Memo tells ICE officers to enter homes without judge's warrant

An ICE memo obtained by The Associated Press is directing federal immigration officers to use force to enter homes without a signed judge’s warrant, marking a "seemingly unconstitutional" reversal of longstanding practice. 

The new directive was included in a whistleblower complaint and comes as the Trump administration dramatically expands immigration arrests, deploying thousands of officers nationwide.

Whistleblower Aid, a nonprofit legal organization that assists workers exposing wrongdoings, said in the complaint that it represents two anonymous U.S. government officials "disclosing a secretive — and seemingly unconstitutional — policy directive."

What does the memo say?

What we know:

The memo says ICE officers can forcibly enter homes and arrest immigrants using just a signed administrative warrant known as an I-205 if they have a final order of removal issued by an immigration judge, the Board of Immigration Appeals or a district judge or magistrate judge.

The memo says officers must first knock on the door and share who they are and why they’re at the residence. They’re limited in the hours they can go into the home — after 6 a.m. and before 10 p.m. The people inside must be given a "reasonable chance to act lawfully." But if that doesn’t work, the memo says, they can use force to go in.

The memo itself has not been widely shared within the agency, according to a whistleblower complaint, but it’s being used to train new ICE officers. New ICE hires and those still in training are being told to follow the memo’s guidance instead of written training materials that actually contradict the memo, according to the whistleblower disclosure.

It’s been addressed to all ICE personnel, but has been shown only to "select DHS officials" who then shared it with some employees.

One of the two whistleblowers was allowed to view the memo only in the presence of a supervisor and then had to give it back. That person was not allowed to take notes. A whistleblower was able to access the document and lawfully disclose it to Congress, Whistleblower Aid said.

What they're saying:

Homeland Security spokeswoman Tricia McLaughlin told the AP that everyone the department serves with an administrative warrant has already had "full due process and a final order of removal."

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She said the officers issuing those warrants have also found probable cause for the person’s arrest. She said the Supreme Court and Congress have "recognized the propriety of administrative warrants in cases of immigration enforcement," without elaborating.

What we don't know:

It’s still unclear how broadly the directive has been applied during recent immigration enforcement operations, but The Associated Press witnessed ICE officers forcing their way into the home of a Liberian man, Garrison Gibson, on Jan. 11, wearing heavy tactical gear and with their rifles drawn.

McLaughlin did not respond to questions about whether ICE officers entered a person’s home since the memo was issued, relying solely on an administrative warrant and if so, how often.

The memo does not say whether there could be legal repercussions.

Spotlight on ICE tactics

Dig deeper:

A wave of recent high-profile arrests, many unfolding at private homes and businesses and captured on video, has placed a spotlight on immigration arrest tactics, including officers’ use of proper warrants.

Most immigration arrests are carried out under administrative warrants, internal documents issued by immigration authorities that authorize the arrest of a specific individual but do not permit officers to forcibly enter private homes or other non-public spaces without consent. Only warrants signed by judges carry that authority.

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All law enforcement operations — including those conducted by ICE and Customs and Border Protection — are governed by the Fourth Amendment of the Constitution, which protects all people in the country from unreasonable searches and seizures.

People can legally refuse federal immigration agents entry into private property if the agents only have an administrative warrant, with some limited exceptions. Supreme Court rulings have generally barred law enforcement from entering a home without a judge’s approval.

The other side:

Critics say the memo ignores Fourth Amendment protections and goes against the advice given to immigrant communities.

Lindsay Nash, a law professor at Yeshiva University’s Cardozo School of Law in New York, said the memo "flies in the face" of what the Fourth Amendment protects against and what ICE itself has historically said are its authorities.

She said there’s an "enormous potential for overreach, for mistakes and we’ve seen that those can happen with very, very serious consequences."