Feds claim there was no policy change to re-arrest immigrants

SAN JOSE, Calif. (CN) — A federal judge asked the government Friday about the discrepancies within the factual record on a case regarding the re-arrests and re-detentions of immigrants by U.S. Immigration and Customs Enforcement (ICE) for those deemed not a flight or safety risk.

U.S. District Judge P. Casey Pitts denied without prejudice the plaintiffs’ motion to compel the government to complete the administrative record in Garro Pinchi et al. v. Mullin et al. Instead, he ordered additional discovery to address the “deep factual” dispute that has complicated the case from the start.

The government maintains there was no policy before May 2025, changing when ICE began re-arresting immigrants who had been cleared of risk the previous year.

The plaintiffs, immigrants who were re-arrested or re-detained under the new policy, argue there must have been an earlier policy before the May 2025 version was enacted. They say the government’s refusal to acknowledge that earlier policy or include evidence of it in the record could be arbitrary and capricious.

Plaintiffs’ attorney Jacquie Andreano said the government used the wrong standard in compiling the administrative record by reinterpreting a policy that was not at issue.

But Pitts, a Joe Biden appointee, said he understood Andreano’s argument while also recognizing that the government’s position is that “there was no policy.” He questioned how he could order the government to complete the record, given that stance, short of telling it to “Try again.”

“The first issue should be the request for extra record discovery to suss out, as a factual matter, at this point, whether there was or as not a policy,” he said.

Andreano responded that the plaintiffs were trying to understand the government’s reasons for the re-arrests, rather than a change in policy.

“If the government’s position is that there is no such policy and therefore there were no documents considered, I mean, as you sort of mentioned, that seems to go contrary to what the government has already admitted, which is that there was a prior policy in which [the Department of Homeland Security]  did not re-arrest folks without changing their circumstances,” she said.

Furthermore, Andreano said, the government began “putting forth shifting reasons” for the change starting in May 2025, including “different bed space” and executive orders, none of which, she said, appear in the record.

“So, I think what we are seeking here, Your Honor, is finality on what the government contends,” said Andreano.

Department of Justice attorney Nancy Safavi said the government’s position was that the documents the agency “relied on” when it began re-arresting immigrants are already in the case record. Safavi asked for more time to meet and confer with plaintiffs’ counsel regarding extra discovery requests.

The class seeks a declaration that the re-detention policy is unlawful, arbitrary and capricious, and an order barring further deportations stemming from the government’s violations of the Administrative Procedure Act.