Warrantless Immigration Arrests: 22 AGs Back D.C. Limits

A coalition of 22 state attorneys general is asking a federal appeals court to keep limits on warrantless immigration arrests in Washington, D.C. The case will test what “reason to believe” means for ICE officers on the street.

Twenty-one states and the District of Columbia have filed a brief urging the U.S. Court of Appeals for the D.C. Circuit to uphold an injunction that restricts warrantless immigration arrests in the nation’s capital. The case, Escobar Molina v. Department of Homeland Security (No. 26-5045), is the government’s appeal of a December 2025 order requiring ICE and other federal agents in D.C. to decide, before making an arrest without a warrant, that the person is likely to escape before a warrant can be obtained. The brief was filed Oct. 19 and announced by Washington Attorney General Nick Brown’s office on Oct. 21.

The brief changes nothing on the ground by itself. It sharpens the question the appeals court must answer: how far judges can go in policing the split-second calls officers make under a decades-old limit on warrantless arrests, at a time when the administration is pressing for higher arrest numbers.

The two-part test agents must meet in Washington

Civil immigration arrests normally rest on an administrative warrant. Under 8 U.S.C. 1357(a)(2), an officer may arrest without a warrant only if the officer has “reason to believe” the person is in the country unlawfully and is “likely to escape before a warrant can be obtained.” DHS’s regulation at 8 C.F.R. 287.8(c)(2)(ii) says the same, and the D.C. Circuit has read “reason to believe” as the equivalent of probable cause.

U.S. District Judge Beryl A. Howell found on Dec. 2, 2025, that the plaintiffs, four immigrants and the advocacy group CASA, had shown “a substantial likelihood of an unlawful policy and practice” of warrantless arrests without that escape-risk finding, the Associated Press reported. Axios reported that Howell cited an analysis counting 943 immigration arrests in D.C. between Aug. 7 and Sept. 9, 2025, the period after federal law enforcement surged into the city.

Her order does not bar warrantless arrests. It bars arrests without a “pre-arrest individualized determination” of escape risk, and it protects a provisional class of everyone arrested in D.C. since Aug. 11, 2025, without one. Agents must write down, as soon as practicable, the specific facts behind each escape-risk judgment, including the person’s known ties to family, home or work. The order warns that “boilerplate language may be deemed indicative of noncompliance,” and DHS must turn the records over to plaintiffs’ lawyers every 30 days. That paperwork turns an officer’s judgment on a sidewalk into a record a court can review.

What each side is telling the appeals court

The states address only the public interest. They argue that unlawful arrests reach citizens and lawful residents too, keep parents from taking children to school and workers from showing up, and discourage crime victims from calling police. The brief cites Washington Post reporting that federal immigration arrests in D.C., Maryland and Virginia rose by more than 300 percent from 2024 to 2025, and Census data showing more than 100,000 immigrants live in the District.

The administration has rejected the premise of the case. Its lawyers denied in district court that any policy of warrantless arrests without probable cause existed, according to the AP, and DHS argued that the Supreme Court’s September 2025 order allowing immigration stops based on reasonable suspicion also covered arrests, Axios reported. After the ruling, White House spokesperson Abigail Jackson said the order was “in defiance of clearly established law” and “will not be the last say on the matter.” DHS spokesperson Tricia McLaughlin said the department “conducts enforcement operations in line with the U.S. Constitution and all applicable federal laws.”

That is likely the government’s strongest point. The Noem v. Vasquez Perdomo stay dealt with brief stops, which require less than probable cause; the statute’s escape-risk test governs arrests. The open question is whether the D.C. Circuit keeps that line or reads the high court’s order as a signal to give officers more room.

Why a D.C. case matters beyond the District

The injunction covers only arrests in Washington, but an appellate opinion endorsing its documentation rule would give plaintiffs elsewhere a template as ICE faces pressure toward the 3,000-arrests-a-day pace CNN reported earlier this month, which DHS denies is a quota. A reversal would remove one of the few court-supervised checks on individual warrantless arrests, as disputes like the Long Beach detention of a U.S. citizen and a House bill offering damages to citizens held by immigration officers show how contested arrest practices have become. Appeals courts are scrutinizing other ICE custody practices too, as a recent Tenth Circuit ruling on re-detention shows.

For anyone arrested in D.C. without a warrant, the records are the practical tool: a lawyer can request the documentation for a specific arrest, and the government must produce it within seven days. The brief’s cover notes that oral argument has not yet been scheduled, and the order by its terms remains in effect until the court says otherwise.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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