As a new academic year looms, law schools across the country are no doubt in the midst of event programming. Many students are likely eager for events about immigration enforcement, and to that end might look to investigate what happened last semester at the UCLA School of Law, when the Federalist Society (FedSoc) hosted U.S. Department of Homeland Security General Counsel James H. Percival at an event in April. They might even want to invite Mr. Percival, as he has remained in the news.
FedSoc invited Professor Gregory McNeal, a Pepperdine University law professor, to interview Mr. Percival. The event generated a good deal of controversy, with much discussion focused on whether the university’s failure to stop students from heckling the speaker permitted too much disruption in violation of academic freedom policies, or conversely whether its actions to expel some of the students (and to prevent them from holding up posters) violated the First Amendment.
My goal here is not to delve into that free speech debate, although I would encourage people interested to view the full video of the event and read this first-hand account from my UCLA Law faculty colleague Professor Dave Marcus, who was actually there.
Instead, I want to use the event to evaluate whether law schools should invite Mr. Percival or other high-ranking Immigration and Customs Enforcement (ICE) officials to speak at school events. I want to do that by focusing on the substance of what Mr. Percival said. Many law schools no doubt want to present “balanced” events that present speakers of different viewpoints, and inviting a high-ranking ICE official could obviously help make that goal possible. But law schools also surely want to present speakers who will be truthful about both the facts and law surrounding the issues they discuss. Ideally, one would also want a speaker willing to answer hard questions about the positions they present. I want to evaluate last semester’s event at UCLA from that vantage point.
Fortunately, the video of the event gives us plenty of material to work with. Contrary to some of the initial descriptions provided, no one who watches the whole video could seriously contend that Mr. Percival was “drown[ed] out” or “cancel[ed]” (although, to be clear, I have yet to meet anyone willing to defend the legality of all the tactics used to disrupt him, including setting a repeating cellphone alarm). Mr. Percival spoke with Professor McNeal for nearly an hour, mostly without interruption.
As I show below, a close analysis of what Mr. Percival said shows that it would be a mistake to invite him to speak at a law school. I say that not because I believe law schools should deny any platform to people defending the current administration’s immigration policies. That is emphatically not my view. I would oppose any such invitation because law schools have a basic obligation to ensure their events will educate the law school community, and to do that speakers must be at least minimally honest about what they are discussing. That is particularly true when the audience is not permitted to question the speaker directly and the event moderator is not prepared to challenge objectively false and deeply misleading statements a speaker makes.
To illustrate this point, I identify below some of the more significant false and misleading statements Mr. Percival made. I do so at length, both in recognition of the fact that accusing someone of misrepresentation is a serious accusation to make against any speaker, and because I want law school administrators to think hard about what it looks like to educate students about immigration issues in this moment. I also pose a few of the hard questions that in my view should have been asked by anyone truly interested in an open debate, as FedSoc had promised its audience. I close with some observations on what the event — and subsequent failure to discuss its substance — might teach anyone interested in hosting speakers on controversial topics, as that remains a daunting task for any university trying to foster genuine debate in our deeply divided country.
1. ICE Detention Practices
The substantive immigration law discussion at the event began about 15 minutes in, on the topic of immigration detention. Neither speaker provided much context for that discussion. ICE has been on an extraordinary detention spree since January 2025. It is now jailing more than 60,000 people a day, far more than at any time in its history. There has also been a spike in deaths in federal immigration custody. More than 50 people have died in ICE custody since January 2025, including several suicides and one ruled a homicide. Federal courts throughout the country have found these detentions illegal at an astonishing rate. One recent count found more than 16,000 court decisions ruling against the government in immigration detention cases as of spring 2026 — a loss rate of around 90 percent. (This shift clearly started under the second Trump administration. The Federal Judicial Center reported more than 9,000 cases challenging unlawful detention by immigration authorities in 2025, up from 448 in 2024. See Table C-2 here.)
