Warrantless immigration arrests

Judge limits warrantless immigration arrests in DC

The judge ruled the arrests require probable cause showing a suspect is likely to escape before a warrant can be obtained.

By Hassan Ali Kanu and Kyle Cheney

A federal judge on Tuesday restricted the Trump administration’s ability to arrest suspected undocumented immigrants in Washington without a warrant, saying the arrests are only permissible if authorities have reason to believe the person is likely to escape.

U.S. District Judge Beryl Howell wrote in an 88-page ruling that federal law allows warrantless arrests when officers have probable cause that the person is in the country illegally and is also likely to escape before a warrant can be obtained. The ruling by Howell, an Obama appointee, is a win for an immigrant advocacy group that sued in September alleging that authorities instituted a new “arrest first, ask questions later” policy in the nation’s capital back in August, when President Donald Trump’s administration declared a “crime emergency” in the district.

Government attorneys had disputed whether agents are using a lower standard than probable cause, but Hwowell ruled the plaintiffs’ accounts of their arrests and multiple public statements by high-ranking officials proved otherwise.

The Department of Homeland Security said in a statement in September that it uses a “reasonable suspicion” standard to make arrests. Officials, including Border Patrol Chief Gregory Bovino and White House Deputy Chief of Staff Stephen Miller, have also said publicly that authorities are or should be using a lower standard of suspicion, Howell wrote, calling those comments “blatant misstatements” of the law.

“Rather than the possible alternative excuse that such public statements are the result of ignorance or incompetence on the part of DHS’s high-ranking officials and legal counsel, the better, straight-forward explanation is that DHS’s statements derive from an intentional policy and practice of conducting warrantless civil immigration arrests without the requisite probable cause findings,” the judge wrote.

A spokesperson for the Department of Homeland Security did not immediately respond to a request for comment.

The immigrant advocacy organization CASA, Inc. brought the lawsuit along with a group of noncitizens who have temporary protected status or are seeking asylum.

Generally, Immigration and Customs Enforcement officers and other federal agents must have an administrative warrant before making an arrest. Arrests made without a warrant require the officers to articulate reasons they believe arrestees are in the country illegally and likely to escape — such as when a noncitizen presents conflicting documents or admits to previous deportations.

One analysis showed that 943 immigration arrests took place between Aug. 7 and Sept. 9 this year, comprising more than 40 percent of all arrests in Washington, Howell noted.

Howell noted that the Justice Department sought to explain away the statements from Miller and Bovino by emphasizing that they weren’t lawyers and might not understand “terms of art” like “probable cause” and “reasonable suspicion.” But the Obama-appointed judge said that explanation was a “remarkable” suggestion that some of the highest ranking Trump administration policymakers were either “ignorant or incompetent, or both.”

Howell also used the ruling to scold immigration agencies for declining to properly identify themselves when making arrests, saying the practice is intended to terrorize.

“Requiring defendants to put pen to paper and explain who made each arrest and why constitutes the bare minimum to ensure defendants are compliant with the Constitution,” the judge wrote.