President Donald Trump’s “Make America Great Again” agenda relies heavily on successfully deporting millions of illegal immigrants. While many on the political Right have warned for decades of the existential threat posed by mass immigration, some “constitutional conservatives” are now reacting with alarm to a Department of Homeland Security (DHS) memo permitting Immigration and Customs Enforcement (ICE) agents to enter the houses of illegal immigrants without a judicial warrant. Could such a directive possibly be legal?

What’s in a Warrant?

The vast majority of ICE’s operations — namely, the arrest, detention, and deportation of illegal immigrants — make use of internal administrative warrants, rather than judicial warrants signed by a judge. The most commonly-used of these warrants is Form I-205, formally known as a “Warrant of Removal.” The authority for creating and executing these warrants is rooted in the Immigration National Act (INA), namely Title Eight of the U.S. Code of Federal Regulations (CFR) Section 241.2. A warrant of removal can only be issued against an individual who has a final order of removal, which means that an immigration judge has verified that the immigrant to be removed does, in fact, have no legal basis for remaining in the U.S. and has exhausted or waived all available avenues of appeal. Once a final order of removal has been issued, ICE can generate a warrant of removal.

The warrant of removal (Form I-205) is distinct from Form I-200, formally the “Warrant for Arrest of Alien.” Form I-200 authorizes ICE to make an arrest on suspicion of a subject being in the U.S. illegally. In other words, the warrant of removal (Form I-205) authorizes ICE to arrest known illegal immigrants who have been issued a final order of removal after having exhausted all avenues of appeals in immigration court, while the warrant for arrest of alien (Form I-200) cites “probable cause” for believing that a subject is present in the U.S. illegally.

This process differs from the one by which police obtain arrest or search warrants. In those cases, law enforcement officials petition a judge to approve a warrant, citing probable cause. The issuing of such warrants is rooted in the Fourth Amendment, which protects Americans against “unreasonable searches and seizures.” Criminal warrants are specific in nature, enumerating “the place to be searched, and the persons or things to be seized.”

The Memo

Late last month, two “whistleblowers” leaked a DHS memo from May 12, which noted that ICE has historically relied on judicial criminal warrants, in addition to administrative ICE warrants, for authority to arrest illegal immigrants in their places of residence. However, “the DHS Office of 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,” specifying the Form I-205 warrant of removal, not the Form I-200 warrant for arrest of alien. “In light of this legal determination, ICE immigration officers may arrest and detain aliens subject to a final order of removal issued by an immigration judge, the Board of Immigration Appeals (BIA), or a U.S. district court judge or magistrate judge in their place of residence.”

Before entering a place of residence, ICE agents are required to “knock and announce,” stating their identity and purpose in entering the residence, the memo clarified. “Following announcement, officers and agents must allow those inside the residence a reasonable chance to act lawfully,” the memo further stipulated. “Should the alien refuse admittance, ICE officers and agents should use only a necessary and reasonable amount of force to enter the alien’s residence, following proper notification of the officer’s or agent’s authority and intent to enter.” Additionally, the memo only allows ICE agents to make an administrative warrant arrest in the illegal immigrant’s place of residence, requiring “consent, exigency, or a judicial warrant” to enter or make an arrest in a third party’s place of residence.

The whistleblowers characterized the memo as establishing an “unconstitutional mandate” and alleged that DHS and ICE personnel who supposedly expressed concerns over the directive “faced retaliation,” namely being transferred to a different department or division.

An Unlawful Order?

Once the memo was leaked, a number of voices on both the Left and the Right raised concerns over whether or not the directive was constitutional. Appearing on “Washington Watch” last week, National Review Institute Senior Fellow and former federal prosecutor Andrew C. McCarthy suggested that the directive may not stand up to judicial review when inevitably challenged in court. “The bottom line answer is what they’re saying they can do, probably they can’t do,” he quipped. However, he noted that the U.S. Supreme Court “has never exactly weighed in on this.” McCarthy noted that standard arrest warrants are issued by the judicial branch of the government, authorizing the arrest of an individual on suspicion of a criminal action, while ICE’s administrative warrants are issued by the executive branch of the government.

“What the Trump administration is trying to say is they should have the same ability with respect to an administrative warrant that’s issued by the executive branch in connection with immigration proceedings,” McCarthy surmised. “I don’t think it’s a frivolous argument, because what they’re talking about is a warrant of removal, and you can’t get a warrant of removal unless you go through a very elaborate legal process, which entails, at the end, an appeal to a judicial court,” he continued. “So it’s not like the judicial courts don’t have anything to do with it at all. But the Supreme Court has never said that such an administrative warrant is the functional equivalent of a judicial warrant, and that’s what the confusion is.”

