A recent article by the Associated Press (AP) bears the heated headline “Immigration officers assert sweeping power to enter homes without a judge’s warrant, memo says”. That the purported (three-page) “memo” was attached to a (24-page) whistleblower complaint just adds to the drama, but this issue isn’t as straightforward as many “experts” quoted may think.
“Judicial Warrants”
Paragraph 4 in that AP article sets the stage:
For years, immigrant advocates, legal aid groups and local governments have urged people not to open their doors to immigration agents unless they are shown a warrant signed by a judge. That guidance is rooted in Supreme Court rulings that generally prohibit law enforcement from entering a home without judicial approval. The ICE directive directly undercuts that advice at a time when arrests are accelerating under the administration’s immigration crackdown.
Most immigration enforcement is civil in nature, not criminal, and consequently most ICE and CBP arrests end in detention and removal from the United States, which are not punitive in the immigration context because, unlike criminal cases, they do not result in conviction and incarceration.
Despite that fact, many so-called “sanctuary” jurisdictions (places with laws and policies that bar state and local law enforcement assistance in immigration enforcement or actively impede ICE enforcement) contend that they’d be happy to help the feds — so long as the agency has a “judicial warrant” for the alien.
The problem, as I have explained repeatedly in the past, is that there is no mechanism to obtain a warrant from an Article III federal judge to arrest an alien for a civil immigration violation.
Thus, in reality those sanctuaries are (likely unwittingly) daring ICE to prosecute aliens residing in their bailiwicks for some crime, like “improper entry” under section 275 of the Immigration and Nationality Act (INA) a misdemeanor for a first offense and felony for subsequent ones, before state and local cops will get involved.
Administrative Warrants of Arrest
If you think the federal judiciary has issues now, imagine if ICE started swamping U.S. courts with warrant applications for millions of illegal migrants. But the agency rarely takes sanctuaries up on the offer, preferring to arrest aliens subject to removal with administrative warrants.
Such warrants are expressly provided for in federal statute (under section 236(a) of the INA), and yet sanctuaries treat them like paper available in bulk rolls of 36 in the back corner of your local Costco.
As soon as Trump returned and freed ICE from the investigatory shackles imposed on it by President Biden’s DHS Secretary, Alejandro Mayorkas, the judicial warrant dodge escaped from the pages of tendentious “TRUST Acts” and into talking points bandied about by opponents of immigration enforcement.
Check out the video of New York City Comptroller Brad Lander being arrested by ICE in June outside of an NYC immigration court while he was grasping an alien (“Edgardo”) and demanding to see the “judicial warrant for his removal” and you will get a sense of what I am talking about.
Lander admits he’s not a lawyer, a fact evident to anyone who is. When cops arrest suspects with judicial warrants, the only people entitled to view the document are the suspect and the suspect’s attorney (if there is one), and respectfully if I’d done something that justified arrest, I’d prefer to keep the contents of the warrant as private as possible.
The Fourth Amendment Warrant Rule
Advocates purport to base such demands in the text of the Fourth Amendment to the U.S. Constitution, which states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Nothing better captures our rights to be left alone by the government than that text, and law students are taught that this entire amendment is generally read in toto.
Or, as Congress has explained:
Emphasis upon the necessity of warrants places the judgment of an independent magistrate between law enforcement officers and the privacy of citizens, authorizes invasion of that privacy only upon a showing that constitutes probable cause, and limits that invasion by specification of the person to be seized, the place to be searched, and the evidence to be sought.
Three parties are referenced in that passage: (1) law enforcement officers; (2) independent magistrates (usually judges or quasi-judicial officers); and (3) individuals whose privacy is at issue.
To commence a search or seizure in that context, the first party must convince the second party that there is “probable cause” the third party has committed some offense or possesses something that is usually the evidence of an offense (like illicit drugs or other contraband, or a weapon).
The warrant rule is generally interpreted, however, in the criminal context, raising the question of whether the same rule applies in the administrative context (such as in immigration enforcement). Curiously, the answer isn’t as clear as most advocates of judicial warrants in immigration enforcement might think.
