Scott Mechkowski — a longtime ICE officer who helped run the agency’s removal operations in New York City — recently discussed in these pages the inanity of the “sanctuary” policies in the Fairfax County (Va.) Sheriff’s Office (FCSO), and in particular the implacable refusal of Sheriff Stacey Kincaid to even call ICE before releasing dangerous criminal aliens. As Mechkowski noted, “Kincaid refuses detainer holds unless ICE brings a ‘judicial immigration warrant’”, and as I’ve explained in the past, in the civil ICE context that’s like demanding water from the moon. DHS and DOJ can, however, give Sheriff Kincaid and her sanctuary ilk what they’re demanding if they go the extra mile — though a whole lot of aliens will end up serving federal criminal jail time before they inevitably get deported.
“Sanctuary Jurisdictions” and “ICE-Free Zones”
The Center defines “sanctuary” jurisdictions as “cities, counties, and states” with:
laws, ordinances, regulations, resolutions, policies, or other practices that obstruct immigration enforcement and shield criminals from ICE — either by refusing to or prohibiting agencies from complying with ICE detainers, imposing unreasonable conditions on detainer acceptance, denying ICE access to interview incarcerated aliens, or otherwise impeding communication or information exchanges between their personnel and federal immigration officers.
The immigration “detainers” referenced therein are governed by 8 C.F.R. §287.7(a), which states:
Detainers are issued pursuant to sections 236 and 287 of the [Immigration and Nationality] Act [INA]. ... A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible. [Emphasis added.]
Vera, an immigrant advocacy group, prefers instead to portray many sanctuaries as “ICE-Free Zones” (a cute play on words), and in its explainer on them, “How Cities and Counties are Working Together to Resist ICE”, contends that:
Crucially, ICE-free zone policies do not prohibit ICE or CBP from making arrests. They expressly avoid interfering with the legal rights of federal law enforcement while clarifying that federal authorities can conduct arrests on city property when supported by a judicial warrant. This framing matters for two reasons. It signals to courts that local governments are not attempting to illegally obstruct federal immigration enforcement. And, more significantly, warrant requirements reinforce lawful enforcement practices. [Emphasis in original.]
“Administrative” vs. “Judicial” Warrants
Respectfully, that explanation takes Vera from “cute” to “too cute by half”, because it knows ICE removal arrests are civil in nature and immigration officers don’t need — and can’t obtain — “judicial warrants” to make them.
You don’t have to trust me. Consider the following congressional testimony of former Virginia State Attorney General Jason Miyares in May 2026, excerpted in a recent House Judiciary Committee staff report on Fairfax County’s sanctuary policies:
Q: Well, is a federal judicial warrant possible to obtain in a state crime?
Miyares: No, it’s not, and they know this.
Q: And if deportation is a civil matter, how does one get a federal judicial warrant?
Miyares: You can’t. Again, they know this.
Q: So, they’re basically lying to the public? They are counting on the public not understanding that what they are asking for is legally impossible?
Miyares: It’s legally impossible, yes, Mr. Chair. [Emphasis added.]
Instead, ICE arrests aliens on civil immigration grounds using “administrative warrants”, which Congress expressly provided for in section 236(a) of the INA.
That provision begins, “On a warrant issued by [DHS], an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States”, and by regulation, such warrants may only be issued by designated high-level DHS officials.
It’s not like administrative warrants are a “Trump” innovation, and Vera, Fairfax County, and every other sanctuary “ICE-Free Zone” should be familiar with them, given that administrative warrant authority has been in the INA since the act was first passed in 1952 (codified at then-section 242(a) of the INA).
And no court since has dispositively held that administrative immigration warrants fail to satisfy Fourth Amendment protections of “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures”.
Quite the contrary: As the Supreme Court held in its 1960 opinion in Abel v. U.S.: “Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time.”
A “federal judicial warrant”, on the other hand — the sort of warrant Fairfax County and the rest of Vera’s “ICE-Free Zones” are demanding — differs from an ICE civil administrative warrant in various ways.
