Last Tuesday, the Trump administration reported that it was replacing the leadership of many Immigration and Customs Enforcement (ICE) field offices (ICE’s local branches) and replacing them with Customs and Border Protection (CBP) officers. This is reported to be the harbinger of even-tougher immigration enforcement ahead.
It may seem counter-intuitive that things would get harsher under CBP leadership. ICE, we know is the internal enforcement arm of the immigration system in the United States. Employers are subjected to workplace enforcement measures of ICE and foreign students immigration issues are handled by ICE (because four of the 9-11 hijackers had student status, student issues got assigned to ICE when they were divvying up the legacy Immigration and Naturalization Service’s functions after the creation of the Department of Homeland Security). Until recently, it was ICE that would arrest people hunted for or simply encountered within the country and subject them to detention and removal. The immigration detention system is ICE’s responsibility. Enforcement and Removal is the name for a division of ICE.
We know CBP as the officers we encounter at the airports, seaports, and land borders. Sitting on high stools, aspiring entrants pass by, show their documents, answer some questions – Citizenship? Bringing anything in? Where are you headed? Unlike ICE, foreigners come to them. The name of the organization begins with Customs, which is about illegal fruit and exotic animals and paying tariffs. Calculating the percentage of tariff to be paid for some imported widget, with calculations of substantial transformations, does not seem to be the MO of a ruthless enforcement agency. Sometimes crusty, sometimes friendly, CBP officers do not seem like a threatening lot who will make immigration enforcement “worse.” Sure, CBP runs the Border Patrol, but those are people usually, well, patrolling the border, places average people never go, in their janitor-looking uniforms. Usually catching fresh arrivals, they make little impact on the interior of the country. When you see them inside the country, it was more like a novelty, like park rangers at the Liberty Bell – you wonder if they’re happy not to be in the desert wilderness or deprived of the point of being a border patrol officer. If you’re old enough, you think, McCloud.
So why does CBP have the tough leadership that will make the Trump administration mass-deportation program successful where ICE does not? A lot has to do with the rules the agencies are run under.
First, one should be aware that CBP, in recent times, has excess capacity and can take on new missions. After surging in 2022 and 2023, border activity has nearly stopped. Illegal entrances have nearly stopped and asylum seeking has been nearly eliminated. What was partial under President Biden became nearly total under President Trump. Yes, Virginia, America is now one of those countries that doesn’t have an asylum process for asylum seekers coming to its borders. There is still an asylum system for people in the United States, but that requires getting into the country, all kinds of legal obstacles to being granted asylum, decade-long waiting times, and an adjudication process that makes a mockery of the art of fact finding. (A person can have a court order from an oppressive government sentencing them to years of confinement for criticizing some despot and have a body riddled with scars and yet the asylum office will deny the claim because the person forgot to mention that there was rice in their gruel while in captivity when a prior statement included reference to ricey gruel).
The CBP excess capacity has been assigned to interior enforcement. Those people in the high stools are now masked and on the streets of U.S. towns and cities. Their CBP training and experience can make them terrors – suitable to run the mass deportation program terrorizing many communities across the country.
First, as noted, CBP is used to people coming to them seeking admission to the country. The decision to admit is based on certain laws that favor the power of the officer over the applicant. Fourth amendment protection against unreasonable search and seizure does not exist. Fifth Amendment rights against self-incrimination do not exist. Miranda warnings do not exist. The right to counsel does not exist. Warrant-less detention is permitted with CBP having the final say on detention. There are no time limits on how long an inspection process can take. Removal without a hearing is permitted. CBP officers are insulated from outside forces, like lawyers. CBP officers have all the power.
In addition, the nearly-rightless applicant for admission who is not permitted to permanently live in the United States (those with the right to live permanently are referred to as “immigrants” and those permitted to stay for a short time like visitors, temporary workers, performers, athletes, students, clergy, etc., everyone except immigrants, are referred to as “non-immigrants) are for the most part presumptively inadmissible to the United States and bear the burden of proving admissibility at the border. According to the Immigration and Nationality Act, “Every alien [] shall be presumed to be an immigrant until he establishes to the satisfaction of [] the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status….”
Even for immigrants, at the border the CBP officer determines whether the non-citizen applicant for admission is “clearly and beyond a doubt entitled to be admitted” or else the person is detained. This burden is higher than the government’s burden of proof in a criminal case and the burden adheres to the non-citizen applicant.
Contrast this to the traditional practices of ICE in the interior. Reasonable suspicion, not a particularly high standard, but a standard nonetheless, is required to apprehend people. Administrative warrants are necessary to arrest and judicial warrants necessary to enter homes or businesses, places where you have an expectation of privacy. While in some cases, ICE can deport without a hearing, normally ICE’s role is to send a non-citizen to an immigration court. Immigration judges can terminate a case if the alien’s arrest was not in conformity with the regulations and the Constitution. Detention determinations of ICE are reviewable by the immigration courts.
In immigration court, the government has “the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable. No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.”
What this does is it makes it necessary for ICE officers to gather evidence to figure out who to arrest, make a plan to legally arrest them, prepare documentation to document the legality of the arrest and the basis for removability motivating the arrest, make a custody (or release) determination, and send the case to an immigration court. ICE officers have to deal with attorneys who are seeking custody determinations and otherwise asserting detainees’ rights.
Before the second Trump era, CBP was at the border and ICE was in the interior researching and targeting arrests and dealing with those apprehended in a predictable manner. Sure there were frequent excesses. Reasonable cause could be that a driver appeared nervous and avoided looking at an ICE vehicle or the driver didn’t appear nervous and was staring at an ICE vehicle (or any permutation). An arrest warrant to be executed against a 5 ½ foot man is executed against a 6 footer. ICE can blanketly detain anyone it detains, compelling everyone to seek custody review by an immigration judge. ICE can move detainees away from their families and communities to remote detention centers far from support and legal representation. Detention facilities run by or supervised by ICE can deny medical care, fair treatment, and adequate nutrition. Dealing with ICE is not a picnic, more an Ali – Spinks matchup, but, with Ali understanding he is bound to the Queensbury Rules.
With CBP now running the immigration enforcement game, officers who are accustomed to non-citizens having no rights and all the burdens are apt to apply these attitudes to people on the streets of the United States. Whomever they meet is presumptively not allowed to be here. Absent unambiguous (to people who cannot possibly know and understand the nuances of the ways people are allowed to be in the United States, from diplomats to refugees – even with open books) proof of lawful status, detention is mandated. An examination process after being dragged away has no time limits.
One would expect that courts would curtail excesses by explaining that people encountered within the United States, as opposed to those encountered at a border, have rights that must be protected. While district courts have, the Supreme Court so far is refusing to stop the excesses, instead creating legal uncertainty and even a new, barely-explained doctrine, a Kavanaugh Stop. Until immigration authorities are compelled to abide by regulations that preserve the rights of all of us found in the United States, CBP officers, trained in a context where few rights exist and no one is presumed to belong here, are more suited to conducting a reign of terror than ICE officers who have hitherto had to respect statutory, regulatory and constitutional limitations on their conduct. Posted November 1, 2025.