How can someone in midst of legal process to stay be deported? And other questions about America’s confusing immigration laws
WASHINGTON – President Donald Trump campaigned in 2024 on a promise to crack down on illegal border crossings and conduct a “mass deportation” of unauthorized immigrants unlike anything the United States had seen before.
In the first year of his second term, the Trump administration’s success in controlling the U.S.-Mexico border has been overshadowed by the high-profile actions of masked federal agents who have rounded up immigrants and clashed with protesters. Those efforts – and the country’s Byzantine patchwork of immigration laws – have left immigrants and their allies confused and fearful about the reach of federal immigration enforcement.
Congress has failed to update U.S. immigration laws for nearly 40 years, leaving generations of presidents to respond to dramatic changes in migration patterns by executive action. The fatal shootings in January of two U.S. citizens in Minneapolis by federal agents may prompt lawmakers to rein in the actions of those officers, but many questions remain about how courts will interpret immigration laws, the legality of the administration’s crackdown and how it could reshape the nation itself.
Is it a crime for an immigrant to be in the country without legal status?
Roughly 14 million immigrants were living in the United States without legal status in 2023, according to separate, independent estimates by the Pew Research Foundation and the Migration Policy Institute – a significant increase after a two-year period that saw historic levels of illegal crossings at the U.S.-Mexico border. Those crossings fell in January 2024 after the Biden administration implemented stricter policies and slowed to a trickle soon after Trump came into office a year later, according to Customs and Border Protection data.
Nearly half of those people had lived in the United States for 20 years or longer, MPI estimates, and they make up a large part of the workforce in agriculture, construction and other industries. Those unauthorized workers paid more than $96 billion in local, state and federal taxes in 2022 but are excluded from the benefits those taxes pay for, according to a 2024 study by the Institute for Taxation and Economic Policy, a left-leaning think tank.
Crossing the border without permission is a misdemeanor, and re-entering the United States after being deported is a felony, but simply living in the country without legal status is a civil infraction, not a crime, said Julia Gelatt, associate director of the U.S. immigration policy program at MPI, a nonpartisan research organization. Many unauthorized immigrants entered the country legally – for instance, through a tourist visa that later expired – before losing legal status.
However, Immigration and Customs Enforcement conducts civil law enforcement, and the federal government has long maintained that deportation is not a criminal punishment, Gelatt said. As a result, unauthorized immigrants don’t have the same rights in immigration court that apply in criminal trials.
People who crossed the border without permission to request asylum, which begins a legal process that can confer permission to live and work in the country while an immigration court reviews the asylum claim, fall into a “blurry” legal situation, Gelatt said. Congress has authorized ICE to arrest anyone who’s in the country without firm legal status, but previous administrations have generally let courts review pending asylum claims before making an arrest.
“They may have technically entered illegally and committed a crime in crossing the border without authorization, but a person is allowed to come that way and apply for asylum regardless of how they entered,” Gelatt said.
Do federal immigration agents really have ‘absolute immunity’ from prosecution?
In an appearance on Fox News in October, White House domestic policy chief Stephen Miller addressed ICE officers directly and told them, “You have federal immunity in the conduct of your duties, and anybody who lays a hand on you or tries to stop you or tries to obstruct you is committing a felony.” The day after an ICE agent fatally shot Renee Good in Minneapolis on Jan. 7, Vice President JD Vance said the officer had “absolute immunity” from charges.
Jeff Feldman, a professor at the University of Washington School of Law who specializes in constitutional law, said that while federal agents are protected by the doctrine of “qualified immunity” when they’re conducting their work in a way courts find reasonable, they are still subject to state and federal laws.
“There’s nothing in the law that says that federal agents are exempt from the criminal laws in the states in which they operate,” Feldman said. “If a federal agent commits a crime, a federal agent is subject to prosecution like any other individual.”
After Trump administration officials labeled both Good and Alex Pretti “domestic terrorists” immediately after federal agents killed the two Minneapolis residents, the Justice Department on Friday announced it was opening a civil rights investigation into the killing of Pretti, a nurse at the Minneapolis VA Medical Center who was recording agents with his phone before they shot him in the back while restraining him face down on the ground.
Even if the Trump administration doesn’t hold the officers who killed Pretti accountable, Stephen Vladeck, a law professor at Georgetown University, has noted that the relevant statutes of limitations don’t expire until 2030 or later, after the end of Trump’s term.
What’s the difference between ICE and the Border Patrol?
Customs and Border Protection – which includes the Border Patrol – and ICE are both part of the Department of Homeland Security. The two law enforcement organizations have different mandates, although they often work together, and their agents have commingled in roving patrols in Chicago, Minneapolis and other cities.
“ICE’s mission is to locate, detain and deport people who are in the country without authorization, or legal immigrants who have some kind of criminal conviction that makes them deportable,” Gelatt said. “There have always been many millions more unauthorized immigrants than ICE has had the capacity to find and arrest and deport, and so ICE has generally operated with certain enforcement priorities. But now, the Trump administration has said that everyone should be arrested and removed.”