FindLaw explains:
A warrant is a legal document that gives government officials permission to take a specific action that would normally require your consent.
...
Judicial warrants are issued by a judge and are the most common type of warrants. They are generally used for criminal matters and require probable cause. This means there is a reasonable belief that criminal activity has occurred or that evidence related to a crime will be found.
...
Administrative warrants differ from judicial warrants. They’re usually issued by government agencies and used for regulatory or civil matters, not criminal ones.
A Sampling of Possible Immigration-Related Crimes
While ICE civil immigration enforcement differs from federal criminal enforcement, there’s a lot of overlap between the two.
Usually, however, civil removal proceedings in lieu of federal criminal prosecutions are preferred because they are quicker for the government and less problematic for the alien: While deportation is the worst-case scenario for an alien at the end of civil proceedings, federal incarceration before deportation likely awaits the same alien if convicted on criminal grounds.
DHS and DOJ have the option of arresting and charging many removable aliens on criminal grounds in the U.S. Code before placing them into removal proceedings, such as for: “improper entry” (section 275(a)(1) of the INA); “eluding inspection” (section 275(a)(2) of the INA); reentry after removal (section 276(a) of the INA); “willful failure” to register with DHS (section 266(a) of the INA); willful failure to file a change of address (section 266(b) of the INA); and in the case of aliens removable under section 237(a) of the INA, willful failure to depart within 90 days of the issuance of a final removal order (section 243(a)(1) of the INA) — to say nothing of numerous other offenses, including fraud-related crimes.
Improper entry and eluding inspection are the criminal equivalents to civil “entry without inspection” charges under section 212(a)(6)(A)(i) of the INA, misdemeanors (carrying a sentence of up to six months) for a first offense and possible two-year felonies for second and subsequent entries.
Reentry after removal also aligns with section 212(a)(6)(A)(i) of the INA, except it’s for aliens who reenter after formal removal proceedings are completed.
While it usually also carries a possible two-year felony sentence, if the prior removal was for an aggravated felony, the maximum penalty is imprisonment for “not more than 20 years”, and if the alien had “three or more misdemeanors involving drugs, crimes against the person, or both” or an ordinary felony prior to the formal removal, the possible criminal sentence is 10 years.
A failure to register conviction is a six-month maximum misdemeanor, and criminal failure by an alien to submit a change of address carries a maximum penalty of 30 days and a fine — though few among us would care to spend even a minute in federal criminal detention, much less a month.
Then, there’s failure to depart under a deportation order. The maximum felony sentence for that offense is four years, unless the alien was ordered deported on smuggling, criminal, or national security grounds, in which case it’s 10 years.
If “ICE-Free” Sanctuaries Want “Judicial Warrants”, Why Not Give them Judicial Warrants?
Whether they realize it or not, what all of those “ICE-Free Zone” sanctuary jurisdictions are really doing by imposing a “judicial warrant” requirement to honor ICE detainers is forcing the federal government to prosecute and incarcerate alien criminals, not just deport them.
This isn’t the same as Lavrenty Beria, Stalin’s head of the Soviet People's Commissariat for Internal Affairs (NKVD), boasting, “Show me the man and I’ll show you the crime.” Rather, it’s the opposite: “judicial warrant” sanctuaries are saying, “Show me the crime, and I’ll show you the alien.”
And that’s exactly what ICE should do.
Nearly all the aliens highlighted on DHS’s “criminal alien” websites are there because ICE had to arrest them on the streets after they were released by sanctuaries have committed some sort of federal crime. If ICE needs help figuring out which one(s), they should call me.
So, if a criminal alien is in, say, Sheriff Kincaid’s custody, immigration officers should get with the U.S. Attorney’s Office (USAO) for the Eastern District of Virginia (E.D. Va.), draft up an affidavit in support of a criminal complaint and an arrest warrant, put the documents in front of a federal magistrate or E.D. Va. district court judge, and pick up a “judicial arrest warrant”.
There are a few reasons, however, why ICE isn’t doing that, however, and some of them are valid.
First, the agency doesn’t want to set a bad precedent by giving in to sanctuary grandees with more self-righteous sanctimony than actual knowledge of immigration law and practice.
