ICE Administrative Warrants and the Fourth Amendment

The judicial warrant requirement is now at the center of the Department of Homeland Security funding debate. In a recent Wall Street Journal editorial titled “How the Deep State Thwarted ICE Administrative Warrants,” DHS General Counsel James “Jimmy” Percival outlined the administration’s legal case for why ICE can enter homes without a judicial warrant. 

The op-ed has since been repackaged as bullet points on DHS’s website and sent to members of Congress as part of DHS’s legislative effort to secure funding without meaningful reforms. It is the first public articulation of the legal reasoning behind a January 2026 secretive memorandum that reversed decades of DHS policy by instructing ICE agents they may enter homes to arrest noncitizens using administrative warrants — documents issued by ICE itself, without judicial oversight. The memo did not disclose the underlying legal analysis. The op-ed does. 

What it reveals should deepen congressional resolve to rein in ICE’s warrant authority. DHS’s legal position has no basis in the law. And it’s not just wrong, the policy it supports would expose any American’s home to a warrantless invasion by ICE. 

DHS’s Position and Why It Should Alarm Us All

To capture how extreme DHS’s position is, consider how the op-ed characterizes the lawyers who disagree with it: 

Although the law is clear, deep-state actors in the federal government have for decades told ICE officers that they may not enter a fugitive alien’s home even with a final order of removal and administrative warrant.

Those “deep-state actors” were lawyers across multiple Democratic and Republican administrations at DHS and the Department of Justice, including lawyers in the first Trump administration, several of whom have publicly objected to the legal guidance. DHS’s top lawyer accuses them of ignoring “clear law,” even though no court has upheld the use of such warrants to enter a home, as a previous article explains.

The Republican and Democratic lawyers the General Counsel attacks appreciated what he does not — that DHS’s position not only would violate the Fourth Amendment rights of noncitizens, it would violate the Fourth Amendment rights of U.S. citizens. It would authorize ICE agents to invade the home of anyone based solely on ICE’s own determination that it has probable cause to arrest a noncitizen. Putting aside the rights of noncitizens targeted for removal, DHS’s position is that we should simply trust ICE to target the right people in the right homes. This is antithetical to the Fourth Amendment. It is as baseless as the government saying warrants are not required because we can trust the government only to target criminals. Indeed, the op-ed highlights the danger of this kind of lawyering by DHS. It highlights the need for Congress to rein in DHS’s warrant authority to remove the broad discretion DHS now claims. 

DHS’s Attempt to Create a New Exception to the Fourth Amendment is Legally Baseless

The law is clearly against DHS’s position. The op-ed asserts generally that, “[u]nder federal immigration law, officers may issue an administrative warrant, which means that the probable-cause finding is made by an executive-branch officer rather than a judicial officer.” This sidesteps the central issues. Obviously, by their terms, 8 U.S.C. § 1226 and DHS regulations — the “federal immigration law” the op-ed selectively invokes — authorize so-called warrants to arrest a noncitizen. Section 1226 has been around since 1952. The DHS regulation has been around since the Homeland Security Act of 2002 transferred the Attorney General’s authority under that section to DHS. The question, however, is whether those can be relied on to arrest a noncitizen by invading a home. 

The op-ed next states that its assertion about “federal immigration law” is “consistent with broad judicial recognition that illegal aliens aren’t entitled to the same Fourth Amendment protections as U.S. citizens.” But that, too, avoids the real question. Courts have upheld the legality of conventional arrests under § 1226, but no court has ever upheld using an administrative warrant to enter a home to make an arrest. Moreover, even if DHS’s over-broad assertion were accurate, DHS’s shift would permit ICE agents to break into the homes of U.S. citizens to arrest a noncitizen in the home. DHS makes no effort to explain how that would be constitutional.

