Case Explained: Going Back to the Past to Explain ‘Administrative Warrants’, Immigration Enforcement – Legal Perspective

In recent days, I have been inundated by reporters seeking insight on two subjects I have written about extensively: ICE “administrative warrants”, used to arrest aliens who are removable from the United States; and the “due process” aliens are accorded after they are taken into custody. Both concepts are best understood by looking to the past.

The Fourth Amendment

The place to start in understanding ICE arrests, both with warrants and without, is the text of the Fourth Amendment to the U.S. Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That may make it seem like a warrant is required anytime any government official seeks to make an arrest or execute a search, but they aren’t always required under the Fourth Amendment according to legal precedent.

In its 2006 opinion in Brigham City v. Stuart, the Supreme Court explained that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness’”, and therefore certain government actions with Fourth Amendment implications have been found to satisfy legal standards even without a warrant.

The Court continued:

We have held, for example, that law enforcement officers may make a warrantless entry onto private property to fight a fire and investigate its cause, to prevent the imminent destruction of evidence, or to engage in “hot pursuit” of a fleeing suspect. “[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” [Citations omitted.]

The Fifth Amendment

Similarly, the first place to go to understand due process in the removal context is the wellspring of that concept in American law, the Fifth Amendment, which states in part: “No person shall be … deprived of life, liberty, or property, without due process of law.”

As I have explained elsewhere, “due process” is not a fixed concept; the modifier “due” appears in the amendment’s text because the Founders never meant it as a “one-size-fits-all” requirement.

The easiest way to understand this concept begins with appreciating that there’s a level of due process protection in all of our dealings with all levels of government.

For example, if the DMV violates its statutes or policies by improperly refusing to issue you an ID card or license, you probably have redress but likely won’t get a jury trial on your claim. That is a level of “process” you are not “due” in the state driver’s licensing framework.

In the immigration enforcement and alien removal contexts, as the Harvard Law Review has explained:

The United States Constitution makes few distinctions between citizens and noncitizens, and the Bill of Rights makes no reference to citizens at all. Instead, it refers to “persons” or “the people.”

…

An analysis of the case law and statutes illustrates the spectrum of constitutional protections accorded to aliens based on their differing levels of connection with this country, ranging from minimal or no protection for aliens applying for initial entry into the United States, to a guarantee of at least some of the rights enumerated in the U.S. Constitution for aliens who have established permanent residence in the United States.

That “spectrum of constitutional protections accorded to aliens” goes from “applicants for admission” at the border and ports of entry subject to “expedited removal” under section 235(b)(1) of the Immigration and Nationality Act (INA), who are entitled to only the process Congress has explicitly given them, to “green card holders” charged with deportability under section 237(a) of the INA, who are “due” a full panoply of procedural rights.

The Choice Between Criminal Prosecutions and Civil Removal Proceedings

DHS has the option of arresting and charging many removable aliens on criminal grounds, such as: “improper entry” (section 275(a)(1) of the INA); “eluding inspection” (section 275(a)(2) of the INA); “willful failure” to register with DHS (section 266(a) of the INA); willful failure to file changes of address (section 266(b) of the INA); and in the case of an alien removable under section 237(a) of the INA, willful failure to depart within 90 days of the issuance of a final removal order (section 243(a)(1) of the INA) — to say nothing of numerous other offenses, including fraud-related crimes.

Few removable aliens are criminally prosecuted on those grounds, however, in part because it is easier and requires fewer resources for DHS to skip the criminal charges and instead attempt to remove alien offenders using the civil immigration authorities in the INA.

That generally means charging aliens with removability, either under the grounds of inadmissibility in section 212(a) of the INA (for aliens who haven’t been lawfully admitted) or the deportability grounds in section 237(a) of the INA (for aliens who have), and placing them into removal proceedings under section 240 of the INA before an immigration judge (IJ).

How Aliens Come into DHS Custody

It’s important to understand that while immigration officers may have “prosecutorial discretion” in many cases to investigate, arrest, detain, prosecute, and deport removable aliens, Congress requires DHS to arrest and detain most aliens with criminal histories pending removal proceedings.

Under section 236(c) of the INA, as amended by the Laken Riley Act, DHS must take custody of nearly all aliens removable on criminal grounds as well as any alien convicted of or charged with a variety of crimes (including burglary, theft, shoplifting, and crimes that result in death or serious bodily injury), “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense”.

Congress added that mandate to the INA in 1996 — and doubled down on it in January 2025 — because immigration officers were failing to detain criminal aliens, many of whom continued to reoffend.

If the alien in question is in state or local custody, ICE begins the detention process by lodging a detainer with the state or locality, asking the custodian to turn the alien over to ICE once the alien’s sentence is completed, or at the point state or local authorities no longer desire to hold the alien.

Many states and localities readily comply with those detainers, in part to limit the expenses associated with prosecution or incarceration, but also to protect the community against alien criminal recidivism.

To address one commonly spouted canard, even if most aliens here unlawfully aren’t criminals (which is unverifiable), all alien criminals are criminals, and most criminals reoffend. According to one 2018 study from the DOJ’s Bureau of Justice Statistics (BJS), released criminals tracked by BJS had an average of five new arrests, 68 percent of which occurred within three years of those criminals’ initial releases.

