Tattoos and “Terrorism-Aligned” Speech in the Second Trump Administration
In a criminal context, the Fourth Amendment signals that the executive can’t just declare on its own authority that a person may be searched or seized. Instead, before seizing or searching, the executive has to swear to an independent court that the person is suspected of an actual crime, and present evidence amounting to probable cause. Then, the court, not the executive, decides whether probable cause exists, and signs a warrant authorizing the search or seizure.
However, in the immigration context, the statutory powers Congress has previously granted to the executive branch, enable it to conduct searches and seizures with far fewer constraints. Immigration procedures are not generally the same as criminal procedures, as the relevant statutes define deportation as an administrative action rather than as a criminal penalty. The legal standard required for seizing and deporting a non-citizen is often far short of probable cause of involvement in an actual crime; in fact, a crime is not even necessary for apprehension and removal. Current precedent sometimes refuses to give Fourth Amendment protections to people in the immigration system, especially new arrivals at the border. Notably, U.S. citizens also experience a reduction or deprivation of Fourth Amendment rights at the border, such as airports, where warrantless searches are a mainstay, and non-citizens have even fewer safeguards. So, much of the discussion over rights for immigrants has centered instead on First Amendment rights to free speech, and on Fifth and Fourteenth Amendment due process rights. The ability of someone to assert their rights while also avoiding deportation is greatest for naturalized citizens, and progressively diminishes for green card holders, visa holders, and people without papers. Broadly speaking, it’s very difficult for immigrants to succeed in challenging any government deportation decision.
That said, immigrants seized by ICE inside the United States have generally been entitled to a hearing where they can challenge their detention (“habeas corpus”), and the substance of the government’s allegations against them. What’s new with the second Trump administration is, more than anything, the decision to quickly drive forward revocations of status and deportations, while denying many people, and in particular those removed under the Alien Enemies Act, the hearings that they are due. A more thorough explanation of Restore The Fourth’s position on Constitutional rights in the immigration context is here.
President Trump ran on mass deportation, and won, but mass deportation could never be accomplished without enormous logistical challenges. There are neither the detention facilities, nor the judges, nor the time, to give upwards of twelve million people a fair opportunity to defend themselves from deportation, and that sense of hurry is vitiating due process for many people in deportation proceedings.
On inauguration, the Trump administration immediately set in motion a plan targeting hundreds of immigrants, including over 200 Venezuelan nationals deported under the 1798 Alien Enemies Act (“AEA”), asserting that they’re gang members, and shipping them to a maximum-security prison in El Salvador, where they may be put to hard labor under President Bukele’s “Zero Idleness” program. When an attorney for the administration acknowledged to the court that one of these immigrants was sent to El Salvador in an “administrative error,” the attorney was suspended, and the administration insisted that nothing could be done to bring the immigrant back. The administration has also attempted to revoke the status of roughly 600,000 Venezuelans legally in the US on Temporary Protected Status (“TPS”), as well as Cubans and Haitians in the US under the same program. The executive has based its AEA decision-making on whether the Venezuelans in question are members of the violent Tren de Aragua gang, assessed in part by whether they have a tattoo. They base their AEA reasoning on an unverified assertion that alleged links of Tren de Aragua to members of the Maduro administration render Tren de Aragua a de facto foreign government, and that therefore crimes committed by Tren de Aragua members in the United States are functionally equivalent to an “invasion of or predatory incursion into the United States,” a contention that the courts will have to resolve. Many of the people being deported have no verifiable gang ties; many of their tattoos are of innocent things like autism awareness or support of the soccer club Real Madrid; and experts on Tren de Aragua, including at FBI and DHS, question whether Tren de Aragua has identifying tattoos at all. The administration’s difficulty in finding many actual Tren de Aragua members in the US itself undermines the assertion of an “invasion or predatory incursion,” but this could prove irrelevant if courts, as they have done in past administrations, allow it to assert the state secrets privilege to limit evidence review and, as a consequence, potentially conceal its mistakes.
The Supreme Court, in a brief 5-4 ruling on April 7, 2025, vacated an injunction preventing further deportations under AEA, stating that the judge had no jurisdiction over the case, as proper venue for habeas proceedings belongs in the district where detainees are held; but insisted that any further deportations involve proper notice to immigrants, and an opportunity to challenge their deportation on an individual basis on habeas grounds. In other words, future AEA deportees do get hearings, and do get some due process. Whether it was legitimate to invoke the AEA in time of peace in the first place, and what happens now to those already deported to El Salvador, remain to be seen.
With regard to deportations of Gaza ceasefire protesters, the Trump administration appears to be implementing a Heritage Foundation plan from fall 2024 to deport protesters on a more case-by-case basis who are legally in the country. The administration has received, and may be using, dossiers on activists compiled by pro-Israel groups to decide which protesters to target. It is using plainclothes ICE agents to seize activists off the streets. In some cases, it is invoking in court a McCarthy-era statutory authority to deport them, based on a declaration by the Secretary of State that their continued presence would be contrary to the United States’ “foreign policy interests.” In some cases, the administration argues that Gaza ceasefire activists are deportable based on allegations of being “aligned to” Hamas, or, more formally, involvement in “a political, social, or other group that endorses or espouses terrorist activity.” This vague designation is putting immigrants active on this issue at risk of deportation for supporting even wholly non-violent opposition to the actions of a foreign government. In short, the administration is using the elastic terms “terrorist” and “gang member” in similar ways, to prioritize deportations that risk being motivated by bias, over targeting for deportation people who have been charged with or convicted of serious crimes.
For district or lower court judges who make rulings that challenge or slow these deportation processes, President Trump is advocating impeachment. His statements are energizing a live constitutional debate and action by his allies in Congress to limit judicial review of executive decisions to higher courts in significant national policy disputes. There have now been three well-publicized instances of administration officials plausibly disregarding court orders from federal judges. We anticipate more.
We’re well aware that this is not the first administration to test or break the law. Andrew Jackson, for example, acted to deport the Cherokees in contempt of judicial rulings; George W. Bush implemented a system of “extraordinary rendition” to place hundreds of detainees at Guantanamo Bay, and invented a new category of “enemy combatants” to detain even U. S. citizens and deny them the due process of American courts. Even the “gang identification” practices being applied to Venezuelans are routine, and repellent, police practice in cities like Boston. But the fact that other authorities have also acted illegally in this sphere doesn’t make this administration’s actions less blameworthy.
Upholding the Constitution is the federal government’s first duty. We believe that the Constitution and the law should restrain the executive branch, whoever the chief executive is. In part, that means that individuals threatened with deportation should have the chance to dispute government allegations, before a neutral arbiter who decides whether they are deportable. That’s what hearings are for, and the Constitution requires at least this much, even for immigrants without any legal status. No administration has a monopoly on truth. Any government should refrain from trying to prosecute or deport people unless based on well-founded, individual evidence; this administration should acknowledge and correct its mistakes. When judges approve injunctions to prevent possible further misconduct, the administration should first obey the injunction, as the administration has in many cases, and appeal it if it feels justified. These are all basic elements of the rule of law.
As a nonpartisan organization, we recognize that a lot about the immigration system has been broken for a long time, and that both major parties have been complicit in making it worse. Yet we are deeply worried at mass deportation efforts that threaten the rule of law, and at a palingenetic rhetoric of invasion and infection that dehumanizes immigrants and makes them more vulnerable. Being in the United States is indeed a privilege, not a right; but as the Supreme Court is now indicating, the administration’s single-minded focus on withdrawing that privilege wherever law or power allows it, should not deprive immigrants of hearings or a fair opportunity to contest their deportation.