In this Thursday, May 2, 2019 file photo, Border Patrol agents hold a news conference prior to a media tour of a new U.S. Customs and Border Protection temporary facility near the Donna International Bridge in Donna, Texas.
Eric Gay / AP Photo
What Pennsylvanians can do when ICE claims to redefine constitutional rights
Federal courts again needed to protect fundamental rights, Pa. experts say.
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Jordan Wilkie/WITF
Eric Gay / AP Photo
In this Thursday, May 2, 2019 file photo, Border Patrol agents hold a news conference prior to a media tour of a new U.S. Customs and Border Protection temporary facility near the Donna International Bridge in Donna, Texas.
Leaders in the U.S. Department of Homeland Security are claiming expanded authority for their officers to forcibly enter private residences without a judge’s warrant to arrest immigrants with deportation orders.
Immigration and Customs Enforcement’s top official signed the memo in May of 2025. It remained secret until January 21, when the nonprofit group Whistleblower Aid, representing two whistleblowers, made it public. The Associated Press first confirmed and reported the memo.
By claiming this power, ICE and President Donald Trump’s administration is daring a constitutional confrontation in federal court, according to John Jones III, former chief judge of Pennsylvania’s U.S. Middle District federal court. Nominated by Republican President George W. Bush in 2002, Jones retired after 20 years and is now the president of Dickinson College.
“The memo turns the Fourth Amendment to the Constitution on its head,” he said.
The Fourth Amendment, describes the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It applies to every person in the United States, not just to citizens, Jones said.
It has been settled law “since the beginning of the Republic,” Jones said, that a judicial warrant is necessary for law enforcement to enter a person’s home absent rare and urgent circumstances. The Fourth Amendment was established to prevent abuses carried out by the King of England who had his agents invade people’s houses without cause, he said.
Each of five legal experts WITF interviewed agreed the DHS memo is unconstitutional.
But ICE’s top lawyer disagrees. In an opinion column published in The Wall Street Journal, DHS General Council James Percival wrote there is, “broad judicial recognition that illegal aliens aren’t entitled to the same Fourth Amendment protections as U.S. citizens.”
Percival, and the memo, both recognize this new policy is a break from decades of precedent for immigration enforcement. Percival used language referencing a conspiracy theory popularized by Trump to explain why DHS hasn’t previously entered homes without a warrant, writing that though the law allegedly allows it, “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.”
David Rudovsky, a law professor at the University of Pennsylvania who has written books on police misconduct and laws around arrest, search and seizure, said ICE’s approach is “completely inconsistent with the Fourth Amendment protections.”
“ Normally, we hope that the agency themselves will control their officers,” Rudovsky, who has practiced civil rights law for 55 years, said. “What’s going on now is you have the agencies deciding, ‘We won’t follow the law.’”
ICE’s newly claimed power will allow its agents to enter private residences “with a necessary and reasonable amount of force,” according to the memo, closing what Percival called a “loophole” in immigration law that required agents broadly to limit arrests to public spaces like jails, at ICE check-ins, at courthouses, or on public streets, unless they are granted permission to enter private property.
“ What ICE means to do is not be fettered or interfered with by the judiciary,” Jones said. “Well, that’s a burden that the Fourth Amendment applies. I understand that from a practical standpoint, ICE thinks that they should have a workaround, but laws are sometimes troublesome things for agencies.”
The memo focuses on a relatively narrow set of immigration cases, in which an immigration judge has already issued an order of removal. Per the memo, officers should “generally” only enter a residence between the hours of 6 a.m. and 10 p.m., and should first “knock and announce” to give the people inside “a reasonable chance to act lawfully.” The memo states it was written “to achieve the requirements” of President Donald Trump’s executive order titled “Protecting the American People Against Invasion.”
Jones said his concerns are not lessened by the somewhat limited scope of the memo’s claimed powers. If ICE’s memo is allowed to stand, it could set a precedent that any government agency could by its own memo create rules to get around constitutional protections.
“Then, I think we’re in an untethered world where the rule of law is called into great question,” Jones said.
“Perilous for state officials”
In Minnesota, Illinois, and California, state and local elected leaders have sought ways to check federal power, filing lawsuits and speaking out against ICE’s actions.
“It’s pretty perilous for state officials to wade into these matters,” Jones said. “They then become, it appears, targets of federal investigations for exercising what I think is their clear First Amendment right to criticize the tactics that ICE is using.”
The U.S. Department of Justice served grand jury subpoenas to Minnesota’s governor, attorney general, and the mayors of Minneapolis and St. Paul on January 20 to investigate whether they obstructed or impeded immigration enforcement.
In Pennsylvania, Governor Josh Shapiro’s press team did not respond to a question about what he could do to protect residents against unconstitutional searches by federal agents, but said state police cannot use the same authority to enter private residences.
Shapiro’s team pointed to Pennsylvania State Police policy stating “administrative immigration warrants are civil in nature,” that they cannot be used to create reasonable suspicion of criminal activity, and “cannot form the independent basis for any detention or arrest.”
Pennsylvania Attorney General Dave Sunday’s press team declined to comment for this story.
The legal disagreements
The DOJ also declined to comment on the constitutionality of the policy.
But, in an emailed statement, Department of Homeland Security Assistant Secretary Tricia McLaughlin said ICE’s policy meets the legal requirements to enter a private residence.
