How have court rulings since 2023 changed what counts as reasonable suspicion for ICE stops in the interior?
Executive summary
Since 2023, federal courts had been tightening what counts as “reasonable suspicion” for interior ICE stops by demanding particularized, articulable facts rather than broad demographic markers, but a series of high‑profile decisions and emergency stays in 2025 signaled a significant recalibration that allows ethnicity, language, location, or workplace to be considered as part of the “totality of the circumstances” so long as other facts also point toward unlawful presence [1] [2]. Civil‑rights groups and several courts warn this shift risks re‑creating the “roving patrols” era condemned in Brignoni‑Ponce, while the Supreme Court’s recent hands‑off stays and concurring language from Justice Kavanaugh have introduced legal ambiguity and a practical loosening of limits on ICE stops [3] [1] [2].
1. Courts since 2023: pushing for particularized suspicion
Following longstanding Fourth Amendment doctrine and lower‑court rulings, judges had increasingly required that ICE articulate specific, individualized facts—driver behavior, vehicle condition, or other indicators tied to a particular person or car—before detaining someone to investigate immigration status, treating broad traits like ethnicity, accent, or presence in a particular workplace as insufficient on their own to constitute reasonable suspicion [3] [4] [5]. Lower courts relied on precedents such as Brignoni‑Ponce and Terry to stress that reasonable suspicion requires more than a hunch and cannot rest merely on characteristics that describe large numbers of innocent people [3] [5].
2. The Perdomo litigation and the Supreme Court’s 2025 intervention
In the high‑profile Perdomo (Noem v. Vasquez Perdomo) litigation, a federal district judge blocked ICE sweeps that permitted stops based solely on four common markers—apparent race or ethnicity, speaking Spanish or English with an accent, being in certain public places, or working certain jobs—finding such practices incompatible with the Fourth Amendment’s reasonable‑suspicion requirement; the Supreme Court’s 2025 action put that injunction on hold, allowing raids to continue while the litigation proceeds [5] [2]. The Court’s order came without a full merits explanation, producing acute uncertainty about whether the prior, more protective standards will survive [6].
3. What the justices said—and why the language matters
Justice Kavanaugh’s concurrence, quoted and cited widely, emphasized that “apparent ethnicity alone cannot furnish reasonable suspicion” but stated ethnicity may be a “relevant factor” when courts assess the totality of circumstances—language that departs from an insistence on strict particularization and invites officers and lower courts to weigh demographic cues alongside other facts [2] [7]. Legal analysts read that concurrence as potentially loosening the individualized‑suspicion rule and as tacitly reviving aspects of Whren‑style objective tests in the immigration context, a turn critics argue will sanction profiling even if the opinion disclaims it [8] [1].
4. The split in reactions: civil‑rights groups vs. enforcement defenders
Civil‑liberties organizations say the Court’s action effectively gives ICE a green light to profile Latino and other communities and complained the stay lacked reasoning, leaving constitutional protections hollow in practice [6] [9]. By contrast, the government and some proponents of aggressive interior enforcement frame the rulings as restoring necessary operational flexibility for agents to tackle unlawful presence, pointing to Kavanaugh’s caveat against ethnicity being dispositive as tempering any open license to act on race alone [2] [7].
5. Practical effects and lingering legal uncertainty
The immediate effect since 2025 has been to pause lower‑court injunctions and permit interior sweeps to continue under broader standards, while the law remains unsettled because the Supreme Court provided little doctrinal guidance and left lower courts to interpret Justice Kavanaugh’s comments and earlier precedents such as Brignoni‑Ponce [1] [3]. Reporting and court observers warn that even if ethnicity cannot be the sole basis for a stop, treating it as a “relevant factor” changes enforcement practice and risks more frequent, suspicion‑light detentions unless and until a clear, reasoned Supreme Court ruling or legislative reform restores strict particularization [1] [5].