ICE memo argues for home searches without judicial warrant

Lawyers for the Trump administration secretly argued the Constitution allows Immigration and Customs Enforcement agents to enter illegal immigrants’ homes to arrest them without a warrant from a federal judge, according to a whistleblower complaint the Associated Press published on Wednesday.

A May 12 ICE memo, not released to the public but obtained by the whistleblowers, laid out a new arrest policy for the organization, instructing agents that they could use a “reasonable amount of force” to enter a residence to arrest or deport an illegal immigrant even without a judicial warrant. The memo acknowledged that ICE policy had previously required officers to obtain such warrants before entering a home.

Many legal experts argue the new policy is unconstitutional.

“I am slack-jawed. It’s truly unbelievable,” said Charles Kuck, an immigration attorney at Kuck Baxter, a law firm in Georgia. “Prior to this, we saw ICE doing this, but we just assumed it was rogue agents. … Now we know they’re being instructed to violate the Constitution.”

While lawyers like Kuck say the memo violates the principles of due process and personal privacy that the Founding Fathers enshrined in the Bill of Rights, some argue the policy isn’t as unreasonable as it might sound. And the U.S. Department of Homeland Security says its officials have broad authority to treat illegal immigrants with outstanding deportation orders as fugitives and arrest them accordingly.

ICE agents can lawfully arrest illegal immigrants in public areas without asking a federal judge for a warrant. To conduct those arrests, ICE agents only need a narrower administrative warrant, which an immigration judge can issue. But under long-standing precedent, agents who enter an illegal immigrant’s place of residence must first obtain a judicial warrant, which can only be issued by a federal judge.

By contrast, the May memo claimed the DHS Office of the General Counsel had determined that U.S. law permits agents to enter a home and arrest an illegal immigrant without a judicial warrant as long as that individual has a final order of removal. According to the memo, the U.S. Constitution, the Immigration and Nationality Act, and other federal regulations do not require a federal judge’s approval. Thus, agents only need an administrative warrant before entering the alien’s residence, the document explained.

“If an illegal alien has a final deportation order from an immigration judge and they refuse to leave, they are a fugitive from justice,” DHS said in a social media statement responding to the AP report about the memo. “In every case we serve an administrative warrant, there is probable cause and the illegal alien has had full due process and a final order of removal.”

In a Wall Street Journal op-ed on Thursday, DHS general counsel Jimmy Percival blamed “deep-state actors in the federal government” for perpetuating the idea that ICE officers couldn’t enter a home to arrest an illegal immigrant hiding from authorities. “Congress never intended the immigration laws to operate this way, and the Fourth Amendment doesn’t require it,” he wrote.

The administrative warrants in question are called Form I-205 warrants. Andrew Arthur, a former federal prosecutor, former immigration judge, and current resident fellow at the Center for Immigration Studies, explained that such deportation warrants are only issued after an individual has received due process and been found to be removable.

“This is a document that follows after an immigration judge, or the Board of Immigration Appeals, or a district court judge, or a magistrate, has already found that the person is removable and is not eligible for any relief from removal,” he said.

Many immigration experts and lawyers say that those administrative warrants still don’t allow ICE agents to enter a home.

“A home is considered legally distinct from any other area, in terms of the Fourth Amendment and the Constitution,” said Zachary Kohn, a practicing immigration attorney in the Washington, D.C., area. “There’s a lot more protections there, as opposed to a vehicle or being stopped on the street.”

Kohn said ICE agents entering a home under the terms of the memo would constitute “an unreasonable search of someone’s home,” which the Fourth Amendment prohibits.

Charles Kuck added, “Our Constitution protects ‘people,’ It doesn’t protect ‘citizens.’ Everybody that is in the United States, regardless of their immigration status, [is] protected by the basic rights of the Bill of Rights, which includes the right to be free of search and seizure without a judicial warrant.”

The Fourth Amendment has generally been interpreted to apply to illegal immigrants. Although the U.S. Supreme Court has not directly ruled on the question, it assumed such protections apply to aliens within the United States in its decisions in INS v. Lopez-Mendoza (1984) and United States v. Verdugo-Urquidez (1990).

Kuck noted that not every individual who has deportation orders is trying to flee justice. Oftentimes, individuals don’t even know that they have final orders calling for their removal, he said.

“There are hundreds of thousands of people walking around the United States with removal orders that don’t know they have them,” Kuck said. “I see it every week at my practice, when someone comes in and I’m the one to inform them that they have a removal order.” Additionally, he said, there is some legal relief available even after removal orders are issued.

Despite the constitutional questions raised by the policy, it’s unclear how widely ICE may or may not be applying it. The AP reported its journalists witnessed ICE execute a raid on the home of a Liberian man with only an administrative warrant, but it also noted that ICE agents have typically not entered homes to make immigrant arrests. The New York Times cited an anonymous DHS official who believed that the memo’s policy was piloted in just one or two locations this year.

Arthur from the Center for Immigration Studies argued that the document may not signal a true policy shift. “I don’t know how baked this thing is,” he said.

Still, he had plenty of questions about its nature and purpose. The report outlining the whistleblower’s claims noted that individuals at DHS were shown copies of the memo, but then had to hand those copies back to their supervisors.

“You’re not going to be able to implement a general policy by showing it to random people and then pulling it back,” Arthur said. “If I had to make a guess, this was probably pulled together, by some attorney within DHS. … And it was circulated around … for people to comment on it, which would explain why this was shown to somebody to read and then pulled back.”

But Charles Kuck said he has heard about illegal entry cases of this kind, though not among his clients.

“We really haven’t seen the level of enforcement in Georgia that you’ve seen elsewhere around the United States,” Kuck said. “But I have colleagues around the country that are actively putting together these complaints and moving forward.”

Kohn added that government efficiency shouldn’t take precedence over constitutional rights.

“Part of the justification for immigration enforcement is that the law should be followed by immigrants and people seeking entry into the United States,” he said. “Well, you know, the government should also lead by example and follow the rule of law and abide by the Fourth Amendment.”