An internal directive circulated to Immigration and Customs Enforcement personnel asserts broad authority to make warrantless arrests under existing law, prompting concern from former ICE officials about expanded enforcement discretion.
By yourNEWS Media Newsroom
An internal memorandum circulated this week to all Immigration and Customs Enforcement personnel states that immigration officers are authorized to carry out warrantless arrests of certain suspected illegal immigrants, including individuals deemed “likely to escape” during the time required to obtain a warrant.
The memo, issued by acting ICE Director Todd Lyons and first reported by The New York Times, cites provisions of the Immigration and Nationality Act of 1952 as the legal basis for the authority. According to the memo, immigration officers are “unequivocally” empowered to arrest without a warrant an “alien” who is either entering or attempting to enter the United States in violation of immigration law, or who is both in violation of such laws and “likely to escape before a warrant can be obtained.”
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The document defines “likely to escape” as a situation in which an immigration officer determines that an individual is unlikely to be located at the scene of the encounter or another clearly identifiable location once an administrative warrant is secured.
While emphasizing that officers are expected to obtain administrative warrants in advance of targeted enforcement operations, the memo states that warrantless arrests may be carried out when circumstances require. It instructs officers to analyze an individual’s likelihood of escape before making a civil warrantless arrest and to document the relevant factors on Form I-213 as soon as practicable after the arrest.
“This nothing new. This is just a reminder to officers to be keep detailed records on their arrests,” Department of Homeland Security Assistant Secretary for Public Affairs Tricia McLaughlin said in a statement to the Daily Caller News Foundation. She added that ICE’s authority under federal law and the standard of reasonable suspicion are protected by the U.S. Constitution. “Law enforcement uses ‘reasonable suspicion’ to make arrests, as allowed under the Fourth Amendment to the U.S. Constitution. The Supreme Court has already vindicated us on this position,” McLaughlin said.
The memo references Supreme Court precedent, including a September 2025 concurring opinion by Justice Brett Kavanaugh in Noem v. Vasquez Perdomo, available here, in which the Court sided 6–3 with the Trump administration. In that opinion, Kavanaugh wrote that the Immigration and Nationality Act authorizes immigration officers to interrogate any alien or person believed to be an alien regarding their right to be or remain in the United States, and that officers may briefly detain an individual for questioning based on reasonable suspicion supported by specific and articulable facts.
Despite those assertions, the memo drew criticism from former ICE officials. Scott Shuchart, who held a senior role at ICE during the Biden administration, told The New York Times that the directive “bends over backwards to say that ICE agents have nothing but green lights to make an arrest without even a supervisor’s approval.” He added that under the guidance, supervisory review can often be bypassed if an officer can articulate a plausible concern that the individual might leave the area.
Claire Trickler-McNulty, another former ICE official from the Biden era, told the outlet that the memo “would cover essentially anyone they want to arrest without a warrant,” arguing that it risks making the practice of obtaining warrants effectively meaningless.
The guidance comes amid heightened tensions surrounding immigration enforcement. Anti-ICE protests intensified across the country in January 2025, with several demonstrations turning violent following the fatal shootings of Renee Good and Alex Pretti by ICE and Border Patrol officers in separate incidents.
The Department of Homeland Security has not indicated whether additional clarifying guidance will follow the memo, which ICE leadership describes as a restatement of existing statutory authority rather than a change in enforcement policy.