Politics

Can A New ICE Memo Turbocharge Arrests And Pass Legal Muster?

U.S. Immigration And Customs Enforcement/Creative Commons/Flickr

A new memo with the potential to turbocharge immigration arrests across the country is igniting a heated constitutional debate.

A whistleblower group in January released an internal Immigration and Customs Enforcement (ICE) memo authorizing deportation officers to enter the homes of wanted illegal migrants without a judicial warrant, igniting Fourth Amendment concerns from Democrats and legal scholars. However, other legal experts say the administrative warrant that the memo is based off — Form I-205 — authorizes agents to take such action against foreign nationals who’ve already exhausted their due process rights.

“It is absolutely legal,” Peter Lumaj, a New York City-based attorney who has practiced immigration law for roughly 20 years, told the Daily Caller News Foundation.

Lumaj, himself an immigrant originally from Albania, noted that a Form I-205 has been signed by a district director to arrest and remove an individual who has already exhausted their immigration court proceedings, making an in-home arrest fair game.

“In other words, the individual who’s being picked up by ICE under the I-205 has no further due process rights,” Lumaj continued. “It is just executing what the judge or the immigration court or a court of appeals, which is the Board of Immigration Appeals, has already determined. So it’s absolutely legal.”

The DHS Office of General Counsel, the legal arm of the department, determined that agents do not require a judge-approved warrant in order to carry out an in-home arrest of an illegal migrant subject to a final order of removal, according to internal guidance from Acting ICE Director Todd Lyons issued on May 12, 2025. The memo became public knowledge after Whistleblower Aide, a non-profit group representing two anonymous government officials, released it to Congress.

Whistleblower Aide has received substantial financial backing in the past from the Omidyar Network, a philanthropic investment firm established under billionaire Pierre Omidyar, the founder of the Intercept, a left-leaning news site.

A Form I-205 is a warrant of removal that allows for the arrest of a foreign national who’s already been issued a final order of deportation. However, it’s an administrative document that does not require a judge’s signature, just an immigration officer’s.

Before entering a home pursuant to a Form I-205 warrant, ICE agents must “knock and announce,” stating their identity and purpose, and then allow the individuals inside a reasonable amount of time to act lawfully, according to the memo. Should they refuse admittance, the ICE agents must only use a reasonable amount of force to enter the illegal migrant’s residence.

Critics argue that the new memo runs afoul of the Constitution, as it removes the “neutrality” of a third-party approval from the judicial branch.

“The immigration officer signing the Form is not a ‘neutral and detached magistrate’ within the understanding of Fourth Amendment legal precedent, as rather than an independent neutral authority, immigration officers work for the agency obtaining and executing the Form,” Whistleblower Aide stated in its document. “The position of the May 12th Memo would neuter the warrant requirement of the Fourth Amendment, overturning decades of strong constitutional legal precedent.”

Connecticut Democrat Sen. Richard Blumenthal, who obtained a copy of the ICE memo, suggested the policy ran afoul of Fourth Amendment protections against unreasonable searches and seizures by the government. Blumenthal, who is a ranking member of the Permanent Subcommittee on Investigations in the Senate, demanded Homeland Security Secretary Kristi Noem testify before Congress over the memo.

Noem has since agreed to speak before the Senate Judiciary Committee in early March, a hearing that will likely center around the two deadly shootings involving federal immigration agents in Minneapolis.

The whistleblower group said in-house arrests are already being made in some parts of the country. Countless anti-ICE organizations in the meantime are instructing illegal migrants not to open their door if an ICE agent comes knocking, making it all the more difficult for the agency to carry out its mission.

“Do not open the door. Teach your children not to open the door. Officers must have a warrant signed by a judge to enter your home,” reads an instruction manual from the National Immigrant Justice Center, reflecting what other anti-enforcement groups repeatedly teach illegal migrants.

White House Deputy Chief of Staff Stephen Miller has aimed for roughly 3,000 immigration arrests a day, but the ambitious goal has so far been difficult to meet, with White House figures suggesting daily arrest numbers top out at a little over 2,000.

Democrat-run states and cities have ramped up sanctuary policies in the wake of the deadly shootings in Minneapolis, ushering new restrictions that will make it all the more cumbersome for ICE agents to catch criminal aliens.

Other attorneys who have been practicing immigration law for years say federal agents have actually been long granted this authority.

“The authority for immigration officers to effectuate warrantless arrests was created by Congress in 1952 as part of the Immigration and Nationality Act,” Matthew Kolken, a longtime immigration attorney, told the DCNF.

“The specific provision of law, 8 U.S.C. § 1357(a)(2), provides that a warrantless arrest is authorized when an immigration officer has reason to believe that an alien is in the United States in violation of law and is likely to escape before a warrant can be obtained for their arrest,” Kolken continued. “The law further requires that after arrest the alien shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.”

The Buffalo-based attorney said this policy among deportation officers is not new, pointing to a decade-old enforcement effort — Operation Border Guardian/Border Resolve — that involved warrantless in-home arrests. The January 2016 raids under the operation involved agents conducting home arrests of Central American illegal migrants without judicial warrants, according to Kolken, which did spark accusations that the actions were unconstitutional.

The main reason ICE agents have not made much use of this authority over the years is largely due to fear of attracting lawsuits, according to other legal experts. Those claiming the memo violates the Constitution are purportedly gaslighting the general public.

“So, the first key point with this is that the anti-borders crowd is over-simplifying the legal issues and applying the wrong standards on purpose, to deceive the public,” Matthew O’Brien, deputy executive director of the Federation for American Immigration Reform, a conservative immigration group, stated to the DCNF.

O’Brien, a licensed attorney, spent years helping effectuate immigration enforcement for the federal government. The former immigration judge says the Fourth Amendment interests of the wanted illegal migrant can be satisfied with a statute that provides for administrative warrants or provides a simplified warrant process, which may be as simple as a review from a supervisory officer —  with immigration falling in that zone.

“The final point applicable here is that — as I understand it — the ICE memo only allows for forcible entry when they’re searching for an alien with a final order of removal,” O’Brien stated. “From a practical standpoint, it would be absurd to contend that the U.S. government can forcibly remove you from the country on the strength of an IJ’s order, but it can’t forcibly remove you from an apartment in order to execute the IJ’s [immigration judge’s] order.”

“Ultimately, critics of immigration enforcement need to come to grips with the fact that the constitutional standards that apply to criminal cases are not relevant to civil immigration enforcement, no matter how badly they want them to be,” the former immigration judge stated.