In Justice Brett Kavanaugh’s telling, citizenship checks by ICE officers are as straightforward and frictionless as presenting yourself at the entrance to a Costco. Just show a membership card, and you’ll be on your merry way.
Kavanaugh wrote an opinion this week, concurring with the Court’s majority, that would afford Immigration and Customs Enforcement officers broad latitude to detain and question someone based on factors such as ethnic appearance, speaking Spanish, and speaking English with an accent. The risk that nonwhite Americans will be racially profiled or subject to unlawful detention should be weighed against the brevity of an encounter with ICE, Kavanaugh wrote.
“If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States, they promptly let the individual go,” he wrote.
The problem is that ICE does not say what it accepts as definitive proof of legal status. Is it a driver’s license? A green card? A folder of immigration documents? Donald Trump’s mass-deportation campaign has swept up U.S. citizens and permanent residents over the past several months, leaving some detained for days despite individuals presenting officers with evidence of their legal status.
Kavanaugh’s depiction of an immigration check shows “a fundamental misunderstanding about verification of citizenship,” John Sandweg, an attorney who served as the top official at ICE during part of Barack Obama’s first term, told me.
“There is no national database or birth registry,” Sandweg said. “There is no place for ICE to quickly check and do facial recognition. An officer’s not going to just take someone’s word for it if they have reasons to believe they’re in the country unlawfully.”
It can take days or weeks for ICE or someone’s attorney to track down their birth records, Sandweg added. “The idea that it’s going to be done in a Home Depot parking lot is ludicrous.”
The Supreme Court in Noem v. Vasquez Perdomo lifted a temporary restraining order from a District Court judge in July that barred U.S. authorities from using racial profiling to look for immigrants living illegally in Southern California. The ruling is not a final decision on the matter. But it has given the Supreme Court’s blessing—for now—to an enforcement model that allows ICE broad latitude to detain people based on appearance, without setting standards for officers to confirm legal residency as speedily as Kavanaugh envisions.
Jorge-Mario Cabrera, a spokesperson for the Coalition for Humane Immigrant Rights, one of the immigrant-advocacy groups in Los Angeles that joined the lawsuit, told me he has started carrying around a passport card for the first time in his life. The organization has reminded immigrants with Temporary Protected Status, Deferred Action for Childhood Arrivals, and other forms of provisional legal status to carry their documents at all times.
A naturalized citizen born in El Salvador, Cabrera described the Trump administration’s immigration blitz in Southern California as a “tornado” that scoops up everyone in its path.
“They come in, they sweep through, and they ask questions later, if they ask them at all,” Cabrera told me. “There is no world, as described by Justice Kavanaugh, where common sense and reason exist as federal agents conduct immigration sweeps.”
“The freedom and well-being of all of us who look Latino, who look immigrant, is in danger,” he said.
Several career ICE officials I spoke with said street-level ID checks remain “a gray area,” especially when they involve U.S. citizens, and are different from targeted operations that seek to arrest a specific person who, in many cases, has a criminal record and whose immigration status is known to officers before they arrive. Under Trump, ICE has aggressively increased the number of people swept up because they were in the same house or general area as the officers’ primary suspects, a practice known as “collateral arrests.”
“No one willingly arrests a USC, but it’s just not always obvious,” one senior ICE official told me, using the agency’s shorthand for a U.S. citizen. “Sometimes we need a whole team of attorneys to flush it out and do an analysis depending on when someone entered or the status of their parents.”
The official, who was not authorized to speak to reporters, said that ICE officers have long been trained to avoid lawsuits by quickly releasing U.S. citizens or other legal residents in their custody. But with the Trump administration demanding more and more arrests and deportations, ICE officers have now been told to err on the side of action, not caution.
“This administration would rather have you arrest the U.S. citizen and sort it out later,” the official told me.
I asked ICE’s Office of Public Affairs to explain the agency’s guidelines for officers attempting to verify the legal status of someone in custody. The DHS spokesperson Tricia McLaughlin sent an email in response stating that allegations of ICE officers engaging in racial profiling are “disgusting” and “categorically FALSE.”
“DHS enforcement operations are highly targeted, and officers do their due diligence,” she wrote. “We know who we are targeting ahead of time. If and when we do encounter individuals subject to arrest, our law enforcement is trained to ask a series of well-determined questions to determine status and removability.”
McLaughlin did not say which identification documents ICE officers accept as proof of legal status or citizenship.
