California Federal Judge Bars ICE from Immigration Court Arrests

On June 23, Judge P. Casey Pitts of the U.S. District Court for the Northern District of California (N.D. Calif.) issued an order vacating 2025 ICE and DOJ policy memos that allowed for civil immigration enforcement in and around the nation’s immigration courts. You read that correctly: The court barred immigration officers from doing what immigration officers are sworn to do in immigration courts. It reminds me of the President Merkin Muffley (Peter Sellers) line from Stanley Kubrick’s 1964 classic Dr. Strangelove: “Gentlemen, you can't fight in here! This is the War Room.”

How I Learned to Stop Worrying and Love Non-Enforcement

Technically, the full title of that dark comedy was Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb, and if you strike “the bomb” and insert “non-enforcement”, you’ll get an idea how this started.

As Judge Pitts explained, in 2014 and 2015 (under the last years of the Obama administration, when the “deporter-in-chief” as he was once known backed off deportations), “ICE issued internal guidance stating that civil enforcement actions at or near courthouses would be undertaken only against [aliens] whom ICE had a heightened interest in detaining immediately”, such as criminals and national-security threats.

Note how I said, “courthouses”, not “immigration courts”, because that policy applied to courthouses generally.

Trump I modified that policy somewhat in 2018, but in April 2021 — in the midst of the Biden administration’s efforts to tightly restrain immigration enforcement — acting ICE Director Tae Johnson issued a new policy memo rescinding the 2018 guidance and limiting enforcement actions at “any municipal, county, state, federal, tribal, or territorial courthouse, including immigration courts”. (Emphasis added.)

Rewinding briefly, under the Clinton administration in 1996, the Executive Office for Immigration Review (EOIR), the DOJ component that oversees the immigration courts and the Board of Immigration Appeals (BIA), issued its own memo, “Arrests by INS Officers In or Near Immigration Court Facilities”.

Attached to that memo was a memorandum of understanding (MOU) between EOIR and the then-Immigration and Naturalization Service (the referenced “INS”), which stated, inter alia, “There will be no arrests in the courtroom, except in exigent circumstances.”

Admittedly, I was a trial attorney with the INS during that period and later served as an immigration judge between 2006 and 2015 yet have no memory of that EOIR memo because it had so little impact.

In any event, more than two years after Tae Johnson issued his courthouse arrest memo, EOIR issued new guidance (“Enforcement Actions in or Near OCIJ Space”), which “concurred” with the April 2021 ICE memo and expanded the restrictions on enforcement to immigration court “offices, conference rooms, pro bono rooms, courtrooms, hallways, waiting areas, restrooms, elevator banks, or any other space on any floor of a federal or commercial building where” the immigration court “conducts business”.

Not that there was any way EOIR could have enforced that policy, though I seriously doubt that the Biden administration was going to allow then-Attorney General Merrick Garland (for EOIR) and then-DHS Secretary Alejandro Mayorkas (for ICE) to get into a fistfight over the whole thing if they had disagreed.

“Gilding the non-enforcement lily” is likely the best way to describe that EOIR document, and notably unlike the 1996 guidance, its December 2023 update didn’t reflect any sort of agreement between the office and the immigration-enforcement components.

“ICE Reversed Course in January 2025”

“ICE reversed course in January 2025,” Judge Pitts explained, with ICE rescinding its 2021 guidance (as it did with most immigration policies Tae Johnson and Mayorkas implemented) and implementing a new policy, “Interim Guidance: Civil Immigration Enforcement Actions in or near Courthouses”.

As it explained:

Federal, state, and local law enforcement agencies routinely engage in enforcement activities in or near courthouses because many individuals appear in courthouses for unrelated criminal or civil violations. Individuals entering courthouses are typically screened by law enforcement personnel to search for weapons and other contraband. Accordingly, when ICE engages in civil immigration enforcement actions in or near courthouses it can reduce safety risks to the public, targeted alien(s), and ICE officers and agents.

While it basically tracked the 2018 guidance with respect to aliens posing public-safety threats, that January 2021 memo included among its “targeted aliens” for whom courthouse arrests were permitted “aliens who have been ordered removed from the United States but have failed to depart; and/or aliens who have re-entered the country illegally after being removed”.

