General Counsel James Percival's Wall Street Journal Op-Ed on Administrative Warrants

WASHINGTON – On January 22, the Wall Street Journal published an op-ed by U.S. Department of Homeland Security (DHS) General Counsel James Percival, titled How the Deep State Thwarted ICE Administrative Warrants. The op-ed debunks the mainstream media’s false narratives regarding U.S. Immigration and Customs Enforcement’s (ICE) use of administrative warrants to arrest illegal aliens with final orders of removal in their homes. The media has repeatedly and falsely claimed that such warrants are in violation of the Fourth Amendment. In actuality, the use of such warrants is still lawful and is only used when an illegal alien has been given a final order of removal by a judge. The full op-ed can be read below: The Fourth Amendment is an essential safeguard of Americans’ privacy and personal liberty. Its protections must not be eroded. But they also must not be misappropriated by those seeking to subvert legitimate law enforcement. The left has done that for decades, particularly in the area of immigration enforcement. Multiple media outlets report that Immigration and Customs Enforcement officers have been using so-called administrative warrants in Minnesota to arrest illegal aliens with final orders of removal in their homes. The Department of Homeland Security welcomes the opportunity to explain this reasonable and lawful approach to the American people and federal courts. The Fourth Amendment protects against unreasonable searches and seizures. It also provides that where a warrant is required, it must be supported by probable cause and specifically describe the places to be searched and the persons or things to be seized. Most Americans are familiar with this process. If a police officer witnesses a crime, the criminal generally may be arrested without a warrant. But if the police come to a home to make an arrest, police generally must obtain a judicial warrant before entering without permission. Illegal aliens, however, don’t have the same rights as citizens. Under federal immigration law, officers may issue an administrative warrant, which means that the probable-cause finding is made by an executive-branch officer rather than a judicial officer. This is consistent with broad judicial recognition that illegal aliens aren’t entitled to the same Fourth Amendment protections as U.S. citizens. It is also consistent with the Supreme Court’s admonition that the touchstone of the Fourth Amendment is whether the search or seizure is “reasonable,” not whether it is supported by a judicial warrant. In Abel v. U.S. (1960), the justices recognized that there is “overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens.” While administrative warrants may satisfy the Fourth Amendment for any arrest of an illegal alien, ICE currently uses these warrants to enter an illegal alien’s residence only when the alien has received a final order of removal from an immigration judge. That means the alien has already seen a judge, presented his case, received due process, and been ordered removed from the country. Aliens in this context are fugitives from justice, and the Eighth U.S. Circuit Court of Appeals, which has jurisdiction over Minnesota, has expressly recognized that administrative warrants may be used to enter a residence to capture a fugitive. Although the law is clear, deep-state actors in the federal government have for decades told ICE officers that they may not enter a fugitive alien’s home even with a final order of removal and administrative warrant. Because Congress hasn’t created a mechanism to obtain a judicial warrant, this meant that under previous presidential administrations, ICE would sit outside the homes of fugitive aliens waiting for them to come outside before arresting them. Illegal aliens quickly identified this loophole. Some would openly taunt ICE officers by waving through the window or passing notes under the door. No serious country would tolerate this clear aberration of its laws or allow its national security to be jeopardized and mocked in this manner. Congress never intended the immigration laws to operate this way, and the Fourth Amendment doesn’t require it. The previous approach only perpetuated the false narrative that immigration laws are second-tier laws that may be defied without consequence. The American people gave President Trump a mandate to restore law and order, in part by removing criminal illegal aliens from the country. Since January 2025, Secretary Kristi Noem and the DHS have rooted out deep-state subversion within the federal government and realigned ICE’s approach with the law. The Constitution and federal law are on our side.