ICE has been given orders that critics say grant them the power to arrest “anyone they want,” according to an internal memo.
The memo, obtained by The New York Times, was sent by acting Immigration and Customs Enforcement director Todd M. Lyons to all ICE personnel on Jan. 28, granting lower-level ICE agents the power to determine for themselves if they want to arrest someone they suspect of being an illegal immigrant without a warrant.
The new powers stand in stark contrast to President Trump’s public comments about “de-escalating” the situation in Minnesota, where ICE and Border Patrol officers have faced fierce opposition after federal agents killed two U.S. citizens protesting ICE in January.
The memo also stands in contrast to Border Czar Tom Homan’s announcement that he was working on a “drawdown plan” to scale back ICE activities in the state.
The new directive centers on a broad interpretation of a federal law that grants an immigration officer the power to arrest someone suspected of being an illegal immigrant without a warrant “if he has reason to believe that the alien so arrested… is likely to escape before a warrant can be obtained for his arrest.”
The law has long been interpreted as giving ICE the power to arrest an illegal immigrant without a warrant if the subject is considered a “flight risk,” meaning the arrested person could flee capture before a warrant is obtained.
But the new guidelines say an agent can arrest an individual if the agent thinks the person could resist arrest as soon as he comes in contact with them.
“The word ‘escape’ indicates immediacy, and the plain meaning of the word is ‘to get away as by flight,’” reads Lyons’ memo. “Whether an alien is likely to remain at the scene of the encounter is based on the totality of the circumstances known to the immigration officer at the time of the encounter and prior to the arrest.”
Lyons lays out that ICE can consider someone likely to “escape” if the subject of their arrest “refuses to obey lawful commands,” is in a vehicle that they could drive away, is in good health, or is in “possession of identity or work authorization documents that the immigration officer suspects are fraudulent.”
Claire Trickler-McNulty, a former senior adviser at ICE, told the Times that the new definition is “an extremely broad interpretation of the term ‘escape.’”
She added, “It would cover essentially anyone they want to arrest without a warrant, making the general premise of ever getting a warrant pointless.”
Scott Shuchart, a former head of policy at ICE during the Biden administration, agreed that the guideline was a “green light” for ICE agents to arrest whoever they wanted.
“This memo bends over backwards to say that ICE agents have nothing but green lights to make an arrest without even a supervisor’s approval,” he said.
The White House and ICE did not immediately respond to a request for comment.
DHS spokeswoman Tricia McLaughlin downplayed the implications of the new memo to the Times, saying, “This is simply a reminder to officers to keep detailed records on their arrests.”
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