Internal ICE memo broadens warrantless arrests, raises constitutional concerns

An internal memo attributed to Acting ICE Director Todd Lyons significantly broadens when immigration officers may detain people without administrative arrest warrants, reinterprets the statutory standard for warrantless arrests and appears to permit the use of administrative warrants to detain people "in their residences," according to whistleblowers and a court filing in Minnesota.

The memo, dated May 12 and circulated within the agency, was provided to Senator Richard Blumenthal by two whistleblowers and has been submitted as part of litigation in federal court in Minnesota. Whistleblower Aid says the memo was addressed to "All ICE Personnel" but in practice was shown only to "select DHS officials," with supervisors instructing some employees to read and return the document.

Under federal immigration law, officers may make warrantless arrests when they suspect an individual is in the country unlawfully and determine the person is "likely to escape" before a warrant can be obtained. Historically, that phrase had been read to mean someone was a flight risk — for example, unlikely to comply with immigration proceedings. Lyons calls that prior construction "unreasoned" and "incorrect" and redefines the standard to encompass situations in which agents believe a person is unlikely to remain at the scene. That reinterpretation lowers the threshold for on-the-spot, warrantless detentions and expands the circumstances that can justify so-called collateral arrests of people encountered during operations.

The memo also addresses the use of administrative arrest warrants, which are issued and signed by ICE employees rather than judges. It notes that detaining people "in their residences" based solely on administrative warrants represents a change from past procedures. Whistleblower Aid and earlier ICE training materials warn that entering a residence solely on an administrative warrant can give rise to Fourth Amendment concerns, a point that legal advocates say will be central to forthcoming challenges.

The guidance arrives amid a period of intensified federal immigration enforcement and high-profile confrontations in cities including Minneapolis. Shortly before the memo surfaced in court papers, the president said he would "de-escalate a little bit" in Minneapolis after agents fatally shot two people in an enforcement action. Those incidents, and the memo's apparent expansion of field discretion, have heightened scrutiny from lawmakers, advocates and courts examining whether current practices respect constitutional limits on searches and seizures.

Policy implications are immediate and practical. By broadening what constitutes being "likely to escape" and by authorizing expanded use of administrative instruments, the memo shifts significant discretionary power to frontline officers and supervisors. That change could increase the number of collateral arrests of individuals who are not the original targets of operations, including people without serious criminal histories, and could alter how local law enforcement and immigrant communities experience federal enforcement sweeps.

Because the memo was provided to Congress and filed in federal litigation, its text and legal rationale will be pivotal in the coming weeks. The scope of distribution, the legal citations underpinning Lyons's reinterpretation and any internal analyses about constitutional risk are likely to be the focus of judicial review and congressional oversight as stakeholders assess whether the guidance complies with statutory and constitutional constraints.