As of November 30, 2025, Immigration and Customs Enforcement, or ICE, held over 65,000 people in detention, of whom nearly three-quarters had no criminal convictions.[1] Although ICE detention is formally classified as civil rather than criminal, many detainees are held for prolonged and, sometimes, indefinite periods with limited judicial oversight.
This raises fundamental legal concerns: how far can immigration authorities restrict freedom without violating U.S. constitutional protections or international human rights law? And what happens when administrative efficiency clashes with fundamental rights? ICE detention offers a clear example of how administrative powers intersect with, and are constrained by, legal and constitutional safeguards.
International Human Rights Obligations
The legality of ICE detention must be assessed not only under domestic law, but also in light of the United States’ international human rights obligations. International law indeed recognizes the right of states to regulate immigration, yet it imposes strict conditions on any deprivation of liberty. Article 9 of ICCPR permits deprivation of liberty, if it constitutes as
lawful, necessary, proportionate, and subject to effective judicial supervision.[2] The UN Human Rights Committee has consistently held that detention, which is based solely on the status of irregular migration, does not satisfy these requirements. Instead, the detention must pursue a concrete and legitimate goal (preventing absconding for instance) and consider alternatives that are less restrictive.
Prolonged detention without individualized assessment or realistic deportation prospects may cross the line into “arbitrary detention.” This appears in cases such as A v. Australia, the Human Rights Committee clarified that administrative classification of immigration detention does not lessen the severity of liberty deprivation and neither does it lower the applicable standard of review.[3] From this perspective, several aspects of ICE’s current detention practices approach the outer limits of what international law permits.
U.S. Constitutional Limits: Due Process and the Use of Force
Domestic law also imposes constitutional constraints ICE agents are authorized to use force in the performance of their duties, but this authority is limited by the Fourth and Fifth Amendments to the U.S. Constitution.[4] While the Fourth Amendment prohibits arbitrary detention and excessive use of force, the Fifth guarantees due process whenever a person’s liberty is at stake. Although immigration detention formally describes as ‘administrative,’ courts have recognized that prolonged confinement triggers heightened procedural protections. Consequently, this ensures that the government cannot sidestep fundamental rights merely by classifying detention as ‘civil’.[5]
In relation to the use of force, Article 6 of the ICCPR guarantees the right to life and permits lethal force only when strictly necessary to protect life.[6] These principles are further elaborated in the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which require necessity, proportionality, as well as accountability in all law enforcement operations.[7] Importantly, these standards apply equally to all immigration enforcement officers, despite the administrative nature of their mandate.
Conditions, Treatment, and Legal Implications inside ICE facilities
In practice, detainees are often held for months or even years while eviction remains uncertain. International human rights law treats such cases with caution. Reports published by human rights organizations consistently highlight insufficient medical care, overcrowding of detention facilities and the use of solitary confinement in ICE detention, which implies detention often for 22-24 hours a day with minimal human contact.[8]
Not every deficiency in detention conditions constitutes a human rights violation, however, conditions that cause serious physical or psychological suffering may violate Article 7 of the ICCPR, amounting to inhuman or degrading treatment.[9] Consequently, classification as “administrative detention” does not exempt the U.S. from its duty to treat all detainees with dignity, regardless of the immigration status. When confinement mirrors criminal punishment, the “civil” label becomes hollow.
Shielded or Responsible?
Public discourse occasionally suggests that ICE agents enjoy absolute immunity when performing federal duties, this statement has been made by J.D. Vance for instance.[10] However, legally, the U.S. law grants qualified immunity, shielding officials only when they do not violate clearly established rights.[11] This protection is significant, but it is not absolute.
Therefore, overly expansive claims of immunity risk undermining accountability mechanisms, additionally violating the right to an effective remedy, which is generally guaranteed under Article 2(3) of the ICCPR. International law further complements this dynamic, by requiring prompt and independent investigation, as well as accountability when a state’s action causes serious harm or even lethal outcomes. These requirements are essential, since weak oversight undermines rights and risks eroding public trust in legal institutions.
Law, Rights, and the Limits of Authority
Altogether, ICE detention highlights a fundamental legal dilemma: administrative authority often mirrors criminal punishment while avoiding traditional procedural protections. The U.S. has a legitimate interest in regulating immigration, however that interest should not override fundamental liberty and accountability.
Legal reform is therefore not optional. Stronger procedural guarantees, limits on prolonged detention, as well as effective judicial oversight are necessary to ensure that immigration enforcement respects the rule of law. In these legally marginal spaces, a state’s commitment to human rights is tested most sharply.
References
[1] TRAC Reports, Immigration Detention Quick Facts (2025)
[2] UN Human Rights Committee, General Comment No. 35: Article 9
[3] UN Human Rights Committee, A v. Australia and C v. Australia
[4] US Constitution, Amendments IV and V
[5] Zadvydas v. Davis, 533 U.S. 678 (2001)
[6] United Nations, International Covenant on Civil and Political Rights, art 6
[7] United Nations, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)
[8] Human Rights Watch, US: Immigration Detention Conditions (2024)
[9] Amnesty International, USA: Immigration Detention and Human Rights (2023)
[10] CNN, ‘Vance Says ICE Agent Has “Absolute Immunity” After Minneapolis Shooting’ (8 January 2026)
[11] Steven R. Shapiro, Qualified Immunity and Human Rights’ (2020) Harvard Civil Rights-Civil Liberties Law Review.