Since Last May, ICE Officers Have Been Told They Don’t Need Warrants To Enter Homes

Legal Issues

from the fuck-your-rights dept

The thing afforded the highest protections of the Fourth Amendment is a person’s home. This isn’t even a controversial statement. It has been that way ever since this amendment was ratified.

But, under Trump, we’re constantly seeing that the administration considers all rights to be privileges — something only granted to people this administration likes.

The Associated Press has obtained a blockbuster leak — one that shows ICE officers have been told that they’re free to enter homes without a judicial warrant. Instead, they can just write themselves an administrative warrant and then just go about their business of terrorizing a nation.

ICE carries around things they call warrants, but hardly resemble the real thing. An administrative warrant is self-issuing. The officer who wants to use it only needs to fill in a few blanks and sign it before heading out to try to arrest the person listed on the paperwork. There’s no signature line for supervisors, which means these aren’t reviewed by anyone else but the person writing them.

But since last May, ICE officers have been instructed they can treat these pieces of paper like actual warrants — you know, the ones that are subjected to at least a cursory review by a judge.

The whistleblower report [PDF] contains screenshots of the memo issued by ICE head Todd Lyons, last seen here complaining repeatedly about people who complain about ICE officers acting like paramilitary kidnapping squads.

What’s contained in that memo is batshit insane. First of all, it’s the DHS telling itself that it’s okay to ignore the Fourth Amendment.

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.

There’s a very good reason the DHS has “not historically relied” on administrative warrants to enter people’s homes in search of arrestable migrants. That reason would be the US Constitution, which only “recently” fell out of favor with the GOP ruling class.

According to Lyons and the completely compromised DHS Office of the Legal Counsel, the only thing needed to engage in what is absolutely a warrantless entry is a final order of removal. A couple of paragraphs later, the memo states explicitly what ICE officers are authorized to do under the power of this memo (which definitely isn’t what they’re authorized to do under the Constitution):

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…

You can write a memo and issue it and claim the in-house lawyers said it was all cool and legal, but that still doesn’t make it cool and legal. All it does is add another layer of “good faith” to ICE officers’ violations of the Fourth Amendment. After all, if they were told they could do this, how could they be expected to know it was actually illegal?

A footnote follows that, which makes it clear ICE officers will engage in warrantless entries even if they haven’t actually obtained a final order of removal.

This scoping is not intended to concede that an administrative warrant would be insufficient to arrest an alien in his or her place of residence prior to a final order of removal or where there is a final order of removal issued by an immigration officer.

In other words, ICE officers can enter any alleged migrant’s house without a warrant at pretty much any time, so long as they’re carrying their self-issued non-warrants (the Form I-205 referenced throughout the memo).

This directly contradicts ERO (Enforcement and Removal Operations) training for ICE officers, which is included in the leaked documents the AP obtained. That training spells it out succinctly and explicitly (caps in the original):

An administrative arrest warrant does NOT alone authorize a 4th Amendment search of any kind.

That’s no longer the case, apparently. It’s not like this training has been rescinded. It seemingly remains on the books because it creates even more plausible deniability for officers being sued.

And ICE director Todd Lyons (along with his OLC enablers) know the contents of this memo can’t possibly be legal. That’s why this memo has never been officially added to ERO training or otherwise officially made part of the ICE operations manual. If Lyons and other top immigration enforcement officials actually thought this shit would hold in court, they wouldn’t have done this:

While addressed to “All ICE Personnel,” in practice the May 12 Memo has not been formally distributed to all personnel. Instead, the May 12 Memo has been provided to select DHS officials who are then directed to verbally brief the new policy for action. Those supervisors then show the Memo to some employees, like our clients, and direct them to read the Memo and return it to the supervisor.

In the case of the whistleblower who gave this to the Associated Press, they were instructed to read it and return it. They were not allowed to take notes. They were also informed that another employee had been reassigned for questioning ICE policies, which was taken by the whistleblower as the overt threat it is.

This is fucking insane. A federal government agency has decided the Fourth Amendment no longer exists and has done everything it can from keeping this clearly unconstitutional policy change from spreading beyond those who’ve already bought into the DHS’s new direction as the expression of the GOP’s white nationalist goals.

And it’s a problem that’s only going to get exponentially worse as ICE frantically on-boards new hires, who are given plenty of cash, but nearly nonexistent training before being sent out to fulfill the racist desires of people like White House advisor Stephen Miller. What little they may know (or care) about constitutional rights is being eroded even further by official memos that claim it’s perfectly legal to do something that clearly — under the DHS’s own published training — violates the Fourth Amendment.

Without a doubt, the administration will shrug this off and/or tell people they shouldn’t believe things they’ve seen with their own eyes. For now, we can only hope this might knock a few Republicans out of the MAGA loop, even if it’s only the ones who realize they definitely wouldn’t want to turn this unearned expansion of power over to an administration not run by one of their own.

Filed Under: 4th amendment, administrative warrants, all bets are off, bia, dhs, ice, mass deportation, olc, todd lyons, trump administration