Knock, Knock, Your Papers Please!

You know we have seen all this before—and it is important to remember where and why.

Lawsuit challenges ICE ability to enter homes without warrants from judges

The lawsuit argues that allowing ICE officers to enter someone’s home to conduct arrests based solely on an administrative warrant violates constitutional rights.

NBC News

Jan. 30, 2026

By Reuters

The lawsuit by the Greater Boston Latino Network and Brazilian Worker Center was filed in federal court in Boston and marked the first case to challenge the constitutionality of a policy laid out in a May memo ICE issued that became public last week as a result of a whistleblower complaint.

The policy marked a departure for ICE, whose agents in the past had generally been barred from entering private homes and businesses without a warrant signed by a federal judge.

When before did we have government barging into out homes?

But as President Donald Trump’s administration ramped up immigration enforcement last year in its quest to carry out mass deportations, the acting head of ICE issued a memo that advised its agents they could rely instead on administrative warrants.

Lyons in the memo said DHS Office of General Counsel had “recently determined the U.S. Constitution, the Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose.”

Those warrants, also known as Form I-205s, are issued by officials within the U.S. Department of Homeland Security, including ones in ICE itself.

There is one thing I know for certain: you cannot get a "yes" or "no" position out of a lawyer. It is always preceded by, "In my opinion..."

The Law Fare analysis concludes:

This raises a big question: Can ICE enter a home to make an arrest without a judicial warrant?

The standard view has been that administrative warrants can't authorize home entry because they're executive branch orders, and the executive branch can't be in charge of deciding whether to give itself a warrant.  Under Payton v. New York, 445 U.S. 573 (1980), the government needs an arrest warrant to enter a home to make an arrest.  But Payton refers to a "judicial officer" inserting his judgment "between the zealous officer and the citizen," and the immigration officer who signs a Form I-205 is not a "judicial officer." That's the traditional thinking.

That thinking is captured by Judge Wright's reasoning in the Kidd v. Mayorkas opinion.  Judge Wright was addressing the broad category of administrative warrants, which included the subcategory of Form I-205 warrants, and here's what he wrote:

[...]

If that's the DHS argument—and I'm just speculating about that—I think the problem on the merits is that there's been a lot of water under the bridge since Justice Frankfurter's opinion in Abel.  Coolidge from 1971 and Shadwick from 1972 settled the idea that a warrant requires a neutral and detached magistrate. Payton from 1980 settled that a judicial warrant is needed for entry.  To go back to the 1960 opinion in Abel, and to read its dicta as binding without considering the Supreme Court's later holdings in Coolidge, Shadwick, and Payton, seems pretty problematic.

There is one thing that I know for certain is that you cannot get a yes or no position out if a lawyer... it is always preceded with "In my opinion..."

It's always hard to offer a take on a legal argument when you have to speculate about what the legal argument is, so my take on this is tentative.  But if I had to summarize my current thinking, it seems to me that the DHS policy is likely wrong in light of Coolidge, Shadwick, and Payton, although the DHS position is not frivolous in light of Abel as interpreted in Malagerio—and the trickier issue may be actually getting a merits ruling on the issue in court in light of the absence of remedies due to the Supreme Court's gradual cutting back on Bivens remedies. Or at least that's my tentative take without actually getting to see the DHS legal analysis, and with the caveat that I don't know the administrative law remedies that may be available.

It is my opinion that, with all this legal wrangling, it is we—the citizens—who are getting screwed!