The Volokh Conspiracy
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Can ICE Enter a Home To Make an Arrest With Only an Administrative Warrant?
A tentative take, on both the rights and the remedies.
The Associated Press reports:
Immigration officers assert sweeping power to enter homes without a judge's warrant, memo says
WASHINGTON (AP) — Federal immigration officers are asserting sweeping power to forcibly enter people's homes without a judge's warrant, according to an internal Immigration and Customs Enforcement memo obtained by The Associated Press, marking a sharp reversal of longstanding guidance meant to respect constitutional limits on government searches. The memo authorizes ICE officers to use force to enter a residence based solely on a more narrow administrative warrant to arrest someone with a final order of removal, a move that advocates say collides with Fourth Amendment protections and upends years of advice given to immigrant communities.
The memo is here. The specific subject is what are known as Form I-205 Warrants, which are signed by immigration officials and not regular judges. As I read the memo, DHS's position is that they authorize ICE to enter homes based on Form I-205 orders everywhere except in the Central District of California—with that exception due to a 2024 ruling in that district, Kidd v. Mayorkas. Unfortunately, however, the memo does not include any legal analysis.
This raises a big question: Can ICE enter a home to make an arrest without a judicial warrant?
The standard view has been that administrative warrants can't authorize home entry because they're executive branch orders, and the executive branch can't be in charge of deciding whether to give itself a warrant. Under Payton v. New York, 445 U.S. 573 (1980), the government needs an arrest warrant to enter a home to make an arrest. But Payton refers to a "judicial officer" inserting his judgment "between the zealous officer and the citizen," and the immigration officer who signs a Form I-205 is not a "judicial officer." That's the traditional thinking.
That thinking is captured by Judge Wright's reasoning in the Kidd v. Mayorkas opinion. Judge Wright was addressing the broad category of administrative warrants, which included the subcategory of Form I-205 warrants, and here's what he wrote:
A judicial "arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within," Payton, 445 U.S. at 603, 100 S.Ct. 1371, and "consistent with the Fourth Amendment, immigration authorities may arrest individuals for civil immigration removal purposes pursuant to an administrative arrest warrant issued by an executive official, rather than by a judge," Gonzalez v. U.S. Immigr. & Customs Enf't, 975 F.3d 788, 825 (9th Cir. 2020). However, as the Court has previously noted, (see Order re Mot. Dismiss, ECF No. 58), the Supreme Court has expressly declined to consider whether an administrative warrant satisfied the requirements for "warrants" under the Fourth Amendment. See Abel v. United States, 362 U.S. 217, 230, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).
Rather, case law supports the need for independent judgment in issuing warrants. See, e.g., Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972) ("The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause…. Thus, an issuing magistrate must … be neutral and detached."); Coolidge, 403 U.S. at 449, 91 S.Ct. 2022 ("[T]he whole point of the basic rule … is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations.").
Here, 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." 8 C.F.R. § 287.5(e)(2). For example, a Form I-205 (Warrant of Removal) is reviewed by an ICE supervisor who signs on behalf of the Field Office Director and not by any judge (immigration or otherwise). (Decl. Anne Lai ISO Pls.' Opp'n DMSJ Ex. 12 ("Giles Dep.") 39:23-40:24, ECF No. 492-3.) Because the administrative warrants at issue here lack the independent assurance guaranteed by the Fourth Amendment, they do not immunize Defendants' conduct. This is also consistent with ICE training materials, which affirm "that administrative warrants do not authorize entry into a dwelling without consent." (DSUF 25.)
We don't know the specific basis for DHS's disagreement with that position. But if I had to guess, I would guess that they read Abel v. United States, 362 U.S. 217, 230 (1960). differently than did Judge Wright. In Kidd, above, Judge Wright says that Abel expressly declined to address whether administrative warrants are Fourth Amendment warrants. Technically, that's true. But if you read Abel, Justice Frankfurter is saying that the Court won't hear the defendant's argument that administrative warrants are not valid Fourth Amendment warrants because the defendant did not make the argument below—and Frankfurter drops a bunch of hints that he would be inclined to say that they are valid. Here's the beginning of the discussion from Abel:
The claim that the administrative warrant by which petitioner was arrested was invalid, because it did not satisfy the requirements for "warrants" under the Fourth Amendment, is not entitled to our consideration in the circumstances before us. It was not made below; indeed, it was expressly disavowed. Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time. It would emphasize the disregard for the presumptive respect the Court owes to the validity of Acts of Congress, especially when confirmed by uncontested historical legitimacy, to bring into question for the first time such a long-sanctioned practice of government at the behest of a party who not only did not challenge the exercise of authority below, but expressly acknowledged its validity.
