ICE Might Be Violating America’s Other Bill of Rights

Immigration-enforcement officers have used tear gas on nonviolent protesters, broken into homes and cars, and killed people, including U.S. citizens. ICE and Customs and Border Protection have been behaving like an out-of-control police force. No wonder, then, that when lawyers and other advocates try to challenge these federal officials’ abuses of power—in court and on the streets—they tend to reach for the same legal tool used to combat police violence: the Fourth Amendment, which guards against excessive force and “unreasonable searches and seizures.” But this path comes with serious challenges.

A pair of Supreme Court decisions has undercut the amendment’s power against ICE and CBP, allowing evidence gathered in violation of its requirements to be used in deportation proceedings, and shielding agents from lawsuits seeking compensation for excessive force. Another strain of precedent makes obtaining court orders aimed at preventing ICE misconduct extremely hard.

But there’s another path to holding ICE and CBP accountable for abuses. As a federal agency, the Department of Homeland Security is subject to the dictates of federal administrative law, much of which is set forward in a powerful 1946 statute known as the Administrative Procedure Act. The APA is largely concerned with how agencies go about their business—setting forward, for instance, how they should issue regulations and resolve administrative disputes. The statute also allows courts to review potentially unlawful action, thereby ensuring agencies follow the Constitution, other federal laws, and their own rules and procedures.

[Adam Serwer: The real reason ICE agents wear masks]

Many recent lawsuits against ICE have made things needlessly difficult for plaintiffs by focusing on the unconstitutionality of immigration agents’ actions. Even when these lawsuits have name-checked the APA, they have tended to point attention toward the outrageousness of what ICE or CBP has done instead of focusing on the decision-making process behind immigration officials’ actions. But if plaintiffs instead used the full power of the APA, they might actually find more success curbing these agencies’ most abusive behaviors.

In the decades since the passage of the APA, courts have developed legal doctrines aimed at keeping agencies in line. For instance, in 1954, the Supreme Court refused to allow a deportation to move forward on the grounds that the Board of Immigration Appeals had attempted to skirt its own regulations. The petitioner, Joseph Accardi, had asked the board to suspend his deportation order. Accardi claimed that the attorney general had then placed his name on a list of “unsavory characters” and circulated that list to the board in an effort to influence its decision. Relying on administrative-law principles, the Court ordered that Accardi be given a new hearing; if the deportation was to happen, it reasoned, it must happen according to the agency’s own rules—free from the attorney general’s attempts to interfere.

In just the past few years, the Supreme Court has greatly expanded judicial oversight of federal agencies. For example, in 2024, the Court determined that courts no longer need to defer to an agency’s interpretation of the statute it administers—no matter the level of technical expertise required to understand what the statute and agency are really doing. That same year, the Court stopped the Environmental Protection Agency from enforcing a major air-pollution rule, because the Court disagreed with how the agency was setting emissions standards. Again and again, the Court has found reason to tell federal bureaucrats how to do their jobs. This same logic can now be used to reel in misbehavior by ICE.

Administrative law has already proved itself useful in checking the sorts of abuses of power that ICE and CBP are currently committing, as in the 2018 case Sanchez v. Sessions. Luis Sanchez, the petitioner, had been on a fishing trip in 2010 with friends when their boat broke down. One of Sanchez’s friends called 911 to ask for help getting back to shore. The Coast Guard responded to the request and towed the boat, but when it reached land, the officers took the group into custody. It turned out that the Coast Guard had contacted CBP while responding to the call because it believed that Sanchez and his friends were possibly undocumented. Sanchez was undocumented, and he was placed in deportation proceedings.

The Ninth Circuit found that the Coast Guard appeared to have had no reason other than race to detain Sanchez and his friends, and had therefore violated its own processes. (DHS has regulations that mirror the substance of the Fourth Amendment by requiring officers to have reasonable suspicion of an immigration violation before detaining people.) Relying on the principles the Supreme Court established in Accardi’s case, the court determined that if the Coast Guard really had detained Sanchez solely because of his race, then Sanchez’s arrest—and everything that happened after it, including his deportation order—was likely unlawful and had to be undone. If CBP wanted to deport Sanchez, the court said, the agency would need to start from square one.

Sanchez carves a path for legal challenges to ICE’s aggression and use of tear gas and pepper balls like we’ve seen in cities such as Los Angeles; Chicago; Portland, Oregon; and Minneapolis. DHS regulations codify other Fourth Amendment protections, including a restriction limiting immigration officers’ use of force. Since Sanchez holds immigration officials to their own rules, people arrested for immigration violations by officials who used excessive force potentially have a route to contest any subsequent immigration proceedings.

Sanchez also underscores the importance of treating ICE officers as administrative officials. If the Ninth Circuit had concentrated on the unconstitutionality of the Coast Guard’s treatment of Sanchez, it probably wouldn’t have put a stop to his deportation—when addressing a search or seizure that violated the Fourth Amendment, a court will (if anything) exclude evidence rather than throw out a case entirely. The Ninth Circuit reached the conclusion it did only by focusing on DHS’s own rules and treating immigration officers as the bureaucrats they are.

[Caitlin Dickerson: I recognize the look on Liam Ramos’s face]

In considering recent claims against ICE, some courts seem to have forgotten about administrative law entirely. Two appellate courts that have weighed in on efforts to stop and prevent ICE’s abuses of power have chastised lower courts for attempting to tell executive-branch officers how to do their job. But that rebuke is at odds with the current Supreme Court’s instructions that courts should keep a close eye out for agency misbehavior. (I was part of a coalition of lawyers behind one such effort, Chicago Headline Club v. Noem, which challenged ICE’s misconduct in Chicago last September.)

To be sure, the APA has its limits. Even if a plaintiff were to win reprieve from deportation under the APA, there’s usually no bar against the government restarting deportation proceedings. And, legal technicalities aside, it can seem odd for the Constitution to take a back seat in the middle of a civil-rights crisis.

But in many cases, advocates can achieve a lot by slowing down the immigration bureaucracy. Parents who would be deported can stay home, keeping families intact; asylum seekers can keep building their lives free from persecution. Those practical outcomes help create the sort of society envisioned by the Constitution, even if we don’t rely directly on the Constitution to get there. When Congress passed the APA eight decades ago, the statute was referred to as a “bill of rights” for anyone subject to administrative power. Americans should put it to good use.