We Keep Expecting ICE to Behave Like Regular Law Enforcement — They Don't Need To

Here's what you need to know

Aug 15, 2025

I’m delighted to introduce you to my guest author this week — Lisa Joy, author of “Oh. About that…”

Lisa Joy lives in rural west-central Missouri with what she cheerfully calls a small zoo. Medically retired and — as she describes herself — "old enough to be highly opinionated", she divides her time between reading, writing, grandmothering, and letting her pets run her life. Most days it's the latter activity that takes the majority of her time.

Raised in fundamentalist Baptist churches and later immersed in Evangelical circles, in the 1990s Lisa Joy began to notice teaching that sought to replace the existing US government with Old Testament law. More than twenty years after stepping away from that movement, she now writes political commentary that examines issues in today’s system, warns against the rise of Christian nationalism, and calls for a return of accountability to the American people from US politics.

I first started listening to Lisa Joy's "Porch Thoughts" a couple of months ago, finding it a welcome and gentle respite from the endless news churn. Then I discovered she’s a fine writer, poet, and artist too. In this guest essay, she brings the kind of clarity that comes from digging into the fine print and testing assumptions against the facts. She examines what ICE is, how it operates, and the legal powers it really holds. She writes as someone who wants readers to see the system as it is, to understand where the lines of authority begin and end, and to recognise that knowing these boundaries is the first step in defending the rights we all share.

I’m honoured she’s written this piece for us, and proud to share her work with you in this space.

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A quick but important caveat — I’m not a lawyer, and nothing here is legal advice. I wrote this because many people seem to expect ICE to operate like regular law enforcement, and when they don’t, it catches people off guard. I wanted to look more closely at how they’re structured, the powers they have, and how those powers are used. If you’re dealing with immigration issues, or thinking about civil disobedience that could lead to criminal charges, talk to an attorney to protect yourself. And to borrow from a very good video on “what to do when the police show up,” the best advice is simple: “Shut the f*** up.”

I was inspired to write this after watching a quick video by an attorney explaining this information. Much of how people in the US view law enforcement is gleaned from movies and television shows we watch (like Law & Order, etc.). We keep asking for badges, identification, etc., but because ICE was created after 9/11 as part of a broader national security reorganisation — and not structured in quite the same way civil police organisations are — they operate under different rules. They don’t always require judicial warrants, and are (like all law enforcement agencies, actually) allowed to use ruses to mislead people into giving up what rights they do have. ICE agents are not required to give immigration detainees Miranda warnings prior to questioning in civil immigration proceedings — that alone should make people stop for a moment and realise their expectations of ICE are probably inaccurate.

ICE is actually made up of two groups. Homeland Security Investigations (HSI) are federal law enforcement officers who investigate crimes like smuggling, human trafficking, money laundering, arms smuggling, etc., and often participate in joint taskforce operations with the FBI. The priority of Enforcement and Removal Operations (ERO) is to focus on individuals who present a threat to national security, community safety, or border security, and they are a civil, not criminal enforcement arm. Most of what people are seeing and condemning are the enforcement behaviour of the ERO arm of ICE. The HSI and ERO divisions are supported themselves by the Office of the Principal Legal Advisor (OPLA), whose attorneys represent the agency in immigration court, and the Office of Professional Responsibility (OPR), which investigates alleged misconduct claims against ICE agents.

The Immigration and Nationality Act (INA) was first passed in 1952, and was codified in Title 8 of the US Code. It is the fundamental body of US immigration law, and grants the executive branch, and by delegation, ICE, statutory authority to enforce immigration law. ICE is responsible for the enforcement of more than 400 statutes. Sections 1226 and 1357 allow officers to question individuals about their immigration status, make arrests with or without warrants, detain individuals, and carry out removal orders.

One way to look at ICE enforcement is kind of like a ladder, with each step requiring better evidence than the last. They are allowed to stop and question anyone in public regarding their immigration status without suspicion if the encounter is voluntary. But if they detain someone — meaning the person is not free to leave — they must have reasonable suspicion of wrongdoing. The standard is that there must be “specific, articulable facts,” not just a guess, but the requirement is subjective and often argued in court.

Recently, ICE was served with two restraining orders in the US District Court of California because they were very likely racially profiling people for questioning and detention. Judge Maame Ewusi-Mensah Frimpong ruled that DHS may not target individuals based on race or ethnicity, including speaking Spanish or English with an accent, presence in specific locations or where they are working. She also ruled DHS must provide access to attorneys for people who are detained.

The same reasonable suspicion standard applies to stopping vehicles. Agents are required to have facts as to why they believed the vehicle might contain undocumented immigrants in order to stop it. They can cite location, time of day, or behaviour of occupants, but they cannot stop it for the appearance of the occupants of the vehicle alone.

