Federal judges across multiple jurisdictions are issuing preliminary injunctions and rulings that block Immigration and Customs Enforcement from making warrantless arrests without documented, individualized assessments of whether a target poses an “escape risk” or flight risk. The trend reflects judicial skepticism of ICE’s interpretation of the escape-risk standard and signals that practitioners should expect increasing litigation over arrest legality.
What changed
A federal judge ordered Immigration and Customs Enforcement officers to stop arresting people without a warrant and without determining whether they posed an escape risk, and certified a class of arrestees who have been or will be arrested for immigration violations without a warrant and without a pre-arrest, individualized assessment of probable cause that the person poses an escape risk.
Federal courts in Colorado, Oregon, Washington D.C., Minnesota, and other jurisdictions have now ruled that ICE officers may not make warrantless arrests unless they have probable cause to believe a person is in violation of immigration law and likely to escape before a warrant can be secured. Judges have ordered defendants to provide documentation of “specific, particularized facts” every 30 days while cases are ongoing on any warrantless arrests conducted.
The core legal dispute centers on how ICE interprets “escape risk” or “likelihood of escape” in internal guidance. A federal judge scoffed at an ICE policy allowing warrantless arrests for those “likely to escape,” noting that under the government’s interpretation, he could be arrested at his own bench. Judges have found that agents are arresting people with deep community ties who pose no flight risk.
Why it matters
If you represent individuals arrested by ICE, or advise clients on arrest risk, these rulings establish a new litigation anchor. The American Civil Liberties Union informed courts the government was actively ignoring prior orders and was continuing to conduct warrantless immigration arrests without the probable cause determinations, suggesting non-compliance is ongoing. Practitioners can now cite preliminary injunctions placing a burden on ICE to prove a high likelihood of arrest validity, with judges finding that ICE’s “practice of conducting warrantless arrests without the required individualized probable cause determination of escape risk” represents unlawful conduct.
For deportation defense counsel, this creates discovery and motion opportunities: demand ICE Form I-213 (Record of Deportable/Inadmissible Alien), filing date, and basis for the escape-risk claim, then compare it against the applicable court order in your jurisdiction. Judges are now requiring ICE to document specific facts, not conclusory statements. That evidentiary gap is a crack you can exploit in removal hearings or habeas petitions.
For practitioners advising clients on stay-of-removal motions or stays pending appeal, jurisdictions with active injunctions now offer additional legal footing.
Way forward
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Map your jurisdiction. Determine whether your U.S. district court (Colorado, Oregon, DC, Minnesota, etc.) has issued a warrantless-arrest injunction. If yes, obtain a copy of the order and study its definitions of “escape risk” and required documentation.
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Request the I-213 and supplemental arrest forms. Ask ICE or DOJ (via FOIA or discovery) for the Form I-213 and any written escape-risk assessment or supervisory warrant approval. Lack of documentary support is your litigation hook.
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Plead non-compliance in habeas / stay motions. If your court has an active order, argue ICE failed to comply (specific facts, supervisory approval, community-ties analysis). Courts have signaled they will enforce injunctions.
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Cross-reference local ICE guidance. Obtain the Todd Lyons memo and any follow-up broadcast statements. If ICE’s field office conduct diverges from national policy, highlight that discrepancy.
Disclaimer
This article is prepared for educational and informational purposes and does not constitute legal advice. Fola Form is a software company, not a law firm. You should consult a licensed immigration attorney in your jurisdiction before relying on any information here or taking action in any case. Federal court orders and ICE policies change frequently, and litigation standards vary by circuit and district. Always verify the current status of any injunction and ICE’s actual compliance posture in your jurisdiction against the primary court documents and agency guidance linked above. This article does not substitute for direct review of the applicable federal court ruling and supplemental orders in your case.