Amid tensions over President Trump’s immigration crackdown in Minnesota and beyond, federal agents were told this week that they have broader power to arrest people without a warrant, according to an internal Immigration and Customs Enforcement memo reviewed by The New York Times.
The change expands the ability of lower-level ICE agents to carry out sweeps rounding up people they encounter and suspect are undocumented immigrants, rather than targeted enforcement operations in which they set out, warrant in hand, to arrest a specific person.
The shift comes as the administration has deployed thousands of masked immigration agents into cities nationwide. A week before the memo, it came to light that Todd M. Lyons, the acting director of the agency, had issued guidance in May saying agents could enter homes with only an administrative warrant, not a judicial one. And the day before the memo, Mr. Trump said he would “de-escalate a little bit” in Minneapolis, after agents fatally shot two people in the crackdown there.
The memo, addressed to all ICE personnel and signed on Wednesday by Mr. Lyons, centers on a federal law that empowers agents to make warrantless arrests of people they believe are undocumented immigrants, if they are “likely to escape” before an arrest warrant can be obtained.
ICE has long interpreted that standard to mean situations in which agents believe someone is a “flight risk,” and unlikely to comply with future immigration obligations like appearing for hearings, according to the memo. But Mr. Lyons criticized that construction as “unreasoned” and “incorrect,” changing the agency’s interpretation of it to instead mean situations in which agents believe someone is unlikely to remain at the scene.
“An alien is ‘likely to escape’ if an immigration officer determines he or she is unlikely to be located at the scene of the encounter or another clearly identifiable location once an administrative warrant is obtained,” Mr. Lyons wrote.
The Times shared a description of the memo’s contents with several former senior ICE officials from the Biden administration. Claire Trickler-McNulty, a former senior adviser at ICE, called the new definition “an extremely broad interpretation of the term ‘escape.’”
“It would cover essentially anyone they want to arrest without a warrant, making the general premise of ever getting a warrant pointless,” she added.
Mr. Lyons’s memo explicitly portrays the revised interpretation of “likely to escape” as a change from how ICE had “previously applied the phrase.” But Tricia McLaughlin, a Department of Homeland Security spokeswoman, said that “this is not new.”
“This is simply a reminder to officers,” she wrote in a statement, to keep “detailed records on their arrests.”
The Trump administration has pushed ICE to significantly increase arrests per day as part of its mass deportation campaign. The agency has carried out more indiscriminate sweeps — like rounding up people in Home Depot parking lots looking for work — rather than targeted operations in which agents set out, warrant in hand, to arrest specific people.
Such roundup operations could still involve administrative warrants if supervisors on the scene quickly fill out the paperwork, known as a Form I-200. The change lowers the standard for arrests even without a supervisor’s approval.
Mr. Lyons’s memo lists factors agents can consider when deciding whether the standard has been met, including whether someone obeys commands or tries to evade them; has access to a car or other means to leave; has identification or work authorization documents agents suspect are fraudulent; or provides “unverifiable or suspected false information.”
The memo tells agents who make warrantless arrests to fill out a form afterward that documents the factors they considered in determining that someone was “likely to escape.” That includes situations in which agents set out to arrest a particular person and then take others in the vicinity into custody. Mr. Lyons called that group “collateral aliens.”
“If an immigration officer encounters and arrests multiple collateral aliens, his or her analysis as to the likelihood of escape must be specific to each alien arrested,” the memo said. “That one collateral alien is likely to escape does not necessarily mean another collateral alien is also likely to escape.”
But this kind of assessment requirement only goes so far: The memo stresses that “particular factors may be common to multiple aliens arrested at the same time.”
During the first Trump administration, a class-action lawsuit claimed that agents had been illegally profiling in traffic stops as a pretext for warrantless arrests. In 2022, the Biden administration agreed to a settlement that included a three-year nationwide policy. Plaintiffs last year accused the second Trump administration of violating the agreement, prompting litigation.
The policy standard in the 2022 settlement included factors that resembled Mr. Lyons’s list. But it also included “ties to the community (such as a family, home or employment) or lack thereof, or other specific circumstances that weigh in favor or against a reasonable belief that the subject is likely to abscond.”
But Mr. Lyons’s memo noted that when agents encounter people they suspect are in the country illegally, the agents are not likely to be able to know much about them. “This on-the-spot determination as to the likelihood of escape is often made with limited information about the subject’s identity, background or place of residence and no corroboration of any self-serving statements made by the subject,” he wrote.
Scott Shuchart, a former head of policy at ICE during the Biden administration, said the memo would open the door to more frequent warrantless arrests.
“This memo bends over backwards to say that ICE agents have nothing but green lights to make an arrest without even a supervisor’s approval,” he said. The memo, he warned, said that “even that supervisor’s note can almost always be sidestepped so long as the officer can say anything remotely plausible about the person being arrested possibly leaving the area.”
Hamed Aleaziz covers the Department of Homeland Security and immigration policy for The Times.
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