The agency has described these arrests as targeting people who have overstayed their visas, without clarification or even acknowledgement of the fact that they may have separately been allowed and instructed by the government to remain in the country.
“I think the public doesn’t understand that immigration is kind of very gray and very paradoxical, because you could still be amenable to detention and being placed in removal even though you’re authorized to stay here. That’s the paradox,” said Cyrus Mehta, a longtime New York-based immigration attorney and professor at Brooklyn Law School. That tension had not necessarily come to the fore because the government had for the most part left people with pending or administrative status alone; now, driven by the Trump administration’s imperative to juice arrest and detention numbers, it’s targeting anyone it can get its hands on. “I don’t know whether they have any parameters,” added Mehta, noting that ICE has not enunciated any concrete policy.
So, you wait for the year or more that it could take for this process to be complete, during which the visa you initially used to enter the country expires, because, again, you have been explicitly instructed not to leave. This presence is considered authorized stay—that is to say, you don’t have a specific status at this moment in time, but the government is aware of the situation and has signed off on your continued presence in the country. This is not really an anomaly or an extraordinary circumstance, it is the way the system is designed to work and has long worked. Yet the administration now seems to have decided that this is functionally the same as having no status at all.
Not ICE, which hasn’t put out any sort of guidance or information about who is and isn’t subject to the airport arrests (questions sent to the agency received no response). This is by design; uncertainty is not incidental but central to the administration’s narrative-building efforts, which are arguably more potent in shaping behavior than practicalities of its enforcement operation. People who may or may not be subject to arrest will tend to avoid participation in regular life, especially as they see high-profile examples of others detained and thrown into removal proceedings.
Mehta said agents would have no cause to arrest someone who was already a permanent resident (though agents have targeted specific green card holders like Mahmoud Khalil on explicitly political grounds). Yet it makes sense for lay people attempting to navigate this environment of fear and precariousness to want to overcorrect. In any case, Michael’s desire to have documents in hand highlights another issue with these airport arrests, which is that the systems that ICE and CBP are drawing on to make these detention decisions are very often wrong or outdated. A person might be able to subsequently prove that they did have status, but only after they’ve missed their flights and spent some time in detention.
“The goal of this administration is to just create fear, panic, confusion, and there is this general hostility towards noncitizens, and even if you’re a citizen, there’s still hostility,” said Mehta.
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