So-called “sanctuary” communities nonetheless often refuse to honor ICE detainers for some or all criminal aliens, and instead release them into the community.

If state or local officials refuse to hand those criminals over to ICE, immigration officers must go into the community and find them to satisfy that section 236(c) statutory mandate.

ICE generally arrests aliens whose identities are known using its “administrative warrant” authority in section 236(a) of the INA.

That provision begins, “On a 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”, and by regulation, such warrants may only be issued by designated high-level DHS officials.

That administrative warrant authority has been in the INA since the act was first promulgated in 1952 (codified at then-section 242(a) of the INA), and no judicial precedent since has held that administrative immigration warrants fail to satisfy Fourth Amendment protections.

In fact, the one time administrative immigration warrants were challenged before the Supreme Court (in a 1960 case, in Abel v. U.S.), the justices refused to consider the challenge, in part because the petitioner hadn’t raised it below and in part because “[s]tatutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time”, the latter a finding bolstered by the “impressive historical evidence of acceptance of the validity of statutes providing for administrative deportation arrest from almost the beginning of the Nation”.

That said, appellate circuit courts have held administrative immigration arrest warrants do not permit nonconsensual entry into an alien’s home.

Alternatively, if ICE locates a removable alien whose presence was not previously known to DHS, agents may take the alien into custody using its “warrantless” arrest authority in section 287(a)(2) of the INA.

It states, in pertinent part, that an immigration officer:

shall have power without warrant … to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.

Again, warrantless arrests under section 287(a)(2) of the INA have been a fixture of the act since 1952 and reviewing courts have concluded that the “reason to believe” standard in that paragraph “means constitutionally required probable cause” in judging the lawfulness of such arrests.

“The Constable’s Blunder”

I will note, however, that in its 1984 opinion, INS v. Lopez-Medoza, the Supreme Court differentiated between warrantless arrests in the civil and immigration contexts in finding that the “exclusionary rule” doesn’t apply to civil arrests — in that case “deportation” arrests by immigration agents from the then-Immigration and Naturalization Service (INS).

The exclusionary rule is a legal doctrine crafted by the justices in their 1961 opinion, Mapp v. Ohio, and it renders evidence obtained by searches and seizures in violation of the Fourth and Fifth Amendments inadmissible in criminal proceedings.

The Court refined Mapp in its 1976 opinion in U.S. v. Janis, a case involving an application of the rule in a federal civil tax assessment proceeding based upon evidence seized in an unlawful local police search.

Janis established a framework for balancing the likely benefits to society of excluding unlawfully seized evidence (primarily deterring future police misconduct) against the costs of doing so (the loss of probative evidence).

Justice O’Connor, writing for the majority in Lopez-Mendoza, took that Janis balancing test and noted that, among other things, immigration arrests are different from criminal ones because they end ongoing illegal activity, unlike criminal prosecutions that usually punish past transgressions.

Or, as she put it:

Presumably no one would argue that the exclusionary rule should be invoked to prevent an agency from ordering corrective action at a leaking hazardous waste dump if the evidence underlying the order had been improperly obtained, or to compel police to return contraband explosives or drugs to their owner if the contraband had been unlawfully seized.

…

The constable’s blunder may allow the criminal to go free, but we have never suggested that it allows the criminal to continue in the commission of an ongoing crime. When the crime in question involves unlawful presence in this country, the criminal may go free, but he should not go free within our borders.

In addition, she noted the government “operates a deliberately simple deportation hearing system, streamlined to permit the quick resolution of very large numbers of deportation actions”, and “it is against this backdrop that the costs of the exclusionary rule must be assessed”.

Justice O’Connor continued: “The prospect of even occasional invocation of the exclusionary rule might significantly change and complicate the character of these [deportation] proceedings” — weighing against exclusion on the Janis scale.

Carrying that point one step forward, if aliens were routinely able to seek recourse from district court judges, whom Congress has largely excluded in section 242 of the INA from review of removal issues, it would bring the “deliberately simple deportation hearing system” to a halt. But district courts are increasingly imposing themselves on that system.

In that vein, quoting Janis, Justice O’Connor concluded:

There comes a point at which courts, consistent with their duty to administer the law, cannot continue to create barriers to law enforcement in the pursuit of a supervisory role that is properly the duty of the Executive and Legislative Branches.

Back to Civil Immigration Arrests — the Beginning of Due Process, Not the End

Note that when Congress first authorized immigration officers to perform warrantless arrests in the 1952 version of the INA, it was with the caveat that “the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States”.

The INS at the time was part of DOJ, and the “officer” in question was a “special inquiry officer” (SIO), then defined in section 101(b)(4) of the INA as an INS officer “the Attorney General deems specially qualified to conduct specified classes of proceedings, in whole or in part, required by this Act”.

SIOs at the time were not required to be lawyers (and usually weren’t), but rather experienced INS officers who understood the law and could be trusted to apply it — and who Congress in section 287(a)(2) of the INA explicitly gave authority to determine whether there was probable cause for any given arrest.

