The ICE memo, written 8 months ago, has been secret until now, and was recently released by government whistleblowers.
It argues immigration agents have the legal authority to forcibly enter a person's home and arrest them without permission from a judge, raising serious constitutional concerns.
The memo, dated from May of last year, was provided to Congress by a whistleblower organization.
It says ICE can use an I-205 administrative warrant to enter a home, without consent, to arrest someone without a judge's warrant; meaning a judge does not have to sign off for agents to enter a suspect's home.
"I think that's overuse of their authority. It is not consistent with law," Illinois U.S. Senator Dick Durbin told the I-Team. "I have watched the videotapes over and over again that have shown outrageous conduct by these ICE agents, there is no excuse for the way they're treating people who have no criminal record, no reason for deportation, and I would... not give them powers to invade a person's home or business."
The memo for all ICE personnel from Acting Director, Todd Lyons, says: "Although the U.S. Department of Homeland Security has not historically relied on administrative warrants alone to arrest aliens...in their place of residence, the DHS Office of the General Counsel has recently determined the U.S. Constitution, The Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose."
"It has been understood for generations that in order to enter a home to affect an arrest you have to have a judicial warrant, that an administrative warrant won't due. DHS has proceeded on that understanding and this is changing that approach entirely," ABC7 Chief Legal Analyst Gil Soffer said.
The memo notes, "agents must ensure the Form I-205... is supported by a final order of removal issued by an immigration judge" saying "this is essential because that order establishes probable cause."
Soffer said this legal justification goes against historical precedence regarding the right to privacy in one's home.
"That's the theory behind the understanding of the law. Which is that you want to enter somebody's home, which is highly protected, entitled to a lot of privacy, then you want to have a neutral party, a judicial review and a judicial warrant authorizing it," Soffer said.
DHS said in a statement, "Every illegal alien who DHS serves administrative warrants...had full due process and a final order of removal from an immigration judge. The officers issuing these administrative warrants also have found probable cause."
According to the whistle blowers, while this memo was addressed to all ICE personnel, in practice it was not formally distributed to all agents, instead it was provided to selected DHS officials who were directed to verbally explain the new policy.
At least one U.S. senator is calling for an investigation into this policy.