One Man’s Story Shows Just How Out of Touch Brett Kavanaugh Is

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It was a warm May morning, and Leo Garcia Venegas was pouring concrete for the foundation on a new home being built in suburban Alabama, construction work he’s been doing ever since he graduated high school. It suddenly started to rain, so Garcia Venegas quickly grabbed some plastic to cover his handiwork, but he never got the chance to use it. As he was walking back to the freshly poured cement, immigration agents surrounded him^[2], grabbed him, forced his arms behind his back, then pushed him to the ground, according to a new complaint^[3] filed on his behalf by the Institute for Justice, a libertarian law firm.

“I’m a citizen!” Garcia Venegas yelled. He was born in Florida and had been living in Alabama since he was 14 years old. The officers ignored him, proceeding to handcuff him and place him in the back of a car, where he remained for more than an hour. Eventually, he was released after the agents verified his Social Security number.

But about two weeks later, as Garcia Venegas worked on another new home development, Immigration and Customs Enforcement officers arrested and detained him again. Now Garcia Venegas is suing the Department of Homeland Security and top immigration officials in the Trump administration for violating his Fourth Amendment^[4] rights—twice.

The complaint details two disturbing instances of immigration agents arresting and detaining Garcia Venegas while he worked on a private jobsite and after he repeatedly told them he was a U.S. citizen and provided a valid driver’s license and Real ID. In both instances, the agents, while masked and unidentifiable, told him that his identification was fake, according to the suit. They also did not present a warrant or any preauthorization allowing for an immigration raid on private property. (Even then, ICE’s “administrative” warrants do not empower officers to conduct searches without consent.) The first time Garcia Venegas was detained, he says, agents ran past the white and Black laborers also present at the jobsite, making a beeline for the Latino workers. (According to DHS^[5], Garcia Venegas blocked agents from arresting a person without legal status; the agency insists that ICE does not arrest or deport U.S. citizens.)

The Fourth Amendment protects people from unreasonable searches and seizures by the government. There are exceptions, like exigent circumstances, but the government’s authority depends heavily on the context in which the search or seizure occurs. If law enforcement officers search a home without a warrant from a judge, that act is considered presumptively unreasonable. To stop an individual without a warrant, officers must have specific, articulable facts that create a reasonable suspicion of criminal activity. Even then, any detention must be brief. During these encounters, officers may make only reasonable inquiries that are meant to either confirm or dispel their suspicions, and they may frisk for weapons if they have reason to believe that the person is armed. Garcia Venegas alleges that ICE violated all of these constitutional rules in the warrantless raids on private property that led to his two arrests.

The complaint also challenges three new DHS policies as a violation of federal statutes: raiding nonpublic areas without consent or a warrant, preemptively detaining workers on those sites without reasonable suspicion that they are not authorized to work in the U.S., and continuing to hold those workers even after they have provided proof of citizenship or lawful status. “The officers rarely (if ever) have reasonable suspicion to suspect that the people working on or managing a particular construction site are violating immigration laws,” the suit alleges. “DHS authorizes these armed raids based on the general assumption that certain groups of people in the industry, including Latinos, are likely illegal immigrants.” But for an arrest, federal statutes require that an officer have specific reason to assume that a person before them is undocumented. So the policies don’t just violate the Fourth Amendment; they also exceed the power conferred on immigration agents by Congress.

Targeting people at their place of work has become a pervasive immigration enforcement tactic that stretches well beyond Alabama. Worksite immigration raids have been reported in California^[10], Texas^[11], New Jersey^[12], Louisiana^[13], and Georgia^[14]. U.S. citizens are being caught in the dragnet, but it’s hard to know exactly how many, as the Trump administration does not make comprehensive immigration arrest data publicly available.

This is all being done in pursuit of the White House’s untenable goal of arresting 3,000 immigrants a day^[15], something government lawyers have denied in court^[16]. Yet the administration is still clearly keen on pursuing as many of these arrests as possible, pushing the bounds of what the law permits: revoking hundreds of thousands^[17] of immigrants’ temporary protected status, arresting immigrants^[18] who show up to court hearings meant to maintain their lawful status in the U.S., and rescinding student visas^[19]. Many of these actions have been declared unlawful, including the revocation of TPS^[20], federal agents’ immigration stops and arrests^[21] in Southern California, and the deportation threats^[22] made against foreign students who criticize Israel’s war in Gaza.

And yet, in large part thanks to the Supreme Court—particularly Justice Brett Kavanaugh—the administration remains not just undeterred but empowered.

After federal agents descended upon Los Angeles in June and conducted sweeping immigration raids, during which they also ended up arresting at least one U.S. citizen^[24], a lawsuit was filed against Homeland Security Secretary Kristi Noem. The case wound its way through the courts and landed in the Supreme Court’s shadow docket; by early September, in a 6–3 decision, the justices effectively legalized racial profiling^[25]. As is tradition with any shadow-docket decision, the majority did not issue an explanation for the vote, but this time Kavanaugh decided to put out a solo concurrence.

The justice characterized immigration agents’ raids as “brief investigative stops” meant to merely check the status of people whose jobs tend to be “attractive to illegal immigrants.” And if informed that they have wrongfully stopped a U.S. citizen or a lawfully present individual, the agent will “promptly let that individual go,” according to Kavanaugh. In conclusion, the Trump-appointed justice asserted that the U.S. Constitution does in fact allow for ethnicity to be a “relevant factor” when determining who is unlawfully present in this country.

Garcia Venegas’ story is just one example of how out of touch Kavanaugh is with the way immigration agents are behaving on the ground. There are too many other examples: In July, officers detained a U.S. Army veteran^[26] for three days, despite his insisting to law enforcement he is an American citizen. In September, federal agents tackled a 79-year-old American citizen^[27] to the ground after he tried providing them the work authorization for one of his employees, then arrested U.S. citizens in Chicago^[28] during an immigration raid on an apartment complex. None of these actions bears any resemblance^[29] to Kavanaugh’s rosy description of immigration arrests as a minor inconvenience.

Just this week, federal agents targeted another Chicago apartment complex, waving guns in residents’ faces while forcing them out of their homes. Residents said the agents used flash-bangs and claimed that some children even had their hands zip-tied. A woman who lives in the building told local news that ICE agents took everyone in the building and asked questions later. “They treated us like we were nothing,” she said.^[30]

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