The INA gives ICE the power to make arrests without a warrant if the agent has reason to believe the detainee “might escape” before a warrant may be obtained. There are also ICE officials who may write administrative warrants without a judge’s approval, such as form I-200, which require that an agent have “probable cause” to believe that the subject of the warrant is subject to removal from the US. This is the next step up the ladder — their questioning has led them to believe that they have a reason to apprehend the person because they are in violation of immigration law.

This means DHS and ICE agents have rather broad powers when it comes to apprehending people who might be in the US without permission, either having come in undocumented or overstayed a visa, etc.

There are some limitations on their power, though. The fifth amendment does cover immigration detainees — a person taken into custody does not have to answer questions. However, US law also requires all immigrants over 18 to produce immigration documentation when asked, so it has to be provided if requested. The fourth and fifth amendments prohibit racial profiling, though it has been rather obvious that the administration is very likely tripping over that line rather frequently (as shown by the restraining orders mentioned above).

People in immigration court (civil) also are allowed to consult with an attorney, but unlike in criminal cases, the attorney must be hired at the expense of the immigrant. There are pro bono legal attorneys out there, but the US government is not required to provide an attorney for someone in immigration proceedings (boy that bugs me, especially when I think of the young children who have no guardian ad litem to help them through the process). If someone is arrested on criminal charges, though, the US government is required to provide an attorney for the defendant if they cannot afford one.

ICE cannot enter private property without consent or a judicial warrant. Please be aware of this. They are allowed to use a ruse to lure a suspected undocumented immigrant outside, though, where they then have the power to detain them. They are also allowed to mislead you with a civil warrant (Form I-200 as an example) and let you assume it is a judicial warrant. You might want to learn how to determine judicial warrants and what they look like if you expect to deal with this. If you have undocumented immigrants on your property, do not allow ICE on your property without a judicial warrant. An administrative warrant only gives them the power to arrest someone outside of private property. They may examine your property, person and vehicle with permission, and may also search your vehicle without your permission and without a warrant if they have “probable cause” to believe that it might contain contraband, etc.

Following arrest, they are also allowed to search the suspect and the surrounding area for officer safety and to prevent destruction of evidence. As far as I can tell from my research, ICE agents are allowed to use “reasonable force” to ensure “public safety.” Personally, many of the videos I have seen suggest that they are pretty cavalier about what they consider reasonable force. ICE policy requires agents to carry identification during most operations, but that doesn’t always mean they will show it when asked — which may explain why people’s demands to see badges often get ignored.

One thing many US citizens who want to be more involved need to know is that there are penalties if we interfere with an ICE arrest or hide immigrants who might be being targeted for arrest, up to and including felonies. However, you are allowed to record (including video) arrests in public (or on your private property, if that happens), and it is probably a good idea to do it if you happen to be where an arrest is taking place. Recently a US citizen was apprehended with migrants, and their video recorded ICE agents discussing the thousands of dollars in bonuses they would be getting for the videoed apprehension. The citizen was assured they had no rights (my guess is that ICE didn’t realise they were a citizen; but even immigrants and visitors have some constitutional protections in the US). Please realise if you choose to harbour immigrants for their safety you are risking charges including Obstruction of Justice, Aiding and Abetting, and Harbouring a Fugitive if you choose these acts of civil disobedience.

Researching this has led me to realise that the Executive Order by Trump allowing civil commitment for homeless people has broader implications than I originally realised, because civil commitment, like most immigration court, is civil and not criminal in proceedings, so the rights you have in criminal proceedings don’t necessarily follow if you are apprehended for civil charges. Now, if it is civil contempt, which includes possible jail time, then, once again, criminal rights begin (just like if there are criminal charges along with immigration charges), and you have to be given an attorney if you cannot afford one, etc. But in the case of civil commitment alone, you have to provide your attorney. Since there are established 14th amendment issues in civil commitment that I think he mentioned briefly in his Executive Order, I decided that will need deeper research and its own article. Good news on the homeless, though — if you happen to decide to help a homeless person get off the street, you aren’t at risk of federal charges for doing so.

As the US invests billions into ICE, ICE detention, and works hard to strongarm law enforcement to cooperate in immigration enforcement, we need to be aware of the limitations of their authority, and our rights in these areas so we can do our best to advocate for innocent people doing their best to provide for their families. We also need to understand the process so we can advocate for improvements in an immigration system both parties have considered broken for years. As much as the current ICE enforcement push upsets us, I hope that the current crisis gives us the clarity and understanding to improve the process in the future, making it more streamlined, more transparent, and more humane.

We Keep Expecting ICE to Behave Like Regular Law Enforcement — They Don't Need To

Here's what you need to know

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