Compounding the confusion, the op-ed also claims that the “touchstone” of the Fourth Amendment is “reasonableness,” not necessarily a judicial warrant. But absent an exception to the warrant requirement, such as exigency, it is per se unreasonable to search a home without a warrant. The question is whether, for some reason, that longstanding rule fails to apply where ICE breaks into a home to arrest a noncitizen. Once again, the op-ed avoids the issue. 

That claim about the Fourth Amendment is followed by one sentence citing Abel v. United States, 362 U.S. 217 (1960), which the editorial quotes for the proposition that there is “overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens.” But that’s just another statement of the obvious — that administrative arrest warrants permit the arrest of noncitizens where a judicial warrant is not required. In Abel, the government had not relied on an administrative arrest warrant to enter a private space. The FBI entered the hotel room of a Russian spy with consent, before the INS served him with an arrest warrant. The only question was whether the immigration arrest authorized a search of the room. The Court’s quoted observation (not a holding) was limited to the historic use of administrative immigration warrants for the purpose of authorizing an arrest. That did not include using such warrants to enter a residence or other private space where a judicial warrant is required. In other words, the observation addressed the limited use of administrative warrants, going back to the 1950s, that DHS seeks radically to expand.

DHS’s final point, after these question begging assertions, is that a noncitizen subject to an order of removal is like a fugitive from justice, who, DHS claims, can be apprehended in a home without a judicial warrant. The editorial alludes to an Eighth Circuit decision that it does not discuss or cite. But there is no such decision in the Eighth Circuit because that rule does not exist. In United States v. Glover, authorities had a judicial warrant to arrest a wanted felon. The issue was whether they had reasonable grounds to believe that he resided at the home where he was arrested, after they observed him through a window. The decision applies the rule in Payton that a valid judicial arrest warrant may also authorize police to enter the home where the subject of the warrant resides. That is inconsistent with DHS’s assertion that there is a “fugitive felon” exception to the warrant requirement.

Contrary to the accusation that “deep-state actors” ignored “clear” law, “one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” DHS fails to point to a “carefully defined class[] of cases” that support its position. Indeed, as the Court held in Camara v. Municipal Court (1967), the judicial warrant requirement applies even if the entry is for civil enforcement or inspection and is narrowly limited in purpose and scope. That is why state laws all require a judicial warrant for such purposes, if a homeowner refuses to allow entry. It would be backward to suggest that a judicial warrant is required to inspect a home’s electrical wiring, but an administrative warrant can authorize a brigade of ICE agents in body armor to break down a door to arrest the homeowner. If inspectors are denied entry, the owner faces civil penalties, not a battering ram and automatic weapons. Relying on Camara, a federal district court in Minnesota recently ordered a noncitizen released from ICE custody on the grounds, among others, that ICE agents arrested him in a home using only an ICE warrant, in violation of the Fourth Amendment. 

DHS not only fails to establish that noncitizens are entitled to lesser Fourth Amendment protections in the home, DHS entirely ignores the rights of U.S. citizens. DHS tries to justify its position by self-limiting its policy to the arrest of noncitizens who are subject to orders of removal. But the policy would allow anyone’s home to be invaded based solely on an internal finding by ICE that the noncitizen resides at the home. The Fourth Amendment’s warrant requirement protects all of us, not just those targeted for arrest. Among other things, it protects citizens from government agents breaking into their homes or arresting them by mistake. As the Court explained in United States v. U.S. District Court (1972), the Fourth Amendment is “an important working part of our machinery of government, operating as a matter of course to check the ‘well-intentioned but mistakenly overzealous executive officers’ who are a part of any system of law enforcement.” That would include U.S. citizens who live at the same residence. Undocumented immigrants may live with family members who are U.S. citizens. Moreover, DHS’s limitation does not address the constitutional rights of third parties, including U.S. citizens, where the noncitizen resides in someone else’s home. As the Court held in Steagald v. United States (1981), the general rule is that the government must obtain a judicial search warrant, in addition to an arrest warrant, when seeking to arrest someone who resides in another person’s home. 

