Federal Judge Orders Over 600 ICE Detainees To Be Released From Custody

The order was made after finding that these individuals were arrested without a warrant or probable cause, and in violation of a consent decree.

A federal judge in Chicago ordered roughly 600 people to be released from immigration detention on Wednesday. The individuals, the judge found, had been arrested in violation of a 2022 consent decree designed to ensure immigration agents have probable cause before making warrantless arrests. The decision is yet another legal blow to "Operation Midway Blitz," the ongoing immigration operation in Chicago meant to help fulfill President Donald Trump's mass deportation agenda. 

During Wednesday's hearing, United States District Judge Jeffrey I. Cummings stressed that those identified will not be released if they pose a risk to public safety, according to the Chicago Sun-Times' Jon Seidel, and noted that not all of them will still be in custody. "There might be quite a few of them who are already gone," Cummings continued, referring to detainees who are eligible for relief but who may have already been deported. 

The consent decree was meant to ensure that the agencies complied with federal law, which stipulates that immigration officers may only make a warrantless arrest if two conditions are met: first, immigration officers must have "reason to believe" that the individual is in the U.S. in violation of any immigration law or regulation and, second, that they are likely to escape before a warrant can be obtained. Critically, without having both, there is no probable cause to make a warrantless arrest. 

In October, Cummings found that the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) had made warrantless arrests of individuals without the necessary probable cause and had been violating the consent decree since Trump took office in January. Since then, attorneys have been trying to determine who has been arrested by ICE this year in violation of the agreement—and who still remains in the country—to provide relief. 

But Cummings' decision to release 615 immigrant detainees likely doesn't cover the full extent of warrantless arrests made in violation of the 2022 agreement. Mark Fleming of the National Immigrant Justice Center, one of the legal groups that filed on behalf of plaintiffs in the case, believes that warrantless arrests without probable cause may be happening daily in the Chicago area. The organization's list of people it has identified who were arrested in violation of the settlement has grown to over 3,000. 

"As we're digging into it, we are very concerned that many, if not most [of ICE arrests], are violations of our consent decree," Fleming told 7 Eyewitness News, a local ABC affiliate. "We've started to dig into the case file [DHS and ICE] produced to us, and the vast majority are violations," he continued. "If they did not have a prior order of removal, in almost all circumstances, they've been uniformly violating the consent decree." 

Cummings's October ruling and Wednesday's decision to release immigrant detainees not only underscore the importance of establishing probable cause in immigration arrests but also deliver an important check on immigration enforcement. Supreme Court Justice Brett Kavanaugh came under scrutiny in September for blessing racial profiling by immigration agents, writing that it was "common sense" to allow officers to use "relevant factors," like ethnicity, spoken language, and location, to conduct an investigatory stop. But Cummings' ruling would limit immigration agents' ability to arrest any individuals stopped in the Chicago area because of racial profiling by requiring a determination as to whether they also pose a flight risk. His decision—which only applies to ICE's Chicagoland area of authority, including Illinois, Indiana, Wisconsin, Missouri, Kentucky, and Kansas—could go on to influence the outcome of similar cases in other jurisdictions.

Wednesday's ruling to release hundreds of immigrant detainees is surely a victory for those who are still trapped in detention, but less so for those who are no longer in the country and, therefore, have no avenue for relief. With ICE moving so much faster than the courts, the agency may not feel many real consequences for flouting the rights of those—including American citizens—who come in contact with the growing immigration industrial complex. Until it does, federal immigration agents are sure to violate more people's rights for the foreseeable future.

Comments

[JesseAz (RIP CK)]

Show us the legal reasoning that a consent agreement made under Biden becomes the new law of the land. Because that's what this judge ordered. Is this the legal framework you desire?

[mad.casual]

It's "yet another legal blow" the way Julie Swetnick's allegations were "yet another legal blow" to Brett Kavanaugh's superficially credible claims that he didn't rape anyone.

[Rossami]

A consent decree is binding until and unless it either expires or you return to court to get it undone. A change of administration is not and never has been sufficient to revoke the "consent".

That does raise the moral hazard of 'sue and settle' conspiracy - which I think was your point even though you didn't use those words. But that's a much larger problem than just this one consent decree. So, yeah, until we fix that problem, the consent agreement becoming "the new law of the land" is the law and has been for a long time.

Updated: I see that you do use the 'sue and settle' language below. Yes, that is a serious problem. But simply abrogating the agreement is not a viable solution. Perhaps there needs to be a more formal process whereby the next administration can revoke consent but doing so automatically restarts the suit that started it? Perhaps with a stipulation than settling is no long an option and a decision on the merits is mandatory? Not sure. It's a tricky problem.

[Social Justice is neither]

And how exactly do you get standing to return to court other than by violating it? This is the first step, not the slam dunk counter Autumn pretends it to be.

The overall problem here is the moral hazard you note and even the over regulation and legal paralysis that makes such twisting of the rules attractive.

