Can American citizens be detained by ICE without due process?
Executive summary
U.S. immigration law allows ICE to detain noncitizens through civil (not criminal) processes, and courts have repeatedly both curtailed and upheld aspects of that authority — resulting in contested practices like warrantless arrests and long pre-removal custody that advocates call “without due process” [1] [2]. Recent settlements and court orders have limited ICE detainer/warrant practices in parts of the country and required procedural changes — for example, the Gonzalez settlement narrowed detainer use beginning March 4, 2025 [3], while federal judges in Colorado and elsewhere ordered limits on warrantless arrests [4] [5].
1. The legal baseline: civil detention, not criminal incarceration
ICE detains “aliens” under civil immigration law to secure their presence for removal proceedings or when statutes require mandatory custody; this is an administrative, civil process rather than a criminal arrest and prosecution [1]. Courts treat immigration detention differently from criminal pretrial detention, which shapes procedure and rights available to the detained [2].
2. “Due process” disputes come from detention length and process
Legal fights focus less on whether ICE can detain and more on how long and on what basis. Scholars and litigation argue prolonged civil detention can violate substantive due process when deportation is unlikely or the process is arbitrary [2]. Advocates cite cases where months-long custody or transfers and poor conditions produced constitutional claims [2] [6].
3. Warrantless arrests: judges have pushed back
State and federal judges have begun to curb ICE’s ability to execute warrantless arrests in certain jurisdictions. A federal judge ordered an end to warrantless arrests in Colorado absent a warrant first, and ordered remedies—release, refunded bail, and halting of further removal proceedings unless ICE obtains a warrant [4]. Other rulings have similarly required more specific proof before arrests proceed in some districts [7].
4. Detainers and neutral review: settlements change practice
A nationwide class-action settlement in Gonzalez v. ICE required ICE to alter detainer procedures: from March 4, 2025 the agency’s PERC could issue only Requests for Notification of Release rather than detainers that extend custody; ICE must also provide the detainer form to people in custody so they can challenge extended detention [3]. The settlement requires a neutral review process before extensions of custody, a structural limit on unilateral local-jail holds [3].
5. The on-the-ground reality: overcrowding, conditions and access to counsel
Reporting and advocacy groups document overcrowded facilities, medical neglect claims, and barriers to counsel — all practical features that fuel due-process challenges [6] [8]. Detainees often lack appointed counsel in civil immigration court, which critics say makes meaningful challenge to custody difficult [9] [8].
6. Competing perspectives: enforcement vs. rights watchdogs
ICE and Department of Homeland Security defend detention as necessary to secure presence for hearings and public safety, pointing to detention standards and agency rules [1] [10]. Civil-rights groups and some courts argue the scale and methods of detention — including detaining non-criminals and warrantless pickups — produce constitutional violations and “lawlessness” that courts must correct [8] [2].
7. Recent judicial remedies: narrow but consequential
Where courts find constitutional or consent-decree violations, they have ordered concrete remedies: release of detainees, refunds of bail, and limits on future warrantless re-arrest unless ICE obtains warrants [4] [5]. Those decisions are geographically specific and often depend on factual showings about how arrests were made and whether local law enforcement followed required procedures [4] [5].
8. What the sources do not say
Available sources do not provide an across-the-board, single answer that ICE can or cannot detain U.S. citizens without due process; sources note even some U.S. citizens have been detained but do not offer comprehensive, nationwide statistics or a uniform legal ruling saying ICE may detain citizens without remedy [11]. They also do not report a universal federal prohibition ending ICE warrantless arrests nationwide; rather, courts and settlements have limited practices in particular jurisdictions [3] [4].
9. Practical takeaway for readers
ICE has broad statutory civil detention authority, but that authority is actively contested in courts and by settlements that constrain certain tactics — especially warrantless arrests and indefinite detainer-based holds; outcomes depend on where and how arrests and detentions occur, and on ongoing litigation and enforcement policy [1] [3] [4].