Which federal statutes and regulations define the arrest and search powers of ICE special agents and ERO officers?
Executive summary
Federal arrest and search powers for ICE officers flow primarily from the Immigration and Nationality Act (INA) as codified at 8 U.S.C. §1357 (often cited as INA §287) and from DHS regulations that implement and delimit those statutory powers in 8 C.F.R. Part 287; HSI special agents also derive broader criminal‑investigative authority from other federal statutes (Titles 18, 19, 21) that give them general law‑enforcement powers beyond immigration enforcement [1] [2] [3] [4] [5]. Court‑recognized constitutional limits and agency policies — including the warrant rule for searches and the Fourth Amendment — operate alongside those statutes and regulations and are referenced in ICE and regulatory guidance [4] [6].
1. The statutory backbone: 8 U.S.C. §1357 (INA §287) — who may arrest and when
Congress gave “officers and employees of the Service” authority to make arrests without a judicial warrant in specified immigration contexts through 8 U.S.C. §1357, including arrests in the agent’s presence, arrests when the officer has probable cause to believe a person is unlawfully present and likely to escape, and certain border‑related apprehensions; the statute also contemplates detainers and deputization/agreements with state and local officers [1] [2]. The statute contains built‑in limits and prerequisites — for example, some expanded arrest authorities only take effect after the Attorney General issues implementing regulations and training/certification requirements, and the statute directs procedural handling of detainers [1] [2].
2. Regulatory detail: 8 C.F.R. Part 287 and §287.5 — designation, warrants, custody, and searches
DHS and ICE regulations in 8 C.F.R. Part 287 operationalize INA §287 by listing the categories of officers authorized to carry out section 287(a) arrests, defining who may execute administrative or criminal warrants of arrest, and spelling out custody and transportation responsibilities; 8 C.F.R. §287.5 specifically designates officers who have arrest authority after completing training and prescribes procedures governing detention, transfer, and disposition [3] [4]. The regulations also acknowledge the baseline rule that, except in statutory or court‑recognized exceptions, a judicial search warrant should be obtained for criminal investigations, while recognizing exceptions such as consent, exigent circumstances, searches incident to arrest, and border searches [4].
3. HSI vs ERO: overlapping but different legal authorities
ICE is organized into distinct enforcement arms whose legal authorities differ: Enforcement and Removal Operations (ERO) relies mainly on Title 8 immigration law and the INA framework to identify, arrest, detain, and remove noncitizens, while Homeland Security Investigations (HSI) special agents have broader criminal authorities to investigate and arrest under many federal statutes — including Titles 18 (general federal crimes), 19 (customs), and 21 (controlled substances) — enabling HSI to function as a conventional federal criminal investigative service in addition to immigration work [5] [7] [8]. This distinction matters in practice because HSI agents can obtain criminal warrants and pursue prosecutions under criminal statutes, whereas many ERO actions rest on administrative immigration grounds [5] [7].
4. Limits and constitutional overlay: warrants, searches, and use of force
Statutes and regulations do not displace constitutional protections: the e‑CFR emphasizes obtaining search warrants for criminal investigations unless an exception applies, and INA/regulatory authority to arrest without a judicial warrant does not automatically authorize warrantless entry into private homes without consent or exigent circumstances — courts and agency policy shape those boundaries [4]. The statutory text itself contemplates that the Attorney General will issue regulations setting standards for use of force and certification requirements before certain arrest authorities or force rules are effective, signaling a statutory safety valve tied to training and oversight [1] [2].
5. Practice, controversy, and competing narratives
Reporting and advocacy draw different lines: ICE’s public FAQ and some legal guides stress broad arrest authority for immigration officers and the agency’s training and identification practices [6] [9], while journalists and civil‑liberties groups highlight incidents, court rulings, and case law that constrain or criticize how those authorities are applied in the field — a tension that reflects competing agendas between enforcement priorities and constitutional‑rights oversight [10] [11]. Where statutory text or regulations are silent or ambiguous, courts, agency guidance, and political context fill the gaps; the available reporting shows both expansive statutory language and repeated calls for clearer limits and accountability [1] [4] [10].
6. What reporting cannot confirm from these sources
The documents and reporting collected here establish the statutory and regulatory sources named above and point to operational distinctions between ERO and HSI [1] [3] [5], but they do not provide a complete inventory of every statute HSI might enforce, exhaustive text of internal ICE policies, or the most recent Attorney General regulations on force and certification beyond the cited excerpts; those gaps require consulting the current U.S. Code, the full text of 8 C.F.R. Part 287, ICE/DOJ regulations, and case law for a definitive, up‑to‑date legal brief [1] [3] [4].