{"id":142436,"date":"2026-01-22T18:10:46","date_gmt":"2026-01-23T02:10:46","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/01\/22\/ice-can-bust-into-houses-without-warrants-based-on-memo-so-cool-and-legal-they-keep-it-hidden\/"},"modified":"2026-01-22T18:10:46","modified_gmt":"2026-01-23T02:10:46","slug":"ice-can-bust-into-houses-without-warrants-based-on-memo-so-cool-and-legal-they-keep-it-hidden","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/01\/22\/ice-can-bust-into-houses-without-warrants-based-on-memo-so-cool-and-legal-they-keep-it-hidden\/","title":{"rendered":"ICE Can Bust Into Houses Without Warrants Based On Memo So Cool And Legal They Keep It Hidden"},"content":{"rendered":"

Immigration and Customs Enforcement reportedly created an internal memo asserting that its agents can enter people\u2019s homes to make arrests without a judicial warrant<\/a>. And the memo, we are assured, is extremely chill and very constitutional, which is why ICE refused to widely distribute it and told some of those who did see it that they had to view it in the presence of their supervisor and couldn\u2019t take notes. Nothing suspicious about that!<\/p>\n

The Fourth Amendment provides that \u201cno Warrants shall issue, but upon probable cause, supported by Oath or affirmation.\u201d In practice, this has meant that law enforcement needs a judicial warrant to enter private property without permission\u2026 barring exigent circumstances, like someone inside being in immediate danger. A judicial warrant, as the name suggests, involves a judge signing off on it. By contrast an \u201cadministrative warrant\u201d has someone in the executive branch sign off on it.<\/p>\n

The May 12 memo (at Exhibit 1)<\/a>, disclosed through Whistleblower Aid<\/a> and signed by Acting ICE Director Todd Lyons, announces that agents can forcibly enter homes based solely on administrative warrants. If Homeland Security has gotten a removal order \u2014 which could be from an official as low on the pecking order as an immigration judge \u2014 then an immigration officer can go ahead and issue an I-205 authorizing agents to go get the person\u2026 and now, for the first time, they claim that form is all it takes for the government to overcome the Fourth Amendment. So, to be clear, these aren\u2019t even issued by immigration judges\u2026 they\u2019re from the ICE equivalent of desk sergeants:<\/p>\n

\n

Although the U.S. Department of Homeland Security (DHS) has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence, the DHS Office of the General Counsel has recently determined that the U.S. Constitution, the Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose.<\/p>\n<\/blockquote>\n

As an attorney, you know<\/em> you\u2019re on the right track when your conclusion runs counter to practice \u201chistorically\u201d and involves \u201crecently\u201d realizing the Constitution has a meaning that no one else ever thought of in all the years since 1791. You can be even more confident in your conclusion when you don\u2019t cite A SINGLE CASE for this proposition. And the cherry on top is when your bosses make sure the memo addressed<\/em> to \u201cAll ICE Personnel\u201d stays so hidden that it can only be found where the government keeps its darkest secret documents like Area 51 or Mar-a-Lago\u2019s pool locker. <\/p>\n

According to the whistleblowers, ICE pointedly did not revise their actual training materials. So anyone who looked would see ICE telling agents that they can\u2019t enter a home without a real warrant while behind-the-scenes instructing their people\u2026 the exact opposite.<\/p>\n

And so we have Department of Homeland Security lawyers issuing novel constitutional law opinions hopped up on Red Bull and Chick-fil-A on one side and anyone who has ever watched 10 minutes of Law & Order<\/em> on the other. Professor Orin Kerr, who is enjoying the busiest week in Fourth Amendment news in years, weighs in<\/a>:<\/p>\n

\n

The standard view has been that administrative warrants can\u2019t authorize home entry because they\u2019re executive branch orders, and the executive branch can\u2019t be in charge of deciding whether to give itself a warrant.\u00a0 Under\u00a0Payton v. New York<\/em>, 445 U.S. 573 (1980)<\/a>, the government needs an arrest warrant to enter a home to make an arrest.\u00a0 But\u00a0Payton<\/em>\u00a0refers to a \u201cjudicial officer\u201d inserting his judgment \u201cbetween the zealous officer and the citizen,\u201d and the immigration officer who signs a Form I-205 is not a \u201cjudicial officer.\u201d That\u2019s the traditional thinking.<\/p>\n<\/blockquote>\n