ICE Warrants Lack Basic Safeguards 

But assume for a moment that an administrative warrant could satisfy the Fourth Amendment’s reasonableness requirement for the limited purpose of arresting a noncitizen in the noncitizen’s own home. Because such a warrant would implicate the core protections of the Fourth Amendment, including the rights of others living in the house, it would need to resemble a judicial search warrant in every respect. The editorial claims that the ICE warrants are limited (as a matter of DHS policy) to noncitizens subject to a final order of removal. But that is all the warrant requires. In terms of substance, a real warrant would also need to establish probable cause to believe that the subject of the arrest resides at the address and will be present at the time of entry. Statutory limitations or conditions placed on the warrant may limit when and how agents can enter the home. The authorities would also need to evaluate whether a separate search warrant is required, if the noncitizen lives in a home owned by someone else. A rigorous internal process, approximating the role of a magistrate judge, would be required to ensure that each element of the warrant is supported by probable cause and that proper limitations are placed on the agents’ authority. These protections exist to protect not just the noncitizen targeted for arrest, but third parties whose homes could be mistakenly invaded or who could be mistakenly arrested.

None of these requirements are remotely satisfied. 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, to virtually everyone in ICE and CBP, all the way down to “Immigration Enforcement Agents,” 8 C.F.R 287.5(e)(2)(lii). The DHS regulation does not require internal supervisory review of warrant applications. And the regulation fails to specify the standard required to issue the warrant. The op-ed emphasizes that the warrants are based on probable cause to believe that the noncitizen is subject to removal, but that is a matter solely of internal DHS policy. The source of statutory authority for the regulation, 8 U.S.C. § 1226, does not require probable cause (or any standard). It provides that the decision to issue such a warrant is not subject to judicial review. And the probable cause requirement, as noted, applies only to whether the noncitizen is subject to removal.

The deficiencies in the regulations undermine DHS’s reliance on Abel, putting aside that Abel did not address whether such warrants allow officers to enter a space protected by the Fourth Amendment. Abel emphasizes the careful process required under INS regulations, including that a senior INS official issue an order to show cause that the subject of the warrant is subject to deportation proceedings and to issue the administrative warrant. Contrast that to the broad delegation of authority to issue administrative warrants under the DHS regulation, the absence of a check on that authority, and the absence of oversight. Even if the probable cause requirement were statutorily required, it is meaningless if the same agent that knocks on the door can make the finding himself, or the finding can be made by one of his colleagues lower in the organization. 

Based on the deficiencies in ICE warrants, one court recently rejected the argument that they authorize ICE agents to enter private “curtilage” outside a home. The court reasoned that “[c]ase law supports the need for independent judgment in issuing warrants,” because government agents “simply cannot be asked to maintain the requisite neutrality with regard to their own investigations,” quoting Coolidge v. New Hampshire (1971). Among other problems, the court observed, “not all case administrative warrants are reviewed by an independent officer. There are fifty-two immigration officer categories expressly authorized to issue arrest warrants for immigration violations, as well as ‘[o]ther duly authorized officers or employees of [DHS] or the United States who are delegated the authority.’” A Texas district court reached the opposite conclusion back in 2021, but it relied solely on misconstruing Abel in the same way DHS misconstrues Abel in the op-ed. On appeal, the appellate court declined to endorse that reasoning because the case did not involve the entry into a home. 

Accordingly, even if the Fourth Amendment allowed a government agency to rely on an administrative warrant to enter a home, the ICE warrants fall far short of what would be required. Indeed, the deficiencies raise questions about whether current DHS regulations provide adequate protections to rely on such warrants even for simple immigration arrests in public places — the limited use addressed in Abel. None of the protections highlighted in Abel remain in place.