[JesseAz (RIP CK)]

So you support from court agreements sans actual judicial adversarial rulings. I do not. There is no form of this type of rule making in the constitution.

Maybe youre fine with bypassing constitutional construction to avoid the legislature, I am not.

The INA is clear on the terms of who controls immigration related duties. It literally excludes article 3.

Youre arguing solely because you enjoy the outcome.

Ignoring unconstitutional judicial orders actually should be the standard. Just like when judges ordered dispersement of tens of billions of dollars. Especially when done in inferior Courts.

Consent decrees should be time bound and treated as an executive order, able to be undone by future administration's as they have no constitutional binding.

Ironically the USSC has ruled on this type of behavior with congress when they stated congress can not bind a future congress.

[Rossami]

No, I'm not arguing because I like the outcome. I despise it. But I do sometimes like the outcome of consent decrees in other cases. That means the entire process is broken.

To your proposals:
- "Ignoring unconstitutional judicial orders should be the standard."
Maybe. On the one hand, a single district court judge should not be able to make sweeping decisions that effectively set national policy and bypass Congress. On the other hand, a single executive branch official (even the President) shouldn't have that power either. I think the right answer here is to return to very old judicial norms. Judges can make determinations that bind the parties before them. National injunctions need to die a fiery death. Force all such cases into class actions which have better controls and limits.

- "Consent decrees should be time bound"
Absolutely agree.

- "Consent decrees should be ... able to be undone by future administrations" at will
Disagree strongly. Some consent decrees are 'consented to' in bad faith - the sue-and-settle problem. But other consent decrees are sorely needed fixes to otherwise intractable problems. Taking your argument to its logical conclusion says that the moral hazard of sue-and-settle is so bad that we have to take settlements off the table entirely. That means putting the court (and us taxpayers) on the hook for lengthy, expensive trials even when the offending agency actually is guilty and is willing to admit it. That is going too far.

[sarcasmic]

“No, I'm not arguing because I like the outcome.”

Jesse is trying to make it personal so he can attack you and ignore what you say? Must be a day that ends with’y’.

[Chumby]

Hopefully all those illegal alien rapefugees have already been deported.

[Gaear Grimsrud]

The details of the consent decree are pretty thin here and if it somehow empowers a district court judge to dictate immigration policy, which is exclusively reserved to the executive, it's pretty suspect in my opinion. Can an executive forever grant title 2 powers to title 3 judges who have no constitutional jurisdiction? I don't know. But clearly the administration will seek a stay and they'll probably get it. Just don't break out the champagne quite yet Autumn.

[Gaear Grimsrud]

Full disclosure. I haven't read the consent decree and I doubt Autumn has either but I'm open to argument.

[JesseAz (RIP CK)]

Its similar to the sue and settle strategy under Obama and Biden. How they "made laws absent congress." Activist group sues, friendly administration settles to "create" a new law. Totally unconstitutional.

[Gaear Grimsrud]

Yes. But this administration will absolutely challenge the legality and force the Court to confront it. Autumn should be careful about what she wishes for because she might get the opposite.

[LoneSnark]

Immigration policy is dictated by Congress, not the President.

[Gaear Grimsrud]

Nope. Congress can write laws, the executive enforces immigration law. The administration is currently enforcing existing law. The court has no jurisdiction.

[sarcasmic]

Nope. Trump dictates the law and judges are supposed to shut up. Anyone who says otherwise is a Marxist leftist with TDS.

[JesseAz (RIP CK)]

The current controlling policy is the INA dumdum.

[Rossami]

Looking at the wording of the consent decree, at least as reported here, it seems to be primarily (maybe exclusively?) about the legal standards for warrantless arrest. That seems pretty squarely within the scope of judicial authority and not relevant to immigration policy at all.

The only connection to immigration I see is that it was an immigration enforcement agency that admitted to getting the arrest standards wrong. That's a policy problem but not an immigration policy.

[JesseAz (RIP CK)]

This is false based on the actual language of the INA which has not been challenged in court and excludes article 3 in decision making.

Scotus has upheld these legal constructions for administrative duties in other regions of law outside the INA.

[Rossami]

re: "the actual language of the INA"

Tell me more, please. What specific language are you referencing? (If too big to quote, at least a pointer? Thanks.)

[AT]

Released back to their country of origin.

I'm glad you agree with this process, Autumn.

[sarcasmic]

“Until it does, federal immigration agents are sure to violate more people's rights for the foreseeable future.”

Stop saying ‘people’. Illegals aren’t people. People have papers.

[Vernon Depner]

immigration officers must have "reason to believe" that the individual is in the U.S. in violation of any immigration law or regulation and, second, that they are likely to escape before a warrant can be obtained.

Of course they have "reason to believe". Pro-illegal immigrant activists might not like the reasons, but that doesn't mean they don't exist. And if they are here illegally, not only are they "likely to escape"; they are IN THE ACT of escaping the law.