Judge's Order To Release All ICE Detainees Is Stayed by Seventh Circuit Pending Appeal

Biden Admin. entered into "consent decree" to not detain certain illegals scheduled for deportation hearing and Chicago Judge ordered enforcement of that agreement -- paused for now.

This one is a bit tangled so bear with me a bit while I unpack the background.

There currently exists a legal dispute with respect to the circumstances that justify a WARRANTLESS arrest for being illegally in the United States. The arrest leads to detention of the alien in an ICE facility while they await deportation proceedings. But the statute authorizing arrest AND DETENTION has a few strings attached, namely that a warrantless arrest is only allowed when there is probable cause to believe that the alien will escape before a warrant can be obtained. The legal dispute that exists is whether ICE’s current detention policies satisfy all the conditions required under the statute.

There have been several decisions go against the Trump Administration so far — one is reflected in a very long Opinion issued by Senior Judge Beryl Howell in the District of Columbia, which I address in more detail below.

But the issue in the new decision coming out of the Seventh Circuit is a bit different — it involves a “Consent Decree” agreed to by the Biden Administration wherein it agreed that ICE would not make warrantless arrests of illegal aliens. The plaintiffs in the case are alleging that the Trump Administration’s ICE arrest policies violate that Consent Decree — which the plaintiffs want applied nationwide — and asked a federal judge in Chicago to order the release of all detainees from Operation Midway Blitz because their arrests and detention was in violation of the Consent Decree. The Trump DOJ has not challenged the validity of the existing Decree or the power of the District Court that entered it in 2022.

The Consent Decree is called the Castanon-Nava Agreement. In 2022 the Biden Administration Civil Rights Division resolved a 2018 lawsuit filed against the Trump Administration with a “Consent Decree” wherein it promised that ICE — under any Administration — would not conduct warrantless arrests of illegal aliens for the purposes of initiating deportation proceedings. Of course the Biden Administration ICE was never going to do that — they didn’t arrest anyone.

But as Operation Midway progressed in Chicago in November, ICE conducted warrantless arrests of illegal aliens, and then detained them in an ICE facility outside Chicago while processing their cases for the Immigration Court system. The original plaintiffs in the Catanon-Nova lawsuit filed a complaint to compel compliance by the Trump Administration.

On November 7, a district judge in Chicago found that the Trump Administration’s practice was violating Castanon-Nova, and ordered the release of over 450 persons in ICE detention who were claimed to have been arrested and detained without a warrant, and without probable cause to believe they would escape if a warrant was sought.

On Friday the Seventh Circuit Court of Appeal stayed the release order entered by the district judge — but only because the remedy imposed had an insufficient factual basis as to most of those to be released. The district judge had only found “it stands to reason” that they were “potentially” arrested in violation of the statute requiring an arrest warrant.

The statute in question is 8 U.S.C. § 1357(a)(2), that provides in relevant part:

Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant ... to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of [any law or regulation made in pursuance of law reg- ulating the admission, exclusion, expulsion, or re- moval of aliens] and is likely to escape before a warrant can be obtained for his arrest ....

A remedy for violation of the Consent Decree was immediate release of any individual arrested and detained in violation of its terms. I’ll come back to that.

The Consent Decree had an expiration date of May 12, 2025 — three years after its expiration date. But that provision — negotiated by the Biden Administration — included the condition that it would only terminate on that date if no motion to enforce its terms was pending.

Conveniently, on March 13, 2025, less than 8 weeks into Trump 2.0, and 8 weeks prior to the expiration of the Consent Decree, the plaintiffs filed a motion to enforce the terms of the consent decree, and sought a three-year extension — to May 2028.

In October, the district judge ruled in favor of the plaintiffs, finding that 22 of the 26 identified individuals had been arrested without a warrant and without probable cause to conclude they would flee. But by October all 22 were out of custody so there was no remedy to provide them. But the Court did not extend the decree by 3 years — he only extended it 118 days, which was the period between when the Trump Administration announced it was withdrawing from the agreement (June 11, 2025) and the date of the October finding that the Government had violated the agreement. So the new expiration date is February 2, 2026. The Government appealed that extension but the Motion to Stay that part of the district judge’s order was denied.

This is one reason why the DHS/ICE has shifted away from Chicago and moved to other cities like Charlotte and New Orleans. It is going to wait for the Consent Decree to expire on February 2, and then it will not need to concern itself with violating a court order.

