ICE reveals legal theory behind warrantless immigration arrests
The top official at Immigration and Customs Enforcement made clear to federal agents in a new memo that they can make snap decisions to arrest suspected illegal immigrants without a warrant under certain conditions.
The memo, which the government filed in federal court on Friday as part of a case in Minnesota, broadens ICE’s view of warrantless arrests. Acting Director Todd Lyons suggested that previously, the agency had been interpreting the law incorrectly.
When ICE agents make civil immigration arrests, they are required to obtain an administrative warrant, which supervisors within ICE sign off on to confirm that probable cause exists to make the arrest.
But the law has a carve-out that allows ICE agents to make an arrest without a warrant if they believe the person is "likely to escape" before a warrant is obtained.
Lyons wrote in the memo that an "alien is ‘likely to escape’ if an immigration officer determines he or she is unlikely to be located at the scene of the encounter or another clearly identifiable location once an administrative warrant is obtained."
ICE previously interpreted "likely to escape" to mean "flight risk," which Lyons said was an improper view of the law. A flight risk describes someone who might not show up to a future hearing, but Lyons said ICE agents making "on-the-spot determinations" in the field do not necessarily have enough information to know if someone is a flight risk prior to arresting them.
The memo noted that agents should document in a government form, as soon as possible after the arrest, what factors they considered when apprehending someone without a warrant.
DHS Assistant Secretary Tricia McLaughlin said in a statement to Fox News Digital the memo was "nothing new."
"This is just a reminder to officers to be [keeping] detailed records on their arrests," she said, adding that "authorities under USC 1357 and, of course, reasonable suspicion are protected by the U.S. Constitution."
Some critics, however, found the memo alarming. Sen. Jeff Merkley, D-Ore., said it was "another advance in Trump’s fascist agenda," alleging on X that the administration wanted "warrantless arrests of just about anyone at any time."
The New York Times first reported on the memo. Claire Trickler-McNulty, a former senior adviser at ICE, told the outlet the new definition was "an extremely broad interpretation of the term ‘escape.’"
"It would cover essentially anyone they want to arrest without a warrant, making the general premise of ever getting a warrant pointless," she said.
TRUMP CUTS FAMILY REUNIFICATION PROGRAMS FOR SEVEN COUNTRIES CITING FRAUD AND SECURITY CONCERNS
The memo comes amid the Trump administration carrying out an aggressive deportation agenda, which has drawn mixed reactions, according to polling. Some observe that the efforts have vastly reduced illegal immigration, while others raise alarm over incidents that appeared heavy-handed or ended in tragedy, including two recent killings of U.S. citizens in Minnesota at the hands of immigration authorities.
ICE’s deportations have been challenged in court cases across the country, and the Trump administration has seen, according to a Politico analysis, hundreds of rejections by district court judges.
One federal judge in D.C. blocked the administration from making warrantless immigration arrests without first making individualized assessments about whether a target was likely to escape. Judge Beryl Howell, an Obama appointee, said the immigrant rights group that sued was correct in alleging that the Trump administration's policy was to "arrest first, ask questions later."
"Defendants have adopted a policy of making arrests using a deficient standard under both the [Immigration and Nationality Act] and well-settled constitutional principles," Howell wrote.