“Every illegal alien who DHS serves administrative warrants/I-205s have had full due process and a final order of removal from an immigration judge,” McLaughlin said. “The officers issuing these administrative warrants also have found probable cause.”
An I-205 is the ICE document used to take someone into custody and remove them from the country after a final deportation order has been issued.
Jones said the memo legally jumps the gun.
”Someone could be in the midst of exercising their due process rights and still be deprived of their Fourth Amendment protections. That can’t be right.”
Jones says people can appeal deportation orders, so ICE calling an order final isn’t correct.
As for ICE’s second justification for going into people’s homes, Jones says ICE writes its own administrative warrants without a judge’s oversight. He said using the word “warrant” in this case is a misnomer, and that an administrative warrant is “nothing more than a direction from a higher up at ICE to go seize someone.”
Kerry Doyle, the former top ICE lawyer in Joe Biden’s administration, said she would not have signed off on the memo while she was in her role.
“ Would law enforcement be much more efficient if we didn’t have a constitution? Yes,” Doyle said, adding that enforcing laws has always been balanced by rights protecting people from government abuse.
She said the memo also raises the risk for ICE officers. Federal officers have immunity for actions taken within the boundaries of their jobs.
If they focus on the narrow targets of the memo, they are probably safe from repercussions, Doyle said. But in practice, signing off on the memo opens the door to misusing the authority to enter homes, she said. If ICE officers exceed their “scope of authority,” for example to arrest U.S. citizens in their homes as has been reported in Minnesota, Doyle suggested those officers may want to seek legal representation.
For people who feel their rights have been violated, Doyle said filing complaints to the DHS Joint Intake Center is the most likely avenue for a neutral federal investigation into rights violations.
For anyone injured or who suffers clear and demonstrable psychological harm from an illegal arrest by federal agents, Doyle said they might be able to file under the Federal Tort Claims Act. But each of these legal processes take a long time.
Doyle said there’s another check on ICE authority — politics.
“ The other way that people can be held accountable for violating constitutional rights or committing crimes with a uniform is with a new administration or with a new Congress,” she said.
“The only salvation”
Vanessa Stine is a senior attorney at the ACLU of Pennsylvania focused on immigrants’ civil and constitutional rights. She said people facing deportation are in a tough spot.
“If ICE wants to violate somebody’s rights, they’re going to violate their rights,” Stine said.
Practically speaking, ICE has guns, force, and authority, and has used it in deadly ways, Stine said. The first priority for people is to stay as safe as possible, she said, whether that’s the person being arrested, a family member or another person in the house, or witnesses.
Rights are vindicated afterward, Stine said, often through federal courts. For them to step in, people will have to sue.
But the people targeted by ICE actions face deportation, meaning they may be removed from the country before they get a chance to dispute a violation of their rights. What’s more, people in immigration court are not guaranteed a lawyer, as they are in criminal court, and most people facing deportation do not have legal representation, Stine said.
“ The really difficult problem for someone who is apprehended in this fashion, is that there may not be an effective remedy,” Jones said.
Without Congress taking action, and without ICE backing off its own policy due to public scrutiny, Jones said federal courts may be “the only salvation.”
To bring a civil case, people will also need to have a clear understanding of what happened, Stine advised.
“If we’re talking about home entry without a judicial warrant, what did the ice officers say,” Stine said. “How many ice officers, you know, were they, did they identify themselves? Did they use physical force? Did they use verbal threats? Did they make statements about the person’s apparent ethnicity or the language that they spoke?”
But, for people who are detained, trying to stave off deportation is usually the first priority before worrying about civil suits, Stine said.
Highlighting a rights violation may help in an immigration case but it’s not guaranteed, according to Cathryn Miller-Wilson. She leads the Hebrew Immigrant Aid Society of Pennsylvania, established in 1882 to help Jewish immigrants flee Russian pogroms. Since July 2024, after the Trump administration closed refugee resettlement programs, her organization has been entirely focused on immigrant legal aid.
Unlike in criminal law, immigration law does not necessarily protect against illegal arrests or collections of evidence. Unless there are other factors to consider, Miller-Wilson said, people arrested under the powers of ICE’s memo who already have a deportation order still have a high likelihood of being removed from the country.
Getting to federal court
Stine and other civil rights and immigration lawyers said they are monitoring the types of arrests and actions ICE is taking in Pennsylvania. So far, they haven’t heard of ICE forcing entry using an administrative warrant in the state, she said.
But, Stine said, given the limited legal resources for those targeted, there’s no guarantee the eight-month-old DHS memo hasn’t been enforced here yet.
According to the Deportation Data Project, ICE arrested more than 5,460 Pennsylvania residents from Jan. 1 through Oct. 15, 2025.
People who think their rights have been violated can contact the ACLU of Pennsylvania, Stine said. Community groups that are organizing to support immigrants might also be able to help find resources, she said.
Miller-Wilson said ICE is its “own worst enemy” because the agency appears to make many mistakes.
“For as many people that are getting whisked away, there are as many people that haven’t been, that we can support to bring the lawsuit,” she said. “I’m sadly not worried that we’re not going to be able to litigate this issue.”
The country may have to wait for ICE to arrest enough people without using judicial warrants for civil rights groups to file a lawsuit. Then, it will be up to federal judges to decide just how protected citizens and immigrants are from federal searches and arrests.
Editor’s note: This story was updated to clarify Stine’s role focusing on immigrants’ rights rather than immigration law.
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