Like clockwork, major media outlets like CBS News, the New York Times, and The Independent are back, pushing what has become a stock — but tedious — claim that ICE under Trump II has transgressed some commonly agreed-upon rule of the universe by ramping up immigration arrests of aliens without criminal records. Perhaps immigration is more complicated than I think, because some really smart people in the media just don’t seem to get it — or don’t want to.
“ICE Arrested a Record Number of People without Criminal Records”
Not to single CBS News out — because as noted this is a media theme — but case in point is an article it published on August 27, headlined “ICE arrested a record number of people without criminal records in summer enforcement surge, new data shows”.
It begins:
Immigration and Customs Enforcement arrested a record high of more than 800 people without criminal records a day in July on average, new federal data shows. The surge in arrests comes as the White House pushes the agency to hit a target of 2,000 per day.
July is the first month in President Trump's second term when people with only civil immigration violations — rather than pending criminal charges or convictions — made up more than half of those arrested. An average of more than 1,580 people were arrested each day in July, also a new high for the current administration.
The “new federal data” in question comes from the “Data Deportation Project” (DDP), an organization “at UC Berkeley and UCLA” that “collects and posts public, anonymized U.S. government immigration enforcement datasets”.
On August 24, DDP issued a press release captioned “ICE data release: Oct. 2022 - Early Aug. 2026”, explaining that it received those numbers “through a FOIA lawsuit brought by Deportation Data Project co-director David Hausman, represented by the Law Office of Amber Qureshi and the National Immigration Project”.
It would be helpful, both to the public at large and likely to the administration itself, if DHS published such data on its own, without having it released by third parties through FOIA — a plaint I’ve made in the recent past, and one I’ll keep making until it ponies up the data.
In any event, there’s no reason not to believe that the statistics DDP published as reported by CBS News are anything but accurate. The problem is that there is a lot of critical context missing from both that article and others of its ilk.
ICE’s Arrest Authority under the INA
Let me explain.
Congress has given immigration officers expansive powers to arrest aliens who are removable from the United States — both because those aliens are “criminals” and also because they are simply deportable — in the Immigration and Nationality Act (INA).
For example, section 236(a) of the INA permits ICE officers to issue administrative warrants to take custody of aliens believed to be removable from the United States, pending a decision on whether they are to be removed.
To be clear, nothing in the INA requires ICE to seek a judicial warrant from a federal judge or magistrate before taking an alien into custody (regardless of what some may think the law requires), and in fact — as I have explained in the past — there is no mechanism in the INA for seeking a judicial warrant for an alien’s civil immigration arrest.
“Arrests on warrant” aside, section 287(a)(1) of the INA allows immigration officers to “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States”, and section 287(a)(2) allows officers to “arrest any alien in the United States” if they have “reason to believe that the alien so arrested is in the United States in violation of the INA and regulations” and “is likely to escape before a warrant can be obtained for his arrest”. (Emphasis added.)
The Three Stages of Immigration Enforcement
Those civil immigration arrests begin the immigration enforcement process — they are not (with an important caveat below) the end of that process, and to understand consider the “three stages of immigration enforcement”.
Stage one begins with an investigation and then a brief detention of the alien and ends with either an immigration arrest under sections 236(a) or 287(a)(1) of the INA or a release, in either case with a Notice to Appear (“NTA”, the charging document in removal proceedings) to follow.
Stage two is the removal proceeding under section 240 of the INA, at which an immigration judge determines whether the alien is removable from the United States and if so, whether the alien is eligible for any “relief”, i.e., an immigration benefit or protection that would allow the otherwise removable alien to remain.
It is during that second stage that the alien receives “due process” under the Fifth amendment, and if at any point in that process the immigration judge or the administrative appellate review body, the Board of Immigration Appeals (BIA), is found to have denied the alien his Fifth amendment due process rights, the case will be sent back down for a do-over that complies with the Constitution.
Stage three is the caveat, and it begins when the alien receives a final order of removal under section 241(a)(1) of the INA, at which point ICE takes the alien into custody and deports him — thus ending the immigration enforcement process.
Detention
If their actual point is that there is something different or unusual about immigration enforcement under Trump II, the real focus of these analyses — in the Times, CBS News, The Independent, and the rest — should be on how many aliens, both “criminals” and not, ICE detains after arrest.
Fortunately, none of those outlets needs to rely on the Deportation Data Project at UC Berkeley and UCLA to find that statistic, because by law ICE is required to publish it in a series of spreadsheets attached to its “Detention Management” web page.
At present, ICE is detaining 58,231 aliens in its various detention facilities, 18,043 of whom have criminal convictions and 18,532 of whom have pending criminal charges. An additional 21,675 of those detainees are “other immigration violators”, meaning they are being held on INA grounds alone.
In other words, 62.7 percent of all the aliens ICE currently has in its custody have “criminal records”, either an arrest or a conviction, or more precisely, much fewer than half of those detainees — just 37.3 percent — don’t have criminal records.
