U.S. Immigration and Customs Enforcement (ICE) agents, along with other federal law enforcement agencies, attend a pre-enforcement meeting in Chicago, Illinois, U.S., on Sunday, Jan. 26, 2025. (Christopher Dilts/Getty Images)
But the law has a carve-out that allows ICE agents to make an arrest without a warrant if they believe the person is "likely to escape" before a warrant is obtained.
Lyons wrote in the memo that 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."
ICE previously interpreted "likely to escape" to mean "flight risk," which Lyons said was an improper view of the law. A flight risk describes someone who might not show up to a future hearing, but Lyons said ICE agents making "on-the-spot determinations" in the field do not necessarily have enough information to know if someone is a flight risk prior to arresting them.
The memo noted that agents should document on a government form, as soon as possible after the arrest, what factors they considered when apprehending someone without a warrant.
Protesters with a large anti-ICE sign stand outside the Henry Bishop Whipple Federal building on Jan. 18, 2026 in Minneapolis, Minnesota. (Jim Vondruska/Getty Images)
The memo comes amid the Trump administration carrying out an aggressive deportation agenda, which has drawn mixed reactions, according to polling. Some observe that the efforts have vastly reduced illegal immigration, while others raise alarm over incidents that appeared heavy-handed or ended in tragedy, including two recent killings of U.S. citizens in Minnesota at the hands of immigration authorities.
ICE’s deportations have been challenged in court cases across the country, and the Trump administration has seen, according to a Politico analysis, hundreds of rejections by district court judges.
CLICK HERE TO GET THE FOX NEWS APP
One federal judge in D.C. blocked the administration from making warrantless immigration arrests without first making individualized assessments about whether a target was likely to escape. Judge Beryl Howell, an Obama appointee, said the immigrant rights group that sued was correct in alleging that the Trump administration's policy was to "arrest first, ask questions later."
"Defendants have adopted a policy of making arrests using a deficient standard under both the [Immigration and Nationality Act] and well-settled constitutional principles," Howell wrote.
Ashley Oliver is a reporter for Fox News Digital and FOX Business, covering the Justice Department and legal affairs. Email story tips to ashley.oliver@fox.com.
https://www.foxnews.com/politics/ice-reveals-legal-theory-behind-warrantless-immigration-arrests