Judge restricts authority of ICE to make warrantless arrests

A federal judge in Colorado ruled Tuesday that ICE has been too aggressive in arresting unauthorized immigrants without warrants, saying agents had stretched an exception covering immigrants likely to flee beyond the breaking point when they arrested longtime immigrants who weren’t going to run.

District Judge R. Brooke Jackson, an Obama appointee, issued new rules restricting the ability of U.S. Immigration and Customs Enforcement to make arrests in Colorado.

He told agents they cannot simply arrest an immigrant for being in the country illegally, and must obtain an administrative warrant first, unless they have a particular reason to believe their target will flee.

Judge Jackson said that’s not likely in cases involving longtime unauthorized immigrants.

“Mere presence within the United States in violation of United States immigration law is not, by itself, sufficient to conclude that a person is likely to escape before a warrant for arrest can be obtained,” he wrote in his 66-page ruling.

The decision is a blow to “collateral arrests,” in which ICE officers seeking one person end up arresting other unauthorized immigrants they encounter.

Judge Jackson is the latest in a series of judges who have questioned ICE’s new and more aggressive approach to enforcing immigration law in the country’s interior.

The Washington Times has reached out to ICE for this story.

Deportation — the punishment for people who are in the country illegally — is a civil affair. A deportation case is begun with what’s known as a Notice to Appear, which effectively serves as a summons to immigration court.

ICE can also serve an administrative arrest warrant, which allows the agency to detain a target. ICE officers can also make arrests without a warrant, though only in cases where there’s probable cause to believe someone is in the country unlawfully and “is likely to escape” before the warrant could be obtained.

The case was brought by several immigrants who were arrested by ICE without warrants. They argued they were not flight risks and shouldn’t have been detained.

Judge Jackson agreed.

He pointed to one of the plaintiffs, Refugio Ramirez Ovando, who was picked up by ICE officers in May. The officers had been looking for someone else and arrested Mr. Ramirez Ovando by mistake. But upon figuring out he was in the country illegally, they held him for nearly 100 days.

He was eventually granted permanent lawful status by an immigration judge and released, but not before his family suffered hardship and his kids ended up in therapy, the judge said.

Judge Jackson said ICE appeared to be stretching to try to make good on a target of 3,000 immigration arrests a day.

The judge pointed to comments from White House Deputy Chief of Staff Stephen Miller to “just go out there and arrest illegal aliens,” and border czar Tom Homan’s statement that ICE agents can take custody of those they encounter who are in the country illegally.

“ICE could choose to arrest every undocumented person it encounters even where there is no probable cause of flight risk to authorize a warrantless arrest. It could do this by obtaining an administrative warrant after the initial encounter and then finding and arresting them. But again, the record does not suggest that this is what’s happening,” he concluded.

ICE has also seen a legal setback in its push to detain more unauthorized immigrants, citing “mandatory” detention authority.

That argument has seen what one judge called a “near-universal rebuke.”