When Migration Policy Becomes Persecution: An Analysis of ICE Practices and the Trump Administration’s Migration Policies in Light of Human Rights and Crimes Against Humanity.

Resumen

This article investigates the extent to which migration policy acts, especially those carried out by U.S. Immigration and Customs Enforcement (ICE) during the Trump administration (20172021), may exceed the legitimate scope of state sovereignty and amount to human rights violations, xenophobic practices, or, in an extreme scenario, crimes against humanity. The objective is to analyze, as a case study, detention and removal practices, operations in communities and workplaces, and impacts related to family separation, combining institutional evidence with legal and constitutional parameters. A qualitative and documentary methodology is adopted, with triangulation among normative and institutional sources (Homeland Security Act; DHS/ICE/OIG), aggregate data on custody and removals, and an analysis of precedents in the common law system, with emphasis on the ratio decidendi of Trump v. Hawaii, Zadvydas v. Davis, Boumediene v. Bush, and INS v. Chadha. The theoretical framework integrates the limits of sovereignty established in the UN Charter, the Rome Statute (Article 7), and the concepts of persecution, discrimination, and xenophobia as verifiable analytical hypotheses. The results indicate a persistent tension between deference to the Executive and due process safeguards, with signs of risks of structural discrimination and weakening judicial oversight in a context of intensified migration control measures. It concludes that the characterization of crimes against humanity should not be presumed. However, the empirical and legal evidence support the need for rigorous scrutiny and a reasoned assessment of potentially relevant violations and elements of persecution in cases of severe deprivation of rights based on group identity.