What makes ICE different?

Following a visit to an Immigration and Customs Enforcement detention center in his district last month, Rep. Troy Carter, D-La., came back with what he called “disturbing” accounts of the agency’s conduct. At a news conference with a handful of other Democrats, Carter shared some of the detainees’ stories—like Wendy Brio’s.

“We met with Wendy, a New Orleans mother of three from my district, detained after ICE asked her to come in for her routine checkup,” Carter said. “She’s been in the United States for 17 years. She’s married to an American citizen. She was not told why she was being detained. She was not afforded the ability to have counsel.”

Brio’s story—alongside instances of apprehended children, use of zip ties to restrain people, detainees held for months on end without explanation, and more—were all evidence: ICE’s apprehensions, Democrats argued, were out of control.

WORLD could not independently verify those accounts.

Asked about some of those same testimonies, Rep. Brian Jack, R-Ga., former White House political director under the first Trump administration, said he wasn’t familiar with those particular accounts, but said he would put his trust in the agency’s decisions.

“I certainly trust the leadership at ICE to accomplish President Trump’s priorities and missions,” Jack said.

ICE’s unique structure and function have created an operational gray zone, leading lawmakers to offer radically differing views on what’s appropriate for the nation’s chief immigration enforcement agency amid public unrest over outwardly startling apprehensions.

Part of the unusual nature of ICE stems from a lack of a standard process across the board.

Some ICE agents operate in street clothes. At times, they look like SWAT officers. Occasionally, they apprehend persons of interest in batches. They’ve been known to mimic or imitate different types of law enforcement. The Coalition for Humane Immigrant Rights, along with other parties, recently reached a class action settlement agreement with the Department of Homeland Security around the legality of ICE agents disguising or misrepresenting their governmental identity.

Scott Andrew Fulks, an immigration attorney with Deckert Law Firm in Minnesota, explained ICE practices have a wide range of variance.

“While there are some internal ICE policies that address conduct during enforcement actions, there is no single binding ‘normal’ national standard for how apprehensions must be conducted,” Fulks told WORLD in a statement. “Much depends on local field office practices and supervisory discretion. The result is significant variation across regions and units.”

The agency has a Fugitive Operations Handbook that details its general practices. But in many cases, those guidelines provide only basic direction. The 2010 version, obtained through court documents, is 37 pages long.

Its section on arrests is less than half a page, detailing that agents should only make arrests between the hours of 6 a.m. and 10 p.m., avoid areas like nursing homes and places of worship, and work with campus authorities if making an arrest at a place of higher learning.

Jennifer Koh, professor of law at Pepperdine University, studies the intersection between immigration enforcement and criminal law. She confirmed Fulk’s assessment.

“The agency has gone through a sort of lawmaking process to enact [regulations] regarding the use of deadly force, the use of non-deadly force, etc.,” Koh said. “That being said, in terms of how ICE conducts its operations, not all of that is spelled out. A lot is left up to agency leadership either at the national level or at the local level.”

More significantly, Koh explained that success looks different for ICE than for other law enforcement agencies.

Unlike most other cases of arrests, ICE isn’t seeking a criminal conviction in court, where the admissibility of evidence could hinge on how authorities collected it or how a law enforcement officer conducted a detainment. Instead, the agency is primarily concerned with deportations—a civil consideration where some criminal procedures don’t apply.

The Supreme Court ruled in 1976 in INS v. Lopez-Mendoza that the Fourth Amendment’s protections from unreasonable searches and seizures were not relevant to enforcement in deportation cases. The court case stemmed from an ICE arrest at a transmission repair shop in San Mateo, Calif., where the owner flatly refused agents access to his business without a warrant. Agents proceeded to distract the owner, snuck into the place of employment anyway, and arrested two undocumented aliens.

“The mere fact of an illegal arrest has no bearing on a subsequent deportation hearing,” the court wrote in its summary findings. “The deportation hearing looks prospectively to the respondent’s right to remain in this country in the future. Past conduct is relevant only insofar as it may shed light on the respondent’s right to remain.”

Those kinds of situations can make ICE look like it plays by a different set of rules when, in reality, it is aiming for another set of goalposts altogether.

Rep. Clay Higgins, R-La., chairman of the House Oversight Subcommittee on Federal Law Enforcement, explained that ICE’s unique status gives it flexibility when it comes to things like warrants.

“If they know they’re going to pick up this guy, that guy, and this guy—they may come into contact with seven or eight other guys that have had formal order of removal, okay?” Higgins said. “Their warrant might not have been exactly for that person, but they’re taking [them] too.”

In his view, that’s a good thing; it gives the agency flexibility for the overwhelming number of cases it has to deal with.

Rep. Brad Knott, R-N.C., noted that the differences between criminal and civil procedures extend to the processing after an arrest as well. Before coming to Congress, Knott helped prosecute organized crime, drug cartels, human trafficking, and other crimes.

“[Immigration] is a civil matter, and deportation is a civil enforcement mechanism.,” Knott said. “Due process attaches to criminal measures. The only thing that we owe an illegal immigrant is a humane trip home.”

In Knott’s view, that means if there’s clear evidence about an unlawful presence, the result should be a clear-cut one in the vast majority of cases: detention and then deportation.

Democrats disagree.

Rep. Adriano Espaillat, D-N.Y., chairman of the Congressional Hispanic Caucus, also toured an ICE detention facility recently. He believes the country’s principles should compel something more than apprehension and deportation. In his view, that’s key to ensuring some sort of backstop against potential mistreatment of detainees.

“Anybody that steps foot on soil in the United States is already protected and guarded by the U.S. Constitution,” Espaillat said. “There should be due process extended to that person.”

When asked about those competing responses, Koh, the professor at Pepperdine University, said she believes ICE does have to operate within certain limits but said those limits aren’t always clear, given the agency’s unique structure.

“There are certainly debates one can have around exactly how far the Constitution goes. There’s a very strong case that those core protections apply to all people, regardless of a person’s status in the United States,” Koh said.

Espaillat says lawmakers and detainees alike hope to get answers as dozens of lawsuits play out in court, but he realizes it could take time before courts issue verdicts.

“There are lawsuits all over. There’s litigation at different levels on different issues. There’s no lack of litigation on any of these issues. So, it’s going to be some time,” Espaillat said.

I asked lawmakers if the agency needs stricter guidelines in the interim. Could a degree of consistency help secure public trust in ICE? Rep. Robert Garcia, D-Calif., a member of the Homeland Security Committee, said he agrees with the need for consistency, but he’s skeptical about whether a policy standard would meaningfully restrain the agency under the Trump administration.

“Of course—there’s no question,” Garcia said. “On Homeland Security, we’ve discussed this many times. There should be a standard.”

Garcia noted that some of ICE’s uniqueness stems from its age. ICE, created in 2003, is relatively young compared to other agencies.

“It’s been around for, what, 20 years?” Garcia said. “And so, I think that, as an agency, there has to be reform. There has to be a focus on treating people humanely. There has to be due rights and due process.”

Rep. Knott, the former attorney, believes that ICE’s current flexibility is necessary, and he said an across-the-board standard for ICE would be a mistake. “There are a dime-a-dozen circumstances for how people are apprehended,” he said. “Sometimes they’re taken in off the street, sometimes they’re taken out of a mob, sometimes they’re taken out of a crime scene, sometimes they’re taken out of court. You can’t put a national standard on law enforcement with behavior like that.”