The whole point, as the Supreme Court has explained in cases like Coolidge v. New Hampshire<\/em><\/a> (1971), is that \u201cprosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations.\u201d This concern is supercharged when the administration has publicly embarked on an immigration judge purge<\/a>, threatening anyone exercising independence and replacing them with stooges and rendering suspect even the underlying removal orders behind these warrants.<\/p>\n

Professor Kerr hypothesizes that DHS attorneys might be \u2014 because, again, they cite zilch for this conclusion \u2014 relying on dicta from 1960 for this. And if they are, he\u2019s not particularly persuaded:<\/p>\n

\n

If that\u2019s the DHS argument\u2014and I\u2019m just speculating about that\u2014I think the problem on the merits is that there\u2019s been a lot of water under the bridge since Justice Frankfurter\u2019s opinion in\u00a0Abel<\/em>.\u00a0\u00a0Coolidge<\/em>\u00a0from 1971 and\u00a0Shadwick<\/em>\u00a0from 1972 settled the idea that a warrant requires a neutral and detached magistrate.\u00a0Payton<\/em>\u00a0from 1980 settled that a judicial warrant is needed for entry.\u00a0 To go back to the 1960 opinion in\u00a0Abel,\u00a0<\/em>and to read its dicta as binding without considering the Supreme Court\u2019s later holdings in\u00a0Coolidge<\/em>,\u00a0Shadwick<\/em>, and\u00a0Payton<\/em>, seems pretty problematic.<\/p>\n<\/blockquote>\n

So it\u2019s probably \u201cwrong\u201d but maybe \u201cnot frivolous.\u201d Cold comfort for folks having their doors rammed in.<\/p>\n

And doors are definitely getting rammed. The AP report notes that ICE officers broke through the front door of a Liberian man\u2019s Minneapolis home on January 11, wearing tactical gear armed with rifles and an administrative warrant.<\/p>\n

DHS spokesperson Tricia McLaughlin defended the policy by saying everyone served with these warrants has \u201chad full due process and a final order of removal from an immigration judge.\u201d Which might be true! ICE has been repeatedly caught mistakenly nabbing U.S. citizens. But let\u2019s give the DHS propaganda minister the benefit of the doubt and assume they\u2019ve only busted into houses with administrative warrants when they\u2019ve been sure<\/em> someone inside is subject to a removal order\u2026 it\u2019s still beside the point. The due process question is separate from the Fourth Amendment question of whether the government can break into your home without taking it to an independent judge. Customarily lawyers learn that before they set out to vibe-check the Bill of Rights.<\/p>\n

Not that anyone can do much about it, according to Kerr:<\/p>\n

\n

It seems worth flagging, though, that this is another place where the Supreme Court\u2019s gradual cutting back on the scope of the\u00a0Bivens<\/em>\u00a0remedy\u2014the civil action against federal agents for violating the Constitution, including the Fourth Amendment\u2014may make the most obvious form of judicial review unavailable. Even if the policy is unconstitutional, as it seems to be, a person who is illegally searched probably can\u2019t sue ICE for violating their constitutional rights.<\/p>\n<\/blockquote>\n

Yet another reminder that the courts have more or less written abusive government agents a blank check<\/a>. The system is working exactly as intended. Just not for any of us.<\/p>\n

But just because it\u2019s practically unlikely to be enforced doesn\u2019t make it legal. The Constitution does not contain a secret footnote that says, \u201cUnless immigration, lol.\u201d<\/p>\n

