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The Wisconsin trooper ICE arrest at a Madison airport this week has put a hard legal line in front of anyone living in the United States on a work permit and a pending asylum case: neither one is lawful status, and neither stops immigration officers from making an arrest. Immigration and Customs Enforcement detained Wisconsin State Patrol Trooper Carel Aaron Van Der Merwe, 21, on Nov. 5 as he waited to board a domestic flight at Dane County Regional Airport, according to the Department of Homeland Security and his lawyers. DHS says he overstayed a 2019 admission; his lawyers say he holds a work permit valid until 2030 and is on his father’s pending asylum application.
What each side says happened
DHS told WISN 12 that he entered in March 2019 with permission to stay until September 2019 and “overstayed his admission.” It added, in statements reported by WISN and FOX6, that work authorization and a pending application “do not confer legal status,” and told ABC News it has reversed what it called a Biden-era policy letting people in his situation fly domestically.
His lawyers say the family came legally from South Africa when he was a child and has waited seven years for an asylum interview, and they argue that ICE has jailed a man whose job is enforcing the law. WisDOT told FOX6 he has worked for the State Patrol since July 13, 2025, and FOX6 reported that the agency’s hiring rules allow noncitizens with valid work authorization to serve.
On Friday, ABC News and WISN reported that his lawyers planned to seek bond. Later that day, WBAY reported his lawyers’ statement that he would be released from the Dodge County facility on an order of supervision while his removal case continues. ICE had not publicly confirmed a release in those reports.
Why a work permit and an asylum filing are not status
Both accounts can be accurate at once. A person admitted for a fixed period who stays past it is out of status from the day the admission ends. A later asylum filing does not restore that status. It can make the applicant eligible for a work permit, it generally stops unlawful presence from counting toward the 3- and 10-year bars while a bona fide application is pending, and it entitles the applicant to a decision before removal. None of that is lawful status in the way a visa or green card is.
The gap is large. The affirmative asylum backlog at U.S. Citizenship and Immigration Services exceeded 1.4 million cases at the end of fiscal 2025, according to an interim final rule DHS published on July 28, 2026. The same rule counted 444,724 pending affirmative applications, as of Dec. 11, 2025, that were filed more than one year after the applicant’s last entry. The rule lets asylum officers send applicants who lack a lawful basis to remain straight to immigration court without an interview, the same distinction DHS drew in this case.
Where the Wisconsin trooper ICE arrest case goes next
Detention. Because DHS’s own account says he was admitted, he is likely held under the discretionary detention statute, 8 U.S.C. 1226(a), rather than the mandatory provisions the government has applied to people who entered without inspection. That framework allows release by ICE or bond set by an immigration judge, consistent with both the bond request and the reported release. Detention of people who hold government paperwork has reached federal courts repeatedly this fall, including a Kentucky judge’s bond-hearing order and the Minneapolis dentist arrested at his green card interview.
The asylum claim. He is 21, but under the asylum statute a child keeps derivative eligibility if he was under 21 when the parent’s application was filed. The harder question is procedural: his removal case is now before an immigration judge while the family application sits with USCIS, so his lawyers may need to press his own claim in court.
Travel. DHS’s statement about domestic flights is the detail most likely to matter beyond Wisconsin. The practical effect of DHS’s new stance is that a domestic flight is now a point of contact with federal enforcement for anyone traveling on a work permit after an admission has expired.
DHS frames the case as ordinary enforcement against an overstay; the trooper’s lawyers call it the government detaining someone it authorized to work and have asked Wisconsin’s congressional delegation for answers. With Democrats taking control of Congress in January and promising oversight of ICE, cases like this are likely to become exhibits in that fight. The next markers are whether ICE confirms the release, what conditions it sets, and when an immigration judge first hears the case.
This article is for general information and is not legal advice.
Sources
- Department of Homeland Security, “Affirmative Asylum Referrals Without Interview,” interim final rule, 91 Fed. Reg. 47101 (July 28, 2026)
- ABC News, “Wisconsin state trooper detained by ICE” (Nov. 6, 2026)
- WISN 12, “Wisconsin state trooper detained by ICE while boarding domestic flight” (Nov. 6, 2026)
- FOX6 Milwaukee, “Wisconsin State Trooper detained by ICE, currently held in Dodge County” (Nov. 6, 2026)
- WBAY, “Law firm says Wisconsin State Trooper detained by ICE released on order of supervision” (Nov. 6, 2026)
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