Perhaps because this elephant was in the room — despite the moderator not having mentioned it — Mr. Percival’s comments on detention first focused on one legal issue concerning the government’s statutory authority to detain long-resident undocumented people without giving them the opportunity to seek release on bond from an immigration judge while their deportation cases are pending. That issue has been the subject of significant litigation, including a nationwide class action. (14:35). Mr. Percival claimed, as to that issue, that the circuit courts had all ruled in DHS’s favor. That statement was not false at the time — DHS had indeed won two decisions in the Fifth and Eighth Circuits (though Mr. Percival neglected to mention they were both were decided 2-1, and that a panel of the Seventh Circuit had also strongly suggested it disagreed with DHS’s position). It has since lost six in a row — in the Second, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits (with several of those cases decided 2-1). More importantly, however, his answer ignored that DHS has lost detention cases on a large variety of legal theories beyond the one on which he focused, and also that it has declined to appeal nearly all of its thousands of losses. Several courts have also found the government has not been truthful even with the courts in many such cases, and also that it has repeatedly failed to comply with court orders (including both in immigration cases and others). That context would have been very helpful in understanding Mr. Percival’s response, but no one provided it.
Professor McNeal did manage to ask Mr. Percival an important related question about forum-shopping in detention cases. Is it possible, he asked, that DHS was picking favorable courts in which to appeal some of its losses in federal court cases challenging immigration detention — i.e., by forum-shopping? Mr. Percival responded that “we don’t pick the venues” because the “district of confinement” rule (15:40) dictates that detention lawsuits be filed in the judicial district where individuals are jailed.
This answer is objectively false. DHS chooses where to detain people, and for that reason does “pick the venue” in every relevant sense — indeed, it is the district of confinement rule that allows ICE to forum shop. In keeping with that fact, the agency has long reserved for itself the authority to choose where to detain people. Even before 2025, ICE transferred the majority of detainees at least once during their time in custody, and it moved people from one circuit to another in nearly a third of those cases. Unlike criminal cases, which generally must be charged and tried where the alleged crime occurred in order to comply with the Sixth Amendment, DHS takes the view that it can keep an immigrant detained for removal proceedings anywhere in the country. Consistent with that view, DHS routinely transfers people across the United States — thousands of miles from their families (and attorneys). And it just so happens that the state with by far the most detention capacity — i.e., in which DHS has chosen to build the largest amount of immigration detention capacity, particularly in recent years — is Texas. It has more than twice the detention capacity of the next largest state, which is Louisiana. Both are in the Fifth Circuit, where judges–including a large number of Trump appointees–have consistently ruled against immigration detention challenges.
ICE jealously guards its power to forum shop. In one recent high-profile case where ICE arrested a Tufts University graduate student on the street for writing an op-ed in the school newspaper, ICE actually sought a stay from the Second Circuit over the question whether it could litigate the case in Louisiana (where it had transferred the student), rather than in Massachusetts or Vermont. It lost. Indeed, although neither speaker ever mentioned it, federal judges have been forced to rely repeatedly on the “unknown custodian” doctrine in habeas cases–allowing suit by the family members of people who don’t know where the government has taken them–to prevent ICE from effectively disappearing people it has arrested while using its transfer authority to forum shop for friendly judges.
While all these details matter a great deal to those interested in immigration detention, I mention them not only to set the record straight, but also to raise a broader point: it is not clear that the audience could have learned much of value from a discussion so devoid of context and rife with misleading and false information.
2. Sanctuary Policies
Professor McNeal and Mr. Percival spent a good portion of the event discussing the Trump administration’s attack on sanctuary policies — policies that limit the extent to which state and local law enforcement officers can cooperate with federal immigration enforcement. Mr. Percival criticized such policies on a number of grounds. For example, he said jurisdictions without these sanctuary policies permit ICE to take custody of immigrants straight from jail, rather than having to conduct street-level enforcement: “when you get a transfer of custody from jail, that means ICE is not going into communities which a lot of people don’t like.” (18:12).
That statement at least strongly implies that ICE does less street-level enforcement in cities or states that have not adopted sanctuary policies. But the opposite is true. States that require state and local officials to cooperate with ICE, such as Florida and Texas, have seen dramatic expansions in street-level immigration arrests, thus spreading fear of immigration enforcement far beyond that which exists in sanctuary cities. I am unaware of any evidence suggesting that ICE has decreased street level enforcement in places where state and local officials cooperate with its immigration enforcement efforts.