No wonder they wanted to keep this thing hidden.<\/p>\n

Immigration officers assert sweeping power to enter homes without a judge\u2019s warrant, memo says<\/a> [AP]
Can ICE Enter a Home to Make an Arrest With Only an Administrative Warrant?<\/a> [Lawfare]<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post ICE Can Bust Into Houses Without Warrants Based On Memo So Cool And Legal They Keep It Hidden<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
\n\t\t\t\t\t\t\t(Photo by Stephen Maturen\/Getty Images)\t\t\t\t\t\t<\/figcaption><\/figure>\n

Immigration and Customs Enforcement reportedly created an internal memo asserting that its agents can enter people\u2019s homes to make arrests without a judicial warrant<\/a>. And the memo, we are assured, is extremely chill and very constitutional, which is why ICE refused to widely distribute it and told some of those who did see it that they had to view it in the presence of their supervisor and couldn\u2019t take notes. Nothing suspicious about that!<\/p>\n

The Fourth Amendment provides that \u201cno Warrants shall issue, but upon probable cause, supported by Oath or affirmation.\u201d In practice, this has meant that law enforcement needs a judicial warrant to enter private property without permission\u2026 barring exigent circumstances, like someone inside being in immediate danger. A judicial warrant, as the name suggests, involves a judge signing off on it. By contrast an \u201cadministrative warrant\u201d has someone in the executive branch sign off on it.<\/p>\n

The May 12 memo (at Exhibit 1)<\/a>, disclosed through Whistleblower Aid<\/a> and signed by Acting ICE Director Todd Lyons, announces that agents can forcibly enter homes based solely on administrative warrants. If Homeland Security has gotten a removal order \u2014 which could be from an official as low on the pecking order as an immigration judge \u2014 then an immigration officer can go ahead and issue an I-205 authorizing agents to go get the person\u2026 and now, for the first time, they claim that form is all it takes for the government to overcome the Fourth Amendment. So, to be clear, these aren\u2019t even issued by immigration judges\u2026 they\u2019re from the ICE equivalent of desk sergeants:<\/p>\n

\n

Although the U.S. Department of Homeland Security (DHS) has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence, the DHS Office of the General Counsel has recently determined that the U.S. Constitution, the Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose.<\/p>\n<\/blockquote>\n

As an attorney, you know<\/em> you\u2019re on the right track when your conclusion runs counter to practice \u201chistorically\u201d and involves \u201crecently\u201d realizing the Constitution has a meaning that no one else ever thought of in all the years since 1791. You can be even more confident in your conclusion when you don\u2019t cite A SINGLE CASE for this proposition. And the cherry on top is when your bosses make sure the memo addressed<\/em> to \u201cAll ICE Personnel\u201d stays so hidden that it can only be found where the government keeps its darkest secret documents like Area 51 or Mar-a-Lago\u2019s pool locker. <\/p>\n

According to the whistleblowers, ICE pointedly did not revise their actual training materials. So anyone who looked would see ICE telling agents that they can\u2019t enter a home without a real warrant while behind-the-scenes instructing their people\u2026 the exact opposite.<\/p>\n

And so we have Department of Homeland Security lawyers issuing novel constitutional law opinions hopped up on Red Bull and Chick-fil-A on one side and anyone who has ever watched 10 minutes of Law & Order<\/em> on the other. Professor Orin Kerr, who is enjoying the busiest week in Fourth Amendment news in years, weighs in<\/a>:<\/p>\n

\n

The standard view has been that administrative warrants can\u2019t authorize home entry because they\u2019re executive branch orders, and the executive branch can\u2019t be in charge of deciding whether to give itself a warrant.\u00a0 Under\u00a0Payton v. New York<\/em>, 445 U.S. 573 (1980)<\/a>, the government needs an arrest warrant to enter a home to make an arrest.\u00a0 But\u00a0Payton<\/em>\u00a0refers to a \u201cjudicial officer\u201d inserting his judgment \u201cbetween the zealous officer and the citizen,\u201d and the immigration officer who signs a Form I-205 is not a \u201cjudicial officer.\u201d That\u2019s the traditional thinking.<\/p>\n<\/blockquote>\n