That’s fair, but “ICE-Free” politicos will demagogue ICE enforcement for votes regardless and aren’t likely to change their tune, while arresting a criminal alien on a judicial warrant would: (1) spare ICE the manpower it takes to arrest the same alien on the street; and (2) give DHS the opportunity to spotlight all the jailtime criminal aliens are going to receive thanks to, say, FCSO Sheriff Stacey Kincaid.
Second, there’s a skill to drafting complaints and warrant applications for presentation to federal judges, and at present, most ICE officers lack it.
That’s true of any legal drafting, though, and after the first 10 or so complaints and applications, the average ICE officer will be an old pro.
Third, ICE and CBP agents and officers often complain that USAOs are reluctant to accept charges for low-level immigration crimes, which is true.
The good news is that USAOs work for Attorney General Todd Blanche, and he’s shown great enthusiasm for prosecuting criminal aliens.
In March 2026, when he was Deputy AG, Blanche issued a memo promoting “Operation Take Back America”, a plan to use Organized Crime Drug Enforcement Task Forces (OCDETF) and the Project Safe Neighborhood (PSN) resources to, among other things, “stop[] illegal immigration”.
Besides, ICE lawyers have long served as “Special Assistant United States Attorneys” (SAUSAs), both in DOJ’s criminal and civil divisions, and they know the INA and could be enlisted in a special warrant effort. When I was an INS trial attorney, I’d have jumped at the opportunity to get out of immigration court and in front of a federal judge every once in a while.
And then there’s the fact that ICE received billions in the One Big Beautiful Bill Act (OBBBA), so it can hardly complain it lacks the resources.
“Operation Guardian Angel”
Keep in mind that some low-scale version of this proposal targeting “the worst of the worst” is already in effect.
In August, the USAO for the Central District of California (C.D. Calif.) issued a press release, “California Jails Forced to Transfer Hundreds of Criminal Illegal Aliens into Federal Custody One Year into Operation Guardian Angel”. As it explained:
Operation Guardian Angel’s goal is to apprehend criminal illegal aliens incarcerated in county jails, whose cooperation is prohibited by “sanctuary state” laws from cooperating with federal immigration officials. SB 54, also known as the California Values Act, signed into law in 2017, limits state and local police cooperation with federal immigration officers and restricts local resources from being used to remove illegal aliens — including violent felons.
Operation Guardian Angel works by securing federal arrest warrants for aliens recently arrested by local law enforcement. Once issued, local jails are legally required to honor the arrest warrants and must hand over the criminal illegal alien in their custody to the federal government.
The operation began in May 2025 and has resulted in 769 arrest warrants issued, and the actual transfer of 362 defendants — 347 of whom are federally charged with illegally re-entering the United States following removal, or another federal offense. [Emphasis added.]
The rogue’s gallery of state criminal aliens now facing federal charges under Operation Guardian Angel in that press release is too long to summarize, but it includes a Mexican national with a child sexual abuse conviction prosecuted under section 276(a) and deported, another Mexican national with a 1995 state rape conviction prosecuted under section 275(a) and deported, and one “José Cristián Saravia-Sánchez”, also from Mexico.
Saravia-Sánchez “shot and killed an Inglewood man who tried to stop him from stealing a catalytic converter”, but while he’s waiting for the wheels of state justice to turn in his case, DOJ is charging him federally under section 276(a) and as an alien in possession of a firearm.
Did I mention that Operation Guardian Angel is operating under the auspices of Attorney General Blanche’s Operation Take Back America? It works, and Blanche’s department should copy it and expand it nationwide, and not just against rapists and child sex offenders. Granted, that will require a lot of resources, but word will get out quickly.
Whether They Realize It or Not
Whether they realize it or not, when sanctuaries like Fairfax County demand “judicial warrants” to honor detainers, they’re really telling ICE to criminally prosecute aliens before deporting them. So, instead of the cold shoulder, DHS and DOJ should play their game — and see how quickly “ICE-Free Zones” warm up to civil immigration enforcement.