On January 22, the Wall Street Journal published an opinion piece by James Percival, General Counsel for the U.S. Department of Homeland Security (DHS). The article, titled "How the Deep State Thwarted ICE Administrative Warrants," addresses the use of administrative warrants by U.S. Immigration and Customs Enforcement (ICE) to arrest individuals with final orders of removal in their homes.
Percival’s op-ed responds to claims in media outlets that ICE’s practice violates the Fourth Amendment. He argues that these claims are incorrect and that administrative warrants remain a lawful tool when used to apprehend illegal aliens who have received a final order of removal from an immigration judge.
"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," Percival wrote.
He explains that while citizens are generally protected against searches and seizures without a judicial warrant, federal immigration law allows officers to issue administrative warrants for non-citizens based on probable cause determined by an executive-branch officer rather than a judge. This practice is supported by Supreme Court precedent and lower court rulings recognizing different standards for illegal aliens under the Fourth Amendment.
"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."
Percival notes that ICE currently uses these warrants only after an individual has had due process before 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."
He criticizes past guidance within federal agencies that restricted ICE officers from entering homes even when armed with administrative warrants for fugitives with final removal orders: "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." According to Percival, this led officers under previous administrations to wait outside residences until individuals left voluntarily.
Percival states: "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 article concludes by noting changes since January 2025: "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 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."
