Congressional Democrats are holding up DHS funding in part because the Trump administration opposes prohibiting ICE from entering a home without a judicial warrant. But the warrant problem runs deeper than home entries. DHS regulations delegate the power to issue arrest warrants to every immigration officer in ICE and CBP without independent review, without supervisory approval, and without the safeguards Congress has required for far less intrusive authorities like electronic surveillance. My previous article explained why DHS’s position on home entries is unconstitutional. This article argues that the entire administrative arrest warrant regime raises serious Fourth Amendment concerns — and that Congress should reform it along the lines it has followed in other contexts where the government’s actions directed at non-citizens implicate the constitutional rights of us all.
The problem is that DHS regulations expansively delegate the Secretary of Homeland Security’s power to issue arrest warrants, in 8 U.S.C. § 1226, to every immigration officer in ICE and CBP. Such an expansive delegation, without independent internal review and oversight, and without an external check, calls into doubt the reliability of the regulatory scheme. The system likely fails to protect U.S. citizens, lawful permanent residents, and immigrants with legal status from mistaken arrest. DHS can simply release them if they are wrongfully detained. Despite the trauma that causes, there’s no effective remedy. And if DHS detains an immigrant without probable cause, and places the immigrant in removal proceedings, the immigrant is without recourse. Suppression—the exclusion of evidence obtained through an unlawful arrest—is unavailable in removal proceedings, and there’s no right to release. Such a system raises a significant risk of unconstitutional arrest.
The Fourth Amendment Framework for Immigration Arrests
To appreciate the problem with the DHS warrant regulations, it is important to understand the constitutional framework that governs immigration arrests. A key rationale for the constitutional requirements, including probable cause, is to protect U.S. citizens from arbitrary detention by immigration agents. The rights of U.S. citizens must be assured, in addition to the rights of immigrants.
The Supreme Court made this clear in United States v. Brignoni-Ponce (1975). It held that, just as in the criminal context, “reasonable suspicion” is required to briefly stop an immigrant for questioning “about their citizenship and immigration status . . . but any further detention . . . must be based on . . . probable cause.” The Court rejected the government’s argument that immigration agents should be able to stop and question immigrants on highways within 100 miles of the border, without reasonable suspicion, in large part because granting such permission would undermine the constitutional rights of U.S. citizens. As the Court reasoned, “[t]o approve roving patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers.” The Court determined that,
“[a]lthough we may assume for purposes of this case that the broad congressional power over immigration . . . authorizes Congress to admit aliens on condition that they will submit to reasonable questioning about their right to be and remain in the country, this power cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens.”
Numerous decisions since Brignoni-Ponce hold that any immigration detention must be supported by probable cause, just like a criminal arrest. That is why ICE’s administrative arrest warrant forms (“Form I-200s”) require agents to make a probable cause finding. But it is insufficient that an ICE form requires a low-level agent to find probable cause. That finding must be consistently reliable.
A process without adequate safeguards subjects U.S. citizens, lawful permanent residents, and immigrants with legal status to the risk of wrongful arrest. That is the risk the probable cause requirement protects against. The risk is not hypothetical. DHS’s warrant authority under 8 U.S.C. § 1226 is broad. The statute provides that, “[o]n warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” (The Attorney General’s authority was transferred to the Secretary of DHS in the Homeland Security Act of 2002.) It gives DHS unreviewable authority to arrest and detain a noncitizen, indefinitely pending removal proceedings, if DHS concludes that any grounds for deportation exist. Those range from lack of documentation to the commission of crimes.
DHS faces no legal consequences that could ensure reliability. In the criminal context, agents must obtain probable cause to avoid invalidating an arrest or the suppression of evidence at trial. Suppression is unavailable in immigration proceedings. And an immigrant in removal proceedings cannot seek release based on the illegality of their arrest. It is telling that immigration arrests are challenged almost exclusively in criminal cases where the government confronts a motion to suppress. Outside that context, remedies are nonexistent. At best, a U.S. citizen wrongfully detained could bring a lawsuit for damages. Those are almost always unsuccessful. But even if there were a real post-deprivation remedy, Fourth Amendment rights cannot depend on that. The government must follow the Constitution, regardless of the remedy.
