Think Immigration: The Civil Code Backed by Force

Think Immigration: Registration for AC26 is now open — save up to $330 today. As immigration enforcement expands nationwide, urgent constitutional questions are resurfacing about how a system labeled “civil” operates in practice.

In January 2026, two fatal encounters during immigration-related enforcement actions in Minneapolis intensified scrutiny of federal tactics. Following these incidents, enforcement activity by the U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) reportedly increased, raising concerns about aggressive stops, use of force, and the treatment of U.S. citizens and noncitizens alike.

At the center of the debate is a long-standing legal tension: immigration enforcement is classified as civil, yet officers are granted powers commonly associated with criminal policing.

Civil Authority With Criminal-Style Powers Federal law permits immigration officers to carry firearms and question individuals they reasonably suspect may lack lawful status. In theory, civil enforcement should rely on consensual encounters interactions where individuals may decline to answer questions and disengage.

However, Department of Homeland Security regulations incorporate concepts such as “reasonable suspicion,” a Fourth Amendment standard traditionally rooted in criminal procedure. Reasonable suspicion allows temporary investigative stops on a lower threshold than probable cause. In practice, this blurs the line between civil inquiry and street-level policing.

The authority to use force, including deadly force under certain circumstances, further complicates the classification of immigration enforcement as purely civil.

Unequal Constitutional Safeguards In criminal court, constitutional protections create structured limits on government power. Indigent defendants are entitled to government-appointed counsel. Custodial interrogations require Miranda warnings. Illegally obtained evidence is often excluded under the exclusionary rule.

Immigration court operates differently. Proceedings are classified as civil. While individuals have the right to counsel, there is no guarantee of government-funded representation. Many detained individuals (including children) navigate complex proceedings without legal assistance.

In INS v. Lopez-Mendoza , the Supreme Court held that the exclusionary rule generally does not apply in deportation proceedings. This means evidence obtained during unlawful stops is rarely suppressed in immigration court as it would be in criminal court.

Additionally, ICE frequently relies on administrative warrants issued internally rather than judicially authorized search warrants. Administrative warrants do not authorize forced home entry, yet confusion surrounding their scope often arises during enforcement actions.

Detention: Civil In Name, Carceral In Practice Immigration detention illustrates the contradiction most clearly. Although legally civil, detention facilities function similarly to jails. Congress has established mandatory detention categories that eliminate bond eligibility for certain individuals. Others must request discretionary release while remaining confined.

Transfers compound the challenge. Detainees are often moved to facilities far from their families and attorneys, limiting access to counsel during critical stages of proceedings. Many detention centers are privately operated, raising additional concerns about oversight and accountability.

Minnesota’s Legal Challenge In January 2026, Minnesota’s attorney general, alongside the cities of Minneapolis and St. Paul, filed a federal lawsuit challenging enforcement operations described as unconstitutional. The complaint alleges excessive force, racial profiling, and secretive practices linked to what DHS termed “Operation Metro Surge.” A hearing on emergency relief followed later that month, signaling heightened judicial scrutiny.

Legislative Foundations The framework enabling this enforcement structure developed over decades. Congress significantly expanded detention and deportation authority in 1996. ICE was formally established in 2003. More recently, the One Big Beautiful Bill Act of 2025 increased immigration enforcement funding, expanding personnel and detention capacity.

Critics argue that when civil enforcement resembles militarized policing, constitutional safeguards must strengthen — not weaken. Proposed reforms include clearer Fourth Amendment constraints, visible officer identification, mandatory body-worn cameras, stricter rules governing home entry, limits on warrantless arrests, and safeguards on detainee transfers to preserve access to counsel.

If immigration enforcement remains civil in classification, its procedures must reflect civil principles: transparency, judicial oversight, and proportional use of force. When the government uses armed authority and detention facilities to enforce administrative codes, constitutional protections cannot be treated as secondary.