Francia García Hernández/Block Club ChicagoU.S. District Judge Jeffrey Cummings ruled that immigration agents must follow the Castañon Nava consent decree, which is still in effect.
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LOOP – A federal judge ruled Friday that U.S. Customs and Immigration Enforcement agents must follow a consent decree restricting their ability to arrest noncitizens without warrants or probable cause.
During a hearing Friday in which the ruling was announced, U.S. District Judge Jeffrey Cummings called an internal memo circulated last month within the agency “inconsistent” with existing law.
The internal memo shared with immigration agents last month expanded the ability of agents to detain people they encounter and suspect are undocumented immigrants, instead of doing targeted arrests with warrants, the New York Times first reported.
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Cummings ruled Friday afternoon that agents must follow the consent decree, which bans warrantless arrests unless agents have probable cause to believe someone is in the United States unlawfully and is a flight risk.
The ruling came after immigrant rights groups and civil rights groups asked the court to enforce the 2022 consent decree instead of allowing the immigration agency to follow the internal memo.
The original 2018 lawsuit that led to what’s known as the Castañon Nava consent decree stemmed from an ICE enforcement operation in the Chicago area. Of 156 arrests during the operation, more than 100 were made without a warrant. Margarito Castañon Nava filed the lawsuit after he was detained by immigration agents during a Chicago traffic stop in May 2018.
One of the requirements of the consent decree, accepted by the government in 2022, was that it would adopt the policy regarding making warrantless arrests for immigration agents nationwide, according to the consent decree.
During the hearing, James Walker, an attorney for the Department of Homeland Security, said the department maintains the memo and the consent decree’s policies coexist and are not necessarily in conflict. Walker made his appearance via teleconferencing.
“We feel more motivated than ever after the hearing we just had, and the various orders that are going to be coming out to finally force this administration to honor the consent decree, and, frankly, to start following the law when it comes to warrantless arrests,” said Mark Fleming, associate director of litigation for the National Immigrant Justice Center, after the hearing Friday.
No attorney representing the government spoke to reporters following the hearing. A spokesperson for ICE and the Department of Homeland Security did not immediately respond to a request for comment.
In the hearing Friday afternoon, Cummings said the agency’s internal memo raises potential issues with how federal agents interpret it to justify a warrantless arrest. He also ruled that the consent decree, which was set to expire Feb. 2, is still in effect because plaintiffs have filed three motions reporting violations of the consent decree and court orders in the litigation.
“Until this decree is done, that broadcast policy statement remains in effect,” he said, referring to the policy being broadly shared with all agents in the country.
The decision is one of the latest in litigation under the consent decree brought forward by the National Immigrant Justice Center and the American Civil Liberties Union of Illinois over warrantless arrests made by ICE last year, before and during Operation Midway Blitz. Cummings previously ruled that the agency violated the consent decree with dozens of warrantless arrests in Chicago and ordered the federal government share arrest documents to review potentially hundreds of additional violations.
In another significant development Friday, Cummings also ruled that noncitizens who were detained in violation of the consent decree should be released without conditions, as spelled out in the consent decree.
The decision comes after people who have been released from detention have been placed under parole or asked to report for ICE check-ins, a “garbage argument” by the Department of Homeland Security that goes against the consent decree, said Michelle García, deputy legal director for the ACLU of Illinois, also after the hearing.
Cummings also ordered the Department of Homeland Security to share with attorneys the records of all warrantless arrests and those made with administrative warrants during Operation Midway Blitz.
Attorneys for immigrants have argued that arrests during which people were handcuffed before agents filled out an administrative warrant also violate the consent decree. A decision on that contention is yet to be made by the U.S. Court of Appeals for the Seventh Circuit.
Arrest documents reviewed by attorneys show that hundreds, if not thousands, of arrests during Operation Midway Blitz were made without warrants or with administrative warrants that were filled out after a noncitizen was detained, Fleming said.
“We haven’t seen a single arrest record where there has been a proper probable-cause or likelihood-to-escape analysis,” Fleming said after court.
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On Friday, Cummings repeatedly questioned how Immigration and Customs Enforcement and Border Patrol could have made targeted arrests if they did not have a warrant, an alien registration number, or information about the person being arrested. The Department of Homeland Security has said federal agents made targeted arrests during Operation Midway Blitz, contradicting reports that agents decided who to arrest sometimes based on the way they looked.
“I know there are people that you don’t know are here, but how would you do a targeted arrest of someone you didn’t know about, or ICE didn’t know about?” Cummings said in the hearing.
The court is set to review the cases of 53 noncitizens who appear to have been arrested in violation of the consent decree, Fleming said after the hearing. More than 120 additional cases are still being adjudicated and hundreds more could be reviewed once the government shares records for hundreds of warrantless arrests made in October and November during Operation Midway Blitz, Fleming said.
Lawyers had also requested the federal court’s intervention to speed the release of people who are still in facilities across the country and should have been released. On Friday, Cummings ordered that federal agents release by 5 p.m. Monday five people who already should have been released from detention.
Cummings ordered federal officials to give 12 hours’ notice to attorneys when a noncitizen will be released from detention so they can safely return to their homes, something that has not happened for people recently released from facilities across the country.
Walker said in the hearing that Homeland Security wouldn’t want to give advance notice when someone is being released because of a “law enforcement concern with projecting activities in advance,” but could not explain why when questioned by Cummings.
Recently, an immigration attorney reached out and indicated that their client was released in El Paso, Texas at 11 p.m. and was sitting at a restaurant across the street, Fleming said.
“I’d like to see that avoided. After someone is being released, there is no need for, what could be seen as additional punishment,” Cummings said.
Cummings also ordered the Department of Homeland Security to provide certified weekly reports of how many arrest records were shared with attorneys and people who were unlawfully arrested were released without conditions. The first report is due Feb. 20.
