ICE Claims Broad Power to Carry Out Warrantless Arrests in Leaked DHS Memo

An internal legal memo obtained by the New York Times reveals that federal immigration enforcement agents are claiming broad new powers to carry out warrantless arrests.

The Times reported on Friday that the memo, which was signed by US Immigration and Customs Enforcement (ICE) Acting Director Todd Lyons, “expands the ability of lower-level ICE agents to carry out sweeps rounding up people they encounter and suspect are undocumented immigrants, rather than targeted enforcement operations in which they set out, warrant in hand, to arrest a specific person.”

In the past, agents have been granted the power to carry out warrantless arrests only in situations where they believe a suspected undocumented immigrant is a “flight risk” who is unlikely to comply with obligations such as appearing at court hearings.

However, the memo declares this standard to be “unreasoned” and “incorrect,” saying that agents should feel free to carry out arrests so long as the suspect is “unlikely to be located at the scene of the encounter or another clearly identifiable location once an administrative warrant is obtained.”

Scott Shuchart, former head of policy at ICE under President Joe Biden, told the Times that the memo appears to open the door to give the agency incredibly broad arrest powers.

“This memo bends over backwards,” Shuchart said, “to say that ICE agents have nothing but green lights to make an arrest without even a supervisor’s approval.”

Claire Trickler-McNulty, former senior adviser at ICE during the Biden administration, said the memo’s language was so broad that “it would cover essentially anyone they want to arrest without a warrant, making the general premise of ever getting a warrant pointless.”

Aaron Reichlin-Melnick, senior fellow at the American Immigration Council, noted in a social media post that the memo appears to be a way for ICE to “get around an increasing number of court orders requiring [US Department of Homeland Security] to follow the plain words of the law which says administrative warrantless arrests are only for people ‘likely to escape.’”

The memo broadens the terms, Reichlin-Melnick added, so that “anyone who refuses to wait for a warrant to be issued” is deemed “likely to escape.”

Stanford University political scientist Tom Clark questioned the validity of the memo, which appears to directly conflict with the Fourth Amendment of the US Constitution, which requires search warrants as a protection against “unreasonable searches and seizures.”

“So, here’s how the law works,” he wrote. “People on whom it imposes constraints don’t get to just write themselves a memo saying they don’t have to follow the law. Maybe I’ll write myself a memo saying that I don’t have to pay my taxes this year.”