Justice Department tells judge it incorrectly used ICE memo to justify immigration court arrests
The Justice Department this week conceded to a federal judge in New York it had been incorrectly citing an Immigration and Customs Enforcement memo to partially justify arrests at immigration courthouses, calling the oversight a “material mistaken statement of fact.”
Justice Department lawyers disclosed in a letter on Tuesday that a May 2025 ICE memo applies to most courthouses, but not federal immigration courts, where agents have been seen over the past year making arrests of those attending their hearings.
The government attorneys told U.S. District Court Judge Kevin Castel that they erroneously cited the memo in monthslong litigation challenging the courthouse arrests because of a “regrettable error” by an “agency attorney,” presumably at ICE.
“We deeply regret that this error has come to light at this late stage, after the parties have expended significant resources and time to litigate this case and this Court has carefully considered Plaintiffs’ challenge to the 2025 ICE Guidance,” the Justice Department lawyers said in their letter.
The letter was submitted in a federal court case stemming from a lawsuit by advocacy groups challenging ICE’s practice of carrying out arrests inside immigration courts, which are run by the Justice Department. The arrests, part of President Trump’s crackdown on illegal immigration, have elicited criticism from advocates who say they punish those attempting to comply with the immigration process by attending their hearings.
In September, Castel largely denied a motion from the groups challenging the courthouse arrests.
While they acknowledged that Castel relied in part on the May 2025 ICE memo in his ruling last year, the Justice Department lawyers said in their letter that the error does not affect their other arguments in support of the legality of the immigration court arrests.
In a statement Thursday, the Department of Homeland Security, which oversees ICE, said, “There is no change in policy.”
“We will continue to arrest illegal aliens at immigration courts following their proceedings,” the department added. “It is common sense to take them into custody following the completion of their removal proceedings. Nothing prohibits arresting a lawbreaker where you find them.”
Castel has not yet formally responded to the Justice Department’s admission.
The New York Civil Liberties Union, which filed the lawsuit against ICE’s courthouse arrests on behalf of the advocacy groups, said the federal government’s admission had “far-reaching” consequences.
“In the months since the Court relied on the government’s representation to deny Plaintiffs preliminary relief, Defendants have continued arresting noncitizens at their immigration court hearings, resulting in their detention—often in facilities hundreds of miles away,” the organization said in its own letter to Castel on Wednesday.
Arrests at immigration courthouses played out across the U.S. since the beginning of the Trump administration, as plainclothes federal agents carried out arrests in courthouse hallways in coordination with the Department of Homeland Security when asylum-seekers and immigrants went to the buildings for routine hearings.
Typically, a judge would grant the government’s request to dismiss deportation proceedings against an immigrant while ICE officers wait nearby in the building to take them into custody. Once they are detained, they are moved to an expedited removal process.
According to a CBS News analysis last year, Manhattan’s immigration courts saw the most arrests of any major city in America.
The immigration courts were established in 1952, and operate under the Executive Office for Immigration Review, or EOIR, which the Justice Department controls, allowing the Attorney General to override judges decisions and hire or fire judges.
As of December, about 100 immigration judges have been firednationally since the start of the Trump administration, and almost an equal number have taken early out options, retired, or resigned in the same time period.
