ICE agents get green light to make unjustified warrantless arrests

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On Wednesday an email landed in the inboxes of all ICE employees with the subject: “Termination of Castañon-Nava Settlement Agreement.” For those unfamiliar, the settlement was the outcome of a class action lawsuit brought by people who had been subjected to unjustified warrantless arrests by Immigration and Customs Enforcement (ICE) during the first Trump administration when now-Border Czar Tom Homan was Acting Director. The parties involved entered into the agreement in May of 2022 wherein it became nationwide ICE policy that warrantless arrests must be documented in a specific manner to remain in compliance with the law. 

The terms of the settlement were given a three year duration, meaning it —by ICE’s definition, at least—expired last month. The email on Wednesday—a copy of which was shared with The Handbasket—was sent by ICE’s Principal Legal Advisor Charles Wall, and it made one thing clear: Agents are no longer constrained by the need to justify their warrantless arrests.

“What they are encouraging is for all the officers to violate the law, and now you don't even have to document it,” Mark Fleming, the Associate Director of Federal Litigation at the National Immigrant Justice Center (NIJC) who served as one of the attorneys on the case, told me on Thursday.

In Wall’s email he wrote: “Despite a pending motion to enforce the settlement agreement and a motion to extend the settlement agreement, it remains terminated. Accordingly, I hereby rescind the May 27, 2022, Castañon-Nava Settlement Obligation statement of policy.” Fleming disagreed with ICE’s assessment that the settlement is still terminated in the face of ongoing litigation.

To understand what’s changed now, it’s important to understand what the policy was under the settlement agreement. 

Warrantless arrests are not inherently illegal; however, under the first Trump administration, ICE ramped up their use with. The Castañon-Nava, et al. suit was brought because warrantless arrests were performed on people who in retrospect did not meet ICE’s recommended criteria for one: but at the time, there was no mechanism for accountability. That changed when the NJIC negotiated the terms. 

This is how it’s explained on their website:

“I think ultimately the significance of it [the settlement] was for the first time in a long time, ICE was going to actually comply with the limits of their warrantless arrest authority,” Fleming said. He made it clear that ICE has not been diligently observing this policy since Trump resumed office this year. As referenced in Wall’s email, NIJC has filed a motion to extend the terms because, “ICE has not been in substantial compliance with the settlement and consent decree over the last number of months.”

Fleming pointed to a recent case in Liberty, Missouri in which ICE raided a local restaurant to arrest one individual and ended up making 12 warrantless arrests—a clear violation of the policy that was created in response to the settlement. Naturally, the administration doesn’t seem to care.

“The ‘reason to believe’ standard requires probable cause to make an arrest,” Wall wrote in his email to ICE employees. “In considering the ‘likelihood of escape,’ an ICE officer or agent must consider the totality of the circumstances known to the officer before the arrest.” 

He added, “There is no exhaustive list of factors that should be considered in determining whether an individual is ‘likely to escape before a warrant can be obtained,’” and then rattled off the requirements in the settlement as possible “relevant”—but not required—”factors.” 

“At the time of arrest, or as soon as it is practical and safe to do so, ICE officers and agents shall identify themselves as immigration officers,” Wall wrote. 

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Fleming called the implications of Wall’s email “a very troubling step to basically permit officers to brazenly violate the law as it is written, in the limits of their authority, to make arrests. And particularly as we're looking at various threats to expand their enforcement in communities, it's very concerning that they're taking a step to lessen the guardrails of their enforcement.”

The reinstatement of the first Trump administration’s policy (or lack thereof) regarding warrantless arrests comes on the heels of an exclusive published by The Guardian last week which quotes emails from top immigration officials instructing agents to “turn the creative knob up to 11” and “push the envelope” when it comes to enforcement. They proposed achieving this by arrested undocumented people they come in contact with by chance, rather than targeted enforcement. That story also mentioned the Trump administration setting a quota of 3,000 immigrants arrested every day. Fleming thinks this massive number could have something to do with the announcements on warrantless arrests.

“I think for folks that don't want to follow the law, it's a free license to make any arrest, irrespective of what limits there might be that Congress has set,” Fleming said.  “And even for the others, there's a lot of pressure to make the arrests. And so they're going to cut even more corners.”

As we witnessed with the disturbingly violent treatment of Senator Alex Padilla (D-CA) by federal agents on Thursday when he tried to ask DHS Secretary of Homeland Security Kristi Noem a question at a press conference, there are few corners this administration isn’t willing to cut.