U.S. v. Lucas
Consider the opinion of the Court of Appeals for the Eighth Circuit in U.S. v. Lucas, a case the examined the constitutional sufficiency an administrative arrest warrant issued by the director of the Nebraska Department of Correctional Services for a convicted criminal (Lucas) who absconded while on work release.
Before I continue, I should note that the Eighth Circuit has jurisdiction over Minnesota, current site of a major immigration enforcement crackdown, as well as Arkansas, Iowa, Missouri, Nebraska, North Dakota, and South Dakota.
A tipster led the Omaha (Neb.) police department to the apartment of Lucas’s girlfriend (Scaife), which they surveilled looking for the fugitive. When the cops arrived and sought entry to the apartment, Scaife first denied Lucas was there and then asked them whether they had a “search warrant”.
Here’s what happened next:
The officers said they did not but that they did have an arrest warrant for Lucas and information that he was living at that address. On that authority they intended to enter the premises and search for him. Scaife then admitted that Lucas was in the apartment, and the officers placed her in their squad car before looking for him.
While taking Lucas into custody, officers found drugs and a large quantity of cash, and when Scaife was allowed back in and let them look around further, they found more drugs and a stolen revolver.
Lucas did more stupid things thereafter, but he also moved to suppress the evidence found in the search “because the officers' entry into Scaife's apartment was illegal since the arrest warrant had not been issued by a neutral and detached magistrate, but by an executive officer [the corrections director] answering to the governor and without judicial authority”.
The director plainly was not a “neutral and detached magistrate”, but the Eighth Circuit held that didn’t matter much in this context because: “The standard for issuance of a valid administrative warrant under the Fourth Amendment is different from the probable cause showing necessary for a warrant to arrest someone suspected of a crime.”
Abel v. U.S.
In support of that holding, the majority in Lucas noted:
The Supreme Court has upheld administrative warrants and has never held that administrative warrants must be issued by a neutral and detached magistrate. ... An administrative arrest warrant issued by a district director of the Immigration and Naturalization Service [INS] pursuant to a deportation statute led to a valid arrest in Abel v. United States. There, the Court recognized the “long-sanctioned practice” and “overwhelming, legislative recognition” favoring “the propriety of administrative arrest” in such circumstances. [Emphasis added.]
I should note that Abel, a 1960 Supreme Court opinion authored by Justice Felix Frankfurter (one of the founders of the ACLU), didn’t start out as an immigration case, though the petitioner had been arrested by the then-INS in his New York hotel room on an administrative warrant under a precursor to section 236(a) of the INA.
The real issue had to do with an FBI search of Abel’s hotel room after he had checked out, with the consent of management, during which evidence key to the government’s prosecution was seized.
The FBI had tipped INS off to the fact that Abel was an alien residing illegally in the United States for having failed to keep the Service apprised of his whereabouts, and the bureau also told INS it had interest in Abel because he was a suspected spy.
As a defense, Abel claimed the INS arrest was a “subterfuge” for the FBI investigation (bureau agents preceded immigration officers into Abel’s room, trying and failing to gain his “cooperation”, before INS showed up at the door), but the majority concurred with the courts below in finding INS officers had acted in “good faith”.
INS was, as the FBI continues to be, a DOJ agency, and the majority concluded:
The Government has available two ways of dealing with a criminally suspect deportable alien. It would make no sense to say that branches of the Department of Justice may not cooperate in pursuing one course of action or the other once it is honestly decided what course is to be preferred.
It was only on appeal to the Supreme Court that Abel offered a different theory, specifically “that the administrative warrant by which petitioner was arrested was invalid, because it did not satisfy the requirements for ‘warrants’ under the Fourth Amendment”.
Abel failed to make that argument below, and in fact disavowed such a claim through counsel, but he likely knew where his case was going and still pitched it for the first time at the High Court.
