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Today I want to talk about ICE traffic stops, because there is a lot of confusion out there. This is partially due to the media repeating ICE talking points and not bothering to give anyone else outside of the immigration enforcement agencies a say – many in the media ingest ICE propaganda and simply regurgitate it for their viewers. The confusion is also caused intentionally by ICE, CBP and Border Patrol who keep many of their policies hidden under “law enforcement sensitive” national security seals. When killings and violence like we have seen lately occur, the leadership of these agencies rely on their bosses at DHS, politicians and right-wing media to respond with political messaging and outright lies about the facts. In other words, the leadership of these agencies hide from accountability and instead send out their talking heads like Tom Homan who is the current Border Czar, which is a political position.
Remember, I am not a lawyer. My opinions come from my criminal law degree, my experience as a former Border Patrol agent and my research and study of these agencies over the last decade. When I refer to ICE, I am also referring to CBP and Border Patrol as they are leading this mass deportation that has brought them to middle America.
What is the legal authority for immigration stops?
Contrary to this administration’s beliefs, ICE does not have the authority to stop people for basic traffic violations. Immigration agents do have the authority to make traffic stops for suspicion of immigration, customs and narcotics violations as well as crimes associated with terrorism. They can also make vehicle stops if they see a person commit a serious felony that is outside of this authority such as if they see you run over a person. However, immigration agents do not have the legal authority to stop people for traffic violations. If an immigration agent stops a car for a taillight being out or any traffic violation, that stop is illegal. If they stop you for suspicion of driving under the influence of alcohol, that stop is also not within their authority and will be thrown out by the courts. As an agent, I have seen this happen many times.
Where this gets sticky is when immigration agents work with state and local police who do have the legal authority to make traffic violation stops. After 9/11, Congress created Joint Terrorism Task Forces or JTTFs. These teams were created with the concept of preventing another terrorist attack. One of the main complaints law enforcement had back then was that they were unable to stop the terrorists because various agencies could not communicate or share intelligence with each other. To be clear, it was never that they could not share intelligence, it was simply that they had to get a court’s approval to share that information. In other words, they had to develop a case and go through checks and balances before sharing that information - something the immigration agencies hate to do. The JTTFs generally did away with this requirement.
Additionally, this combined joint task force of federal, state and local police meant that various agencies with different authorities were combined into one unit. This was problematic for the teams who wanted everyone on the team to have the same authorities. So, they were allowed to “share authorities.” This meant that if I as a Border Patrol agent happened to be on a task force with a local police department, I could engage in traffic stops for traffic violations or do knock and talks (which are knocking on a door and requesting to speak with a resident without a warrant); these are authorities not held by Border Patrol agents. This and 287G contracts with ICE are how your state and local police have suddenly gained immigration powers that they did not have before. This is one way in which immigration agents are getting around their limited authority issue.
The main way ICE justifies traffic stops is simply by racially profiling for immigration violations. Within one hundred miles of any land or water border, immigration agents have the legal authority to use racial profiling to conduct traffic stops for immigration purposes. While a hundred miles may not seem to cover most of the United States, it does cover two-thirds of the population. The entire state of Maine is under this rule. This rule was recently upheld by the Supreme Court and because Justice Kavanaugh wrote the decision, they have been termed “Kavanaugh stops.”
According to Kavanaugh, these immigration stops are brief, non-intrusive and living in a city where many undocumented people are suspected of living is enough reasonable suspicion. In other words, if you happen to live in an area where undocumented people live, then you are also subject to these stops that violate your Fourth Amendment rights to unreasonable searches. What Kavanaugh does not consider is how these stops occur outside the confines of the cushy Supreme Court. In real life, what we are seeing under Trump’s mass deportation are immigration agents using the constant sharing of authorities to stop people based on powers they do not legally have such as stopping people for traffic violations, not conducting immigration inspections at the scene, brutality, kidnapping and then dumping of victims. These are a terrorist tactics and not legal or professional law enforcement tactics, meant to create fear in communities, plain and simple.
Additionally, while immigration agents are trained in the academies that they need to develop their reasonable suspicion before they attempt to stop a car as the law requires, the training in the field differs greatly from the official academy training. While agents do receive additional yearly training through their agencies, it is often incomplete and not like the academy training. Some of this after academy training is provided by private contractors who are often ex-agents or police officers who are biased and not lawyers well-versed in the law. This training often teaches how to get away with illegal stuff, and there is no oversight into this training. And since immigration agents have been allowed to do these kinds of stops for generations on the southern border without repercussions or accountability, they expect they will be allowed to continue to do so all across the country.
So, what should a normal traffic stop for an immigration violation look like versus what is really going on?
