A newly released internal memo from Immigration and Customs Enforcement (ICE) authorizes immigration agents to enter a home without a warrant signed by a judge. ICE is giving its agents more power than before, causing confusion and fear among immigrant communities.
Immigration rights advocates and lawyers said ICE is departing from long standing practices and protections. They say that ICE’s new tactic is unconstitutional and conflicts with the Fourth Amendment, which prohibits unreasonable searches and seizures.
For now, attorneys says that people should still not open the door for ICE unless agents present a warrant signed by a judge. Here is what immigrants need to know about ICE and their rights when it comes to judicial warrants.
You still do not need to open the door for ICE
Sarah Vendzules, director of the Immigrant Justice Team at The Legal Aid Society, advises people that they do not have to open the door to ICE if agents do not have a warrant signed by a judge.
“I understand that many people will choose to prioritize their safety because ICE may break the door down and may hurt them in the process or in retaliation. But I would still say that you don’t have to comply in advance with illegal orders.”
She cautioned that if someone gives consent for ICE to enter the home by opening the door, it can complicate holding ICE accountable in court.
Ginny Nuñez, immigration attorney and founder of Nuñez Law, PLLC, added that there is little someone can do if ICE agents try to break down the door and force their way in.
“If it is safe, I strongly recommend that someone (a friend, roommate, or loved one) record the encounter, and that the recording be backed up where others can access it, because that can become crucial evidence later,” she said.
She also said that she recommends people not resist, as it could escalate the situation and lead to criminal charges.
Also Read: ICE Encounter? NYC Rapid Response Networks Can Help
What is the difference between a judicial warrant and an administrative warrant?
The new ICE memo states that agents can enter the homes of immigrants with just an administrative warrant, which is issued internally, rather than a judicial warrant, which is harder to get and is issued by a judge.
“With the [ICE] administrative warrant, it’s essentially like allowing the cops to write their own warrants,” Vendzules said.
“For the judicial warrant, they need to present their evidence before a neutral arbiter, like a judge, and then that person makes a determination that the warrant is called for,” she added.
Vendzules added that with an ICE administrative warrant, there is no third party reviewing and justifying the action of taking custody of someone or entering into a home.
Vendzules emphasized that judicial warrants are also extremely rare. “Essentially, a judge might issue a warrant when they determine that there’s potentially evidence of a crime that needs to be searched for and there’s enough reason to believe that it will be found in the house.”
If ICE has a removal order from an immigration judge, does that mean they can enter my home?
Although an immigration judge may have been involved in issuing a removal order, which is necessary for the ICE administrative warrant, the immigration judge does not have the power to grant ICE access to someone’s home, Vendzules said. Again, without a judicial warrant — which is different than a removal order — ICE does not have the power to enter someone’s home uninvited.
“While immigration judges get to make a very consequential decision in a very narrow area, they do not have the same powers as true judges,” Vendzules added.
The memo is already being challenged in court, and judges have pushed back before
In late January, Greater Boston Latino Network and the Brazilian Worker Center, organizations which advocate for the rights of Latino communities and immigrant workers, challenged the constitutionality of the memo in federal court. The lawsuit states:
- “The Fourth Amendment and ‘its protections apply to all ‘people’ in the United States, regardless of citizenship status or national origin.'”
- “Accordingly, ‘searches and seizures inside a home without a warrant are presumptively unreasonable.’”
- “At the Fourth Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’”
Additionally, the lawsuit cites a prior federal court ruling in Kidd v. Mayorkas (now Kidd v. Noem), where a judge held that “an [ICE] administrative warrant is insufficient to enter the constitutionally protected areas of a home,” underscoring limits on ICE’s authority to enter residences without a judge’s approval.
Because the lawsuit is still in its early stages, the outcome remains uncertain, and no changes will take effect unless ordered by a judge.
What to do if an agent comes to your home
“It is enough to say that they do not consent to entry into the residence and do not consent to any searches, and then stay silent. They have the right to remain silent,” said Nuñez. She added that law enforcement can often lie to try to get consent to enter the home, and encouraged people to learn to exercise their right to remain silent. If ICE tries to enter your home, consider the following approaches.
- Ask to see the warrant without opening the door. Ask them to slide it under the door and speak with them without opening the door.
- A warrant signed by a judge looks like this. An administrative warrant looks like this.
- If it’s an administrative warrant that is not signed by a judge, do not authorize home entry. You can say: “I do not consent to you entering my home.”
- You have the right to remain silent: do not answer any questions or sign anything.
- If ICE tries to forcefully enter your home, do not resist: state that you do not consent, you are remaining silent, and you want to speak with a lawyer.
Also Read: ICE At The Door? How Noncitizens Should Talk to Immigration Officers
