DC Court Orders ICE To Stop Engaging In Warrantless Arrests

Judge Beryl Howell has now told ICE at least twice: it's not allowed to grade its own papers.

Since Trump's return to office, the federal government has been engaged in a months-long purge of anyone who looks a bit foreign. ICE has increasingly relied on administrative warrants to do everything including enter homes to effect arrests of people who've only allegedly engaged in civil violations.

Don't let the word warrant" fool you. No judge has signed off on these so-called warrants, and they're certainly not capable - constitutionally-speaking - of granting ICE officers the legal authority to effect arrests of people who would normally just be given a summons, much less allow them to enter people's homes.

But that was the way things went for several months before dozens of courts and hundreds of decisions told ICE otherwise. With courts ordering ICE to stop arresting people without judicial warrants, ICE had to walk back its aggression a bit. But only a bit. What's being addressed by a second order by this same DC federal court is representative of ICE's day-to-day activities around the nation.

This court had already ordered ICE to cease its warrantless arrests of immigrants it couldn't actually show might pose a flight risk if not locked up. Even policy clarification issued by acting ICE head Todd Lyons in the wake of dozens of courtroom losses failed to change anything in DC. The most reasonable explanation for this apparently deliberate failure" to comply with court orders and the Constitution is that no one in ICE actually believes Todd Lyons will ever hold any ICE officer accountable.

Judge Howell's order [PDF] says ICE and its current director are playing word games in hopes of keeping the arrest rate up, defining escape risk" so loosely it would be almost impossible for any migrant accosted by federal officers to be considered anything else than immediately arrestable.

Plaintiffs raise no issue with the Lyons Memo's initial definition of escape risk" to mean whether an immigration officer determines [an individual] is unlikely to be located at the scene of the encounter or another clearly identifiable location once an administrative warrant is obtained," Lyons Memo at 4 (emphasis added)-and therefore the sufficiency of this definition to reflect the meaning in the statutory text of likely to escape" is assumed for purposes of resolving this motion.

Subsequent descriptions in the Memo, however, drop the italicized phrase thereby effectively limiting the immigration officer's analysis to whether an individual is likely to remain at the scene of the encounter."

This is a deliberate move by ICE and its leadership, dropping a phrase that would strongly suggest migrants who are attending court-ordered check-ins or otherwise working their way towards naturalization/asylum aren't escape risks" because they clearly desire to remain involved in the naturalization process. But ICE has racked up a whole lot of arrests at immigration courts because that's a place lazy, opportunistic officers are guaranteed to come across undocumented migrants.

The end result of this one-two punch is exactly what one would expect it to be. And it definitely doesn't look constitutional. It looks like a purge enabled by the administration's constant refusal to play by the rules. (All emphasis mine.)

Indeed, historically, federal civil immigration enforcement did not rely on costly mass arrests and detention centers to address the issue of law-abiding noncitizens without legal status in this country, but rather issued summonses to bring them before immigration authorities. As the Supreme Court has made clear, it is not a crime for a removable alien to remain present in the United States," and [i]f the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent." Arizona v. United States, 567 U.S. 387, 407 (2012).

[...]

The current administration's apparent reliance on arrests as a routine method of immigration enforcement is a departure from statutory text and historical understanding...

And while a lot of the reasoning sides with the government (due mostly to the court deciding to grant it an assumption of good faith that this administration definitely doesn't deserve), Judge Howell still says there's a lot going on here that could - and should - result in a permanent injunction forbidding this flagrant disregard for civil rights.

To be clear, this memorandum opinion does not render any final conclusions about the legality of the challenged policy and practice, which is left for future proceedings after discovery and briefing on dispositive motions. The determination, at this juncture, that certain factors outlined in the Lyons Memo are compliant with the preliminary injunction order is not to say that those factors would survive APA review at final judgment with the benefit of a full record. Nor does this determination suggest that every warrantless civil arrest predicated on consideration of those factors would satisfy the probable cause requirement under 8 U.S.C. 1357(a)(2). Indeed some of the Form I-213s and the accompanying declarations in the record contain, simultaneously, dubious reasons for finding escape risk and highly concerning facts about the arrest[s].

And there will be more on the record. The judge grants the plaintiffs' expanded discovery request while simultaneously reiterating that the court's previous order needs to actually be followed by ICE, rather than just alluded to in policy memos that appear intended to give the agency and its officers as much plausible deniability as possible.