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ICE Administrative Removal Warrants (podcast transcript)

Seaman: Good afternoon. I am John Seaman, a senior legal instructor with the Legal Division at the Federal Law Enforcement Training Center. In this discussion, we’re talking about administrative warrants, and specifically administrative removal warrants used by Immigration and Customs Enforcement officers to arrest non-citizens who have committed immigration violations. ICE is one of the partner organizations here at the Federal Law Enforcement Training Center and ICE basic students receive training on Fourth Amendment law from the FLETC Legal Division. In our Fourth Amendment legal training, we cover issues regarding the level of suspicion required to obtain an arrest warrant or a search warrant. This basic Fourth Amendment training, however, is focused on the criminal warrants issued by a judicial officer, typically a magistrate judge. ICE basic students are ultimately being trained to perform ICE enforcement functions that, most often, do not involve judicially issued warrants. In the day to day ICE world, the ICE officer will utilize administrative removal warrants to carry out their duties. There are important differences between a judicially issued warrant and an administrative removal warrant issued by a government agency. I am here today with Jenna Solari, a senior legal instructor with the FLETC Legal Division, to discuss these differences and, hopefully, clear up some common misconceptions.

Jenna, as you know, the Fourth Amendment is made up of two clauses. The first clause tells us that the people have the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. The second clause spells out, if you will, the primary way that the government can demonstrate that its actions are reasonable, that is, to obtain a warrant based on probable cause, supported by oath or affirmation, that particularly describes the place to be searched, and the persons or things to be seized. The result is that before the government may intrude or act in an area or situation where there is an reasonable expectation of privacy, such as a person’s home, a warrant must be obtained, or there must be a recognized exception to the paper warrant requirement. Of course, this warrant requirement contemplates review and authorization from a judicial officer. But what about a non-criminal warrant issued by a government official who is not a judge?

Solari: Well that’s a good question John, ‘cause when I think of the Fourth Amendment and the warrant requirement, I’m usually thinking in terms of a criminal matter and the need to obtain an arrest warrant or a search warrant. But in the ICE context, isn’t it true that many immigration violations don’t involve criminal prosecutions?

Seaman: Yes, that’s correct. It is important to keep in mind that the underlying basis for a non-citizen’s removability may be due to some criminal violation, but the removal warrant used by ICE is not a criminal warrant signed by a federal judge. In fact, the removal warrant used to process the non-citizen’s removal is signed by an ICE official based on a finding that the person is removable from the United States.

Solari: So John, what are the differences between a criminal warrant issued by a federal court and a removal warrant issued by an ICE official?

Seaman: Jenna, the primary difference is that, unlike a criminal warrant issued by the federal court, a removal warrant does not authorize the ICE officer to enter into an REP area to execute the warrant.

Solari: So, what does that mean to an ICE officer who goes out to execute an ICE administrative removal warrant?

Seaman: Basically, what this means is that the ICE officer has the authority to arrest the person named in the warrant, so long as the officer locates the person in a public, non-REP, location. For example, the person is located walking down a public sidewalk.

Solari: Well, what would happen if the ICE officer locates the person in an REP area, such as his or her home?

Seaman: Well, in that case the administrative removal warrant authorizes the ICE officer to arrest the subject, but not to enter into an REP area such as his or her home unless consent to enter is given. If the officer does not have consent to enter, even if the officer knows the person subject to the warrant is inside the home, the officer has no legal authority to enter the home pursuant to that removal warrant.

Solari: Well John in that type of case, what are the ICE officer’s options?

Seaman: If the ICE officer does not obtain consent to enter the home, then that officer must “wait it out” if you will, until the person named in the warrant can be located in a non-REP area.

Solari: So, in comparing the authority and limitations of an administrative removal warrant to a criminal warrant situation, it would seem as though an officer who has an administrative removal warrant has about the same authority as an officer in a criminal matter who has probable cause, but does not have a warrant issued by a federal judge.

Seaman: Jenna, I think that analogy is a good one. If, in a felony criminal matter, officers had probable cause and did not yet have a criminal warrant, those officers could arrest the suspect if the suspect was located in a public or a non-REP place. However, to arrest that same person in his or her home, the officers would have to have either consent to enter the home or a warrant signed by a federal judge.

Solari: Well then it sounds as though it works to the advantage of our ICE officers to try to execute administrative removal warrants in public, in other words, in non-REP areas.

Seaman: Yes, that’s true. It’s not that an arrest cannot be made in a person’s home, but the only way to enter the home to make the arrest pursuant to an administrative removal warrant is to do so with consent. And obviously, since the purpose of the officer is to make the arrest, consent will most often be denied.

Solari: Well thanks for distinguishing the administrative removal warrant from a criminal warrant. It’s pretty clear that ICE officers need to be resourceful and certainly even patient in doing their jobs.

Seaman: Yes they do Jenna. Their job is a very important one and it’s important that they understand the tools they have at their disposal to perform that job. I hope that this Podcast helps to clarify the authority and limitations they have when acting under the authority of an administrative removal warrant.

Solari: Well it certainly does John. Thank you very much for your time and explaining that to us. For those of you who want to hear any more of our Podcasts, you can find them online at www.fletc.gov/legal/podcast