Because Abel failed to make this claim below, Justice Frankfurter concluded (aptly) that it was inappropriate for the justices to consider it, and if that had been the end of his analysis the Eighth Circuit wouldn’t have cited the opinion.
But it wasn’t the end, because here’s what else the majority had to say:
Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time. It would emphasize the disregard for the presumptive respect the Court owes to the validity of Acts of Congress, especially when confirmed by uncontested historical legitimacy, to bring into question for the first time such a long-sanctioned practice of government at the behest of a party who not only did not challenge the exercise of authority below, but expressly acknowledged its validity.
...
The constitutional validity of this longstanding administrative arrest procedure in deportation cases has never been directly challenged in reported litigation. ... This Court seems never expressly to have directed its attention to the particular question of the constitutional validity of administrative deportation warrants. It has frequently, however, upheld administrative deportation proceedings shown by the Court's opinion to have been begun by arrests pursuant to such warrants. ... In the presence of this impressive historical evidence of acceptance of the validity of statutes providing for administrative deportation arrest from almost the beginning of the Nation, petitioner's disavowal of the issue below calls for no further consideration.
Whether that analysis is “dicta”, i.e., a comment made by the Court “that is not necessary to resolve the case, and as such ... not legally binding on other courts”, or not depends on how you read it, but it certainly supports the proposition that an administrative immigration warrant is a sufficient substitute for a judicial one when it comes to the Fourth Amendment, particularly in the Eighth Circuit.
The Purported Memo in the Whistleblower Complaint
Which brings me to the memo in question, dated May 12, 2025, and inserted into the whistleblower complaint at pages 17 to 20.
It purports to have been signed by acting ICE Director Todd Lyons, but not published, and while AP admits the memo hasn’t “been widely shared within the agency”, the outlet nonetheless claims “its contents have been used to train new ICE officers who are being deployed into cities and towns to implement the president’s immigration crackdown”.
That last clause is superfluous, and I can imagine the response grizzled veteran ICE officers will have if newbies fresh out of the academy start touting the memo’s merits, but in any event the alleged memo states that an administrative warrant of removal (Form I-205) is sufficient “alone to arrest aliens subject to final orders of removal in their place of residence”.
Speaking of clauses, the last one in that quote is grammatically incorrect, suggesting this memo isn’t as final as AP suggests.
But I digress. This purported memo has triggered no end of consternation and confusion, likely because those asked to analyze it fail to appreciate the nature of the warrant in question.
When most “experts” and sanctuaries complain about ICE administrative arrest warrants, the document they usually mean is the Form I-200, “Warrant for Arrest of Alien”.
The precursor to that form was the warrant INS presented to arrested Abel, and on its face it states there is “probable cause” to conclude that the individual named is an alien subject to removal from the United States, and therefore subject to civil arrest under the INA.
A Form I-205, “Warrant of Removal/Deportation”, on the other hand, is only issued after an immigration judge, the Board of Immigration Appeals, a U.S. District Court judge or magistrate court judge, or other “designated official” has issued a final order of removal or deportation in the named alien’s case.
Under section 241(a)(2)(A) of the INA, ICE is required to take such aliens into custody and hold them for 90 days pending removal, and under section 243 of the INA, it’s a felony if a deportable alien under a final order of removal “willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order of removal”.
Thus, the Form I-205 is akin to the administrative arrest warrant in Lucas, which again empowered Omaha officers to take custody of a fugitive, with the only difference being that the latter relates to a convicted criminal on the lam and the former to aliens who received their full due process rights and were ordered removed, but have failed to depart.
Consequently, Fourth Amendment “probable cause” likely isn’t an issue in the I-205 context except with respect to the identity of the alien and the place where the alien is likely to be found (and the Eighth Circuit in Lucas suggested that simple “reasonable suspicion” for those facts was sufficient).
Are new ICE officers being taught that they can use “a necessary and reasonable amount of force” when the subject of an I-205, administrative “warrant of removal” refuses to let them in? That’s unclear. But if that is true, that legal advice isn’t as constitutionally unsound as it may seem. Whether it’s a good idea, however, is a different question.