Understanding ICE Warrants: What Employers Need to Know About Limits on a “Blackie’s warrant”

As Immigration and Customs Enforcement (ICE) continues to increase their enforcement actions, it’s important for employers to understand the type of warrants that can be issued. There are three types of warrants – a federal search and seizure warrant, an administrative warrant, and a “Blackie’s warrant.” A recent district court decision limited the use of a Blackie’s warrant.

Federal Search and Seizure Warrant

The federal search and seizure warrant is very rare but strikes the most fear in employers. How does the process work to obtain a search warrant? First, ICE must present an application for a search warrant to a local federal judge. These applications are typically long and heavily documented. Second, the federal judge must find probable cause that criminal activity is taking place at the employer’s facility/worksite. Third, the federal judge signs the judicial search warrant, which describes what and where ICE agents may search and what they may seize.

Within 14 days thereafter, ICE agents and agents from other federal agencies are authorized to enter the business with the judicial search warrant. During the raid (ICE refers to it as a “targeted enforcement operation”), ICE will seize documents per the search warrant and if ICE discovers unauthorized workers, they will arrest/detain them.

Administrative Warrant

An administrative warrant is signed by an ICE officer and seeks the arrest/detention of an employee suspected of failing to leave the United States after a removal order, having no status, or facing criminal charges. ICE will present the warrant and request/demand the employer produce the employee. However, ICE does not have the authority to enter a non-public area of the facility/worksite without the employer’s consent. The employer may choose to refuse ICE’s request to enter a non-public area of the worksite. To do so, the employer should explicitly say: “We do not consent for you to enter the non-public areas of our facility/worksite.” Without a judicial search warrant, an employer has the right to refuse to make employees available to ICE. Employers should discuss with counsel their best approach.

Blackie’s Warrant

Currently, the most uncommon warrant is a Blackie’s warrant, which is named from a case, Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981). In that case, the court held the Immigration and Naturalization Service (predecessor of ICE) could obtain civil warrants from federal judges to conduct worksite searches without providing the same probable cause standard that evidence of a crime will be found. Instead, a Blackie’s warrant authorizes ICE to enter nonpublic commercial areas to look for individuals who may be removable under immigration law.

A May 2025 district court decision sheds light on the continuing applicability of Blackie’s warrants. In Re Sealed Search Warrant Application, Case No. 3:25-mc-05067, 2025 WL 1499054 (S.D. Tex. May 27, 2025), Magistrate Judge Edison denied the government's application for a Blackie’s warrant. In this case, the government sought an administrative warrant authorizing ICE agents to enter “areas of a specific business where aliens may likely be found, including but not limited to, the search of any locked rooms on the premises in order to locate aliens, without legal authority, in the United States.”

The judge characterized the government’s request as follows:

The Government claims to derive its power to conduct such a search not from Rule 41(d)(1)—which requires “probable cause to search for and seize a person”—but from its general powers to question suspected aliens and enforce the immigration laws. See 8 U.S.C. §§ 1357, 1324a(f). Contrary to the Government’s assertions otherwise, an administrative warrant is not the proper vehicle for a criminal search and seizure.

The judge further described the background of the Immigration Reform and Control Act (IRCA), which President Ronald Reagan signed into law in November 1986. The IRCA introduced both civil and criminal penalties for employers that knowingly hire undocumented immigrants or other individuals not authorized to work in the United States. Consequently, the court pointed out that Blackie’s warrants issued after 1986 “would, on ‘[a] showing less than that required for criminal warrants,” authorize the search of private property where the business owner potentially faces criminal penalties. [Citation omitted.] That simply cannot be right.”

In conclusion, the court found because the search was insufficiently tailored and inherently criminal, given the potential penalties that business owners faced, a criminal warrant supported by probable cause was required. A Blackie’s warrant would not be sufficient.

Despite this decision clearly denying the Blackie’s warrant, the government filed a nearly identical application with another federal judge, who transferred the matter back to the same judge. The court quickly affirmed its prior order and chastised the government for forum-shopping.

Conclusion

As a result of this case, the use of Blackie’s warrants appear to be constrained, although it is unclear whether ICE will continue to pursue such warrants.