Andrew R. Arthur, resident fellow in Law and Policy at the Center for Immigration Studies and a former immigration judge, pointed out that the key difference between judicial criminal warrants and administrative ICE warrants is that judicial criminal warrants are issued by Article III courts to address criminal activity, while administrative ICE warrants are issued to address what is technically a civil infraction: entering the U.S. illegally. “Most immigration enforcement is civil in nature, not criminal, and consequently most ICE and CBP arrests end in detention and removal from the United States, which are not punitive in the immigration context because, unlike criminal cases, they do not result in conviction and incarceration,” Arthur explained in comments shared with The Washington Stand. “The problem, as I have explained repeatedly in the past, is that there is no mechanism to obtain a warrant from an Article III federal judge to arrest an alien for a civil immigration violation.”

“If you think the federal judiciary has issues now, imagine if ICE started swamping U.S. courts with warrant applications for millions of illegal migrants,” Arthur quipped. Turning to criminal warrants rooted in the Fourth Amendment, he continued, “The warrant rule is generally interpreted, however, in the criminal context, raising the question of whether the same rule applies in the administrative context (such as in immigration enforcement). Curiously, the answer isn’t as clear as most advocates of judicial warrants in immigration enforcement might think.”

Arthur cited two prior court decisions dealing with administrative warrants. First, in United States v. Lucas (2007), the director of the Nebraska Department of Correctional Services issued an administrative arrest warrant — not a judicial arrest warrant — for Tylan Lucas, a convict who absconded while on work release. After being arrested at his girlfriend’s apartment, where police also found drugs and guns hidden, Lucas moved to suppress the evidence of the drugs and guns found at the apartment, claiming that the evidence was obtained illegally since the police did not have a judicial warrant, just an administrative warrant. The U.S. Court of Appeals for the Eighth Circuit ultimately ruled that the difference between an administrative and a judicial warrant in this instance did not matter, because “[t]he standard for issuance of a valid administrative warrant under the Fourth Amendment is different from the probable cause showing necessary for a warrant to arrest someone suspected of a crime.”

The appellate court’s majority in Lucas cited a 1960 U.S. Supreme Court holding in Abel v. United States. “The Supreme Court has upheld administrative warrants and has never held that administrative warrants must be issued by a neutral and detached magistrate,” the Eighth Circuit majority wrote. “An administrative arrest warrant issued by a district director of the Immigration and Naturalization Service pursuant to a deportation statute led to a valid arrest in Abel v. United States.”

In Abel, the Federal Bureau of Investigation (FBI) suspected English-born Rudolph Abel of being a Soviet Spy and notified the Immigration and Naturalization Service (INS, the precursor to ICE) that Abel was living in the U.S. illegally. INS, then an organ of the Department of Justice (DOJ), moved to arrest Abel on an administrative warrant, but allowed FBI agents to question him first. On appeal before the Supreme Court, Abel advanced the argument that his arrest was invalid because an administrative INS warrant did not qualify as a valid arrest warrant under the Fourth Amendment, since it was not signed by a judge. The Supreme Court ultimately rejected the argument, since Abel had not entered such a theory in any of the lower courts, but did write:

“Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time. It would emphasize the disregard for the presumptive respect the Court owes to the validity of Acts of Congress, especially when confirmed by uncontested historical legitimacy, to bring into question for the first time such a long-sanctioned practice of government at the behest of a party who not only did not challenge the exercise of authority below, but expressly acknowledged its validity. … The constitutional validity of this longstanding administrative arrest procedure in deportation cases has never been directly challenged in reported litigation. ... This Court seems never expressly to have directed its attention to the particular question of the constitutional validity of administrative deportation warrants. It has frequently, however, upheld administrative deportation proceedings shown by the Court’s opinion to have been begun by arrests pursuant to such warrants. ... In the presence of this impressive historical evidence of acceptance of the validity of statutes providing for administrative deportation arrest from almost the beginning of the Nation, petitioner's disavowal of the issue below calls for no further consideration.”

Arthur commented, “Whether that analysis is ‘dicta’ (i.e., a comment made by the court ‘that is not necessary to resolve the case, and as such … not legally binding on other courts’) or not depends on how you read it, but it certainly supports the proposition that an administrative immigration warrant is a sufficient substitute for a judicial one when it comes to the Fourth Amendment, particularly in the Eighth Circuit.”

“When most ‘experts’ … complain about ICE administrative arrest warrants, the document they usually mean is the Form I-200, ‘Warrant for Arrest of Alien,’” Arthur observed. “A Form I-205, ‘Warrant of Removal/Deportation,’ on the other hand, is only issued after an immigration judge, the Board of Immigration Appeals, a U.S. District Court judge or magistrate court judge, or other ‘designated official’ has issued a final order of removal or deportation in the named alien’s case.” The immigration law expert noted that ICE agents are legally required to make arrests in the cases of Form I-205 warrants and that it is a felony — elevated from a civil infraction for first-time illegal entry — for illegal immigrants under final orders of removal not to depart from the U.S. within 90 days of the order being issued.

“Thus, the Form I-205 is akin to the administrative arrest warrant in Lucas … with the only difference being that the latter relates to a convicted criminal on the lam and the former to aliens who received their full due process rights and were ordered removed, but have failed to depart,” Arthur suggested. “Consequently, Fourth Amendment ‘probable cause’ likely isn’t an issue in the I-205 context except with respect to the identity of the alien and the place where the alien is likely to be found.”