Immigration lawyer calls ICE memo authorizing officers to enter homes without judicial warrants 'unconstitutional'
CBS 58 MILWAUKEE (CBS 58) -- As immigration enforcement continues in Minneapolis, concerns are growing about the manner in which ICE carries out its arrests.
A memorandum leaked by two U.S. government whistleblowers has immigration lawyers worried that the new protocols are "unconstitutional." In the leaked memorandum, Acting ICE Director Todd Lyons states that though "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.”
Paralegal manager at Soberalski Immigration Law Daniel Gutierrez says this is not enforceable: "It's just blatantly unconstitutional and I think that now more than ever, people need to understand what the differences are, and that if an immigration officer is approaching their home, that they do not open the door, that they ask the officers to identify themselves and that they ask to see the actual warrant."
There are two kinds of warrants that immigration agents can use: judicial and administrative. In short, a judicial warrant means it is signed by a judge and holds a stronger enforcement standard, allowing a federal agent to enter private property.
ICE has had a longstanding rule that agents could not rely on administrative warrants to enter homes. However, the leaked memo essentially tells agents that administrative warrants can now be used to enter homes in cases of people with deportation orders. A judicial warrant is more often used for criminal offenses and will say it's from a court, with the signature of a judge at the bottom. On the other hand, an administrative warrant will likely use verbiage like "alien," "U.S. Department of Homeland Security," and "immigration officer" since they can be made in the field by an agent. Administrative warrants will not have a judge's signature. Because of that, Gutierrez says you do not need to allow ICE onto private property with only an administrative warrant.
"I think we've been seeing a lot of fear, a lot of -- a lot of confusion, and a lot of questions," shared Gutierrez. He recommends having a plan ready while remembering "the biggest thing is, remain calm and speak clearly."
"I think it's okay to document, whether it's through video or audio, as long as you're not obstructing," he said.
Even with uncertainty over the memorandum's enforceability, signs remain outside businesses saying, "NO ICE." Gutierrez said, "I think those are now very important, now more than ever. I think that, yes, they do have a level of protection."
CBS 58 reached out to ICE and DHS to clarify if they are following the memorandum or if judicial warrants still carry a higher weight. We have not heard back.
Gutierrez also recommended anyone going out to a protest - even if you are a citizen - to carry identification with you, as he says we are "living in unprecedented times."