Background
As ICE escalates its crusade against immigrants, Latinos, and protesters, it is important to make exceedingly clear what their authority truly is and hold them accountable for the multitude of ways they have consistently overstepped said authority. Stated simply, federal law gives Immigration and Customs Enforcement agents the authority to arrest and detain people believed to have violated immigration law. The discourse begins when we closely examine what factors are reasonably acceptable to be used to justify an agent’s belief that an individual has entered the U.S. illegally.
Per historical precedent, immigration officers can generally question individuals in public spaces with few barriers, but more in-depth interactions require “reasonable suspicion” that someone has committed a crime or is in the U.S. illegally. These types of interactions include things like unofficial detentions and formal arrests. Essentially, the more invasive an action is, the more justification is needed for it to be legally carried out. Regardless of this baseline authority, everyone, including suspected undocumented immigrants, is protected by the Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth Amendment has served as a major restraint on immigration enforcement (and general law enforcement) since its acceptance in 1791 as a part of the Bill of Rights. However, the Supreme Court case Noem v. Vasquez Perdomo has significantly narrowed who is really protected by the amendment in practice.
Supreme Court History
Throughout history, the Supreme Court has ruled that racial and ethnic profiling is unconstitutional. In 1975, the Court ruled unanimously that border agents cannot stop cars because its occupants looked Mexican. They argued that such profiling violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. In another case, a federal judge ruled that officers cannot justify detainment solely on any combination of these factors:
- Race or ethnicity
- Speaking Spanish or speaking English with an accent
- Presence at a particular location (e.g., car wash, farm, bus, etc.)
- What they do for work (i.e., occupation)
The latter case eventually reached the Supreme Court’s shadow docket, and the conservative majority reversed the ruling last September. Shadow dockets are separate from the Supreme Court’s merits docket, and they allow for quicker decisions without detailed explanations. Out of the six justices who voted in favor of overruling the original federal judge, the only explanation given was in an opinion written by Justice Brett Kavanaugh. In summary, he wrote that apparent ethnicity could be used as a relevant factor when determining reasonable suspicion, so long as it was combined with other factors and not used alone, fundamentally increasing the extent to which ICE may use race as a factor for stopping, questioning, and detaining people.
Supreme Court Justice Sonia Sotomayor voiced in her dissent that the “Government, and now the concurrence, has all but declared that all Latinos, U. S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction.”
Kavanaugh’s Concurrence
Such stops that are done (usually on the basis of looking Latino) have come to be colloquially referred to as Kavanaugh stops. In his concurrence, he argued that “the interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law.” Not only is this a completely irrelevant argument as it pertains to the determination of what is a reasonable search or seizure, but it also assumes that the only individuals this law protects are those who are in this country undocumented. To the second assumption, he wrote, “as for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States.” This is a disgusting, distorted view of what catastrophic effects such a ruling could — and has — had, and it gives no regard to the heaps of evidence provided to the court of how ICE has been treating both immigrants and citizens alike.
What ICE has really been doing
As of December, 2025, a Washington Post report found that over 80% of 932 immigration arrests made in Washington, D.C. during the recent crackdown had no criminal record. Moreover, in over 170 documented cases last year, immigration agents have held citizens against their will. Over 20 were held for longer than a day without a chance to call a lawyer or family member; three were pregnant, and nearly 20 were children. All of whom were U.S. citizens. Obviously, when Justice Kavanaugh said that U.S. citizens may “promptly go free,” he did not take into account the fact that ICE has continuously not respected the citizenship of individuals who look or sound Latino.
For instance, Adrian Alexander Conejo Arias was detained and zip-tied after agents falsely accused him of not being a U.S. citizen because of his accent. In another case, Maria Greeley was zip-tied on her way home from work. Even when she showed her passport, she was questioned for an hour by agents who said she did not “look like” a Greeley.
Now, this profiling existed long before Justice Kavanaugh’s statement, but the majority decision in Noem has created legalized racism. Now, ICE agents have a supposed legal justification for questioning and detaining both immigrants and U.S. citizens for contrived reasons such as perceived race and ethnicity. Already, residents of Chicago have reported that federal agents are increasingly stopping individuals who look Latino and demanding ID.
May 12th Memo
Concerningly, recent evidence suggests that ICE agents may no longer require a warrant signed by a judge to enter private residences. In the past, the Supreme Court has generally ruled that unless a resident grants consent, law enforcement — including immigration agents — cannot enter private property without a warrant signed by a judge. Such warrants require evidence showing probable cause that a crime has, is, or will be committed.
