The power of the government to enter a private home has been one of the most carefully guarded boundaries in American constitutional law. Under the Fourth Amendment to the Constitution, that authority traditionally depends on approval from a neutral judicial authority. However, a recently leaked Immigration and Customs Enforcement (ICE) policy has raised alarm about whether that constitutional safeguard has been weakened.
Judicial Warrant
A judicial warrant is a legal authorization issued by a judge that permits law enforcement to conduct a search, seizure, or arrest. To obtain a judicial warrant. The government must demonstrate probable cause and specify the place to be searched or the person to be seized. As required by the Fourth Amendment to the Constitution. These requirements are designed to prevent arbitrary or abusive government intrusion. Particularly into private homes, which receive the highest level of constitutional protection.
A judicial warrant should have these elements:
- Shows that it came from court, including the court name and case number.
- Signed by a judge or magistrate.
- Clearly states the person to be arrested or the address to be searched
Administrative Warrants
An administrative warrant in ICE operations, such as Form I-205, is issued by DHS and signed by an immigration officer rather than a judge. These warrants are used to detain or remove individuals for civil immigration violations, including those with final orders of removal. While administrative warrants authorize ICE to take individuals into custody. Courts have generally held that they do not provide legal authority to enter a private residence without consent. Because they lack approval from a neutral magistrate. For decades, this legal distinction has limited ICE’s ability to execute administrative warrants to public spaces. Unless an occupant voluntarily consented to entry or agents obtained a judicial warrant.
Administrative Warrants look like this:
- Issued by the Department of Homeland Security
- Likely titled “Warrant of Removal/Deportation”
- Signed by an immigration officer
ICE’s Shift Away from Judicial Authorization
In January, the Associated Press reported on a leaked internal ICE memorandum outlining a new enforcement policy. The memo, attributed to Acting ICE Director Todd Lyons, states that ICE agents are authorized to enter individuals’ homes without a judicial warrant by relying on Form I-205, officially titled a “Warrant of Removal/Deportation.” This raises significant legal and constitutional questions about the scope of ICE’s authority and the protections afforded to individuals under the Fourth Amendment.
The new ICE policy to rely almost exclusively on administrative warrants. Rather than judicial signifies a massive shift in immigration enforcement practice. By disregarding judicial warrants, ICE effectively consolidates this authority into the executive branch only. This opens up many questions about Fourth Amendment protections and other constitutional protections for private residences.
When questioned about the memo, DHS spokeswoman Tricia McLaughlin told the AP in an emailed statement that anyone served by the department with an administrative warrant has already had “full due process and a final order of removal.” McLaughlin did not answer questions about whether agents have entered homes since the memo was issued using only administrative warrants, or how often that may have occurred.
While it is still unknown how widespread the memo’s use has been within the agency. The ICE memo raises concerns about executive overreach, increased risk of unlawful entry, and erosion of the separation of powers that judicial warrants are meant to preserve.
Leaked ICE Memo: https://www.documentcloud.org/documents/26499371-dhs-ice-memo-1-21-26/
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