AYESHA RASCOE, HOST:
People gathered last night outside the Department of Homeland Security headquarters in Washington, D.C.
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UNIDENTIFIED CROWD: (Chanting) Shame. Shame. Shame.
RASCOE: You can hear them booing and chanting, shame, in that clip shared by The Washington Post. There were other protests across the country over the killing of Alex Pretti by a Border Patrol agent in Minneapolis, as well as the other tactics the agency has used during the Trump administration's immigration crackdown. We're going to talk about one of them right now - when agents show up at the house of someone they want to deport, break down the door and make an arrest.
For decades, these agents could not do this without a warrant signed by a federal judge, but in an internal memo, ICE is now telling its agents they can break into people's homes without a judicial warrant. This raises serious constitutional concerns, and here to talk about this is NPR's Adrian Florido. Good morning, Adrian.
ADRIAN FLORIDO, BYLINE: Good morning, Ayesha.
RASCOE: Before we talk about this memo, how have immigration arrests at people's homes typically worked?
FLORIDO: Well, usually, after an immigration judge orders someone deported, an official at ICE drafts up what's commonly called an administrative warrant, and that is a document telling ICE agents to arrest that person. And the agent can then arrest that person in public, but they can't enter someone's home without consent. They need a warrant signed by an independent federal judge to do that, and there's a lot of Supreme Court precedent establishing this requirement. And this is why, Ayesha, immigration lawyers for a long time reminded their client that they don't have to open the door for immigration agents unless they have a warrant signed by a federal judge.
RASCOE: So how does this ICE memo change this longstanding policy?
FLORIDO: Well, this memo by the acting head of ICE, Todd Lyons, says that agency lawyers have now determined that agents are within their authority to enter the homes of people with deportation orders, even if these agents don't have a judicial warrant. He says an ICE administrative warrant alone is enough. Stanford law professor Orin Kerr calls this a huge shift.
ORIN KERR: It allows ICE to basically decide itself to go into people's homes. Traditionally, we think that's a pretty severe intrusion on people's privacy. And in fact, that's pretty much what the Fourth Amendment was about, is imposing a warrant requirement. The government's not allowed to come into your home - unless you give them permission - without a warrant.
FLORIDO: And this is why many legal advocates are calling this new practice blatantly unconstitutional.
RASCOE: So why does ICE believe its agents have this authority?
FLORIDO: Well, the memo doesn't go into the legal theory that DHS's lawyers are relying on here, but Vice President JD Vance was asked about this memo when he visited Minneapolis the other day, and here's what he said.
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JD VANCE: What the Department of Homeland Security really has proposed to the Department of Justice is that we can get administrative warrants to enforce administrative immigration law. Now, it's possible, I guess, that the courts will say no. And, of course, if the courts say no, we would followed that law, but nobody is talking about doing immigration enforcement without a warrant. We're talking about different types of warrants that exist in our system.
FLORIDO: Vance is clearly saying here, Ayesha, that the Trump administration believes ICE administrative warrants satisfy the warrant requirements in the Constitution. But Professor Orin Kerr told me, the heart of the Fourth Amendment requires an independent judicial check when the government wants to break into someone's home, and the ICE officials issuing these administrative warrants, well, they work for the president. And this is why Kerr suspects that this policy, once it is challenged in court, will be found unconstitutional.
RASCOE: In the meantime, what can you tell us about how and whether immigration agents have already started acting on this policy in the field?
FLORIDO: Well, the two ICE employees who anonymously leaked this memo to Congress claimed in their letter to Congress that ICE agents have started implementing this policy in Texas, and they also said that newly recruited ICE agents are being trained on this new policy, even though it contradicts DHS's own training manuals. These claims have raised serious concerns among congressional Democrats. Senator Richard Blumenthal has demanded that DHS Secretary Kristi Noem explain the policy and has also called for congressional hearings.
RASCOE: That's NPR's Adrian Florido. Thank you so much.
FLORIDO: Thank you, Ayesha. Transcript provided by NPR, Copyright NPR.
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