Federal Judge Confirms What We Already Knew: DHS Is Breaking Its Own Rules in D.C. Immigration Arrests

United States District Judge Beryl A. Howell said the Department of Homeland Security’s own statements about its policy and practice reveal an “abandonment of the probable cause standard.”

President Donald Trump's mass deportation campaign received a legal setback on Tuesday when a federal judge issued yet another preliminary injunction against the Department of Homeland Security (DHS). For the second time in as many months, the agency has been ordered to stop conducting warrantless immigration arrests without probable cause, this time in Washington, D.C., and to report on the facts surrounding these arrests moving forward. The DHS must also clarify to all federal agents that probable cause, not mere "reasonable suspicion," is the appropriate standard on which to base arrests.  

Shortly after the federal takeover in D.C., in August, five plaintiffs filed a lawsuit against the DHS, accusing the agency of making unlawful immigration-related arrests. Under federal law, immigration agents have probable cause to make a warrantless arrest only if the officer has "reason to believe" that the individual is in the United States in violation of any immigration law or regulation and is likely to escape before a warrant can be obtained. But rather than follow this procedure, plaintiffs in the case—four of which were arrested without a warrant and later released—allege that federal officers conducting their arrests failed to ask about their legal status or assess whether they were a flight risk, or both. 

The federal surge, which took place after Trump signed an executive order declaring a crime emergency in the nation's capital, brought with it a spike in immigration-related arrests. But despite the pretense of curbing and targeting violent crime, more than 80 percent of the 1,100 people arrested for immigration offenses had no prior criminal record. And according to United States District Court for the District of Columbia Judge Beryl A. Howell, many of these warrantless immigration arrests may have been unlawful.  

Crucial to Howell's decision to impose a preliminary injunction on Tuesday was her determination that the DHS has, in fact, adopted an unlawful policy and practice of conducting warrantless immigration arrests without probable cause that runs counter to federal law and "well-settled constitutional principles," and reveals an "abandonment of the probable cause standard." 

To defend against such an accusation, the DHS pointed to the agency's 2022 directive to Immigration and Customs Enforcement (ICE) agents and other annual trainings that teach agents to consider the likelihood of escape before conducting a warrantless arrest. However, Howell took more into account, including "roughly forty examples [of] detailed…declarations of arrests conducted without any questions as to escape risk," and the DHS' own public statements regarding its arrest policy. 

One glaring example included a September X post on the DHS' official account. In it, the DHS asserted that the allegations in this case are "disgusting, reckless, and categorically FALSE," and defended agents' use of "reasonable suspicion" to make arrests. The post goes on to say that this protocol was "recently vindicated" by the Supreme Court, likely referring to Justice Brett Kavanaugh's controversial concurrence blessing the use of racial profiling by federal agents to conduct immigration stops. 

The language seemingly confused "reasonable suspicion"—a lower standard used to justify brief, non-intrusive stops—with probable cause, which is required for making arrests. But rather than correct this mistake, this statement was repeated and emphasized in a DHS press release, and confirmed multiple times by DHS Assistant Secretary for Public Affairs Tricia McLaughlin in public statements, according to Howell's opinion. 

But the confusion stretched beyond these statements. Howell also took into consideration statements made to the press by Chief Border Patrol Agent Gregory Bovino, who has led immigration operations in Los Angeles, Chicago, Charlotte, North Carolina, and now New Orleans: "We need reasonable suspicion to make an immigration arrest….You notice I did not say probable cause, nor did I say I need a warrant. We need reasonable suspicion of illegal alienage that's well grounded within the United States immigration law." 

Perhaps even more alarmingly, Howell's decision also referenced an incident in which "former-acting U.S. Attorney for the Eastern District of California told Bovino that he could not make civil immigration arrests without probable cause," for which she was reportedly fired. 

This evidence, Howell reasoned, coupled with the agency attorney's "continued silence regarding these public statements" under penalty of perjury, points to something more than "ignorance or incompetence on the part of DHS's high-ranking officials and legal counsel," but to a "purposeful attempt to conflate…arrests with civil immigration stops," which are subject to a lower standard. 

Howell is not the only federal judge to find a pattern of unlawful warrantless arrests by immigration officials under the Trump administration. In November, a federal judge in Chicago ordered the release of over 600 detainees from ICE custody after finding that immigration officers had failed to establish probable cause in their arrests as required under federal law, and in violation of a 2022 consent decree stemming from similar behavior during Trump's first term. 

More and more, courts are confirming what we already know: Many of the tactics used by the administration to fulfill Trump's mass deportation campaign are illegal and unconstitutional. Ironic given the Trump administration's assertion that the immigration crackdown is rooted in upholding the rule of law.