A federal judge has ruled that U.S. Immigration and Customs Enforcement (ICE) agents must adhere to a consent decree limiting their authority to arrest noncitizens without warrants or probable cause.
U.S. District Judge Jeffrey Cummings made the decision on Friday, calling an internal memo issued by ICE last month “inconsistent” with current law. The memo reportedly broadened the scope for agents to detain individuals suspected of being undocumented immigrants, moving away from targeted arrests based on warrants.
Judge Cummings stated that ICE agents are required to follow the existing consent decree, which prohibits warrantless arrests unless there is probable cause that someone is in the country unlawfully and is considered a flight risk.
The court’s action came after immigrant rights and civil rights organizations requested enforcement of the 2022 consent decree rather than allowing ICE’s internal policy to take precedence. The legal agreement, known as the Castañon Nava consent decree, originated from a 2018 lawsuit following an ICE operation in Chicago where over 100 out of 156 arrests were made without warrants.
One provision of the consent decree, accepted by the government in 2022, requires that its policy on warrantless arrests apply nationwide for immigration agents.
James Walker, an attorney for the Department of Homeland Security (DHS), argued during Friday’s hearing that both the memo and the consent decree could coexist without conflict. He participated 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.
Government attorneys did not address reporters after court proceedings. Requests for comment from ICE and DHS have not been answered at this time.
During Friday’s hearing, Judge Cummings expressed concern about how federal agents might interpret agency guidance when making warrantless arrests. He also confirmed that although set to expire February 2nd, the consent decree remains active due to ongoing reports of violations filed by plaintiffs.
“Until this decree is done, that broadcast policy statement remains in effect,” he said about nationwide dissemination of policy requirements.
The latest ruling follows ongoing litigation led by groups such as the National Immigrant Justice Center and American Civil Liberties Union (ACLU) of Illinois regarding alleged unauthorized ICE arrests before and during Operation Midway Blitz. Previously, Judge Cummings found multiple violations of this agreement during operations in Chicago and ordered release of relevant arrest records for further review.
On Friday Judge Cummings also ruled noncitizens detained contrary to terms outlined in the agreement should be released unconditionally: “The decision comes after people who have been released from detention have been placed under parole or asked to report for ICE check-ins,” said Michelle García, deputy legal director for ACLU Illinois. She described DHS’s stance as a “garbage argument” contrary to what was agreed upon in court documents.
Additionally DHS was instructed by Judge Cummings to share all records relating both to warrantless detentions and those involving administrative warrants during Operation Midway Blitz with attorneys representing affected individuals. Attorneys claim many arrests involved handcuffing before administrative paperwork was completed—a point still under review by appellate courts.
Mark Fleming noted after reviewing available documents: “We haven’t seen a single arrest record where there has been a proper probable-cause or likelihood-to-escape analysis.”
In questioning federal representatives on Friday about how targeted enforcement actions could occur absent identifying information or warrants—especially during large-scale operations—Judge Cummings challenged claims made by DHS regarding operational practices: “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?”
Court review will continue concerning cases involving at least 53 noncitizens believed arrested outside guidelines set forth under court order; additional cases remain pending as attorneys await further documentation from recent months’ activities across multiple states.
Citing recent events where detainees were released late at night far from home communities—including one instance in El Paso—Judge Cummings emphasized need for advance notice so lawyers can arrange safe return: “I’d like to see that avoided. After someone is being released there is no need for what could be seen as additional punishment.”
Federal officials must now provide certified weekly updates on compliance efforts beginning February 20th including numbers pertaining both shared records with counsel and releases conducted without conditions attached.