As for the nearly 650 other aliens arrested and detained, the Plaintiffs had sought to designate a “class” of probable aliens in custody who had been arrested in violation of the consent decree during Operation Midway. The Plaintiffs were seeking discovery on those arrests, and asked that all the potential class members be released pending determination of whether they were arrested in violation of the consent decree. That motion was granted by the District Judge on November 13, on the basis that it “stands to reason” some number of them were arrested without a warrant and without probable cause to believe they would flee. The district judge proposed that they would be out of custody until the plaintiffs received discovery and could make assessments of the particulars of each arrest.

The Appeals Court issued an administrative stay pending appeal of the release order. By the time the appeal was heard in early December, the 650 number was down to 442 as some detained individuals were released and others consented to removal.

One issue that the Appeals Court addresses is the question of the degree to which a past administration can bind a future administration with the terms of a consent decree. The Court acknowledges the very real possibility of gamesmanship that could be used to bind a future administration with a policy about which it will obviously disagree. But the Court notes that while this possible exists theoretically, the Trump DOJ has not yet raised that as a basis to terminated the Castanova-Nava decree, and did not seek a stay on the district judge’s extension order on that basis.

One issue raised in the case is the use by ICE of “I-200 Warrants For Arrest.” These are not judicial warrants — they are completed by the arresting officer. They do not allow entry into private residences or private property to make an arrest. But they are the paperwork filled out by officers documenting their probable cause to make an arrest of an illegal alien. Some Judges, including the Chicago district judge, have deemed these to be insufficient to satisfy the “warrant” requirement of Sec. 1357(a)(2) quoted above.

But the Appeals Court held that whether the use of I-200 Warrants is proper is a case-by-case determination, and not subject to a “class-wide” prohibition such as the one imposed by the Chicago Judge. His determination that such warrants are “defective” under the statute was the basis for his Order that everyone arrested based on such a warrant was, in reality, a warrantless arrest in violation of the Consent Decree. Because that ruling was not based on a finding that there was no probable cause that the alien would flee if the agents had to wait for a warrant, there was no basis for the Judge’s order that all persons arrested and held in detention should be released because of evidence that some — 26 — had been arrested without such a finding.

I mentioned at the top that Judge Howell in the District of Columbia has issued and Order and Opinion on this same question. Her Opinion is 88 pages long, and I’m not going to dissect it in detail here.

Her opinion considers the same issue — the warrantless arrest and detention of aliens under circumstances where the agents cannot articulate factual reasons why they believed the alien would escape arrest if the time was taken to secure and arrest warrant.

The Trump Administration DHS did not deny that the change in emphasis towards a “mass deportation” policy required a change in the policies and practices of ICE. If you are going to deport millions of people, it is necessary to start that process where you find them and oftentimes that is going to be in public places and not behind closed doors. Hence the deployment of ICE and other DHS law enforcement personnel into communities around the country with large populations of illegal aliens. Coming into contact with them on the streets or in other public locations and developing information that they are not lawfully in the country leads to the question of “What happens next?”

This is a topic that the Administration has lost in numerous courtrooms across the country. Judges have consistently held that the second requirement in the statute must be satisified to justify a warrantless arrest and detention — the ICE agent must have probable cause he/she can articulate that explains why it is the officer believed the person would escape if the officer took the time to secure an administrative warrant. Those aren’t obtained from federal judges, they are obtained from Immigration Judges.

Keep in mind that the immigration process — from arrest to removal — is a “civil” matter that happens in Administrative Law Courts, not federal courts. The immigration courts, and the procedures they use, are part of the Department of Justice. The only federal court involvement is at the Appeals Court level, where review is limited to allegations of legal error, not factual claims.

What the DOJ needs to do is pass a regulation that allows such Administrative Warrants to be issued electronically, and have the ICE agents submit the “probable cause” information from the field in real-time while they have the alien detained and waiting for the warrant. With a sufficient number of Immigration Judges — maybe some dedicated just to this kind of paperwork process — it should be very simple to turn around warrants very quickly.

It is only the “warrantless” arrest that requires a finding that the alien was likely to flee while a warrant was obtained. The electronic warrant issuance process only requires the facts to establish probable cause that the person is an alien without status to be in the U.S. That can be done through answering about 4 questions. That’s all the information that would be needed to secure a warrant and the “concerns” of Judges Like Judge Howell in D.C. would evaporate.