Almost every day for five months, photojournalists David Dee Delgado and Carol Guzy have entered 26 Federal Plaza with cameras in hand, ready to capture what many are calling one of the most startling stories of this century: ICE detainments inside the immigration court.
Photo by Dean Moses
While the U.S. Department of Justice has never been a “beacon on the hill” in my lifetime, they are now demolishing Constitutional protections at an alarming rate. Certainly, the violations are too numerous, broad-based, and ongoing to address in a single article, but let us consider the actions of federal immigration authorities in violating the Fourth Amendment, the right to search one’s residence.
The Founding Fathers created the Fourth Amendment in direct response to the British colonial practice of using abusive “general warrants” and “writs of assistance,” which allowed unchecked government intrusion into homes and property without probable cause, violating colonists’ fundamental rights to privacy and security in their persons, houses, papers, and effects. The Founders feared that the new federal government might employ similar tactics to suppress dissent or oppress citizens, as British officials had targeted colonists. Simply put, the Founding Fathers viewed “every man’s home as his castle” and sought to prevent future oppression by requiring specific, judicially approved warrants based on probable cause for any search or seizure.
Until 2025, the protections afforded by the Fourth Amendment had frequently been expanded by the courts, while acknowledging the need to avoid hindering legitimate law enforcement. By contrast to that legacy of protection, consider the undermining of the Fourth Amendment by ICE agents.
A U.S. Immigration and Customs Enforcement memo issued on May 12, 2025, and signed by Acting Director Todd Lyons, authorized agents to enter the homes of those suspected of being in the U.S. illegally with an administrative warrant — not a warrant signed by a judge — to make immigration arrests.
Allow me to repeat that for emphasis: the May memo authorizes ICE to rely on administrative warrants, which are issued by officials within the Department of Homeland Security — and, in most cases, by ICE agents — to enter a residence or business. Before the May memo, ICE arrests had been limited to public places because administrative warrants had not been deemed issued by a “neutral and detached magistrate.” Only a warrant issued by a ‘neutral and detached magistrate’ would authorize ICE agents to enter or search nonpublic areas such as an alien’s residence.”
To ensure that ICE agents comply with the May 12 memo, instructors for ICE recruits were directed to instruct that Form I-205 permits ICE agents to arrest aliens in their homes without consent to enter the residence and without a judicial warrant.
Too much legalese? Let’s break it down and distinguish between judicial and administrative documents.
A judicial warrant is a formal written order authorizing a law enforcement officer to make an arrest, a seizure, or a search. It can be authorized only by state and federal courts and requires a judge or magistrate judge to sign a judicial warrant. Judicial warrants must be complied with, and noncompliance carries serious consequences. A warrant signed by an immigration judge is not a judicial warrant.
By contrast, an administrative warrant is a document authorizing a law enforcement officer from a designated federal agency, such as an ICE agent, to make an arrest or a seizure. Unlike a judicial warrant, an administrative warrant does not authorize a search. An ICE agent who has only an administrative warrant may not search a residence or business.
The same distinctions apply to judicial and administrative subpoenas. Courts issue judicial subpoenas. Judicial subpoenas must be complied with, and noncompliance carries serious consequences. A subpoena signed by an Immigration judge or issued by an immigration court is not a judicial subpoena, and there is no immediate requirement to comply with an administrative subpoena.
With that in mind, if an immigration agent were to approach your residence and advise you that they have a “warrant” or “subpoena,” you are not obligated to open your door.
The Fourth Amendment dictates that law enforcement and immigration enforcement officers may not enter your home unless they have either a valid judicial warrant. But here’s the tricky part: that requirement can be waived if they obtain the consent of a person who is authorized to allow people to enter. If you open your door when a law enforcement officer comes to it, it can be construed as your having consented to a search and seizure, and if so, that search is permissible under the U.S. Constitution.
ICE agents often succeed in getting access to people’s homes because they take advantage of the lack of understanding of the distinctions between a judicial and administrative warrant, meaning that if you open your door, they will search your residence, and then argue that their search was lawful because you “consented” to it by opening the door.
As a general proposition, you have the right if an ICE agent comes to your home with a warrant, subpoena, or some other document, not to open the door. You could tell them to slip it under the door. If the document is a judicial warrant, it authorizes the agents to enter or search the private areas specified in the warrant and to question anyone present. If it is not a judicial warrant signed by a magistrate or judge, the agents have no authority to enter your home. As an additional caution, always bear in mind that you and anyone present in your home have the right to remain silent and refuse to answer any questions.
Compelling compliance by immigration authorities with the Rule of Law, and in this instance, the Fourth Amendment, is essential to preserving our Constitutional guarantees.
Robert Simels hosts a podcast, “Injustice for All,” and acts as a legal consultant but is not a practicing attorney.
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