US Passport Is Best Defense Against ICE False Arrest as Supreme Court Approves Profiling in Mass Detentions

Supreme Court Justice Brett Kavanaugh argued in a major case earlier this month that U.S. citizens face few problems in having their immigration status verified if federal agents apprehend them.

“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,” Kavanaugh wrote in concurrence with an opinion in a case on the emergency docket. 

In reality, the Trump administration’s aggressive drive to carry out mass deportations of people without legal status already has led to U.S. citizens being swept up in raids and detained, according to news reports from around the country as well as immigration experts. Such detainments now will increase, experts predict.

Once in detention, it can take time to verify citizenship. A passport is considered the gold standard for proof that an individual is a citizen, but fewer than half of Americans hold passports, according to the State Department’s most recent data from 2024. Even fewer are likely to carry the bulky document around.

Kavanaugh’s remarks came in a 6-3 Supreme Court decision that gave the go-ahead, for now, for Immigration and Customs Enforcement agents to use racial profiling in enforcement raids in Los Angeles, while a case on the issue proceeds through the courts. A district court’s order had barred federal immigration officers from using racial profiling to detain immigrants without legal status.

Two of the five plaintiffs at the center of the case are Latino men who repeatedly informed federal immigration officials they were U.S. citizens, but were still arrested and detained.

All three liberal justices on the high court dissented with the ruling that authorized racial profiling. Justice Sonia Sotomayor in a scathing opinion said Kavanaugh’s reasoning “blinks reality.”

John Sandweg, an attorney who served as the acting director at ICE during the Obama administration, said in an interview with States Newsroom that the outcome is clear.

“There’s a high likelihood, based on this opinion, that somebody who is a United States citizen could be detained for days, if not weeks, while ICE goes out and tries to confirm … that they are in fact a U.S. citizen,” said Sandweg.

“It’s not something you can figure out in the parking lot of a Home Depot,” he said, referring to locations targeted by ICE because day laborers, typically lacking legal status, wait there to find work.

Proving you are a citizen

There is no national database of U.S. citizens and no requirement to carry around a national ID, meaning it can take ICE significant time to verify citizenship status, Sandweg said.

There is an exception for naturalized citizens, something ICE officers can quickly check in a database. But more complex situations such as Americans born abroad to U.S. citizen parents, known as derivative citizenship, can be more problematic.

Obtaining a passport is an answer but it is expensive, costing up to $160 to renew or get one for the first time, and takes weeks for processing.

Even carrying a form of identification like a driver’s license doesn’t guarantee proof of citizenship, as 19 states and the District of Columbia approve driver’s licenses regardless of citizenship status.

It’s unclear how often ICE mistakenly arrests U.S. citizens, but the most recent data comes from a 2021 report from the Government Accountability Office, an independent federal watchdog agency.

The report found that ICE arrested 674 “potential” U.S. citizens, detained 121 and deported 70 from fiscal year 2015 to six months into 2020 — long before the current crackdown.

ICE did not respond to States Newsroom’s requests for comment about the process for immigration officials to verify citizenship.

‘Apparent ethnicity’

The order from the high court, for now, will allow federal immigration officials to use “apparent ethnicity” as one factor in determining reasonable suspicion that a person is violating U.S. immigration law, as long as it is not the only factor.

Before the district court issued a restraining order on the practice, immigration agents used a broad variety of factors to determine someone’s apparent ethnicity, including speaking Spanish or accented English, certain types of work like landscaping and day labor and locations such as bus stops or car washes.

The case stemmed from the administration’s mass raids this summer on Los Angeles-area Home Depot stores and other sites where day laborers gather, sparking massive protests in the city. President Donald Trump cited the protests in deploying National Guard troops and U.S. Marines to the city, over California Gov. Gavin Newsom’s objections.

Those two plaintiffs in the case are not the only U.S. citizens swept up in ICE raids during the second Trump administration.

In Florida, police detained a 20-year-old for days following a traffic stop, even though he told officers he was a U.S. citizen and provided his Social Security card. In New Jersey, ICE detained a U.S. citizen who was a military veteran for hours before releasing him.

And in Southern California, a 25-year-old U.S. Army veteran was detained for three days by federal immigration officials, The Atlantic reported. 

Members of Congress have also expressed concern about federal immigration officials arresting and detaining U.S. citizens, and 50 Democratic lawmakers have pressed the Department of Homeland Security internal watchdogs to investigate if the agency is violating Americans’ civil rights.

“We are increasingly concerned by reporting that U.S. citizens are being detained as a result of the Trump administration’s immigration enforcement actions,” they wrote in a letter last month to the DHS  Office for Civil Rights and Civil Liberties, the Office of Inspector General and the Office of the Immigration Detention Ombudsman.

Supreme Court ‘signaling to ICE’

The ruling, while based on immigration raids in Los Angeles, could have effects nationwide, said Sophia Genovese, a clinical teaching fellow and supervising attorney at Georgetown University’s Center for Applied Legal Studies.

The Trump administration launched an immigration crackdown in Chicago and Boston this month, two cities with large immigrant populations. They were also the frequent target for Texas Gov. Greg Abbott to send buses of newly arrived migrants from the southern border.

Genovese said while Kavanaugh’s concurrence is not a binding majority opinion, “it’s still signaling to ICE that they can engage in this racial profiling,” for a warrantless arrest.

ICE agents are allowed to make warrantless arrests if an officer has probable cause or reason to believe a person is in the United States without legal authorization and can escape before a warrant is obtained.

“The situation that we’re seeing play out in L.A. and across the country is a warrantless arrest, and the reality on the ground is they’re being quite violent and physical with people,” she said. “They’re quite literally snatching people off the street.”

Genovese, who specializes in immigration and asylum law, said that even when a U.S. citizen produces their documents, it can take weeks to be released for detention or to have a case closed in immigration court.

“People are scared, and people have been saying they feel like they need to carry their ‘papers,’ whether that’s a passport or a green card or something else, to prove that they have a right to be here,” Genovese said. “That isn’t required under the law, but that’s nevertheless the impact it’s having on communities.”

She added that the burden to prove citizenship should be on the federal government, not the individual.

It’s a consequence that Sotomayor warned in her dissent would fall on the Latino community, arguing that it creates a second-class citizenship status and violates the U.S. Constitution’s Fourth Amendment that bars unreasonable search and seizure.

“The Government, and now the concurrence, has all but declared that all Latinos, U. S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction,” she wrote.

–Ariana Figueroa, Florida Phoenix