Mr. Percival also defended the Trump administration’s attack on sanctuary policies on grounds that they prevent DHS from “focus[ing] enforcement on the most dangerous people.” (18:17). He then purported to illustrate this using the example of a hypothetical “murderer or rapist” set free in a sanctuary jurisdiction. The claim about focusing enforcement is, again, objectively false, and the example he used is highly misleading for a number of reasons. First, the false claim: although neither Professor McNeal nor Mr. Percival mentioned it, most large sanctuary jurisdictions, including the state of California, do not shield individuals with serious criminal convictions from immigration enforcement. They are specifically exempted by statute. (These are known as “carve-outs” in the sanctuary policy world). Virtually everyone who goes to prison in California, for example, is exempted from the state’s sanctuary protection.
Beyond that, Mr. Percival’s claims about public safety are highly misleading, because study after study for decades has shown that sanctuary policies do not increase crime. That is hardly surprising. Both citizens and non-citizens alike must serve their time in prison after serious convictions. People being released from prison after a conviction for murder or rape have typically spent years in confinement — and, of course, the vast majority of such people are citizens. According to a DOJ study, “U.S.-born citizens were ten times more likely than immigrants to be incarcerated for committing weapons-related offenses, five times more likely for violent offenses, more than twice as likely for property crimes, and nearly twice as likely for drug offenses.” Contrary to Mr. Percival’s talking points, the overwhelming evidence on the issue establishes that states that choose to enact sanctuary policies are not undermining public safety.
Although Professor McNeal never challenged these false claims about public safety, he did push on the legal rationale behind the Trump administration’s attack on sanctuary cities, invoking what he called a “conservative” argument, grounded in principles of federalism, in defense of sanctuary policy. (20:30) Here too Mr. Percival responded with yet more distortions.
Courts have repeatedly held that the Tenth Amendment reserves to the states the right to determine how to direct their own resources without the federal government “commandeering” them. It follows that states can choose not to cooperate with federal immigration enforcement. Yet Mr. Percival claimed that the “question [remains] very much open” whether the federal government can require states to engage in “information sharing” and related “facilitation” of federal immigration activity, citing the Supreme Court’s decision in Reno v. Condon (2000). (20:06). This too was at least highly misleading. As I have explained elsewhere, the Trump administration has attacked sanctuary statutes that prohibit the gathering of immigration-related information; requiring a state government to spend resources gathering information unquestionably implicates commandeering. Mr. Percival’s contrary suggestion directly contravenes the Supreme Court’s definitive anti-commandeering case: Printz v. United States (1997). Printz struck down those portions of a federal gun safety statute which required states both to gather and share certain background information on gun purchasers. Although the first Trump administration brought multiple lawsuits against state sanctuary statutes, they lost in every court — both district and circuit — to consider their validity. That was hardly surprising. Though one would never know it from the speaker’s comments, Condon itself plainly states that the law it upholds is permissible because “it does not require state officials to assist in the enforcement of federal statutes regulating private individuals,” which is precisely what Mr. Percival suggested the case permitted. When Professor McNeal pushed on this point, Mr. Percival backed off slightly (though, to be clear, he did not fess up to eliding the crucial distinction between gathering and sharing information). He asserted that the Trump administration’s attacks are focused mostly on the federal government’s ability to deny funding to sanctuary states, which raises questions under the Spending Clause, rather than commandeering doctrine. (21:20) But that too was inaccurate. In fact the Trump administration has repeatedly challenged the sanctuary laws themselves — including just a few months ago in a new lawsuit against the state of New Mexico.
Again, those concerned with teaching the relevant doctrine in this important area — immigration federalism — would no doubt have been appalled by the discussion. But even others might reasonably wonder what educational purpose was served by a discussion that seemed to devolve into an exercise in fact-free propaganda.
3. The First Amendment
Although one would never know it from the post-event commentary, Mr. Percival also discussed free speech issues related to immigration enforcement during the event itself. About 30 minutes into the discussion, Professor McNeal brought up the Trump administration’s practice of jailing non-citizens for their speech, and in particular the case of Mahmoud Khalil — a lawful permanent resident with no criminal history who was arrested at his graduate student housing at Columbia University. In response, Mr. Percival attempted to downplay DHS’s involvement in such cases, claiming its role “is somewhat limited” because the triggering event for the charges in such cases is usually a determination made by the Secretary of State. (28:55)
That claim was highly misleading. The Secretary of State’s determination does not require DHS to detain individuals so charged. It does not trigger one of the grounds of “mandatory detention” listed in the immigration detention statutes (as Adam Cox and I explained here shortly after Khalil’s arrest for engaging in student protest activity). Instead, the decision to detain such individuals rests entirely in DHS’s hands. The masked agents caught on film arresting Rumeysa Ozturk off the street for publishing an op-ed in the Tufts college newspaper were not acting at the behest of the Secretary of State. Nor were the ICE officers who denied Khalil’s request for a temporary release so he could be with his wife for the birth of his son. Yet Professor McNeal gave Mr. Percival a free pass on defending the legality of these practices.
