CHICAGO — A federal judge on Friday ordered the release of dozens of people detained by federal immigration enforcement agents without warrants or probable cause amid ‘Operation Midway Blitz’ last fall.
U.S. District Judge Jeffrey Cummings individually considered the details of 53 arrests, weighing factors to determine whether federal immigration officers violated a consent decree in making those arrests. He ordered the release of 32 people by noon on March 5 and said he would issue an order later regarding five more that required further consideration.
Attorneys said that at least 11 of those ordered released by the judge had already departed the country as of Wednesday. They identified another 11 as still detained, and said the rest had been released on conditions that violate the order, such as requirements that they check in and report address changes to immigration officials. Cummings previously ordered all conditions for release such as bond and check-ins be dropped.
The case hinges on the Castañon Nava consent decree, which governs Immigration and Customs Enforcement and Customs and Border Patrol actions in Illinois and five other Midwestern states.
The decree prevents ICE and CBP officers from arresting immigrants without signed warrants unless there is reason to believe the person would escape before a warrant could be obtained for the arrest.
That requires consideration of factors like whether the person has a job, a home, a family or other ties to their community that would prevent them from fleeing, how cooperative they were to immigration agents, and if they have evaded immigration enforcement in the past.
Cummings had previously ordered the release of hundreds arrested for “potential” violations of the consent decree before an appeals court ruled that he could not make a sweeping ruling for those arrested using blank warrants without providing individualized assessments for each situation.
Read more: Appeals court won’t release detained immigrants amid warrantless arrest scrutiny
He made the individual considerations Friday under two categories: The first included people arrested without a warrant of any kind, while the second considered arrests made under a recently adopted Immigration and Customs Enforcement policy allowing agents to carry blank warrants, known as I-200 warrants, to be filled out in the field.
Of those arrested without a warrant, Cummings ordered the release of all but one. He was more limited in his ability to release those arrested with blank I-200 warrants, ordering the release of eight people for whom the government was unable to produce the warrants or for which the warrants had serious concerns as to their authenticity.
Questionable authenticity
In some cases, the I-200 warrants were missing key information about the person arrested, including names and “Alien Registration Numbers,” unique identifiers assigned by the Department of Homeland Security to track noncitizens.
In other cases, the information on I-200 warrants used boilerplate language that contradicted narrative summaries in the other arrest records or was found to be factually incorrect based on outside evidence. In one case, Cummings said the issues with the I-200 were so severe that they were “not simply defects” but indeed “raise questions about the authenticity of the document.”
For example, in one case, the government claimed a 61-year-old man attempted to run away from agents to evade arrest.
According to Cummings, the man’s daughter provided testimony that her father has trouble walking, much less running, due to his age and deep pain in his leg. Video footage reviewed by Cummings apparently showed the man walked compliantly with officers, “and walked very slowly,” according to Cummings.
Cummings said he would “credit the video I saw with my eyes” over the narrative in the report, since DHS did not produce alternate evidence to contradict the video.
Other I-200s were produced much later than other arresting documentation, despite the government’s acknowledgement at an earlier hearing that those records should be stored together, though Cummings said this could be attributed to the volume of arrests that occurred last fall.
Cummings did not order the release of one person who was arrested without a warrant because the arresting documents indicated that he put his vehicle in reverse to try to escape agents.
Mark Fleming, a National Immigrant Justice Center attorney representing the plaintiffs in the case, asked the judge to order the government to produce the body camera footage that it has from the arrest to prove the narrative was true.
In 10 other cases previously under dispute, Fleming said DHS had acknowledged they were violations of the consent decree and conceded to releasing those people after the plaintiffs asked to see the body camera footage.
“And so that is why I asked for the body cam for the one individual that they alleged attempted to flee in his vehicle because, frankly, they can’t be trusted,” Fleming told reporters after the hearing. “What they wrote is not trustworthy.”
Cummings asked the DHS attorneys to provide that footage. If it supported the narratives in the arrest records, his order against the release will stand.
National enforcement
In his Feb. 17 ruling, Cummings ordered DHS to recirculate the consent decree policy to all ICE agents nationwide by email, and to advise that it will remain in effect as the dominant ICE policy governing warrantless arrests so long as the consent decree remains in effect.
DHS was supposed to circulate the policy by the following day and submit a certification that it had done so by the end of the week.
The agency certified it had recirculated the policy, but told agents it only applies to the Chicago regional office and directed all other ICE offices to adhere to the policy written by ICE Director Todd Lyons, which reduces the information required to make a warrantless arrest.
Read more: Judge rules four people arrested by ICE without warrants should be released
Cummings had explicitly specified in an earlier hearing that the warrantless arrest policy applies nationwide, not only to the states within ICE’s Chicago regional office.
“Is it your practice to violate orders of a federal court?” Cummings asked the attorneys representing DHS. “Did you think I wouldn’t notice that you put this language in here? Did you think I wouldn’t care?”
Lead government attorney James Walker apologized to the judge for what he called a misunderstanding regarding the scope of the policy. Walker said the government had presented the language openly and would not attempt to mislead the court.
Cummings, who had ordered the government to recirculate the policy nationwide in compliance with the decree, granted the government a delay in recirculating the policy while the parties clarified the misunderstanding.
He asked the plaintiffs’ counsel to prepare a reply to the government’s motion by March 3 and for defendants to file a reply by March 6.
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