A week after that ICE guidance was issued, on January 28, 2025, EOIR issued its own superseding policy document, the “Rescind and Cancel Operating Policies and Procedures Memorandum”, which revoked the office’s December 2023 guidelines.

Asserting that the bases for its earlier guidance were “unpersuasive, inconsistent with current Executive Branch policy, pretextual, or unsubstantiated on any systematic basis” and rested largely on the Tae Johnson guidance, that EOIR memo noted (logically) that the office “lacks the authority to prohibit DHS from conducting any action it is otherwise lawfully authorized to take”, and thus its rescinded policy “was likely ultra vires”.

Consequently, the January 2025 guidance placed no limits on immigration enforcement or EOIR policy.

That interim guidance was followed in late May 2025 by a new memo issued by then-acting ICE Director Todd Lyons, “Civil Immigration Enforcement Actions In or Near Courthouses”, which essentially reiterated the earlier version.

Neither the interim nor the final 2025 ICE guidance memos specifically mentioned immigration courts, and as per Judge Pitts’s decision, it’s not entirely clear whether they do apply to those tribunals or if so, how.

That said, the judge concluded that following the issuance of both new guidance memos, “ICE sharply increased its civil enforcement activity at immigration courthouses in northern California”, and nothing in the record suggested that immigration officers “have targeted only noncitizens [Judge Pitts’s term] in high-priority groups”.

The Court’s Opinion

The alien plaintiffs challenged the ICE and EOIR “immigration enforcement in immigration court” policies (which Judge Pitts referred to as the “courthouse arrest policies”), as well as a separate policy dealing with how long arrested aliens could be held in temporary holding facilities, and I will skip over the tortured litigation history to get to the court’s latest order on the former.

The court concluded, over the government’s objections, both that the courthouse arrest policies are “final agency action” and therefore reviewable under the Administrative Procedure Act (“APA”, which governs review of agency decision making) and were not “committed to agency discretion by law”.

In addition, he concluded that the plaintiffs’ challenges were not unreviewable under a separate section of the APA or under section 236(e) of the Immigration and Nationality Act (INA) and found the plaintiffs had no other “adequate remedies in court” that would have precluded APA review.

Overly simplistically, Judge Pitts held that when ICE and EOIR rescinded their Biden-era policies (and in EOIR’s case, its 1996 Clinton-era policy), those agencies were required to elucidate its reasons for changing those policies and address the concerns that purportedly drove their earlier restrictions, and because they failed to do so, both policies must be vacated.

His additional specific reasoning on EOIR’s rescission of its prior policies is slightly more convoluted: “Even if EOIR is correct that it lacks authority to restrict enforcement activities in its own courthouses, EOIR’s new policy is arbitrary and capricious because it is based on the false premise that ICE had validly rescinded its 2021 guidance.”

Regardless, more or less the same points underlie his conclusions about both policies.

A Misunderstanding of Immigration History

As I have explained in the past, prior to 1983, immigration judges were employees of the then-INS, the precursor to CBP, ICE, and USCIS — and had been since the INA was first promulgated in 1952 (when they were called “special inquiry officers”).

As section 101(b)(4) of the INA (1952) explained:

The term "special inquiry officer" means any immigration officer who the Attorney General deems specially qualified to conduct specified classes of proceedings, in whole or in part, required by this Act to be conducted by or before a special inquiry officer and who is designated and selected by the Attorney General, individually or by regulation, to conduct such proceedings.

That process was so informal that section 242(b) of the 1952 INA had to explain: “No special inquiry officer shall conduct a proceeding in any case under this section in which he shall have participated in investigative functions or in which he shall have participated (except as provided in this subsection) in prosecuting functions.”

When EOIR was created in 1983, that office was formally separated from the INS, but there is still a lot of interplay between that office and the current immigration enforcement units.

Here are three examples, two anecdotal, one statutory. First the anecdotes.

When I was a trial attorney for the INS in the federal building at 630 Sansome in San Francisco (the prime locus of much of Judge Pitts’s analysis), my office was down the hall from the immigration court, while INS’s operational units (including “Detention, Deportation, and Parole”, or “DD&P”, the precursor to ICE Enforcement and Removal Operations, “ERO”) were four stories above and two below.

In that vein, when I was an immigration judge, my chambers were off my courtroom and ICE was literally across the hallway from the public entrance to my courtroom.

