In two cases, one in Washington, D.C., and the other in Chicago (on appeal to the Seventh Circuit), separate U.S. district court judges are attempting to micromanage how immigration officers conduct “warrantless” arrests of aliens found in the United States. Their orders appear to ignore a 1984 Supreme Court opinion and blow past limitations Congress placed on the lowest rung of the federal judiciary in immigration matters. The sooner the justices flesh out the authority of such “trial-level” federal courts, the better.
Escobar Molina v. U.S. DHS
On December 2, Judge Beryl A. Howell of the U.S. District Court for the District of Columbia (D. D.C.) issued an opinion in Escobar Molina v. U.S. DHS.
You’re likely unfamiliar with the case name, or the judge (a former D. D.C. chief judge appointed in 2010 by President Obama who’s now on senior status), but you likely read analyses of what she held in the New York Times (“Federal Judge Bars Some Warrantless Immigration Arrests in D.C.”), or the Washington Post (“Federal judge limits warrantless immigration arrests in D.C.”), or Politico (“Judge limits warrantless immigration arrests in DC”), or NBC News (“Judge issues injunction restricting immigration arrests in nation's capital”).
Much of what Judge Howell said wasn’t much different from my explanation of the laws surrounding immigration stops and arrests back in July, when I was (admittedly) criticizing a similar order issued by a different district court judge in California that was later stayed by the Supreme Court.
In short, immigration officers by regulation can talk to anyone, but as soon as that person believes he or she isn’t free to walk away, those officers must have “reasonable suspicion” that person is doing something illegal to briefly detain that person for further questioning.
Reasonable suspicion is a fact-based determination, and the problem with that California order was that many of the facts officers were relying upon were imminently relevant to whether someone is here illegally, but the judge ruled them out of bounds anyway.
“Arresting” a suspected illegal alien requires a more determination, however.
Section 236(a) of the Immigration and Nationality Act (INA) permits officers to arrest and detain an alien pending removal proceedings with an administrative warrant, and when officers go looking for specific aliens, they prepare warrants in advance. But what about the other aliens they encounter who aren’t specific targets, and for whom officers don’t have a warrant?
Congress knew that would occur as well, which is why section 287(a)(2) of the INA allows officers to engage in “warrantless” arrests; that authority, however, comes with some important caveats.
Specifically, that provision states that even without a warrant, an immigration officer may:
arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.
“Reason to believe” in that context has been interpreted to be equivalent to the standard other law enforcement officers must satisfy to make a criminal arrest: “probable cause”.
Probable cause is another fact-based determination, and as the Legal Information Institute (LII) explains, it exists “when the facts and circumstances within an officer’s knowledge would lead a reasonable person to believe that a crime has been committed (for an arrest)”.
Substitute “that an individual is a removable alien” for “that a crime has been committed” in that excerpt and you will understand the level of awareness officers must possess to make an immigration arrest.
At issue in Escobar Molina is a claim that immigration officers are making warrantless arrests without first determining whether there was probable cause to believe those aliens were “likely to escape before a warrant” could be obtained.
Judge Howell concluded they were, and her accompanying order requires immigration officers making warrantless arrests in D.C. to “document the facts and circumstances surrounding the warrantless civil immigration arrest in narrative form”, and to make that documentation available to counsel for the plaintiffs.
“High-Ranking Officials” vs. “Noncitizens”
DOJ’s case was complicated by statements from what the court described as “high-ranking” government officials who used the term “reasonable suspicion” to describe the standard for immigration arrests (again, it’s “probable cause”), and notably, Judge Howell also excoriated (at the outset) those “high-ranking officials” for “viewing all immigrants potentially subject to removal as criminals” as “plain wrong”.
I readily concede the first point and would likely concur to a degree about the second as well, were it not for the fact the judge then proceeded to use the equally legally inapt term “noncitizen” 24 times in her decision.
This is not a purely semantic complaint. “Noncitizen” is legally undefined, but to the degree I’d interpret it, it means anyone who is not a “citizen” of the United States.
The problem is that the INA doesn’t apply to a discrete class of individuals who aren’t “citizens of the United States” but who are “nationals” of this country, specifically people born in the U.S. territories of American Samoa and Swains Island. The rest of us are both “citizens” and “nationals” (for now).
The INA does, however, apply to anybody who is an “alien”, defined in section 101(a)(3) of the INA as “any person not a citizen or national of the United States” (emphasis added).
Thus, “alien” is not a derogatory term, it’s the (correct) legal one, and in DHS v. Regents — a case Judge Howell cited — Chief Justice Roberts noted that if “men must turn square corners when they deal with the Government” (as Justice Oliver Wendell Holmes proclaimed) “the Government should turn square corners in dealing with the people”.
Respectfully, the judiciary is part of the “government”, and if Judge Howell wants to police the language the executive branch is using, she should first set a good example herself.
Policy Issues and the Political Branches
Keep in mind, that complaint about the executive branch “viewing all immigrants potentially subject to removal as criminals” appeared in the first paragraph of the court’s 88-page opinion, and that paragraph ended as follows:
Consequently, viewing all immigrants potentially subject to removal as criminals is, as a legal matter, plain wrong. Second, immigration policy is indisputably important and “can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.” Treating all immigrants potentially subject to removal as if they were criminals highlights the Supreme Court’s wise caution that “[p]erceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.” [Citations omitted.]
That may all be true, but the quotes in that passage come from the Supreme Court’s 2012 opinion in Arizona v. U.S., where Justice Kennedy explained why “[t]he federal power to determine immigration policy is well settled” and leaves the states little room to make their own immigration laws.
