Critics Blast Trump Border Czar for Asserting ICE Can Detain People Based on 'Physical Appearance'

White House border czar Tom Homan on Friday stirred up outrage during a Fox News interview in which he declared that Immigration and Customs Enforcement agents could detain people without probable cause based on a number of factors including their physical appearance.

After being asked about the possibility of a judge in California limiting the scope of ICE's law-enforcement activities, Homan declared that "people need to understand ICE officers and Border Patrol don't need probable cause to walk up to somebody, briefly detain them, and question them."

He then outlined factors ICE agents could use that would justify detaining someone.

"They just need the totality of the circumstances," he claimed. "They just got through our observation, you know, get articulable facts based on their location, their occupation, their physical appearance, their actions."

Homan's statement about not requiring probable cause to detain people contradicts a statement made in court this week by Thomas Giles, the assistant director of ICE who testified that the standard for making arrests "is we need to determine probable cause and determine alienage."

Many elected Democrats rushed to slam Homan for his statement about using "physical appearance" as a factor for determining whether someone warrants being detained.

"This is patently false," wrote Rep. Dan Goldman (D-N.Y.) on X. "DHS has authority to question and search people coming into the country at points of entry. But ICE may not detain and question anyone without reasonable suspicion—and certainly not based on their physical appearance alone. This lawlessness must stop."

"Trump's thugs will racially profile you, then go on national television to brag about getting away with it," commented Rep. Yvette Clark (D-N.Y.).

"And there you have it," wrote Sen. Alex Padilla (D-Calif.), who weeks ago was forcibly removed by security forces while trying to ask Secretary of Homeland Security Kristi Noem questions at a press event. "Under the Trump Administration, ICE and Border Patrol are being empowered to stop and question you based solely on how you look. No probable cause. No real reason. Just your 'physical appearance.' That's not justice—it's profiling."

"They're saying the quiet part out loud now," wrote Democratic New York State Sen. Gustavo Rivera. "Don't get it twisted: if we let them keep doing this, they'll find a reason to come for ANY ONE OF US soon enough."

Aaron Reichlin-Melnick, senior fellow at the American Immigration Council, argued on X that there was some truth to Homan's statement as the Supreme Court ruled in 1975 that racial profiling can be used in immigration stops. He noted, however, "that decision was based on demographics at the time, and in the 50 years since, courts have invalidated it as used in Latino-heavy communities."

David Bier, the director of immigration studies at the libertarian Cato Institute, accused Homan and the Trump administration of "admitting to participating in a criminal conspiracy against the Constitution of the United States" with his remarks.

The American Civil Liberties Union (ACLU) earlier this month filed a lawsuit in which it alleged that ICE agents in Los Angeles were racially profiling Latinos in the city and flouting federal laws when making arrests.

"Individuals with brown skin are approached or pulled aside by unidentified federal agents, suddenly and with a show of force, and made to answer questions about who they are and where they are from," the ACLU wrote. "If they hesitate, attempt to leave, or do not answer the questions to the satisfaction of the agents, they are detained, sometimes tackled, handcuffed, and/or taken into custody. In these interactions, agents typically have no prior information about the individual and no warrant of any kind. If agents make an arrest, contrary to federal law, they do not make any determination of whether a person poses a risk of flight before a warrant can be obtained. Also contrary to federal law, the agents do not identify themselves or explain why the individual is being arrested."