DOJ Admits to Federal Judge It Misrepresented ICE Authority Over Immigration Courthouse Arrests for Months

The US Department of Justice has admitted to a federal judge in Manhattan that it presented false statements about ICE's authority to arrest immigrants at their own immigration court hearings, a misrepresentation the government now concedes was woven through multiple court briefs and at least one oral argument over the course of nearly seven months.

In a letter filed on 24 March 2026 with US District Judge P. Kevin Castel of the Southern District of New York, Assistant US Attorneys Jeffrey S. Oestericher and Tomoko Onozawa, writing on behalf of US Attorney Jay Clayton, described a 'material mistaken statement of fact' at the core of the government's legal defence.

The memo the DOJ had been citing to justify ICE's courthouse arrest programme, they wrote, 'does not and has never applied to civil immigration enforcement actions in or near Executive Office for Immigration Review immigration courts.'

What the DOJ Letter Says

The May 27, 2025 memorandum at the centre of the dispute is titled Civil Immigration Enforcement Actions in or Near Courthouses and was issued by then-Acting ICE Director Todd Lyons. The government had cited this document, commonly referred to as the '2025 ICE Guidance,' across four separate briefs (ECF Nos. 39, 66, 70 and 74) and during the 2 September 2025 oral argument before Judge Castel, asserting that it authorised and provided a framework for arrests at immigration courts. Every one of those representations was wrong.

The DOJ letter reveals that on 19 March 2026, ICE sent an internal email to its Enforcement and Removal Operations personnel, classified as Exhibit A and attached to the filing, as a 'reminder that the May 27, 2025, Guidance does not apply to Executive Office for Immigration Review (Immigration) courts, regardless of their location' (emphasis in original).

The SDNY attorneys stated they received both that email and the information that the guidance never applied to immigration courts for the first time on the morning of 24 March 2026, the same morning they wrote to the court.

'We deeply regret that this error has come to light at this late stage, after the parties have expended significant resources and time to litigate this case and this Court has carefully considered Plaintiffs' challenge to the 2025 ICE Guidance,' Oestericher and Onozawa wrote.

They were explicit that the fault lay with the agency rather than their office: 'The undersigned were specifically informed by ICE that the 2025 ICE Guidance applied to immigration courthouse arrests,' and all filings were made 'with the approval of assigned ICE counsel.' The letter characterises the cause of the error as 'agency attorney error.'

A Court Order Was Issued on False Grounds; Arrests Continued

The procedural consequences are serious. Judge Castel issued an opinion and order on 12 September 2025 (ECF No. 51) denying the plaintiffs' motion for a preliminary stay of the courthouse arrest policy. That ruling explicitly relied on the government's representations about the 2025 ICE Guidance.

In the plaintiffs' response to the DOJ letter, filed 25 March 2026, counsel for the NYCLU, ACLU, Make the Road New York, and Emery Celli wrote that the government now 'concedes the government's primary defence to Plaintiffs' claim that the Immigration Court Arrest Policy is arbitrary and capricious in violation of the Administrative Procedure Act must be 'withdraw[n],' and it states that the portion of this Court's order denying Plaintiffs' motion to stay the policy... will 'need to be reconsidered.''

The plaintiffs' letter makes plain what happened in practice in the months between the September 2025 ruling and the March 2026 correction. 'In the months since the Court relied on the government's representation to deny Plaintiffs preliminary relief, Defendants have continued arresting noncitizens at their immigration court hearings, resulting in their detention, often in facilities hundreds of miles away.' The filing cites as one example the Declaration of Maria Tumba Huamani (ECF No. 68-13), describing 'the violent arrest of a young person and her eventual transfer to a detention centre in Louisiana.'

Plaintiffs' counsel requested 14 days, until 8 April 2026, to file a formal response and propose next steps, including a possible motion for reconsideration of ECF No. 51. The government consented to that request. The case was brought before Judge Castel, who sits in the Southern District of New York; neither the court nor the judge has issued a public response to the letter as of publication.

'Astonishing': Parallel Litigation in New York, Washington D.C. and California

The disclosure immediately raised a harder question: if the guidance never applied to immigration courthouses, why had ICE counsel been telling DOJ lawyers across multiple jurisdictions and multiple months that it did? The American Prospect reported that the same misrepresentation appears to have propagated across parallel courthouse-arrest litigation in the District of Columbia and in California, citing a source who described the situation as 'astonishing.'

'We need some answers from ICE about how this misrepresentation was perpetuated in multiple federal courts for many months without anybody realising, across multiple jurisdictions,' that source told the Prospect. 'There's litigation in New York, D.C. and California about [courtroom arrests] so the idea that the agency somehow made this mistake in all these different cases over a very long time is astonishing, and we're going to be trying to get to the bottom of what happened.'

The just Security project had been tracking the administration's credibility record before federal courts across hundreds of cases in its 'Presumption of Regularity' tracker, updated as recently as 19 March 2026 and subsequently featured on CBS's 60 Minutes. That tracker documents dozens of instances in which federal judges have found that the Trump administration's litigation posture could not be presumed accurate, a pattern that gives the latest admission particular weight.

The NYCLU's page on the case confirms that the courthouse arrest policy was itself an expansion of longstanding prior protections. Under the Biden administration, civil immigration arrests near courthouses were largely prohibited except in narrow circumstances involving national security or public safety. The Trump administration's May 2025 memorandum removed those limitations and explicitly permitted arrests even in jurisdictions where state or local law would otherwise prohibit them, according to case documents reviewed by the Civil Rights Litigation Clearinghouse.

A federal judge denied immigrants the right to challenge a policy based on a legal premise the government's own agency knew to be false, and arrests continued for months before anyone corrected the record.