~~ recommended by newestbeginning ~~
Following are two articles on this subject. I could not decide what to put up today. There is a firehose of horror and it is hard to know which is the most important subject. Stay safe guys!
 |
Over the past several days, reporting from multiple outlets has converged on a striking and unsettling development inside Immigration and Customs Enforcement: an internal legal memorandum now being used for training asserts that ICE officers may enter private homes and make arrests without a warrant signed by a judge. Instead, the agency claims that an administrative warrant—an internal Department of Homeland Security document—is sufficient authority, even when entry is not consensual.
The memo, signed by Acting ICE Director Todd Lyons and circulated internally in mid-May, represents a sharp departure from how immigration enforcement has long operated. For decades, ICE has relied on administrative warrants to arrest individuals in public places, while recognizing that entry into a home normally requires a judicial warrant issued by a neutral magistrate. This new guidance collapses that distinction—and does so in a way that has immediate, real-world consequences.
What the Memo Authorizes
According to the reporting, the memo instructs agents that neither the Constitution nor the Immigration and Nationality Act prohibits ICE from relying on administrative warrants—commonly known as I-205 warrants—to execute arrests inside private residences, so long as the target has a final order of removal. Officers are directed to knock, announce their identity and purpose, and allow occupants an opportunity to comply. If entry is refused, the memo authorizes agents to use a “reasonable and necessary” level of force to enter.
That language matters. This is not guidance about voluntary encounters or narrow emergency exceptions. It is framed as a general grant of authority, not a situational workaround. By its own terms, the memo treats administrative warrants as functionally equivalent to judicial warrants when it comes to crossing the threshold of a home—including, where necessary, by force.
Recent incidents help clarify how the agency understands its own directive. In Minnesota and elsewhere, agents have reportedly entered homes using only administrative warrants, in some cases breaking down doors and detaining occupants—only to later discover that they had targeted the wrong person, including at least one U.S. citizen. If the memo is being applied as written, these are not aberrations; they are the predictable outcome of a policy that removes the judiciary from the front end of residential entry.
Here is one highly visible example.
The Legal Theory ICE Would Have to Be Relying On
To understand how aggressive this position is, it helps to start with what the Supreme Court has actually said.
For nearly half a century, the baseline rule has been clear: absent consent or exigent circumstances, law enforcement may not enter a home to make an arrest without a warrant issued by a neutral magistrate. That principle was laid down in Payton v. New York (1980), where the Court held that the Fourth Amendment draws a firm line at the entrance to the home, and that line cannot be crossed on executive say-so alone. An arrest warrant must be judicial—not merely an internal authorization—if it is to justify entry into a private residence.
The ICE memo does not appear to contest Payton directly. Instead, it implicitly attempts to sidestep it.
The apparent move is to argue that immigration enforcement occupies a different constitutional category: that because removal proceedings are civil rather than criminal, and because individuals subject to final removal orders have already received due process in immigration court, the traditional warrant requirement does not apply in the same way. That is the only theory under which administrative warrants could plausibly be treated as sufficient authority for home entry.
But that theory runs headlong into another foundational case: Camara v. Municipal Court (1967). There, the Supreme Court rejected the idea that civil enforcement is exempt from the Fourth Amendment, holding that administrative objectives do not eliminate the need for a warrant to enter a home. Even routine housing inspections required judicial authorization when consent was withheld. The Court emphasized that the Fourth Amendment protects people, not proceedings—and that the home receives the highest level of protection regardless of whether the government’s purpose is regulatory, civil, or criminal.
Put plainly: if a housing inspector needs a warrant to check smoke detectors, it is difficult to see how immigration agents could dispense with one to break down a door and seize a person.
ICE might respond by pointing to cases recognizing broader government authority in immigration and border contexts. But those cases cut the other way once enforcement moves into the interior of the country and into the home. The Supreme Court has consistently distinguished between border searches and domestic enforcement, and it has never suggested that immigration status erases Fourth Amendment protections inside a residence. Even non-citizens unlawfully present in the United States are entitled to Fourth Amendment protection in their homes.
What the memo effectively asserts, then, is that executive determination plus prior civil process equals judicial authorization. That is a proposition courts have repeatedly rejected, precisely because it collapses the separation between enforcement and oversight that the Fourth Amendment is designed to preserve.
Where This Is Headed
Judicial warrants exist for a reason. They interpose a neutral decision-maker between the state and the individual at the moment when government power is most intrusive—when officers seek to cross the threshold of the home. An internal warrant issued by the same agency seeking entry does not serve that function, no matter how many procedural steps preceded it in immigration court.
If ICE continues to enforce this policy as written, litigation is inevitable. Courts will not ask whether immigration enforcement is important; they will ask where the limiting principle lies. If an administrative warrant suffices to enter a home for immigration enforcement, why would it not suffice for tax enforcement, environmental enforcement, or any other civil regime backed by arrest authority?
That is the question Payton and Camara were designed to foreclose. And it is why, historically, agencies have been cautious—often quietly so—about pressing against the constitutional boundary at the front door.
ICE’s memo changes that. It does not merely test the boundary. It asserts that the boundary is no longer there—and invites the courts to decide whether that claim can stand.
xxxxxxxxxxxxxxxxxxxxxxxxxx
It’s been a long time since we took a night off. I honestly can’t remember the last time. But tonight I’m going to turn in early, after a long day. Before I do that, I wanted to flag one development with ICE for you. I also want to leave you with some reason for optimism. You may have seen the news that ICE has now surged agents to Maine, predominantly to the cities of Portland and Lewiston, where there are large Somali immigrant communities. This is an echo of the focus on the Somali community in Minnesota. Tonight, close to 1,000 people joined the mighty Maine ACLU for training on their legal rights and non-violent protest. It was an honor to get to participate in it. When we talk about community building and supporting democracy, this is what it’s all about: people committed to standing up for their rights and for their neighbors’ rights. There is training across the country that you can participate in to better educate yourself about your right to protest peacefully. Now, the development: The Associated Press is reporting that it has seen a memo ICE is using for internal agent training that asserts “sweeping power to forcibly enter people’s homes without a judge’s warrant.” The Fourth Amendment, which protects people from unreasonable search and seizure, has always been understood to require a warrant signed by a judge, not an administrative warrant signed by a DHS employee to enter a private residence or private areas of a business.
This new policy stance might explain some of the incidents that have been reported in Minnesota, where agents have made forcible entry into homes to remove people and put them into deportation proceedings without a judicial warrant. This sounds like what might have been at work when agents forcibly entered the home of a Hmong man in Minnesota who has been an American citizen for decades, and according to his statement, declined to produce a warrant and claimed he was subject to removal before forcing him out into the freezing cold in his underwear. It turned out that they got it wrong and were forced to release him a few hours later. The AP reported that they witnessed ICE officers ramming through the front door of the home of a Liberian man in Minneapolis on Jan. 11 with only an administrative warrant, wearing heavy tactical gear and with their rifles drawn, which could also be a result of the new policy. This is a deeply disturbing development and one we’ll be following closely. It is such a departure from established Fourth Amendment rules that it’s perilously close to open disregard for constitutional rights. |
No comments:
Post a Comment