The whole point, as the Supreme Court has explained in cases like Coolidge v. New Hampshire<\/em><\/a> (1971), is that \u201cprosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations.\u201d This concern is supercharged when the administration has publicly embarked on an immigration judge purge<\/a>, threatening anyone exercising independence and replacing them with stooges and rendering suspect even the underlying removal orders behind these warrants.<\/p>\n

Professor Kerr hypothesizes that DHS attorneys might be \u2014 because, again, they cite zilch for this conclusion \u2014 relying on dicta from 1960 for this. And if they are, he\u2019s not particularly persuaded:<\/p>\n

\n

If that\u2019s the DHS argument\u2014and I\u2019m just speculating about that\u2014I think the problem on the merits is that there\u2019s been a lot of water under the bridge since Justice Frankfurter\u2019s opinion in\u00a0Abel<\/em>.\u00a0\u00a0Coolidge<\/em>\u00a0from 1971 and\u00a0Shadwick<\/em>\u00a0from 1972 settled the idea that a warrant requires a neutral and detached magistrate.\u00a0Payton<\/em>\u00a0from 1980 settled that a judicial warrant is needed for entry.\u00a0 To go back to the 1960 opinion in\u00a0Abel,\u00a0<\/em>and to read its dicta as binding without considering the Supreme Court\u2019s later holdings in\u00a0Coolidge<\/em>,\u00a0Shadwick<\/em>, and\u00a0Payton<\/em>, seems pretty problematic.<\/p>\n<\/blockquote>\n

So it\u2019s probably \u201cwrong\u201d but maybe \u201cnot frivolous.\u201d Cold comfort for folks having their doors rammed in.<\/p>\n

And doors are definitely getting rammed. The AP report notes that ICE officers broke through the front door of a Liberian man\u2019s Minneapolis home on January 11, wearing tactical gear armed with rifles and an administrative warrant.<\/p>\n

DHS spokesperson Tricia McLaughlin defended the policy by saying everyone served with these warrants has \u201chad full due process and a final order of removal from an immigration judge.\u201d Which might be true! ICE has been repeatedly caught mistakenly nabbing U.S. citizens. But let\u2019s give the DHS propaganda minister the benefit of the doubt and assume they\u2019ve only busted into houses with administrative warrants when they\u2019ve been sure<\/em> someone inside is subject to a removal order\u2026 it\u2019s still beside the point. The due process question is separate from the Fourth Amendment question of whether the government can break into your home without taking it to an independent judge. Customarily lawyers learn that before they set out to vibe-check the Bill of Rights.<\/p>\n

Not that anyone can do much about it, according to Kerr:<\/p>\n

\n

It seems worth flagging, though, that this is another place where the Supreme Court\u2019s gradual cutting back on the scope of the\u00a0Bivens<\/em>\u00a0remedy\u2014the civil action against federal agents for violating the Constitution, including the Fourth Amendment\u2014may make the most obvious form of judicial review unavailable. Even if the policy is unconstitutional, as it seems to be, a person who is illegally searched probably can\u2019t sue ICE for violating their constitutional rights.<\/p>\n<\/blockquote>\n

Yet another reminder that the courts have more or less written abusive government agents a blank check<\/a>. The system is working exactly as intended. Just not for any of us.<\/p>\n

But just because it\u2019s practically unlikely to be enforced doesn\u2019t make it legal. The Constitution does not contain a secret footnote that says, \u201cUnless immigration, lol.\u201d<\/p>\n

No wonder they wanted to keep this thing hidden.<\/p>\n

Immigration officers assert sweeping power to enter homes without a judge\u2019s warrant, memo says<\/a> [AP]
Can ICE Enter a Home to Make an Arrest With Only an Administrative Warrant?<\/a> [Lawfare]<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Immigration and Customs Enforcement reportedly created an internal memo asserting that its agents can enter people\u2019s homes to make arrests without a judicial warrant. And the memo, we are assured, is extremely chill and very constitutional, which is why ICE refused to widely distribute it and told some of those who did see it that […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-142436","post","type-post","status-publish","format-standard","hentry","category-above_the_law"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/142436","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=142436"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/142436\/revisions"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=142436"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=142436"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=142436"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}