ICE Warrantless Arrests: Oregon Judge Finds Order Violated

An Oregon federal judge found ICE kept making warrantless arrests in defiance of his order, and that one officer falsified an arrest record.

ICE warrantless arrests in Oregon violated a federal court order, U.S. District Judge Mustafa T. Kasubhai ruled on Nov. 2, finding that officers kept detaining people without warrants and without the flight-risk assessment his February injunction required. The 50-page opinion, reported by OPB and The Oregonian, also found that an ICE officer lied in an official arrest record, and it orders DHS to hand over arrest files and body-camera footage so the court can check compliance itself.

The case, a proposed class action brought by the nonprofit Innovation Law Lab, matters beyond Oregon. It is one of several in which judges are holding ICE to the narrow terms Congress set for warrantless arrests, and it rests on a finding that the paperwork officers file afterward cannot be taken at face value.

What the law allows, and what the February order added

Civil immigration arrests normally rest on an administrative warrant. The exception, 8 U.S.C. 1357(a)(2), allows an arrest without one only when the officer has reason to believe the person is here unlawfully and is likely to escape before a warrant can be obtained. ICE guidance tracks that test, according to NPR, which reported in February on a memo from acting ICE Director Todd Lyons to the same effect.

Judge Kasubhai’s Feb. 4 preliminary injunction turned that standard into a court order for Oregon. Agents could arrest without a warrant only after finding a flight risk, and had to document each such arrest for Innovation Law Lab. Courts in Colorado and Washington, D.C., issued similar rulings, NPR reported, and the government appealed them, including the D.C. case now backed by 22 state attorneys general.

Thirteen reported arrests, and an arrest report that was false

The numbers drove the ruling. The government reported only 13 warrantless arrests in Oregon during the first six months of the injunction. The judge wrote that ICE “conducted significantly more than 13,” according to The Oregonian. Innovation Law Lab alleges the true figure runs to the hundreds; neither outlet reported the court adopting a specific count.

The sharpest finding concerns a single July 26 arrest near Emigrant Lake. In his Form I-213, the officer, identified as J.G., wrote that he knew the 22-year-old man’s status and had a warrant before the stop. On the stand he conceded, “I did not have a warrant at the time.” The judge concluded that he “lied in an official record to facilitate the impression he was conducting a lawful warrant-based arrest,” and added that “there is no telling how many other agents in Oregon engaged in similar misconduct.”

The judge called the boilerplate in other arrest records “sloppy work.” Federal lawyers have denied the plaintiffs’ claims, OPB reported, and at a September hearing Assistant U.S. Attorney Ariana Garousi told the court of the officer, “I don’t think what he did was malicious.” ICE did not immediately respond to OPB’s request for comment.

Why the I-213 finding reaches into immigration court

Form I-213, the Record of Deportable/Inadmissible Alien, is the officer’s account of an arrest. In removal proceedings it is often the government’s main evidence of alienage. Since Matter of Barcenas in 1988, the Board of Immigration Appeals has treated the form as inherently trustworthy and admissible unless there is evidence it is inaccurate or was obtained through coercion.

A federal finding that an officer falsified one of these forms is exactly the evidence that presumption invites. The likely result is more motions to suppress and more requests to cross-examine officers in Oregon cases built on I-213s from this period. Suppression stays hard to win, since the exclusionary rule reaches civil immigration cases only for egregious violations, but an immigration judge can no longer simply assume a disputed Oregon I-213 is accurate.

The remedies point the same way. DHS must send the injunction’s terms to every ICE agent in Oregon every 30 days and certify that it did, and it must produce arrest files and body-camera footage, which OPB reported covers arrests from Sept. 1 onward; where no footage exists, an officer must say so under oath. Neither outlet reported sanctions. The court is moving from trusting ICE’s self-reporting to auditing it, as judges have in the Los Angeles stop case and, in a different form, in the Pennsylvania contempt ruling.

What to watch

An appeal: a Ninth Circuit appeal would put the Oregon injunction alongside the Colorado and D.C. cases.
The footage: it should show how many warrantless arrests ICE made beyond the 13 it reported.
Accountability: no discipline has been reported, while a House bill on damages for wrongful immigration arrests would raise the stakes of cases like this one.

For people arrested in Oregon since February, the ruling does not by itself undo any arrest or removal order. What it creates is a federal record that ICE undercounted these arrests and that at least one arrest report was false.

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 an LL.M. from California Western School of Law, San Diego 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/

Author's website Author's posts