Immigrants push for halt on ICE arrests at court hearings

SAN JOSE, Calif. (CN) — A federal judge signaled on Tuesday his imminent ruling on whether to block Immigration and Customs Enforcement from detaining asylum-seekers and other noncitizens at their immigration hearings, despite no flight risk or past criminal activity.

In January, ICE rescinded policies from the Biden administration regarding arrest and detention at immigration proceedings and made further changes regarding re-detention in May. Tuesday’s arguments centered around whether ICE has been acting unlawfully based on an “arbitrary and capricious” unwritten policy, or a new interpretation of rules in the absence of a specific policy.

U.S. District Judge P. Casey Pitts heard a few motions, including a motion to stay agency action, in two cases involving ICE detentions and re-detentions, using the legal mechanism of the Administrative Procedures Act as guidance.

In Pablo Sequen v. Albarran et al., immigrants seeking to remedy the “inhumane” conditions at the San Francisco ICE holding facility at 630 Sansome St. received class certification and a preliminary injunction in November. Now they’re seeking to stop ICE from arresting and detaining class members during their immigration court proceedings.

“ICE embarked on a terrifying campaign,” plaintiffs’ attorney Jordan Wells told the court. “It betrays the American promise of a fair day in court.”

Wells, representing the plaintiffs through the Lawyers’ Committee for Civil Rights of the San Francisco, said ICE’s current actions have a chilling effect, and force immigrants into a “catch-22” decision. They can either show up to their compulsory immigration hearings — as most class members have done diligently and are in the middle of the admission process, and potentially risk arrest and detention — or not show up and risk an order for removal due to absenteeism.

He said the “catch-22” amounted to irreparable harm, the threshold needed for Pitts to rule in their favor based on their APA arguments.

“The goal here is to stay the agency’s policies that are driving the arrests,” Wells said, calling the class members “sitting ducks” and “prime for the taking” under the current procedures.

He also noted that the stay’s benefits — likely narrowing ICE’s ability to arrest immigrants during immigration court hearings — could apply to more than just the class members.

U.S. Attorney Doug Johns disagreed with Wells, saying the policy to arrest immigrants was always present, and the agency is enforcing it based on “discretionary” and “operational guidance,” asserting ICE’s activity is “not operating in a vacuum.”

Pitts, a Joe Biden appointee, emphasized that the question at hand is not if ICE has the authority to arrest immigrants. Rather, the judge must decide if the new actions to arrest immigrants during immigration proceedings were premised on a legal error and if they currently constitute an irreparable harm.

Johns said there were comparable arrests in former administrations, but gave examples of immigrants detained in state courts, not immigration proceedings. He also disputed the plaintiffs’ arguments about the chilling effect and the “catch-22."

“There are lot of reasons why people do or do not show up,” Johns said.

Pitts heard another immigrant class action, Garro Pinchi v. Noem et al., on Tuesday. The plaintiffs contend the re-arrests and re-detentions of immigrants who have already been determined not to be a flight risk or a risk to the public are unlawful. The plaintiffs’ attorneys argue for class certification and a motion to stay agency action, saying all 40 potential class members have a “substantial risk of re-detention.”

Bree Bernwanger, a senior staff attorney at the ACLU Foundation of Northern California representing the plaintiffs, said the government needs a “reasoned explanation required” to change its policies regarding re-detention, even if the changes were initially unwritten.

Department of Justice attorney Jessica Storkus said Pitts cannot order a stay because “no such policy exists.”

Bernwanger said in rebuttal the government’s decision not to make a policy in clear, written terms is a way to sidestep responsibility and gives the administration a possibility of constantly claiming “different litigation rational.”

Pitts said that if the changes ICE made indicated “final agency action” whether written or not, then they are subject to the APA.

He told the court he would take all the motions under submission. On Jan. 22, 2026, Pitts will hear motions to transfer and consolidate the two cases.

“I understand there is a time pressure,” he said about deciding on the motions. “And I will get them out as soon as possible.”