Accordingly, although it may be constitutional to arrest immigrants in public places based on probable cause that they are subject to removal, the absence of an independent check on that authority means the internal process must be rigorous. It must protect the rights of U.S. citizens and immigrants who are not legally subject to arrest. In other contexts where the government claims greater Fourth Amendment authority over foreign persons, and where post-deprivation remedies are severely constrained, the courts insist that the government follow rigorous internal procedures. The courts also insist on appropriate oversight. Such requirements are necessary to protect the Fourth Amendment rights of U.S. citizens. In those contexts, Congress codifies the necessary protections. It does not leave it to internal agency policy.
Foreign intelligence surveillance is instructive. The government’s authority for warrantless surveillance of certain foreign persons is dependent on providing adequate programmatic protections for the rights of U.S. citizens. For example, under Section 702 of the Foreign Intelligence Surveillance Act, which authorizes warrantless surveillance of foreign persons’ email accounts hosted by U.S. providers, the government must operate under rigorous court-approved procedures. Those procedures protect U.S. persons from mistaken targeting and require minimizing U.S. person information. The courts have held that, even though the surveillance is directed at foreign persons outside the United States, such protections are necessary for the program to satisfy the Fourth Amendment’s reasonableness requirement. With respect to foreign intelligence surveillance directed exclusively outside the United States, executive branch procedures implementing Executive Order 12,333 contain detailed provisions to protect U.S. persons, including requirements for high-level approval for certain activities that may affect their privacy interests. Those are required to ensure that the agency’s overall surveillance programs are conducted consistent with the Fourth Amendment rights of U.S. persons, even though it is impermissible to target a U.S. person under those authorities.
Now turn back to the DHS warrant regime. It implicates the core protection of the Fourth Amendment, the right not to be arbitrarily arrested and detained by a government agent. The arrests may lead to prolonged detention, even if they are mistaken. They present a risk of physical harm or death, particularly at the hands of undertrained ICE agents. By contrast, the elaborate protections in U.S. surveillance laws involve only access and use of data.
The Supreme Court in Abel v. United States (1960), observed the “overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens,” but no court has squarely addressed a challenge to the warrant authority. DHS has relied on this language, but omits what follows, which serves as a strong implicit condemnation of the current DHS regime. To buttress its observation, the Court went on to explain the careful process the INS followed to issue the warrant. The INS issued the arrest warrant for a Russian spy, based on information provided orally and in person to a Deputy Assistant Commissioner of the INS by FBI counterintelligence agents. The Deputy Assistant Commissioner approved seeking the arrest warrant after obtaining further information from the FBI about the spy’s failure to register with the Attorney General, as required under federal law. Two INS agents then presented that information to the Deputy Director of the New York region, who issued the arrest warrant. Regulations at the time required Deputy Director approval of arrest warrants. In suggesting that it would uphold the arrest warrant if it had been properly challenged (which it had not), the Supreme Court emphasized these facts to establish the reliability of the process.
Reforming the DHS Warrant Regime
A previous article contrasted the careful process outlined in Abel with what is known about the current ICE process. As explained, the DHS regulation, 8 C.F.R. 287.5(e)(2), delegates the authority to issue administrative arrest warrants, under 8 U.S.C. § 1226, all the way down to “Immigration Enforcement Agents,” 8 C.F.R. 287.5(e)(2)(iii). The DHS regulation does not require internal supervisory review of warrant applications. The source of statutory authority for the regulation, 8 U.S.C. § 1226, does not require probable cause (or any standard) to issue a warrant and provides that the decision to issue such a warrant is not subject to judicial review. A district court cited these deficiencies in rejecting the argument that ICE can rely on administrative warrants to enter private spaces without a real warrant (in addition to concluding that a judicial warrant is always required for that purpose).