SIOs eventually became IJs, and in 1983, they were moved out of the INS to the new DOJ Executive Office for Immigration Review (EOIR) — actions Congress codified in statute when it amended section 101(b)(4) of the INA to substitute “immigration judge” for “special inquiry officer” and defined the former term as “an attorney whom the Attorney General appoints as an administrative judge within” EOIR.

Keep those facts in mind in considering what happens after an alien is either arrested on warrant under section 236(a) of the INA or during a warrantless arrest under section 287(a)(2); those aliens are not “kidnapped” aliens off the street in any non-puerile sense of the term, because arrests are the beginning of due process in immigration court removal proceedings, not the end.

The first thing an IJ does in section 240 removal proceedings, after advising “respondents” of their rights, is determining not only whether there is Fourth Amendment “probable cause” the respondent is a removable alien but instead assessing under a higher “preponderance of the evidence” standard whether the government can prove the respondent is an alien at all.

The government also has an obligation under section 240(c)(2) to provide any evidence it has that a respondent has been lawfully admitted to the United States, though once the IJ concludes that the respondent is an alien charged with inadmissibility, the respondent must prove “clearly and beyond doubt” he or she is “entitled to be admitted and” are “not inadmissible”.

That said, under section 240(c)(3) of the INA, if the respondent is found to be a lawfully admitted alien charged with deportability under section 237(a) of the INA, the government bears an unshifting “burden of establishing by clear and convincing evidence that … the alien is deportable”.

No reviewing court has ever held that the “removal proceedings” scheme Congress established in section 240 of the INA fails to provide aliens with their Fifth Amendment due process rights, particularly given that respondents can appeal adverse IJ decisions to a separate administrative tribunal in EOIR, the Board of Immigration Appeals (BIA), and that under section 242 of the INA, they may also file a petition with the federal circuit court for review of any adverse BIA and IJ decisions.

Moreover, under section 236(a) of the INA and the implementing regulations, arrested aliens can first seek release from DHS, and if that is unavailing can ask the IJ in separate bond proceedings for release on bond or on “conditional parole”.

And, if the IJ either refuses to set a bond or sets one too high for the respondent to pay, the alien as a matter of right can ask the BIA to review those decisions as well.

In January alone, nearly 1,800 aliens in ICE custody were released on bond set by DHS or IJs, 1,645 were released on their own recognizance, and 438 were released on either orders of supervision or parole. In other words, no alien is being “disappeared”.

Respectfully, it appears that most “protestors” who either decry ICE arrests or are actively impeding them, and politicians who complain about those arrests, have no idea how much Fifth Amendment due process current removal and bond proceedings provide. They should.

Civil Warrants of Removal/Deportation

Separate and apart from the authority of high-ranking ICE officers to issue a “warrant of arrest” (Form I-200) for an alien whom the agency has “probable cause” to believe is removable from the United States, there is a separate mechanism under which those officers can issue a “warrant of removal” (Form I-205) for aliens who have gone through removal proceedings, received their due process rights, and are under final orders of removal.

In the same manner section 236(c) requires ICE to arrest and detain certain criminal aliens, section 241(a)(2) of the INA requires the agency to detain all aliens under final removal orders. Moreover, that provision and the Laken Riley Act bar ICE from releasing “final order” aliens removable on criminal grounds or who have committed certain offenses.

ICE officers use Forms I-205 to take custody of those aliens, and to be clear, when designated officers issue warrants of removal for specified aliens, they are not simply concluding that there’s Fourth Amendment “probable cause” that the individual named is removable — they are finding the alien has received Fifth Amendment “due process” and been ordered removed.

Anecdotally, notwithstanding the Form I-205 process, ICE has also sought judicial warrants in the past to enter homes and take custody of aliens under final removal orders, but as I recently explained, it’s not entirely clear that judicial warrants are required in that context.

At least one reviewing circuit court has held that administrative warrants issued by a corrections official are sufficient under the Fourth Amendment to allow local cops to enter an apartment and take custody of a criminal fugitive, in part based on Abel and in part because fugitives have a very limited expectation of privacy under that amendment.

In his concurrence in Katz v. U.S., Supreme Court Justice Harlan crafted a two-part test (subsequently adopted by the Court) for determining whether a criminal defendant has a legitimate expectation of privacy for Fourth Amendment purposes: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’”.

Aliens under final removal orders may have subjective expectations of privacy, but at the point they have received due process and been ordered deported in a final removal order, does that alien have a reasonable expectation of privacy in this country?

That is more of an open issue than many would admit (even I’m not sure of how the Supreme Court would rule), but asking the question is not the overreach many would claim. As I have stated elsewhere, though, “Whether it’s a good idea” to use an I-205 to enter a residence “is a different question”.

A Lot of Misunderstanding

Much misunderstanding over “due process”, “judicial warrants”, and “constitutional” violations in the ICE enforcement context stems from the use of those terms as shibboleths, not legal concepts with real meaning. Bacon claimed “knowledge itself is a power”, but unfortunately many powerful people’s knowledge of our immigration laws is sorely lacking. I’m doing my part.