YES!! ICE ENJOINED FROM MAKING WARRANTLESS ARRESTS OF IMMIGRANTS IN D.C.!
There has been so much news what with Kilmar Abrego Garcia, the orders in U.S. v. Epstein, and other pressing cases, that Molina v. DHS may have never come to your attention. But without much fanfare, earlier this month Judge Beryl Howell of the United States District Court for the District of Columbia *barred* ICE from making warrantless arrests of immigrants without the ICE agent first making specific determinations both that the person is a flight risk *and* that the person is in violation of immigration law.
This is a Pretty Big Deal. And I almost can’t wait for the appeal, to see how they are going to try to argue that they should be allowed to make illegal arrests.
You see, according to the Judge’s 88-page opinion (included for Notes from the Front members, along with the 4-page injunction), the existing law includes that, and I quote, “it is not a crime for a removable alien to remain present in the United States”.
In other words, the very fact that they are subject to removal, but are still here in the U.S., *is not a crime* (and therefore is not subject to a warrantless arrest, which generally requires a finding that the person is, you know, *committing a crime*). Remember that immigration court is a *civil* (administrative) court, and that immigration violations in and of themselves are *not criminal* offenses, they are civil offenses.
That means that in order for ICE to make a warrantless arrest there needs to be probable cause, specifically “probable cause to believe that the arrestee is likely to escape before an administrative warrant can be obtained.”
Now, it seems to me that the most likely reason that someone who has *intentionally* stayed in the U.S. even though they don’t have legal status, and not returned to their country of origin or another country, is because they *want to stay here*, not to “escape”.
This case was brought by several plaintiffs, including José Escobar Molina, and various immigrants’ rights agencies. Molina’s experience, which starts on page 8 of the Opinion, will have you seething, although somewhat shockingly it ends with an ICE supervisor *apologizing* to Molina!
What really makes my blood boil, as I’m sure it will yours, is the several stories of people who are here *legally*, who *had their papers with them*, and the ICE agents saying that it didn’t matter, they didn’t believe the papers, “you’re illegal”.
Of course, that’s also what makes this a good case.
Ah, such is the law. :~(
The Judge’s order includes:
“Any defendant or their agent who conducts a warrantless civil immigration arrest in the District of Columbia shall, as soon as practicable, document the facts and circumstances surrounding the warrantless civil immigration arrest in narrative form. This documentation shall include the specific, particularized facts that supported the agent’s pre-arrest probable cause to believe that the person is likely to escape before a warrant can be obtained, including the following facts that are required to be documented pursuant to the Department of Homeland Security’s “Broadcast Statement of Policy” on compliance with 8 U.S.C. § 1357(a)(2) “that the alien was arrested without a warrant”; “the location of the arrest and whether this location was a place of business, residence, vehicle, or a public area”; “the alien’s ties to the community, if known at the time of arrest, including family, home, or employment”; and “the specific, particularized facts supporting the conclusion that the alien was likely to escape before a warrant could be obtained.
The documentation shall include the date and time of the arrest, and the date and time the agent completed the documentation; (2) In describing the individualized assessment of escape risk in the documentation ordered above, specific details as to the person being arrested must be provided such that the use of boilerplate language may be deemed indicative of noncompliance.”
That “Broadcast Statement of Policy” (in other words ICE’s warrantless arrest policy) is included for Notes from the Front members as well.
Oh, and by the way, the Judge also provisionally certified this as a class action! The injunction protects the class of “All persons who, since August 11, 2025, have been or will be arrested in this District for alleged immigration violations without a warrant and without a pre-arrest, individualized assessment of probable cause that the person poses an escape risk.”
Before anyone asks, no, this *doesn’t* apply to anyone outside of D.C., that’s what the “in this District” in the class definition means. But it *is* a template for other districts.
As a finishing touch Judge Howell ordered the Plaintiffs to post a bond of… yep… $1.
Notes from the Front members: the Opinion, Order, and ICE’s Warrantless Arrest Policy, are all in your inbox.
To protect myself from claims of improper republication, and trolls, I don’t publicly share documents I find, I make them available privately to Notes from the Front members. Some of them may be public, and you can probably find them yourself if you want to spend the hours that I do looking for them, but then you wouldn’t get the explanations and insights based on my decades of law practice and as a law professor, nor the snark that I inject into those explanations. ;~) And honestly, $5 a month is less than you would pay for a minute of lawyer time anywhere else. You can join below for immediate access to all of the documents, our private chat, etc.. – it’s $5 a month and it’s fine to join and then cancel if you only want certain documents.
https://annepmitchell.substack.com/p/yes-ice-enjoined-from-making-warrantless
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