I find it ironic that commentators have criticized the students for (allegedly) failing to respect Mr. Percival’s free speech rights at this event, without ever mentioning his agency’s extraordinary repression of speech — which he attempted to whitewash at this same event. (My former colleague Eugene Volokh is a notable exception, having commented on the policy here (34:25), albeit without mentioning Mr. Percival’s defense of it.) And, again, a law school event-planner might reasonably ask whether educational goals are truly served by presenting a speaker who dodges responsibility for suppressing speech in this way rather than forthrightly owning and defending it.
4. Due Process
After the extremely truncated First Amendment discussion, Professor McNeal moved on to due process, and what he called the “irreducible floor” (31:10) required in the deportation context. To his credit, he again raised a case that should have been hard for Mr. Percival to defend. This time it involved Kilmar Abrego Garcia, whom DHS illegally arrested years after he had won protection from deportation, and sent to prison in El Salvador. The horrors endured by Abrego Garcia and the government’s shameful — and thus far unsuccessful — attempts to justify its conduct against him, including through trumped-up criminal charges that were dismissed by a federal judge in Tennessee, have been well-documented.
In response, Mr. Percival did not address Abrego Garcia’s case or explain what he believed the “irreducible floor” of legal protection required in this context. Instead, he provided an abstract and meandering disquisition on due process, then claimed that it is the immigration courts (rather than DHS) who are largely responsible for providing due process in the removal context, and then asserted that DHS nonetheless often provides more process than the law requires.
Whatever else may be said of it, this portion of Mr. Percival’s remarks included no discernible defense of DHS’s conduct in Abrego Garcia’s case — despite the fact that the Supreme Court ordered DHS to facilitate his return to the United States after finding his deportation unlawful. As Abrego Garcia’s case exemplifies, a large part of the second Trump administration’s strategy in deportation cases has been to avoid the immigration courts altogether when asserting authority to deport people, thus bypassing the process normally afforded. It has also attacked those courts directly, firing dozens of immigration judges it deemed too pro-immigrant. Yet neither speaker ever provided this context. Perhaps even more troubling, neither of them mentioned that the Supreme Court recently reaffirmed that due process requires DHS to afford people facing deportation an opportunity to challenge their removal, and found that DHS had failed to provide that opportunity in a number of cases.
While this portion of the event did not feature any objectively false statements, and in that sense was an improvement, no one watching it would have come away with any greater understanding of why the Trump administration’s most senior DHS attorney believes the government had any right to deport Abrego Garcia, or what he thinks the constitutional guarantee of due process actually means in deportation cases.
5. The Fourth Amendment
Mr. Percival continued his pattern of obfuscation when the conversation moved to Fourth Amendment questions, and in particular to DHS’s recent assertion of authority to enter people’s homes without judicial warrants.
According to the Supreme Court, at its “very core” the Fourth Amendment bars law enforcement from entering someone’s home without a warrant. It has recognized exceptions, but they apply only in discrete, narrow circumstances. For example, the pursuit of a suspect who has committed a misdemeanor does not by itself justify a warrantless home entry. That rule applies to immigration enforcement, just as to other law enforcement — as both federal court decisions and the agency’s own longstanding understanding of the applicable regulations make clear.