It is possible that ICE’s internal regulations ensure more rigor than what the regulation and statute require. The probable cause finding on the ICE Form I-200, for example, does not appear in the regulation or statute, though it is constitutionally mandated. The form is signed by an immigration “officer” but no public regulations or policy specifies which officers can issue them, any supervisory review and approval that may apply, the underlying due diligence and documentation that must support the determination, the role of legal review, and training requirements for agents who are authorized to sign the forms. ICE withholds this information, including in response to efforts to obtain it under the Freedom of Information Act. Indeed, ICE’s memorandum authorizing agents to use administrative warrants to invade homes only became public through a leak.
The Fourth Amendment rights of U.S. citizens and residents cannot be permitted to turn on opaque and structurally inadequate internal agency policies. The regulations governing the ICE warrant process should be statutorily required, should ensure that the process is reliable, and should be public. The law should also provide for enhanced congressional oversight of the regulations and the implementation of the warrant authority. Congress should follow the course it has chosen when reforming other authorities that implicate the Fourth Amendment, from the Wiretap Act to the Stored Communications Act to the Foreign Intelligence Surveillance Act. Those authorities generally require court approval, but congressional reforms have also addressed internal requirements to ensure accuracy, to require appropriate approval, and to ensure oversight.
At a minimum, in addition to clarifying that administrative arrest warrants cannot be used to enter a space protected by the Fourth Amendment, such as a home, the administrative arrest authority should be reformed along the following lines:
- Ideally, the authority to approve administrative arrest warrants would be transferred by statute to an immigration judge. But if that is impracticable, a senior official should be required to sign the warrant. In Abel, the Court noted the INS regulation’s requirement that a regional Deputy Director issue the warrant. The level should be high enough to guarantee that the responsible official, with experienced staff, will scrutinize the proposed warrants carefully before issuing them at the request of lower-level agents.
- Any agent who seeks or serves an arrest warrant should be subject to a minimum level of training. The lack of proper training and vetting of ICE agents is a cause for serious concern.
- The factual findings required to establish probable cause should be in the form of an attestation by the agent or official who seeks the warrant.
- DHS components such as ICE should be required to report incidents involving misidentification of subjects, mistakes in executing the warrants, and other problems that implicate the rights of individuals not lawfully subject to arrest. Those reports should be provided to DHS’s Office of General Counsel and Office of Privacy and Civil Liberties, in addition to the heads of the relevant DHS components. Those reports should be provided to relevant congressional committees. This type of internal/congressional oversight framework applies under other statutes, such as the surveillance laws.
- DHS should be required to issue public regulations to implement these requirements.
- Relevant congressional committees should be informed of any significant or novel legal interpretations of DHS’s arrest authority. This would prevent DHS from adopting secret legal guidance and instructions to the field, like the secretive memorandum instructing agents to use administrative arrest warrants to enter a home.
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The authority to arrest residents in this country, untethered to the protections inherent in a criminal investigation, poses significant Fourth Amendment risks to U.S. citizens and others lawfully present here. The Court has repeatedly rejected arguments to subject administrative searches and seizures to less Fourth Amendment rigor. As the Court emphasized in Almeida-Sanchez v. United States (1973), in requiring probable cause for roving immigration searches of vehicles, “[t]he needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.” The Court pointed to the words of Justice Jackson in Brinegar v. United States (1948), after his return from the Nuremberg Trials:
These [Fourth Amendment rights], I protest, are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.
Congress has heeded this warning before. It should do so again.
FEATURED IMAGE: The New York City Fugitive Operations Team, joined by ICE Acting Director Caleb Vitello, conducted targeted enforcement operations on January 28, 2025 in New York City. (Photo by U.S. Immigration and Customs Enforcement via Getty Images)
Great Job Chris Hardee & the Team @ Just Security for sharing this story.
