Over the past few weeks, there’ve been reports of ICE ramping up arrests at airports around the country, picking up people boarding or exiting domestic flights in ways that not long ago would have been unheard of. This has prompted local journalists to ask whether their airports are safe to enter and to document individual arrests of people trying to travel.
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.
Even reasonably well-informed observers might think that there’s a simple distinction between “status” and “not status.” This type of binary language permeates political conversations around immigration, but if you’ve either read my work or the work of other explanatory immigration journalists, you know these matters aren’t quite so simple. The immigration bureaucracy is rife with administrative semi-statuses, temporary protections, and other carve-outs: “authorized stay,” presence under color of law, and so on.
“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.
Most of the reported cases of airport arrests seem to involve people that were waiting for official adjudications on their applications for status, and who were not in active removal proceedings. This is not an uncommon posture to be in. Let’s say, for example, that you are a foreign national who entered the country lawfully on a visa — maybe a B-type tourist visa or an F-1 student visa — and subsequently got married to a U.S. citizen. You petition to adjust your status to permanent residence through this marriage, at which point you are instructed to remain in the country while this application is evaluated; leaving the country will be considered an abandonment of your application.
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.
There are many versions of this circumstance. There are people who might be in affirmative asylum processes who have overstayed tourist visas. There might be those who had a status which the government subsequently attempted to terminate who are exercising their right to contest that termination. There are people who might have conditional green cards and are petitioning to remove those conditions (a situation that arises out of certain marriages), during which the green card expires. What all these people have in common is that they are following the law—and in the country lawfully. Could they still be detained upon attempting to travel by domestic flight? Who’s to say?
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.
This was the case for Michael (a pseudonym to protect his privacy), who entered the country on a tourist visa before applying to adjust his status to permanent resident as a result of his marriage to a U.S. citizen. While waiting for USCIS to issue a decision, the tourist visa ran out, though Michael did ultimately receive an approval about a month and a half later. He and his spouse already had plans to fly domestically to attend a wedding, but decided to reconsider those plans until he at least had his physical green card in hand.
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.
Even for the people who would undoubtedly be targeted, we can comfortably say the relative risk is low; there are millions of domestic air travelers every day, and even assuming that the publicly reported detentions are a significant undercount, we’re still talking about a small fraction of domestic travelers with uncertain status who’ve been arrested in the past few weeks. Yet every would-be traveler who’s between statuses, including those with explicit permission from the government, or even those with specific status, might now find themselves having to think twice before flying even within the country. That’s precisely the plan.
“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.
