration detention). https://supreme.justia.com/cases/federal/us/507/292/.

⁴ 8 U.S.C. § 1226 (INA § 236) - Apprehension and detention of aliens. https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-236

⁵ Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (holding that individuals in prolonged immigration detention were entitled to bond hearings after six months). This interpretation was later reversed by the Supreme Court in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), which held that the Immigration and Nationality Act does not guarantee periodic bond hearings during detention—but left open the possibility of constitutional challenges on due process grounds.

• https://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/28/13-56706.pdf

• https://www.aclu.org/sites/default/files/field_document/2015.12.11_rodriguez_advisory.pdf

• https://supreme.justia.com/cases/federal/us/583/15-1204/

⁶ Rodriguez v. Robbins, 804 F.3d 1060, 1086 (9th Cir. 2015) (government must prove by clear and convincing evidence that continued detention is justified). Ibid.

⁷ Rodriguez v. Robbins, 804 F.3d 1060, 1090 (9th Cir. 2015) (requiring periodic bond hearings every six months for prolonged detention). Ibid.

⁸ 8 U.S.C. § 1231 (INA § 241) - Detention and removal of aliens ordered removed. https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1231&num=0&edition=prelim

⁹ 8 U.S.C. § 1231(a)(1)(A) (90-day removal period begins when removal order becomes administratively final). Ibid.

¹⁰ Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (presumptively reasonable detention period of six months for post-removal order detention when removal is not reasonably foreseeable). https://supreme.justia.com/cases/federal/us/533/678/

¹¹ 8 U.S.C. § 1231(b)(3). https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1231&num=0&edition=prelim

¹² Convention Against Torture, implemented via 8 C.F.R. §§ 208.16–208.18. https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-208/subpart-A/section-208.18

¹³ Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (habeas corpus remains available to challenge unlawful detention). Ibid

¹⁴ Merriam-Webster, https://www.merriam-webster.com/dictionary/refoulement

¹⁵ United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975), https://supreme.justia.com/cases/federal/us/422/873/; (Mexican ancestry alone insufficient for reasonable suspicion); United States v. Martinez-Fuerte, 428 U.S. 543 (1976). https://supreme.justia.com/cases/federal/us/428/543/

¹⁶ Terry v. Ohio, 392 U.S. 1 (1968) (reasonable suspicion must be based on specific, articulable facts). https://supreme.justia.com/cases/federal/us/392/1/

¹⁷ 8 C.F.R. § 287.1(a)(2) (defining "reasonable distance" as 100 air miles from external boundary), https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-287?toc=1; United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Ibid

¹⁸ Madeleine May and Hannah Marr, “Afghan Ally Detained by ICE After Attending Immigration Court Hearing,” CBS News, June 17, 2025. https://www.cbsnews.com/news/afghan-interpreter-detained-ice-immigration-hearing-san-diego-2025/

¹⁹ See Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (due process applies to all persons in U.S. detention); see also discussion of procedural fairness and notice in Reno v. Flores, 507 U.S. 292, 306 (1993). https://supreme.justia.com/cases/federal/us/533/678/

20 Under 8 U.S.C. § 1357 (a), ICE officers have broad authority to interrogate, arrest, and detain noncitizens based on reasonable suspicion of unlawful presence, particularly if a person is believed to be a flight risk. Officers may also arrest individuals for certain immigration-related felonies and, under limited circumstances, for other federal offenses—but only if they are certified under Attorney General regulations, are performing immigration enforcement duties, and the arrest is either for a felony with probable cause or a crime committed in their presence. See 8 U.S.C. § 1357(a)(4)–(5); United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975) (detention must be based on articulable suspicion); Terry v. Ohio, 392 U.S. 1, 27 (1968) (establishing “reasonable suspicion” as constitutional minimum for seizures); 18 U.S.C. § 111 (federal criminal enforcement for obstruction or assault on officers requires DOJ prosecution). While ICE’s conduct may be deeply controversial, many enforcement actions—including courthouse arrests and surprise detentions—are legally authorized under current statutes, though they raise profound due process and ethical concerns.

21 Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971) (establishing that individuals may sue federal officers for damages when their constitutional rights are violated); see also Carlson v. Green, 446 U.S. 14, 18 (1980) (reaffirming availability of Bivens remedy for federal misconduct). https://supreme.justia.com/cases/federal/us/403/388/

22 See Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (affirming that recording public officials is protected by the First Amendment); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (citizens have a First Amendment right to record matters of public interest, including law enforcement); and Houston v. Hill, 482 U.S. 451, 462–63 (1987) (protecting verbal challenges to police as core First Amendment speech). This right is subject to reasonable time, place, and manner restrictions and may not include physically obstructive conduct. https://supreme.justia.com/cases/federal/us/482/451/

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Engage For Democracy explainers are curated through close analysis of primary legislative documents and expert sources, with research and editorial support from OpenAI's ChatGPT and Anthropic's Claude. All findings are independently reviewed and documented with verifiable citations. Engage For Democracy is a nonpartisan civic education project committed to constitutional accountability, the rule of law, and democratic norms. While every effort has been made to ensure accuracy, any inadvertent errors are mine alone.

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