Whereas ICE has traditionally done more desk work to identify high-priority targets living in the country unlawfully, the Border Patrol is authorized to conduct searches without a warrant within 100 miles of an international border or coastline – an area that encompasses nearly two-thirds of the U.S. population, according to the American Civil Liberties Union. The Border Patrol is also responsible for airports and other ports of entry, regardless of where they are in relation to borders.
In Minneapolis, which doesn’t lie within 100 miles of a border, the Border Patrol can’t board buses or trains or set up fixed checkpoints, but the law still allows them to pull a driver over and interrogate them about their immigration status if they have “reasonable suspicion” the person isn’t a citizen. ICE is solely responsible for detaining, transporting and deporting immigrants who have been arrested, either by ICE or Border Patrol.
What kinds of legal status can an immigrant have in the United States?
The Trump administration often claims there are as many as 20 or 25 million unauthorized immigrants in the United States – more than double the government’s own official estimates – without providing evidence. While those numbers are widely disputed, one factor in the discrepancy is that the administration seemingly counts immigrants who have been living in the country lawfully, but whose legal status it is trying to revoke.
“There’s a widely held misconception that immigration is really black and white, that people are either citizens or they’re so-called ‘illegal aliens,’ ” said Geoffrey Heeren, director of the immigration law clinic and a law professor at the University of Idaho. “In fact, there’s a whole host of different statuses, and people can move from one to the other.”
Even the category of citizen is contested, Heeren said, pointing to an executive order Trump signed on his first day back in office that seeks to revoke citizenship from U.S.-born children of noncitizen parents. The Supreme Court announced Friday that it will hear oral arguments on April 1 in a case challenging that order, which directly contradicts the 14th Amendment to the Constitution, as the Supreme Court has interpreted it.
Here are some of the other legal statuses immigrants may have:
• Temporary Protected Status: Congress has given the secretary of the Department of Homeland Security the power to designate countries – usually those experiencing war, famine or other dangers – whose citizens may live and work legally in the United States. Homeland Security Secretary Kristi Noem has decided to terminate TPS for people from Myanmar, Somalia, Honduras, Nepal, Nicaragua, Ethiopia and South Sudan. Haitians are set to lose TPS on Tuesday, after presidents repeatedly extended it in the wake of an earthquake that devastated the island in 2010 as well as the continued instability of the nation’s government.
• Deferred Enforced Departure: Similar to TPS, but without Congress passing a law to create the program, U.S. presidents have used their executive authority to allow citizens of certain countries to live and work legally in the United States. That protection expired for citizens of Lebanon on Monday and now applies only to people from Liberia and Hong Kong.
• Deferred Action for Childhood Arrivals: After Congress narrowly failed to pass the DREAM Act in 2007 and 2011, then-President Barack Obama used his executive authority to do part of what that bill sought to do, allowing immigrants who entered the United States unlawfully as children to live and work in the country. Although Trump said in 2018 he supported Congress creating a pathway to citizenship for those so-called “dreamers,” his first administration sought to end DACA in 2017, and court battles over the program continue. The roughly 525,000 current DACA recipients can continue to renew their status every two years, but new applications aren’t allowed, and the Trump administration has said dreamers aren’t protected from deportation
• Refugee Resettlement Program: Congress passed the Refugee Act of 1980 to create a program to allow a limited number of immigrants into the country after they have been vetted outside the United States, often by United Nations agencies refugee camps after waiting for years to be admitted. In 2025, the Trump administration essentially shut down that program, with the exception of white South Africans. Since the shooting of two National Guard members in November by an Afghan immigrant who wasn’t part of the Refugee Resettlement Program, the administration has arrested dozens of refugees who had already been lawfully admitted to the United States, The New York Times reported on Monday.
• Humanitarian parole: Before Congress passed the Refugee Act, U.S. presidents used parole to allow refugees into the country, such as the thousands who fled Southeast Asia after the Vietnam War, Heeren said. More recently, then-President Joe Biden used the authority to admit Afghans who fled the Taliban takeover of their country following the U.S. withdrawal in 2021, Ukrainians who fled the full-scale Russian invasion of their country in 2022 and people from various countries who used an app created by the Biden administration to make appointments at lawful points of entry and request asylum.
• Asylum: After World War II, when the United States and other governments faced criticism for turning away Jewish Germans and other refugees fleeing the Holocaust, the U.S. government signed a United Nations treaty in 1967 that established a process for immigrants fleeing danger in their home countries to request asylum. Once someone is granted asylum, they can apply for permanent resident status – often called a “green card” – after a year, but a massive backlog of asylum applications mean immigrants who request asylum often wait years for a court date. Critics say that created a loophole that let overwhelming numbers of migrants to enter the country, knowing they likely could stay for years even if their asylum claims are eventually denied. But Heeren emphasized that asylum seekers are in the country lawfully, even if they crossed the border illegally to request asylum.
