A tentative take, on both the rights and the remedies.

Orin S. Kerr | 1.22.2026 3:22 AM

The Associated Press reports:

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........

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