The Lack of Meaningful Remedies Further Undermine DHS’s Position

These deficiencies are especially problematic in the absence of effective remedies to deter abuse of ICE’s warrant authority. Generally, there is no suppression remedy in immigration proceedings. The government does not need evidence that could be suppressed. It just needs the noncitizen, who has no right to release. A challenge to DHS’s warrant regulations would likely reveal significant errors, including errors that affect the rights of U.S. citizens and lawful permanent residents. The absence of a meaningful external check on DHS’s authority — due to the absence of remedies or external oversight — could also undermine the constitutional reasonableness of the DHS enforcement regime. As the Court reasoned in Camara, because a state warrantless home inspection regime provided no recourse, “[t]he practical effect . . . [wa]s to leave the occupant subject to the discretion of the official in the field,” contrary to the Fourth Amendment.

DHS’s Warrant Authority in 8 U.S.C. § 1226 Does Not Authorize Forcible Home Entries

Finally, these constitutional problems undermine DHS’s assumption — not addressed — that 8 U.S.C. § 1226 provides the statutory authority forcibly to enter a home. The historical record provides no example of the government taking the position that administrative immigration warrants authorize home invasions. The core understanding that the Fourth Amendment prohibits entering a home without consent, particularly to detain someone, would have been known to Congress in 1952. Statutes must be interpreted against such background constitutional principles, and are construed, whenever consistent with the text, to avoid serious constitutional questions. In Clark v. Martinez (2005), in an opinion by Justice Scalia, the Court interpreted an immigration statute as authorizing detention only as long as necessary to effectuate removal, where it could have been read to permit indefinite detention, to avoid serious due process problems. It is implausible that Congress would have silently authorized a dramatic departure from bedrock Fourth Amendment principles. The arrest authority in § 1226 should be read to authorize precisely what the government has used the statute to do for over seventy years — to arrest noncitizens subject to removal in places where a judicial warrant is not required. 

In every other context where such weighty privacy interests are implicated, Congress carefully specifies the findings, procedures, and oversight mechanisms that ensure that the authority is exercised consistent with the Fourth Amendment. Examples include Rule 41 of the Rules of Criminal Procedure, the Wiretap Act, the Foreign Intelligence Surveillance Act, and the Stored Communications Act. Even authorities that implicate less significant privacy interests impose more rigorous requirements and oversight than what applies to the ICE warrants. These frameworks undermine the argument that Congress would have authorized forcible home entries based on a broad grant of authority that requires no process, is subject to no oversight, and is exempt from judicial review.

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Some commentators, even while criticizing DHS’s legal position that ICE warrants can be used to break into a home, give it too much credit. As reasonable legal observers can see, there is no support for DHS’s position. It runs counter to decades of practice, dating back to the 1950s. It runs counter to existing DHS regulations. And it runs counter to clear Fourth Amendment law. DHS’s attempt to limit its policy to the arrest of noncitizens with orders of removal not only ignores their rights, it disregards the basic principle that the Fourth Amendment protects all of us from arbitrary government action. A judicial warrant requirement to enter a home is at the core of the Fourth Amendment. 

The more widely the DHS argument is circulated as talking points to Congress, the more it should deepen the resolve among critics to rein in ICE’s warrant authority. An agency that claims this kind of unchecked authority, with arguments so deficient, cannot be relied on to apply broadly worded laws that implicate core constitutional rights. The reforms should not be limited to clarifying what should have been obvious to DHS — that ICE cannot use such warrants to invade a home. They should extend to reforming ICE’s authority to issue ordinary arrest warrants. They should limit the range of officials who can issue them, should enhance oversight, and should provide appropriate remedies to deter abuse. Because noncitizens have no right to avoid deportation, creating appropriate remedies will be challenging. 

For that reason, it is important to ensure that DHS’s authority is spelled out in clear terms, with clear limitations.

FEATURED IMAGE: A U.S. Immigration and Customs Enforcement (ICE) agent arrives to a home in search of an undocumented immigrant on April 11, 2018 in the Brooklyn borough of New York City. (Photo by John Moore/Getty Images)