The Trump administration’s escalating use of warrantless immigration arrests in D.C. this year probably violated federal law, a judge ruled Tuesday in a decision that prohibits such arrests for all migrants in the city except those at risk of escaping.
U.S. District Judge Beryl A. Howell granted a preliminary injunction sought by the immigrant-rights group CASA Inc. and four migrants who were arrested without administrative warrants in August amid President Donald Trump’s law enforcement surge in the capital. All four had pending immigration applications at the time of their arrests and were eventually released after spending time in detention facilities.
“They were arrested while going about unavoidable, lawful activities of daily life,” Howell said.
The judge, in an 88-page opinion, took Trump administration officials to task for depriving migrants of their rights and basic necessities as they languished in cramped detention facilities before being released. She criticized immigration authorities’ “systemic failure” to follow the law and said top administration officials, including Chief Border Patrol Agent Gregory Bovino, had repeatedly misstated the legal requirements for warrantless arrests in public comments.
Bovino and a spokesperson for the Department of Homeland Security had asserted that officers needed “reasonable suspicion” to conduct such arrests, but Howell said the legal standard was more stringent: probable cause. Homeland Security officials did not immediately respond to a request for comment Wednesday.
Trump ordered a renewed crackdown on illegal immigration this year, and top administration officials set targets as high as 3,000 daily arrests of migrants. Attorneys for CASA and the four plaintiffs in the case argued that authorities began to work under an “arrest first, ask questions later” policy to comply with the high daily quotas — and began ignoring a section of the Immigration and Nationality Act that authorizes warrantless arrests only when a migrant “is likely to escape before a warrant can be obtained.”
One of the plaintiffs, Jose Escobar Molina, a scaffolder from El Salvador, described in a court filing how he was picked up at 6 a.m. as he headed to work one morning by a group of plainclothes officers who shoved him into a black SUV, making him think he was being kidnapped. Another plaintiff, from Venezuela, said he showed his arresting officers his driver’s license, work permit and asylum application paperwork, which they disregarded.
Warrantless arrests have skyrocketed since Trump’s surge began in August, Howell found. By one count, she said, officials conducted 943 immigration arrests over a month-long period that ended Sept. 9, which represented 40 percent of all D.C. arrests. The judge noted that being present in the country without legal authorization is not a criminal offense, but a civil violation. Entering the United States without legal authorization is a misdemeanor under federal law, and a felony for repeat offenders.
“Viewing all immigrants potentially subject to removal as criminals is, as a legal matter, plain wrong,” Howell said, before quoting a Supreme Court ruling from 2012: “Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.”
At a court hearing last month, an assistant U.S. attorney argued that an injunction would slow the Trump administration’s deportation efforts by allowing the court to micromanage arrests. As part of her ruling Tuesday, Howell ordered that immigration authorities document every warrantless immigration arrest in D.C. with “specific, particularized facts” establishing probable cause “that the person is likely to escape before a warrant can be obtained.”
The Justice Department in a legal filing denied that immigration authorities had instituted a new policy of warrantless arrests and argued that the court did not have jurisdiction to rule on the case.
“Plaintiffs identify no written policy authorizing the arrests that they complain of because there is none,” Assistant U.S. Attorney John J. Bardo said. Howell said approximately 40 migrants had submitted court declarations attesting to the warrantless arrests and said Bovino’s comments defending those arrests with inaccurate information proved that the policy existed.
“This is a victory for the rule of law and for the people across the city, who have avoided going to work, to church, to school, to grocery stores — out of fear of being unlawfully arrested, detained, and deported,” said Joanne Lin, an official with the Washington Lawyer’s Committee, one of the groups representing the plaintiffs.
The ruling describes some circumstances in which immigration agents can establish a migrant’s likelihood of escaping before a warrant may be obtained, but Howell said those factors could vary.
“Some courts have found the likelihood of escape to be higher when, for example, the noncitizen presented ‘conflicting documents,’ ‘had been “picked up before,” ’ admitted that he had previously been removed, or appeared ‘extremely nervous’ as if ‘looking for an opportunity to run,’” the judge wrote. “Courts have also made the self-evident finding that the likelihood of escape is lower when the individual has resided in the country for a lengthy period of time and has strong community ties.”
Aditi Shah, an attorney involved in the case from the American Civil Liberties Union of D.C., welcomed those conditions.
“This requires the government to take some extra steps that it’s required to under the law before it can just grab people off the streets and lock them away in detention centers,” she said.
Ama Frimpong, CASA’s legal director, said the ruling was a powerful memorial to one of the migrants who described his warrantless arrest and detention in a legal filing, using a pseudonym, Elias Doe. He died last week, Frimpong said. His health had worsened after he missed a dialysis treatment while detained, she said.
“This is now part of his legacy,” Frimpong said. “It is important for impacted community members to lead this fight and show that they are not afraid.”
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