A Department of Justice memo uncovered by a records request grants officers the authority to enter residences without a warrant to search for undocumented migrants they suspect of being part of the Venezuelan gang Tren de Aragua (TdA), if getting one is deemed “impracticable.” President Donald Trump declared TdA a foreign terrorist organization in March, invoking the Alien Enemies Act to permit their deportation without due process.
The March 14 memo discovered by the watchdog group Property of the People, titled “GUIDANCE FOR IMPLEMENTING THE ALIEN ENEMIES ACT” and signed by Attorney General Pam Bondi, outlines a four-step process for determining whether someone is part of TdA before issuing a warrant and apprehending them. This is elaborated in Section A, titled “Apprehension and Removal Procedures in Proactive Matters,” explaining that an Alien Enemy must be at least 14 years old; must not be a citizen or lawful resident of the United States; must be a citizen of Venezuela; and must be a member of TdA. Any law enforcement officer is “responsible for determining whether an individual qualifies as an alien enemy,” and after a supervisor signs off on a Warrant of Apprehension and Removal under the Alien Enemies Act, that officer is allowed to apprehend the suspected TdA member “wherever they are found in the United States, including, but not limited to, inside Alien Enemies’ residences and workplaces.”
However, in the following section, we learn that this process – which already defers to officers’ judgment without going through a judge, as is the case when obtaining arrest warrants – can be done away with altogether. “Given the dynamic nature of enforcement operations, officers in the field are authorized to apprehend aliens upon a reasonable belief that the alien meets all four requirements to be validated as an Alien Enemy,” the document reads. “This authority includes entering an Alien Enemy’s residence to make an AEA apprehension where circumstances render it impracticable to first obtain a signed Notice and Warrant of Apprehension and Removal.” The four steps outlined in the previous section can then be completed after the fact.
ICE warrants are not signed by a judge, which means they do not grant officers the right to enter a place where a person would have a reasonable expectation of privacy, like their residence. Trump’s invocation of the Alien Enemies Act of 1798 (which prior to this instance was only invoked in wartime), and this memo outlining its execution, gets around these barriers meant to protect rights to privacy and due process that apply to everyone in the country, regardless of their immigration status. “The administration’s unprecedented use of a wartime authority during peacetime was bad enough,” ACLU lawyer Lee Gelernt told USA Today. “Now we find out the Justice Department was authorizing officers to ignore the most bedrock principle of the Fourth Amendment (prohibition of unreasonable searches and seizures) by authorizing officers to enter homes without a judicial warrant.”
The memo goes on to outline a point system for determining if someone is part of TdA. “Aliens scoring 8 points and higher are validated as members,” the guide states, and “aliens scoring 5 points or less should not be validated at this time as members” of the gang. However, in a footnote, it is qualified that “a tally of 5 points or less […] is not a finding that an alien is not an Alien Enemy.”
Categories include their criminal records and communications, as well as “symbolism” and “association” – these last two include potentially innocuous factors like group photos and tattoos. The “symbolism” category has already been a source of controversy, as a documented Venezuelan asylum seeker has been deported to the CECOT concentration camp in El Salvador over a rainbow tattoo expressing support for his autistic brother. Local law enforcement in Texas told media outlets that the individual, Neri Jose Alvarado Borges, had no criminal record.