Stops conducted for the purpose of an immigration check are considered routine stops. A routine stop is one in which the agent believes a civil immigration violation has occurred and not a criminal violation. It is the same type of stop done when a local police officer stops you for failing to yield or crossing over the double white line. It is not a stop for a serious criminal offense but for a civil administrative violation. The agent is to notify dispatch of their location and the description and plate of the car. They turn on their red and blue lights and maybe give a chirp or two of their sirens if the driver does not see them. The agent then safely exists their car and approaches the stopped vehicle from a safe angle, often from the passenger’s side. The agent then identifies themselves as a federal agent and asks the person to state their citizenship. If they are not a U.S. citizen, they are asked for their immigration documents. That’s it. While a routine traffic stop can escalate into a high-risk stop, the initial reason for the stop should be handled in this manner unless circumstances change.
The pattern and practice shown in the last eighteen months through analyzing court cases is that ICE stops vehicles without any reasonable suspicion for immigration violations other than the racial profiling element. The reason why I say this is because they have stated that is exactly what they are doing and have not been able to provide any other reason.
In the most recent ICE killing of Johan Duran Guerrero in Maine, the agent stated he was surveilling a subject when he saw Johan drive by and decided to stop him. No reason has been given for this immigration stop other than that he looked undocumented, which is another way of saying he was Brown. This was racial profiling as this agent did not stop every car that passed him – he stopped the car with a Brown driver. Neither DHS nor ICE has given a public statement as to the reason Johan was stopped. What they have claimed was that Johan tried to run over Agent David Brouillette and then claimed he had to shoot and kill Johan because he was fleeing the scene and he feared for public safety. Note that the question of why the agent chose to stop this car is not being addressed. They do not want to answer the why of the stop because if the stop was illegal, everything the agent did after the stop was illegal as well. That means the shooting would possibly be unjustified.
This same scenario is seen in the Lorenzo Salgado Araujo ICE killing that occurred in Houston, Texas during the same week. When asked why he was stopped, agents claimed they were surveilling another person when they saw Lorenzo drive by in a van that was the same color as the one they were surveilling. That is some weak sauce, but it a common tactic used by the immigration agencies. It is sort of a nexus to real criminal activity that they then use to justify other unrelated stops; that van looked like the van we were targeting even though the license plates were different and Lorenzo was not the man they were looking for. When asked why he was shot, the agency claimed Lorenzo tried to run over the agents. Once again, they cannot justify the stop legally and they go straight to the agent’s life was in danger answer to justify the shooting and make the press back down.
Whenever their actions are questioned, officials immediately turn towards the agent’s life was in danger to intimidate the press. Border Czar Tom Homan recently stated to Face the Nation’s Maragaret Brennan that the killing was justified because Lorenzo did not stop for the “blue lights” and that he just needed to “comply.” Homan knows this is not a justified reason for lethal use of force or even remotely legal. It’s astonishing to see such a high-ranking federal law enforcement officer justify a shooting when their own use of force manuals and training they follow today strictly says failure to yield, fleeing and simply not complying are not legal reasons to use lethal force.
How does ICE justify these illegal stops to the courts?
Once these cases get to court, the agency will submit narratives that then fill in the legal reasoning well after the stops occurred. What this means in plain English is that the reasonable suspicion required by immigration agents to stop a vehicle is not being developed by agents before they attempt the stop as is required by the law. They are manufacturing the reasons only after the stop is done and everyone is sitting in a room together with management and union advisors getting their narratives straight. I saw this from the time I entered the Border Patrol to when I resigned. I have seen this over and over again throughout the years studying all the immigration enforcement agencies and I see it today in court filings.
In most vehicle stops, immigration agents make the decision to stop a car for suspicion of immigration violations based off racial profiling alone. Most stops do not get scrutinized by the media. They do not end up in fatal shootings, and they do not end up in court. They do this all day long, every day and have been getting away with it for generations because most of their victims do not have the resources to fight for their rights. When the stop ends up in a shooting, they ignore the reason for the stop and claim the agent feared for their life. This draws the attention away from why the stop was conducted in the first place. Special teams then come in and get rid of witnesses, confiscate video, lie on court documents, often deport witnesses and obstruct outside investigators. Then it sits in court for years, sometimes a decade, until the media and everyone has forgotten or given up on justice. This is the pattern and practice that has served immigration agents well for generations.
Felony or high-risk stops.
What we are seeing ICE do under this mass deportation is what was called felony stops in my day and is currently called high-risk stops today. A high-risk stop is when the agent sees or has reason to believe the subject of the stop has committed a serious crime. An example of a high-risk stop is when an agent sees a car driving down the road and the driver is shooting out the window, or if the license plate comes back to a car involved in a serious crime. These stops can then involve ramming, PIT maneuvers to make them crash and blocking of the vehicle after they fail to yield – all things we have seen ICE doing for suspicion of civil immigration violations. Agents exit their vehicles with their guns drawn and are supposed to have extensive training in how to conduct these escalated stops that include how to yell orders and not give conflicting orders, notifying other agents to join in the stop before trying to conduct the stop, notifying supervisors to monitor the stop, being sure the agent conducting the stop is wearing a uniform that a reasonable person would recognize as law enforcement and being sure the car conducting the stop is marked as a law enforcement car.
