The Laws Propping Up Trump’s Masked Deportation Army

Under the law, ICE, CBP, and other immigration agents are generally empowered to warrantlessly question people about their right to remain in the United States and to arrest those who they have “reason to believe” are in violation of immigration laws, in cases where they believe the person is likely to escape before a warrant can be obtained—that is, a flight risk. Naturally, this does not override the Fourth Amendment, and what constitutes a reason for a stop or an arrest has been extensively litigated.

Most famously, in 1975, the Supreme Court issued a decision in U.S. v. Brignoni-Ponce, a case stemming from Border Patrol’s discovery that Puerto Rican–born Felix Brignoni-Ponce was transporting two undocumented immigrants, after it stopped them based largely on, as agents admitted, their “Mexican appearance.” The 9–0 majority opinion, written by Justice Lewis Powell Jr., ruled that it was unconstitutional for agents to use perceived race as a reasonable basis for a stop but then immediately defanged itself by allowing agents to consider a laundry list of factors in tandem, including “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.” In effect, SCOTUS gave the green light for racial profiling as long as it incorporated a variety of factors not limited to just race alone.

Emma Winger, deputy legal director at the American Immigration Council, said a lot of the very public operations seemed to ignore the flight risk requirement. “Someone who says, ‘Please don’t arrest me, my kids are at home.’ ‘Please don’t arrest me, I’m going to pick up my kids,’ or, ‘My wife will come,’ the sorts of things people say when they’re arrested, there are reasons to think this person, in fact, has community ties,” she said.