Mr. Percival nonetheless defended ICE’s position that it can enter homes without judicial warrants in order to enforce civil immigration laws. He claimed that the immigration statute “explicitly authorizes administrative rather than judicial warrants,” and that the law does not authorize ICE officers to obtain judicial warrants to make civil “immigration arrest[s].” (40:35). That is true, but it hardly follows that ICE officers can enter homes using only administrative warrants; the more logical inference from that omission is that the law does not permit ICE officers to enter homes without warrants to effectuate civil immigration arrests at all. For decades that was the agency’s position, as it follows from the bedrock Fourth Amendment law I described above. But no one mentioned this point. Nor did Professor McNeal or Mr. Percival mention that the immigration statutes don’t authorize ICE officers to obtain warrants for arrests on criminal charges either. But of course ICE officers can and routinely do obtain such warrants from federal magistrate judges under Federal Rule of Criminal Procedure 41 — a fact which simply underscores the absurdity of DHS’s position that it can enter homes without warrants from judges.
In nonetheless attempting to defend DHS’s position, Mr. Percival again provided a highly misleading account of the relevant legal rules. He claimed support for DHS’s use of administrative warrants to enter homes from a plurality opinion in U.S. v. Lucas, an en banc case from the Eighth Circuit. But the case involved a so-called “retake” warrant. Such warrants issue when someone escapes from prison after being convicted of a felony. In Lucas, one such prisoner escaped and then got arrested in someone else’s apartment. The court held that the warden of the prison could issue an administrative warrant to enter that apartment “to recapture … a person already convicted of a crime and placed in state custody.” That context was central to the holding, as the court found “[the prisoner’s] escape could not expand the very restricted expectation of privacy he had while in the custody of prison officials.” (For what it’s worth, Professor Orin Kerr agrees, although he may think the issue closer than I do).
Neither Lucas nor any other case even arguably supports the proposition that ICE officers can authorize other ICE officers to break into people’s homes to effectuate civil immigration arrest warrants, without any involvement by judges. But, yet again, no one seeking to learn more about this issue would have gleaned that from the conversation.
6. Hard Questions Not Asked
Finally, it warrants mention that the Federalist Society had advertised the event as an opportunity for people to ask “hard questions” of the DHS General Counsel. In the end, however, the only questions taken were pre-screened ones that people had to submit in advance. That means some combination of FedSoc members, Professor McNeal, and DHS personnel (including perhaps Mr. Percival himself) got to decide which audience questions Mr. Percival would answer. It also meant that no audience members had any opportunity to ask questions in response to what Mr. Percival said during the event, including the various false and misleading claims he made.
Unsurprisingly then, the list of very hard questions he never had to answer is long. My first question would not have been about any particular policy, but instead about honesty. Remarkably, Mr. Percival never had to address the multiple court decisions finding that government lawyers representing this administration have made false statements in court — particularly in immigration cases — and repeatedly failed to follow court orders. Several federal judges have threatened to sanction or actually sanctioned the government for such misconduct under Mr. Percival’s watch.
At a policy level, there are too many hard questions to list, but here are a few exemplars, none of which were asked. Why does DHS incarcerate children in its detention camps? Does DHS consider the harm it causes to school-aged American children when it decides to detain and deport their non-citizen parents, as it has thousands of times? Why has no DHS officer been held accountable for shooting and killing unarmed civilians, including the two U.S. citizens in Minneapolis (which appeared to constitute “extra-judicial killings” according to United Nations experts) and the more than two dozen others whom ICE and CBP agents have shot at in the last 18 months? Does DHS consider it punishment, rather than merely civil deportation, when it arranges for people to be imprisoned in “third countries” ostensibly under its deportation authority? And is the agency concerned about the record-number of people dying while in its custody in immigration detention, or taking any steps to address that problem?
***
As I have tried to show in some detail, Mr. Percival made a number of false and misleading claims about the immigration law and this administration’s immigration policies. For the most part, Professor McNeal as moderator did not challenge those claims, and the audience members couldn’t do so either. In that respect, the event did not deliver as promised.
Beyond the details though, the event offers important lessons for law schools interested in trying to promote public education and debate on immigration enforcement issues. I believe firmly in free speech, and also in the need to host controversial speakers to foster genuine dialogue on topics that generate strong disagreement. Universities can play a particularly important role in providing space for the robust debates we desperately need in this moment. But such events require honest participants. One could imagine a hypothetical representative of the federal government whose visit would provide an opportunity to engage law students and the broader university community in a meaningful discussion about the government’s immigration policies and legal positions. But that would require a speaker willing to be honest about what the government’s policies and positions actually are, and one open to answering hard questions about them. If last semester’s event is any indication, there may not be any such speakers from DHS available at this time.
