WASHINGTON – Earlier this month, Supreme Court Justice Brett Kavanaugh expressed that U.S. citizens have minimal difficulty verifying their immigrant status if federal agents detain them.
“If officers determine that the individual they stopped is a U.S. citizen or legally residing, they usually let them go,” Kavanaugh noted regarding an emergency case.
However, reports indicate that the Trump administration’s proactive stance on deporting those without legal status has, unfortunately, led to U.S. citizens being mistakenly caught up in these actions. Many experts believe such detentions are likely to increase.
Verifying citizenship after detention can be a slow process. Passports are typically seen as the most reliable proof, but as the latest State Department data reveals, fewer than half of Americans possess one, complicating matters for those who might not have other documents handy.
Kavanaugh’s comments followed a Supreme Court decision on a controversial case concerning immigration enforcement practices in Los Angeles, which still works its way through the legal system. A district court had previously issued an order banning federal immigration officials from employing racial profiling tactics.
Interestingly, two of the five plaintiffs involved are Latino men who had informed officials of their U.S. citizenship yet were still arrested and detained.
The three liberal justices on the Court dissented against the ruling allowing racial profiling, with Justice Sonia Sotomayor delivering a pointed critique of Kavanaugh’s reasoning.
John Sandweg, an attorney and former acting director of ICE under the Obama administration, explained that the implications are significant.
“This opinion suggests that U.S. citizens can be detained for extended periods, likely while their status is confirmed,” he stated. He often references incidents where ICE targets locations known to attract undocumented workers.
Proving Citizenship
Without a national database for U.S. citizens and no requirement to carry a national ID, the process of verifying citizenship can be time-consuming. Sandweg pointed out that while naturalized citizens can be checked quickly, situations involving Americans born abroad can be much more complex.
While obtaining a passport could resolve many issues, the cost—up to $160—and lengthy processing time poses a barrier for many. Furthermore, as 19 states and D.C. allow driver’s licenses regardless of citizenship status, having such an ID doesn’t guarantee proof of citizenship.
The frequency of mistaken arrests of U.S. citizens by ICE remains uncertain. However, a 2021 report from the Government Accountability Office revealed that 674 “possible” U.S. citizens were detained, with some held for extended periods, even prior to the current crackdowns.
ICE did not comment on inquiries regarding how they verify citizenship during detentions.
Factors in Detention
Current Supreme Court orders allow federal immigration officials to consider “apparent ethnicity” as one factor when identifying reasonable suspicion, though such profiling is only permissible if not the sole factor.
Before a restraining order was implemented, agents based their assessments of “apparent ethnicity” on a range of factors, including language and occupation. This approach has led to notable enforcement actions in areas that draw day laborers, which sparked protests. In response, President Trump deployed National Guard troops in Los Angeles, despite local opposition.
This case also sheds light on the experiences of U.S. citizens caught in ICE operations during the Trump administration. In Florida, a 20-year-old was detained for days after a traffic stop even after identifying himself as a citizen. Similarly, an ICE operation in New Jersey resulted in hours of detention for a military veteran.
Concerns about the constitutional rights of U.S. citizens during these crackdowns have led to calls from Congress for investigations into potential violations by federal immigration officials.
“We’re increasingly worried about reports of U.S. citizens being detained due to the enforcement actions of the Trump administration,” lawmakers emphasized in a recent letter to the Department of Homeland Security.
Possible National Implications
Sofia Genovez, a clinical education fellow at Georgetown University, noted that while the ruling originated from a case in Los Angeles, its ramifications could be felt across the country. Recently, the Trump administration has expanded its enforcement to cities like Chicago and Boston.
According to Genovez, while Kavanaugh’s agreement doesn’t immediately set a binding precedent, it does signal to ICE that pursuing racial profiling may be a viable tactic.
ICE has the authority to conduct arrests without a warrant if they have probable cause regarding someone’s immigration status. “What’s happening on the ground often escalates into violent apprehensions,” she noted, describing how individuals can be forcibly taken from their surroundings.
Even with documentation, Genovez mentioned the challenges citizens face in securing their release from detention, which could stretch on for weeks. “People feel the need to carry proof of their status, like passports or green cards, which isn’t legally required, but it underlines the community’s anxiety,” she said, asserting that the burden of proof should rest with the government.
Sotomayor’s dissent raised alarms about potential abuses against the Latino community, arguing that it represents a violation of the Fourth Amendment against unreasonable searches and seizures.
“This essentially means that all Latinos, regardless of their citizenship, could be targeted and compelled to prove their legal status,” she highlighted.