Which is not to say those aliens haven’t committed any crimes, because the odds are most have.
“Eluding inspection” after entering illegally — a crime every successful illegal entrant is guilty of — is an ongoing misdemeanor criminal offense (for a first entry; it’s a felony for a second or subsequent one) under section 275(a)(2) of the INA, while willfully failing to depart within 90 days of a final deportation order after a lawful admission is a felony under section 243(a) of the INA.
Even that, however, only tells part of the story.
ICE is required by law to arrest and detain certain aliens pending removal proceedings under sections 235(b)(1) and (2) and 236(c) of the INA — points I have been making (apparently fruitlessly) for years — and well after I started banging that drum, Congress in January 2025 passed the “Laken Riley Act”, which authorizes state attorneys general to sue DHS when it fails to do so.
Granted, section 236(c) of the INA used to only mandate the arrest and detention of aliens removable on criminal grounds, but in the Laken Riley Act, Congress also extended that detention mandate to aliens who admit they’ve committed “burglary, theft, larceny, and shoplifting” (among other crimes), regardless of whether they have a conviction or even pending charges.
But wait — there’s more.
If ICE arrests and detains an “other immigration violator” without a known arrest or conviction for removal proceedings, regulations at 8 C.F.R. § 1003.19 permit the alien to seek release from ICE custody, first from DHS and then from the immigration judge (with an appeal to the BIA).
Unless the department or the court concludes that the alien is a “danger to persons or property” or a “flight risk”, the alien will be released, often with a bond but sometimes without — which may help to explain why a majority of aliens currently sitting in ICE detention have criminal arrests or convictions, even if, as those outlets and DDP contend, a majority of ICE arrests involve aliens without crimes.
I’m not done yet, because the real elephant in the room — the one subject none of these reports ever mention — has to do with the mandatory detention of aliens under final removal orders.
Section 241(a)(1) of the INA requires ICE to arrest and take into custody every alien under a final order of removal, and to detain them for a 90-day “removal period” so they can be deported from the United States — regardless of whether they have crimes or not — and the Laken Riley Act doubled-down on that mandate when it gave state attorneys general the authority to sue DHS when it fails to comply.
None of these articles mentions how many of the “non-criminal” aliens ICE arrested in its latest surge are under final orders of removal and thus subject to mandatory arrest under section 241(a) of the Laken Riley Act, nor do they mention that immigration judges issued more than 476,000 removal orders in the first nine months of FY 2026 alone — and likely, the majority of respondents in those cases were aliens without criminal histories.
The DDP data does appear to reveal that in July, ICE arrested 16,370 aliens with final orders issued on or before July 31, and while there is no way to cross-index that cohort with “criminality”, it nonetheless would appear to support my basic point.
Arrests without Fanfare
Likely the biggest “news” to come out of the DDP data is that ICE managed to arrest 49,000 aliens in July (up from 43,000 in June), without the fanfare that accompanied immigration enforcement operations in Minnesota and other states over the winter, before Trump put his “Border Czar”, Tom Homan, in charge of operations.
Not to say there wasn’t drama, with an ICE-related shooting death in Houston, Texas, early in the month and a second one in Biddeford, Maine, days later. As the Times noted, those shootings “drew outrage but did not meaningfully slow the pace of arrests”, while I will add that both are tragedies and investigations remain ongoing.
While I remain convinced the majority of Americans continue to support most immigration enforcement, they’d prefer not to know about that or most other law enforcement activities. DHS Secretary Markwayne Mullin has wisely chosen a different tack from his predecessor in that regard, though Politico recently complained ICE still isn’t meeting his arrest goals.
Speaking of Mullin, he asked the nation’s governors in early August to honor ICE detainers for criminal aliens in their jails, or risk officers “going to arrest them in a public space, which could cause more problems and put our officers at risk, the public at risk, and the person we’re serving the detainer at risk”.
That’s not unreasonable, nor is his department’s call for aliens here unlawfully to self-deport or risk arrest, fines, and real deportation, but few will likely heed that request unless officers ramp up arrests — of criminals and “other immigration violators”, alike.
Nothing New
There’s nothing new about such arrests, despite what you may read. In her 1984 opinion in INS v. Lopez-Mendoza — a worksite enforcement case — Justice Sandra Day O’Connor noted that: “In the course of a year, the average INS agent arrests almost 500 illegal aliens.”
Few of those arrests — most of which, again, occurred at worksites — involved criminal aliens, but if INS’s successor, ICE, were making arrests at that pace, its 22,000 officers and agents would be making 900,000-plus arrests per month — not 49,000, as they did in July.
Having worked in immigration for decades, I’ve long contended the subject is not complicated. But given how many media reports now complain, without context, that “most” recent ICE arrests involve aliens “with no criminal record”, I’m beginning to reconsider. Immigration arrests aren’t the end of “due process” — they’re the beginning, or lawful culmination, of it.