DOJ Admits ICE Has Engaged In Illegal Courthouse Arrests For Most Of The Past Year

This is big. This is going to cause a whole lot of problems for the administration in the hundreds of ICE-related lawsuits it’s defending itself against. It’s a Perry Mason moment, albeit one that implicates the entity delivering it, rather than the other way around. (h/t Chris Geidner on Bluesky)

As we are all painfully aware, ICE operations since Trump returned to office have immediately strayed from the stated “worst of the worst” purpose to going after pretty much anyone who isn’t white. That means ICE officers are staking out any place day laborers might be hanging out, raiding any business that might employ migrant labor, roaming the streets in unmarked cars and masks to snatch up foreign-looking people, and — in what has always been extremely controversial — hanging around immigration courts to arrest migrants engaging in their court-ordered check-ins.

All of it is awful, but deliberately targeting people who are following all of the rules that allow them to remain in the US is particularly despicable. That’s what ICE and other DHS components have been doing: making the easiest, laziest arrests possible to satisfy White House advisor Stephen Miller’s ever-escalating arrest quota.

The administration has spent the last year claiming immigration court arrests are not only legal, but fully supported by ICE policy. Officials (and DOJ lawyers) have said this despite this never being the case before Trump’s return to office.

Now, we know it isn’t true. Bizarrely, this revelation isn’t the result of FOIA requests or court discovery orders. It comes from the DOJ itself, which delivered this unexpected twist in the mass deportation saga in a March 24 filing in a case being handled by the Southern District of New York.

Here’s the essence of the admission made by the DOJ in its letter to the court [PDF]:

We write respectfully and regrettably to correct a material mistaken statement of fact that the Government made to the Court and Plaintiffs. Specifically, this morning, counsel from U.S. Immigration and Customs Enforcement (“ICE”) informed the undersigned of the following: the memorandum entitled Civil Immigration Enforcement Actions in or Near Courthouses, dated May 27, 2025 – which the Government relied on in presenting its arguments in this case and referred to as the “2025 ICE Guidance” – does not and has never applied to civil immigration enforcement actions in or near Executive Office for Immigration Review (“EOIR”) immigration courts.

Holy shit. That’s huge. And the DOJ knows it. The letter goes on to inform the court that the DOJ will be reversing the stance it took in several filings in this case. It also acknowledges that the court opinion based on its previous (and perhaps unknowing) misrepresentations will need to rescinded and re-briefed.

The ACLU’s response to the DOJ’s filing drives the point home further:

[T]he government now concedes the May 2025 ICE memorandum—which it previously asserted authorized arrests at immigration courthouses, provided guidance minimizing the harms of such arrests, and explained the agency’s reasoning for abandoning a prior policy largely prohibiting such arrests—in fact has never applied to such arrests. Accordingly, it further concedes the government’s primary defense to Plaintiffs’ claim that the Immigration Court Arrest Policy is arbitrary and capricious in violation of the Administrative Procedure Act must be “withdraw[n]…”

[…]

The implications of this development are far-reaching. In the months since the Court relied on the government’s representation to deny Plaintiffs preliminary relief, Defendants have continued arresting noncitizens at their immigration court hearings, resulting in their detention—often in facilities hundreds of miles away.

The email cited in the DOJ’s letter was issued by Liana J. Castano, the assistant direct of ICE field operations on March 19. In bold print, the memo says this:

This broadcast serves as a reminder that the May 27, 2025, Guidance does not apply to Executive Office for Immigration Review (Immigration) courts, regardless of their location. As stated in the Guidance, it also does not apply to criminal immigration enforcement actions inside courthouses.

Out of context, “does not apply” might seem like it contradicts the DOJ’s assertion. It doesn’t. Here’s the context, provided by the original memo [PDF], which has been posted to ICE’s website:

ICE officers or agents may conduct civil immigration enforcement actions in or near courthouses when they have credible information that leads them to believe the targeted alien(s) is or will be present at a specific location.

Additionally, civil immigration enforcement actions in or near courthouses should, to the extent practicable, continue to take place in non-public areas of the courthouse, be conducted in collaboration with court security staff, and utilize the court building’s non-public entrances and exits. When practicable, ICE officers and agents will conduct civil immigration enforcement actions against targeted aliens discreetly to minimize their impact on court proceedings.

You can see the problem here: the original memo (issued May 27, 2025) says ICE officers can engage in enforcement efforts “in or near courthouses.” There’s a single caveat, but not one that specifically says immigration courts are off-limits:

ICE officers and agents should generally avoid enforcement actions in or near courthouses, or areas within courthouses that are wholly dedicated to non-criminal proceedings (e.g., family court, small claims court).

That doesn’t specifically exclude immigration courts, although those courts only handle non-criminal proceedings because immigration law violations are civil violations. There’s other language in the memo that further muddies the water:

Other aliens encountered during a civil immigration enforcement action in or near a courthouse, such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding, may be subject to civil immigration enforcement action on a case-by-case basis considering the totality of the circumstances.

This doesn’t specify whether these court appearances are criminal or civil. It just says ICE officers can take advantage of the situation to rack up some ancillary arrests.

I’m not sure what happened recently that would have prompted this clarification. Maybe there’s been an internal change of heart by ICE leadership. Maybe ICE’s legal team was unable to find a way to make these courthouse arrests legally defensible. In any event, the clarification was issued, well after tons of damage has already been done.

While it kind of looks like ICE leadership is throwing front line officers under the bus by issuing after-the-fact clarification of a vaguely worded memo issued 10 months ago, I wouldn’t worry about the ICE officers. It’s mostly an imaginary bus, since it’s almost impossible to sue federal officers and the original memo provides enough plausible deniability that qualified immunity would foreclose any lawsuit that managed to make its way past the initial Bivens barrier.

As irritating as that is, the important thing is that the DOJ has stated, in court, that pretty much any immigration courthouse arrest performed by federal officers was illegal. And that’s going to make it way easier to sue the government itself over its mass deportation program.