The United States has no national ID card. Attempts to introduce one after the September 11 terrorist attacks were opposed by lawmakers from both parties concerned with privacy issues and the rise of a police state. The United States defined its freedoms during the 20th century in contrast to totalitarian regimes that controlled their subjects with national ID cards that police could demand at any time.
Immigrants who are permanent legal residents but not citizens are required to carry their green card, and others with temporary or provisional legal status must also carry proof of their identity. For U.S. citizens, it’s a gray area, because no law requires American-born or naturalized citizens to carry a government ID.
The U.S. passport remains the gold standard of identification documents, and ICE officials told me they would typically end a status check if a suspect presents a valid one. Passport books are bulky, however, and mostly remain an accessory of international travel. Only about half of the U.S. population even has a passport, according to the State Department. U.S. birth certificates, printed on paper and issued by states and counties, are even more impractical to carry around as proof of citizenship.
“You shouldn’t have to walk around with papers in the United States of America to prove that you belong,” Illinois Governor J. B. Pritzker, a Democrat, wrote on social media on Wednesday, blasting the Trump administration’s new immigration crackdown targeting Chicago, known as “Operation Midway Blitz.” Pritzker told NPR that he was especially worried about immigrants living in the country legally. “Nothing that they will carry will be good enough for ICE,” he said.
The plaintiffs in Southern California who sued the Trump administration alleged that the government had racially profiled them in violation of their Fourth Amendment protections against unreasonable search and seizure. Their lawsuit cited statements by the White House aide Stephen Miller, widely reported in the media, that ordered ICE officers to ramp up arrests by sweeping through Home Depot parking lots and other sites where laborers seek jobs.
Justice Sonia Sotomayor, who wrote a dissenting opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, said that Kavanaugh’s description of “brief stops for questioning” was inaccurate. She cited the recent case of a California man with dual Mexican and U.S. citizenship who was taken to an ICE detention center and held while officers ran a background check.
Kavanaugh’s decision, she said, “improperly shifts the burden onto an entire class of citizens to carry enough documentation to prove that they deserve to walk freely. The Constitution does not permit the creation of such a second-class citizenship status.”
I asked several career ICE officials why street-level status checks don’t immediately end when someone presents a government ID such as a driver’s license. Several noted that 19 states and the District of Columbia issue driver’s licenses to applicants who do not have to show proof of legal residency (although those licenses generally indicate that they are invalid for federal identification purposes).
ICE officers will typically run someone’s driver’s-license number or other identity documents through a DHS database of criminal records and immigration violations. This summer, officers began using an app called Mobile Fortify, which uses facial recognition and fingerprints to identify detainees in ICE custody. But it’s most useful for confirming the identity of recent border-crossers whose biometric information has been already collected by Customs and Border Protection.
Last month, 50 Democratic lawmakers sent a letter to the Department of Homeland Security’s internal-oversight agencies calling for an investigation into ICE arrests of U.S. citizens since Trump took office this January. The letter cited several cases, including one of a Lowe’s employee thrown to the ground and arrested by officers for allegedly throwing a punch at them, and another of a Chicago man seized outside a pizzeria and held for 10 hours.
The lawmakers asked DHS to disclose how often U.S. citizens have been arrested and what protocols were in place to prevent the practice. The internal-oversight agencies at DHS have not responded.
“If U.S. citizens have to start now carrying around their birth certificate or their passport in order to prove their own citizenship, rather than forcing law enforcement to have reasonable suspicion to believe that someone is not here legally, we’ve completely turned our law upside down,” Representative Dan Goldman, a Democrat from New York who was one of the letter’s main organizers, said. “There are no checks and balances on this ICE dragnet right now.”
Cecilia Wang, the ACLU’s national legal director, told me that attorneys are gathering a more complete record of citizens and others who have been harmed by discriminatory ICE detentions. The ACLU will pursue its claims at a September 24 hearing asking the district court for a preliminary injunction.
“It would be bad enough to require everyone, equally, to show their papers,” Wang told me. “But it’s even more pernicious, and there’s a separate constitutional harm, when the government singles out one race or ethnicity and requires them to prove their status.”
“The presumption that appearing to be Latino gives rise to suspicion that you’re in the United States unlawfully is really offensive, and that’s a premise behind Justice Kavanaugh’s concurring opinion,” she said. “And I just want to be really clear: That’s not the law.”
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