Under the “plenary power” doctrine, the Constitution almost exclusively vests “the federal power to determine immigration policy” to the two “political branches” of the federal government, the executive and Congress.
The judiciary has power to review immigration cases, and to examine agency actions and interpret the INA and regulations, but it has no power to determine immigration policy. That excerpt above, however, suggests that’s exactly what the D. D.C. is attempting to do.
INS v. Lopez-Mendoza
Again, that excerpt is from the very first paragraph of Judge Howell’s opinion, and colors much that she says thereafter.
Which brings me to the Supreme Court’s 1984 opinion in INS v. Lopez-Mendoza, where the Court found the “exclusionary rule”, which LII explains “prevents the government from using most evidence gathered in violation of the United States Constitution”, didn’t apply in deportation proceedings.
Lopez-Mendoza involved warrantless worksite arrests of two separate aliens here illegally.
The named respondent, Lopez-Mendoza, claimed his arrest was illegal and therefore his subsequent deportation proceedings should be terminated.
Justice O’Connor, writing for the majority, made short work of that claim, finding the Board of Immigration Appeals “correctly ruled that ‘the mere fact of an illegal arrest has no bearing on a subsequent deportation proceeding’”.
The other respondent, Sandoval-Sanchez, made a different argument, claiming the evidence offered by the government at his deportation hearing, which was based on statements he made following his allegedly illegal arrest, should be suppressed under the exclusionary rule.
Justice O’Connor went into an in-depth analysis explaining why that rule shouldn’t apply in the civil immigration context, including that:
the social costs of applying the exclusionary rule in deportation proceedings are both unusual and significant. The first cost is one that is unique to continuing violations of the law. Applying the exclusionary rule in proceedings that are intended not to punish past transgressions, but to prevent their continuance or renewal, would require the courts to close their eyes to ongoing violations of the law. This Court has never before accepted costs of this character in applying the exclusionary rule. [Emphasis added.]
More importantly for purposes of the Court’s order in Escobar Molina, Justice O’Connor also noted: “A single agent may arrest many illegal aliens every day. Although the investigatory burden does not justify the commission of constitutional violations, the officers cannot be expected to compile elaborate, contemporaneous, written reports detailing the circumstances of every arrest.” (Emphasis added.)
Which brings me to the “documentation” immigration officers must “compile” for every warrantless arrest under Judge Howell’s order, which includes the following:
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.”
That sure looks like the court requiring immigration officers “to compile elaborate, contemporaneous, written reports detailing the circumstances of every arrest” — which Justice O’Connor concluded even the Constitution doesn’t require. But here’s how she got to that point.
Castañon Nava v. DHS
The “Broadcast Statement of Policy” referenced was issued by the Biden DHS in February 2022 when it settled a different case also involving warrantless arrests filed before a different district court judge (in Illinois), Castañon Nava v. DHS.
That policy, however, only applied to the six states under the jurisdiction of ICE’s Chicago field office (Illinois, Indiana, Kansas, Missouri, Kentucky, and Wisconsin), not the country as a whole and not the District of Columbia.
That agreement was supposed to expire on May 12, 2025, but Castañon Nava gained new life during DHS’s Chicagoland “Operation Midway Blitz”.
On November 7, Judge Jeffrey Cummings of the U.S. District Court for the Northern District of Illinois (N.D. Ill.) extended that agreement and on November 13 ordered the release of 13 aliens who were reportedly arrested in violation of it (and demanded the executive branch provide bond hearings for 615 others).
The government has filed an appeal with the Seventh Circuit, contending Judge Cummings exceeded his authority and that the Biden-era arrest agreement was fishy (with a DOJ lawyer asking, “What would stop the current administration from entering into a bunch of consent decrees to entrench their policy preferences on the next administration?”).
For now, Judge Cummings’ October 7 and November 13 orders are administratively stayed while the appellate court weighs how to proceed.
Consequently, as Judge Howell notes in her opinion, “the exact status of the Broadcast remains unclear” (DOJ’s arguments on this issue were confusing), but nonetheless that Broadcast drives the requirements in her order.
Limitations on District Court Review
That Biden-era settlement agreement aside, not much has changed in the INA or precedent since Lopez-Mendoza was issued in 1984 and, in fact, Judge Howell references it in her opinion (in citing to Arizona).
That said, it doesn’t appear the government cited Lopez-Mendoza in its opposition in Escobar Molina, either.
I may be missing something, but a Supreme Court opinion in which the majority explains why the courts shouldn’t unduly burden immigration officers when making warrantless arrests seems to have some salience to the issues in these cases — particularly given limitations Congress subsequently placed on district court review of immigration determinations.
Section 242 of the INA governs judicial review of immigration decisions, and as I have explained elsewhere, Congress took great pains to cut trial-level district court judges out of that process when it amended that provision in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and again in the REAL ID Act of 2005.
Specifically, section 242(a)(5) states that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter” (emphasis added); and the “zipper clause”, section 242(b)(9) of the INA, makes clear that:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. [Emphasis added.]
Judge Howell attempts to distinguish those provisions, though the last appears to be dispositive given that the legality of an immigration arrest is a question of both law and fact, and that an arrest is an “action taken ... to remove an alien from the United States”.
Supreme Court Needs to Act
The Supreme Court hasn’t ruled dispositively on the authority of district courts to make rulings like the ones in Escobar Mendoza or Castañon Nava, but the sooner it does, the clearer jurisdiction will be and the better the immigration system will work.
Can trial-level judges micromanage how ICE conducts arrests? I have my opinions, but I’ll leave the final say to a High Court that has had some rather pointed views on that question in the not-so distant past.