Is ICE policy in violation of Fourth Amendment?

Christopher Cann

USA TODAY

Immigration and Customs Enforcement is facing scrutiny over its assertion that federal officers can forcibly enter a home without a judicial warrant – a move constitutional scholars, immigration experts and a federal judge say is a clear violation of the Fourth Amendment.

An internal ICE memo from May 12, 2025, directs agents to use force to enter residences after obtaining administrative warrants, which are signed by ICE authorities and do not require a judge’s approval, according to a whistleblower complaint reviewed by USA

TODAY and first reported by the Associated Press.

The memo appeared to upend longstanding precedent and law enforcement policy, including at the Department of Homeland Security, which relied on warrants signed by impartial members of the judicial branch to enter homes or businesses for searches and arrests.

News of the memo comes amid the Trump administration’s expanding deportation campaign that’s seen aggressive enforcement operations nationwide and a hiring blitz that more than doubled its workforce.

It remains unclear how often the new policy has been used in field operations. On Jan. 18, federal agents with guns drawn broke down the front door of the home of ChongLy Thao, a naturalized U.S. citizen. Relatives and local officials said he was temporarily detained and never shown a warrant. Images of Thao being led shirtless outside in the snow prompted outrage and calls for a formal investigation.

ICE officials and other federal authorities have downplayed constitutional concerns and said the agency is acting in accordance with the law. Marcos Charles, executive associate director of ICE Enforcement and Removal Operations, said on Jan. 22 that agents can enter homes with only administrative warrants.

“We don’t break into anybody’s homes,” Charles said. “We make entry either in a hot pursuit with a criminal arrest warrant or an administrative arrest warrant. The thing to remember is these administrative arrest warrants have been deemed justified by courts in immigration purposes.”

Fourth Amendment scholars and immigration law experts said the ICE memo flies in the face of the U.S. Constitution. In 2024, a federal judge in California reached the same conclusion, banning ICE from entering homes without a judge’s warrant and declaring such actions “violate the Fourth Amendment.”

“This is essentially authorizing a violation of fundamental rights we’ve had as Americans since the Bill of Rights was passed,” said Ric Simmons, a law professor at Ohio State University. “It goes against literally 250 years of case law on what the Fourth Amendment allows.”

The May 2025 memo says ICE agents can use a Form I-205 to enter a residence without consent. A Form I-205, which authorizes the arrest of immigrants with final deportation orders, are not reviewed by a judge. The forms are instead signed by an ICE official – potentially the agent conducting the arrest.

A judicial warrant, on the other hand, is approved by an impartial judge outside the executive branch who must weigh evidence before allowing the government to forcibly enter a home.

Lindsay Nash, a professor at Yeshiva University’s Cardozo School of Law, said it’s dangerous to conflate judicial warrants with administrative warrants.

“These forms filled out by ICE officers, potentially even the arresting officer, are really a far cry from the judicial warrants required for entry into a home,” she said.

Nash said the federal government faces an uphill battle if it attempts to prove the memo is constitutional.

“ICE has repeatedly recognized in its own manuals that administrative warrants don’t authorize it to forcibly enter a home,” she said. “ICE doesn’t have that kind of authority, so this will be very hard to justify in court.”

The Supreme Court has allowed very few exceptions to allow law enforcement to enter a home without a judge’s warrant or consent. Those mainly include emergencies such as an imminent risk to officers or civilians in the area or risk of immediate loss of evidence.

Simmons said there’s also a special needs doctrine suggesting that if the government is not conducting a search for criminal law purposes, then it’s not subject to all the requirements of the Fourth Amendment.

But the Supreme Court repeatedly limited entries into homes to emergencies, such as when authorities believe someone is seriously injured or is at risk of serious injury, including suicide.

“There’s no emergency for ICE,” Simmons said. “They’re not claiming it’s an emergency. It’s a civil law violation. I don’t see a way they can do that legally.”

The memo, according to a copy shared publicly by Sen. Richard Blumenthal, D-Connecticut, makes a clear exception to the new policy for the Central District of California, where a federal judge in 2024 ruled that ICE agents needed judicial approval to force their way into a residence.

The order by U.S. District Court Judge Otis D. Wright says the court “vacates any policies or practices” allowing ICE agents to enter a home to arrest someone “absent a judicial warrant.”

“That’s the only time a court has taken up this specific issue,” Simmons said.

The directive was not widely shared in the agency and instead was verbally communicated, including to new recruits, according to a disclosure received by members of Congress from Whistleblower Aid, a legal group representing two anonymous officials.

“The May 12 Memo has been provided to select DHS officials who are then directed to verbally brief the new policy for action,” the disclosure said. “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.”

The whistleblowers allege that newly hired ICE agents, many of whom do not have a law enforcement background, have been told to rely on the I-205 form to enter a home without consent to arrest undocumented immigrants.

“Potentially, scores of ICE Agents will be emboldened to unlawfully enter private residences, which include the private residences of U.S. citizens,” the disclosure states.

Nash questioned why ICE did not publicly announce the policy change described in the memo. “This is not the behavior of an agency that believes what it is doing is lawful or would stand up in court,” she said.