Federal prosecutors acknowledged this week that they wrongly relied on an ICE memo to justify ICE arrests at immigration courts in a court filing responding to an ongoing lawsuit seeking to block the practice. The admission creates new vulnerability for the government’s legal position on in-courtroom enforcement actions and may strengthen practitioners’ arguments in habeas corpus petitions and release motions.
What changed
The ICE memo in question stated that “ICE officers or agents may conduct civil immigration enforcement actions in or near courthouses when they have credible information” that a targeted person would be “present at a specific location.” DOJ officials now say the memo “does not and has never applied to civil immigration enforcement actions in or near” immigration courts.
According to the government’s court filing, the discrepancy was discovered via an email to ICE personnel that said: “reminder that the May 27, 2025, guidance does not apply to Executive Office for Immigration Review (Immigration) courts, regardless of their location.” Prosecutors withdrew the parts of their legal brief that relied on the ICE memo, though they stated the withdrawal “does not affect its arguments that ICE’s immigration courthouse arrests do not violate any so-called common-law privilege against courthouse arrests.”
Why it matters
This admission undermines a key pillar of the government’s legal defense for arrests at immigration hearings. You can now argue that DOJ’s own internal discovery refutes the legal foundation prosecutors previously asserted. The government’s reliance on a memo it now admits was misapplied to immigration courts signals interpretive overreach.
While DOJ maintains other arguments supporting in-court arrests, the withdrawal of the ICE memo rationale creates an opening for practitioners challenging detentions or seeking immediate release for clients arrested at immigration proceedings. Federal judges have already been receptive to habeas corpus petitions in the Southern District of California, and this admission may bolster arguments that arrests violate traditional common-law courthouse privileges.
The legal fallout from DOJ’s admission remains to be seen, though a DHS spokesperson stated there is “no change in policy” and that the agency will “continue to arrest illegal aliens at immigration courts following their proceedings.”
Way forward
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Review your pending habeas and release motion files. If you have cases involving ICE arrests at immigration court, cite the government’s own admission that it misapplied the May 27, 2025 ICE memo to immigration courts. This strengthens arguments that the arrests lacked proper legal authority.
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Request hearings on re-detention. If your client was arrested at an immigration hearing and re-detained, file a habeas petition emphasizing that the government’s prior justification for the practice has been withdrawn and that detention without a proper legal foundation violates due process.
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Document the timing and context. Gather court filings, detention records, and arrest paperwork showing exactly when and where your client was arrested. The government’s admission creates an argument that the arrest lacked statutory authority under the ICE memo.
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Watch for judicial receptiveness. Monitor ongoing litigation in your circuit. Federal judges in San Diego and elsewhere have shown willingness to grant release in immigration detention cases; this DOJ concession may accelerate that trend.
Disclaimer
We are not a law firm, and this article does not constitute legal advice. Immigration law is complex, enforcement policies change rapidly and sometimes without formal announcement, and the legal consequences of DOJ’s admission will ultimately depend on how courts interpret it in your specific case. You should consult a licensed immigration attorney to discuss your individual situation and verify your understanding against the primary court filings and the full language of any ICE or DOJ guidance. Policy positions can shift, and you bear the responsibility for staying current with developments in your cases.