I can hear you thinking to yourself that ICE is doing none of this, and you are correct.
The failure to follow these long-standing procedures is being done on purpose. The lack of uniforms, using unmarked cars with red and blue lights that can be bought off Amazon, vests that can be bought off Amazon, the running up on people with guns drawn screaming conflicting orders, the shattering of car windows - is all purposeful. The way ICE is conducting traffic stops for what are civil immigration violations is escalated to this felony or high-risk stop from the get-go. This is being done to create panic in the drivers, and it is something that is taught in the field long after they get out of the academies. Once the driver and other occupants become panicked because they do not recognize these agents as officers, because they cannot understand their confusing orders and because they have glass shattered over them and guns shoved in their faces – their natural human response is to flee. ICE then claims they feared for their lives and shoots.
Why does ICE always say they feared for their lives when video shows their lives were clearly not threatened?
Because the courts require it. In officer involved shootings, courts demand that juries must consider the reasonable fear of the agent at the time the event, not if a reasonable person would be in fear for their lives in that situation. By the time these cases get to court, union attorneys defending the agent will have trained them to say over and over that they feared for their lives. They will encourage them to bring in past experiences from being in the military, their PTSD from their work, other examples of where they had seen or heard of other agents being killed to justify their fear and the courts will allow it. Whether the video shows actual danger or not, juries must consider the agent’s state of mind at the moment of the shooting according to the law. This then requires juries to judge what was in the agent’s mind at the time instead of what is reasonable to the average person looking at the evidence which is the standard under international law. And most juries are filled with horror stories of those few instances where agents lives were really in danger. It doesn’t happen often, but it does happen. This makes them unsure of judging the agent and the cases are often dropped.
I think it is important to note that Border Czar Tom Homan’s response to the Johan killing in Maine was to say they needed to pause the stops and reevaluate the training. According to the most recent reporting, the shooter, ICE agent David Brouilette was considered to be a careered law enforcement officer and allowed to skip the already inadequate ICE training under this administration’s hiring spree. This tells me that Homan, who is a career law enforcement officer and received the same training I did back in the day with the Border Patrol, believed the shooting was at the very least problematic for them. Within the same day, Trump reversed Homan’s order and the dangerous stops continue. Trump claimed the stops were essential to getting criminals off the streets.
But here’s the thing, neither Johan nor Lorenzo were criminals. They were both within the immigration system legally filing their paperwork and appearing before immigration officials. Additionally, eighteen months of these escalated stops have yielded only 5% violent criminals according to ICE’s own statistics. 73% do not have any criminal convictions. The vast majority of these stops are not yielding criminals. While some claim that many in custody have pending criminal charges such as allegations of assaulting federal agents, what we see time and again is that ICE has lied in court documents and been forced to drop those pending charges completely. Examples of this include Marimar Martinez, Alfredo Alejandro Aljorna, Julio Cesar Sosa-Celis and many more.
As to the FBI announcing they will no longer investigate killings by immigration agencies and the outrage we are seeing by democrats, the FBI has always had the legal right to refuse these investigations and often does so when they see that the case in problematic. They do not want to incur the wrath of sending an agent to prison. Even when they have investigated these killings, the FBI has allowed the immigration agencies to use their own illegal evidence collection teams to determine what is evidence and what is not and how it is collected. The use of illegal immigration evidence teams is documented in HBO’s Emmy award winning film Critical Incident: Death at the border, a film democrats refuse to talk about. In that film, you will see how the current CBP Commissioner, Rodney Scott, used these illegal teams to cover up killings by his agents when he was the Border Patrol chief of San Diego Sector. The coverups from back then are the exact same patterns and practices you are seeing in this mass deportation. While those illegal teams were disbanded by the Biden administration, they were quietly moved into CBP’s Office of Professional Responsibility with zero accountability. Scott now leads and recently testified to using these teams in the Alex Pretti shooting. Please see my Substack writings to learn more about these teams.
So, the outrage by democrats does not make any sense and appears to simply be performative.
The violence we are seeing today is intentional. The intentionality was proven when Homan ordered agents to tone down their violence after the chaos of Border Patrol Chief Gregory Bovino’s raids in Chicago. The violence did die down, which means much of the violence was not caused by the victims as they claimed but instead instigated by the agents themselves. The killings of Johan and Lorenzo show that there has recently been an internal order to make escalated felony or high-risk stops for what are routine immigration stops. Both Johan and Lorenzo’s stops should have been routine stops where immigration agents asked for their citizenship, checked their documents and then let them go.
The agencies want you to believe every incident is a one-off, but the truth is that this is a large coverup system that has been allowed to expand under both democrats and republicans dating back to well before 9/11. The system is operating as designed.