Since the immigration crackdowns ramped up last year with Trump’s second inauguration, experts have advised individuals not to open the door or converse with agents unless they provide a judicial warrant. This is intended to protect both citizens and immigrants against the unreasonable searches and seizures as provided by the Fourth Amendment. These warrants, however, are typically very time-consuming, and that is why more immigration arrests happen in public as opposed to on private land. Another type of warrant ICE has access to is called an administrative warrant. These warrants can be issued by select ICE officials and require “probable cause to believe” (whatever that means) that an individual is subject to deportation, but these documents are not reviewed by any judge and are therefore not enough to legally justify entering someone’s home without consent.
However, on May 12th, a memo was signed by the acting director of ICE, Todd Lyons, which states:
“Although the U.S. Department of Homeland Security (DHS) has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence, the DHS Office of the General Counsel has recently determined that the U.S. Constitution, the Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose. Accordingly, in light of this legal determination, ICE immigration officers may arrest and detain aliens subject to a final order of removal issued by an immigration judge, the Board of Immigration Appeals (BIA), or a U.S. district court judge or magistrate judge in their place of residence.”
In simple terms, ICE agents are allowed to arrest undocumented immigrants in their homes, and now, without consent, may enter the residence without a judicial warrant. While the memo attempts to justify the new order by mentioning the authority of the Constitution, Immigration and Nationality Act, and immigration regulations, “no prohibition of administrative warrants” is not a valid legal justification. On the contrary, each of these regulations has clear guidelines establishing the exact opposite:
The Constitution: Both the Fourth and Fifth Amendments support that searches and seizures of private property may only be allowed with the attainment of a warrant, and that anyone deprived of life or liberty may only be deprived in accordance with the due process of the law.
*Administrative warrants did not exist in this sense when these amendments were ratified, which starkly implies that judicial warrants are the only ones that may be used in these instances. The United States Government Publishing Office further clarifies that the Fourth Amendment’s protection is explicitly intended to be judged by a “neutral and detached magistrate” instead of being judged by the officers engaged in the actual task of “ferreting out crime.”
The Immigration and Nationality Act: U.S. Code § 1226 (apprehension and detention of aliens) clearly states that, on warrants issued by the Attorney General, undocumented immigrants may be arrested and detained pending a decision on whether the person is to be removed from the United States.
*This applies solely to arrests, not to warrants regarding searches and seizures, which are, once again, protected by the Fourth and Fifth amendments.
Immigration regulations: In 8 CFR § 287.9 (criminal search warrant and firearms policies), it says that search warrants shall be obtained “prior to conducting a search in a criminal investigation.”
*This is in reference to criminal searches. Being undocumented in the U.S. is only a civil infraction, as opposed to a criminal offence. Furthermore, in response to ICE’s lack of respect for the legal rights of enforcing unjustified interrogation:
In 8 CFR § 287.8 (standards for enforcement activities), it states: “Interrogation is questioning designed to elicit specific information. An immigration officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.”
Based on both legal precedent and current regulation, the May 12th memo is unjustifiably illegal. It gives officers the overbearing power to forcibly enter people’s home without a judge’s warrant, and further authorizes them to use force to enter private residences based solely on an administrative warrant — a document that is very plainly written by officials that are neither neutral nor detached from those they have an incentive to arrest (such as in Texas, where counties are compensated on an overtime basis related to immigration enforcement issues, which can help “offset other budget pressures).
The contents of this memo have been used to train new ICE officers, and according to the AP’s verified sources who released the memo, these hires are being told to follow the memo’s guidance instead of following written Homeland Security training materials that contradict the memo.
The Secrecy and illegality of ICE
The department’s blatant secrecy incriminates them even more than the insurmountable pile of evidence against their operations. If it truly were legal under valid law, why has the memo been kept under wraps for months, and why does it directly conflict with the widely spread, written training the officers are supposed to receive?
Although top Homeland Security officials insist that allegations of racial profiling are “categorically false,” even Border Patrol commander Gregory Bovino has admitted his officers consider appearance when arresting someone. This administration could not be clearer in its sinister objectives.
Just on January 11th, ICE officers adjourned in heavy tactical gear and drawn rifles, rammed through the front door of Garrison Gibson, despite only having an administrative warrant. No impartial judge signed off on it, no neutral magistrate authorized it. ICE and the Department of Homeland Security have decided to reject the command of the law, and are now — even more obviously than before — acting as an independent organization that disregards any legal obligation. When our governmental systems and institutions refuse to be restrained by the law or Constitution, they are no longer seeking justice or safety, but are the indicative beginnings of an authoritarian regime.