Frankfurter goes on to say that it would be a different story if the immigration process here was really about a criminal investigation; so long as it's really about immigration, it's on much more solid ground.
You can see that reading of Abel in United States v. Malagerio, No. 5:20-CR-154-H-BQ-1, 2021 WL 3030067, at *1 (N.D. Tex. Feb. 22, 2021), which involved going to a person's home with an administrative warrant, knocking on the door, and ordering the person to come out—and then arresting them when they did. There, Judge Hendrix interpreted Abel as supporting entry under an administrative warrant:
Relevant here, Supreme Court precedent indicates that officers may enter an arrestee's home to execute an arrest pursuant to an administrative warrant. See Abel v. United States, 362 U.S. 217, 234, 237, 239–40 (1960). . . .
Malagerio has not pointed the Court to any precedent stating that administrative warrants do not grant officers authority to conduct an arrest in the home. Additionally, the Court has not located any such authority. Therefore, considering Abel, which condoned an arrest in a home pursuant to an administrative warrant, the Court rejects Malagerio's first argument that the good-faith exception does not apply.
Malagerio also argues that the officers did not act with an objectively reasonable good-faith belief that their conduct was lawful because DHS regulations and training manuals recognize that an administrative warrant does not grant authority to enter a home. Dkt. No. 42 at 3–6, 8–10. Even if the Court defers to the DHS regulations and training materials to assist in its determination of whether the good-faith exception applies, those regulations do not prevent the conduct that the officers engaged in during the arrest. Officers did not enter Malagerio's RV before they arrested him. Id. at 164. Additionally, the regulations that Malagerio cites do not prevent the type of conduct that occurred here—knocking on the door of a residence and commanding the resident to come out.
The Fifth Circuit affirmed without reaching that question of whether entry into the home would be allowed—as the officers stayed outside, and never actually entered—saying "we need not decide whether an administrative warrant may be used to arrest an alien in his home. We leave that important question for another day."
If I had to guess at what the DHS legal conclusion is that is referred to in the memo, I would guess that DHS is looking at the district court rulings in Malagerio and Kidd and saying that the question is sufficiently unsettled (especially after Malagerio) that DHS can take the position that Malagerio is right and Kidd is wrong—or at least will do that outside the district where Kidd was decided.
If that's the DHS argument—and I'm just speculating about that—I think the problem on the merits is that there's been a lot of water under the bridge since Justice Frankfurter's opinion in Abel. Coolidge from 1971 and Shadwick from 1972 settled the idea that a warrant requires a neutral and detached magistrate. Payton from 1980 settled that a judicial warrant is needed for entry. To go back to the 1960 opinion in Abel, and to read its dicta as binding without considering the Supreme Court's later holdings in Coolidge, Shadwick, and Payton, seems pretty problematic.
I would think this is especially the case if you accept the unitary executive theory, in which what various immigration officials do in the executive branch is all ultimately part of the "executive Power. . . vested in a President of the United States of America" and should not be thought of as independent decisions of immigration judges or other immigration officials. Given the focus in Coolidge, Shadwick, and Payton on the fundamental role of warrants in inserting a judicial check on the executive, it seems out of place to say that this can be satisfied by the executive checking itself. Even if the I-205 Warrant was signed by the immigration official based on an immigration judge's removal order, that removal order is an order from the President's executive branch. From that perspective, the traditional thinking that executive-branch warrants cannot satisfy the Fourth Amendment judicial warrant Payton test seems persuasive.