Why, given those set-ups, would ICE think the immigration court or its periphery was off-limits to its officers, aside from some poorly publicized 1996 policy whose sole authority came from an agreement (which is what an MOU is) between the then-INS and EOIR?

Now, the statutory. Here’s how the INA defines the term “immigration judge” at section 101(b)(4):

The term "immigration judge" means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under [section 240 of the INA]. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service. [Emphasis added.]

That’s not an artifact like the 1952 definition of “special inquiry officer” — it’s the current law.

Until passage of the Homeland Security Act of 2002 (“HSA”, which created DHS), immigration officers at INS and immigration judges in EOIR were both within DOJ, both shared a common set of regulations (and to a degree still do), and both answered to the same ultimate boss (the attorney general).

And having assisted in the drafting of the HSA (with my then-boss and now-colleague George Fishman), I can assure you that Congress then had no intention of driving a wedge between that department or any of its components (such as ICE) and EOIR that didn’t exist prior to passage.

In fact, section 445(b) of the HSA specifically requires the DHS secretary to “consult with” (among other officials) the EOIR director in compiling a plan for Congress on how to “enforce comprehensively, effectively, and fairly all the enforcement provisions of” the INA. (Emphasis added.)

And yet, Judge P. Casey Pitts of the N.D. Calif. concluded that both ICE and EOIR should have directly specified how immigration officers would enforce immigration laws in immigration court, and in doing so should have specifically addressed questionable and unproven concerns that an administration that was uniquely unconcerned about immigration enforcement had about the presence of immigration officers near immigration courts.

The “Removal Period” in Section 241(a) of the INA and the Laken Riley Act

In response to Judge Pitts’s order, DHS General Counsel James Percival tweeted:

Percival didn’t specifically cite to section 241(a) of the INA, but it’s the gist of his tweet. Let me explain.

Under section 241(a)(1)(A) of the INA, with limited exceptions, “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’)”, and under clause (B)(i) of that provision, that removal period clock starts at the point “the order of removal becomes administratively final”.

(As an aside, “Attorney General” there is yet another vestige of the pre-HSA Immigration and Nationality Act, and it is commonly accepted that the described duty is now assigned to the DHS secretary and delegated to ICE ERO.)

Section 241(a)(2)(A) of the INA, in turn, states that “during the removal period, the Attorney General [now DHS with delegation to ICE ERO] shall detain the alien”. (Emphasis added.)

In other words, the moment an “order of removal becomes administratively final”, ICE ERO is required to take the alien into custody, and by regulation at 8 C.F.R. § 1241.1(b), that happens when an immigration judge orders an alien removed and the alien waives appeal.

It’s beyond cavil that this regulation complies with the APA: It’s been in the Code of Federal Regulations for 29 years, when it was codified as 8 C.F.R. § 241.1(b) and EOIR and INS shared the same common set of regulations (it’s since been moved to the back of the code book).

Yet under Judge Pitts’s order, ICE ERO can’t come into immigration courtrooms to take custody of aliens who are ordered deported and waive appeal, frustrating Congress’s clear intent throughout section 241(a) of the INA.

The same is true of section 236(c)(1)(E) of the INA as amended by the Laken Riley Act (LRA).

That provision now requires ICE to take custody of any illegal entrant who “admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, shoplifting, or assault of a law enforcement officer offense, or any crime that results in death or serious bodily injury to another person”, as soon as that admission is given.

Absent a conviction for such offenses, many of those admissions occur in immigration court, when the ICE attorney confronts the alien about his or her criminal history and the aliens concedes having committed an offense.

And there is nothing vestigial about the LRA: It was passed on a bipartisan basis last January and was the first bill sent to the president’s desk during the current 119^th Congress (hence its Public Law number, “119-1”).

The Tightly Woven History of Immigration Enforcement and Adjudication

The government has already appealed “several of” Judge Pitts’ prior rulings in this case (formally: Pablo Sequen v. Albarran) to the Ninth Circuit, as he notes in his decision, so expect this latest order to join them.

Higher courts will sort out the legal issues, but the fundamental factual issue with Judge Pitts’s order de facto banning ICE from immigration court is that he never even acknowledges the tightly woven history shared by immigration enforcement and adjudication. There may be no fighting in the war room, but the INA requires immigration enforcement in immigration court.