What are the legal pathways to immigrate, and why don’t immigrants just ‘do it the right way’?
The pathways for immigrants who want to come to the United States lawfully are few, Gelatt said, and most are extremely narrow. U.S. citizens and permanent residents can request visas for their close relatives through a family sponsorship program that faces a yearslong backlog, and employer sponsorship pathways are even narrower.
“There’s a diversity visa for people from certain countries that gives you a minuscule chance of winning a lottery to come to United States, but for most people around the world, they don’t have any legal pathway to come to the U.S.,” Gelatt said.
“At the same time, the U.S. economy has had a very strong demand for immigrant labor, and lots of people came and worked in the United States,” she said. “And so there have been a lot of periods of U.S. history where the government has somewhat turned a blind eye to people coming without authorization, because it benefited our companies and our economy.”
Since then-President Ronald Reagan signed the Immigration Reform and Control Act of 1986 into law four decades ago, Congress has repeatedly tried and failed to pass legislation to update U.S. immigration law. Proposals for comprehensive immigration reform generally combine stricter enforcement measures along with clearer ways for immigrants to enter the country legally and a pathway to legal status for unauthorized immigrants who have worked in the country for years without committing serious crimes.
A narrower bipartisan bill aimed at restoring order at the U.S.-Mexico border failed in late 2024, when Trump, then a candidate for president, told Republicans in Congress to oppose it. For now, there’s no sign that federal lawmakers will revive bipartisan negotiations for comprehensive immigration reform, and Trump himself has shown virtually no interest in Congress taking action.
What does the Constitution have to say about the Trump administration’s immigration crackdown?
Critics of the Trump administration’s aggressive immigration crackdown have pointed to the Fourth Amendment to the Constitution, which protects against “unreasonable searches and seizures.” Courts have interpreted that to mean law enforcement generally can’t enter a home or business without a warrant approved by a judge showing probable cause, but ICE and Border Patrol agents have conducted searches with only administrative warrants.
“It’s basically ICE officials issuing warrants to themselves,” Feldman said. “They are of the view that they can issue administrative warrants, which give them authority to engage in that activity, but that’s untested, and we don’t know what the courts are going to say about this. We know what the Fourth Amendment says – it expressly states that a warrant is required, except, as the Supreme Court has told us, in the face of certain exigent circumstances, emergencies.”
Courts also will need to weigh in on the principle of federalism, Feldman said. The 10th Amendment says that any powers not explicitly given to the federal government by the Constitution are reserved for the states, as long as the Constitution doesn’t prohibit those state powers.
“The founders were very, very suspicious of a strong federal government,” Feldman said. “They were rebelling against the king, and they wanted to preserve the political power of the states in a variety of ways and did exactly that.”
That principle is being tested by the Trump administration’s immigration crackdown in a way not seen since the 1960s, when the federal government sent National Guard troops to Southern states to enforce laws aimed at ending racial segregation, Feldman said. He added that while Republicans have traditionally been the party most concerned about preserving states’ rights, the tables have turned as Democrats now seek to protect immigrants’ rights.
Some cities and states controlled by Democrats, including Washington state, have enacted “sanctuary” policies since Trump’s first term that limit state and local law enforcement’s cooperation with federal immigration agents. In Minnesota, for instance, state officials say they cooperate with ICE to transfer custody of immigrants who have been convicted of crimes, but not others.
Is the Trump administration really going after ‘the worst of the worst’?
Trump campaigned on a promise to focus his deportation efforts on “the worst of the worst,” and his administration frequently highlights violent criminals they have detained and deported. But multiple independent analyses of deportation data have shown that the vast majority of immigrants arrested by ICE have no criminal record.
An analysis by the Cato Institute, a libertarian think tank, found in November that only 5% of immigrants arrested by ICE had been convicted of a violent crime, while 73% had no conviction at all. Another analysis published Wednesday by the Annenberg Public Policy Center’s FactCheck.org found that as ICE arrests have increased in recent months, an increasing share of those arrested had no criminal record.
In Trump’s first term, his administration deported fewer than 932,000 people, according to data from Syracuse University’s Transactional Records Access Clearinghouse. By comparison, the Obama administration deported more than 3.1 million immigrants over eight years, largely by working with state and local law enforcement agencies to target convicted criminals and others who were already in custody.
A New York Times analysis published Jan. 17 estimated that the Trump administration deported about 230,000 people from within the United States in its first year, along with roughly 270,000 turned back at the border. But Trump administration officials have repeatedly said they’re aiming much higher, with an unprecedented target of 1 million deportations per year.
Correction: This article was updated on Feb. 4, 2026, to correct the year in which the U.S. government became a signatory to the United Nations treaty establishing a process for immigrants to request asylum. The United States signed the Protocol Relating to the Status of Refugees in 1967.