Some may be thinking, well, if that's the approach the DHS is adopted, surely it can be challenged in court, right? But this is less than obvious to me. It may be that there are ways of challenging the DHS policy under the judicial review doctrines of administrative law, like the APA. I don't know. It's not my area, so I will leave that to others.
It seems worth flagging, though, that this is another place where the Supreme Court's gradual cutting back on the scope of the Bivens remedy—the civil action against federal agents for violating the Constitution, including the Fourth Amendment—may make the most obvious form of judicial review unavailable. Even if the policy is unconstitutional, as it seems to be, a person who is illegally searched probably can't sue ICE for violating their constitutional rights.
This will seem weird to a lot of people. And it is pretty weird, I think. Back when the Fourth Amendment was enacted, the most fundamental remedy for an unlawful government entry into your home was a civil suit for trespass against the officers. The Fourth Amendment was about whether there was an affirmative defense to liability for trespass, all against the backdrop of preexisting tort liability under trespass and other torts. These days, though, you need a cause of action. And the Supreme Court has basically said that courts shouldn't provide that cause of action—even though, historically, courts provided the trespass tort. It's all kind of a complicated mess, and I'll spare you the details, but the basic idea is that the federal government generally can't be sued for damages for violating the Fourth Amendment.
That general rule seems to apply to cases like this, or at least there's precedent saying so. Consider the Fourth Circuit's ruling in Tun-Cos v. Perrotte, 922 F. 3d 514 (4th Cir. 2019), the introduction of which tells you pretty much what you need to know:
Nine Latino men, who lived in areas of Northern Virginia that were home to many residents of Latino ethnicity, commenced this action against several Immigration and Customs Enforcement ("ICE") agents. They seek money damages to redress the ICE agents' alleged violations of their rights under the Fourth and Fifth Amendments, alleging that the ICE agents (1) stopped and detained them without a reasonable, articulable suspicion of unlawful activity; (2) invaded their homes without a warrant, consent, or probable cause; and (3) seized them illegally. To state a cause of action for damages, they rely on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which held that the victim of a Fourth Amendment violation by federal officers had an implied constitutional claim for damages.
The ICE agents filed a motion to dismiss, challenging the plaintiffs' reliance on Bivens and also asserting qualified immunity. While the district court assumed that the plaintiffs' action presents a "`modest extension' in a `new context' for the application of a Bivens remedy," it denied the ICE agents' motion, concluding that a Bivens remedy "should be recognized in this case." It also denied the ICE agents qualified immunity.
Applying the Supreme Court's recent jurisprudence on Bivens actions, we reverse, concluding that a Bivens remedy is not available in the circumstances of this case. Where there is no statute authorizing a claim for money damages, "it is a significant step under separation-of-powers principles" for a court to impose damages liability on federal officials. Ziglar v. Abbasi, ___ U.S. ___, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017). In such cases, "[t]he question is who should decide whether to provide for a damages remedy, Congress or the courts?" Id. at 1857 (cleaned up). "The answer most often will be Congress." Id. Indeed, in the course of repeatedly declining to provide a Bivens remedy in recent years, the Supreme Court has now made clear that "extend[ing] Bivens liability to any new context or new category of defendants" is highly "disfavored." Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (cleaned up). We thus conclude that, because the plaintiffs seek to extend Bivens liability to a context the Supreme Court has yet to recognize and there are "special factors counselling hesitation in the absence of affirmative action by Congress," Abbasi, 137 S.Ct. at 1857 (cleaned up), the plaintiffs' action for damages should be dismissed.
It's always hard to offer a take on a legal argument when you have to speculate about what the legal argument is, so my take on this is tentative. But if I had to summarize my current thinking, it seems to me that the DHS policy is likely wrong in light of Coolidge, Shadwick, and Payton, although the DHS position is not frivolous in light of Abel as interpreted in Malagerio—and the trickier issue may be actually getting a merits ruling on the issue in court in light of the absence of remedies due to the Supreme Court's gradual cutting back on Bivens remedies. Or at least that's my tentative take without actually getting to see the DHS legal analysis, and with the caveat that I don't know the administrative law remedies that may be available.
As always, stay tuned.
Note: This post was cross-posted at Lawfare.
