This overview provides instructions on how to screen and refer individuals arrested by ICE in potential violation of the final settlement agreement in Castañon Nava et al. v. Dep’t of Homeland Security et al., No. 18-cv-3757 (N.D. Ill.). The Castañon Nava lawsuit challenged ICE’s practice of conducting warrantless arrests and vehicle stops. Under the settlement agreement, ICE has issued a new, nationwide policy setting forth the requirements for making warrantless arrests and vehicle stops. The policy is attached as Appendix A to the final settlement agreement.
If ICE arrests an individual without a warrant or during a vehicle stop in violation of the policy, the individual may now be able to bring new challenges, including seeking release from detention. The National Immigrant Justice Center (NIJC), class counsel on the litigation, will assist individuals arrested by ICE in violation of the settlement in Illinois, Indiana, Wisconsin, Kentucky, Kansas, and Missouri to seek release, including by filing a motion with the federal court if necessary. Please refer all such individuals to NIJC using the referral form included below.
This note provides: (I) a summary of the new requirements for making a warrantless arrest or vehicle stop; (II) an explanation for challenging violations; and (III) the process for referring individuals to NIJC.
I. REQUIREMENTS FOR WARRANTLESS ARRESTS & VEHICLE STOPS
The new, nationwide policy intends to limit when ICE may make a warrantless arrest under immigration laws, which requires ICE to have probable cause that an individual is “likely to escape” before an arrest warrant can be obtained. To make this determination, the policy requires ICE to consider specific factors before making an arrest, including (a) the ICE officer’s ability to determine the individual’s identity; (b) knowledge of prior escapes or evasions of immigration authorities; (c) attempted flight; and (d) ties to the community, such as a family, home, or employment. See App. A at 17.
In addition, ICE may only make a vehicle stop if it has reasonable suspicion—based on specific facts—that a particular person inside the vehicle does not have legal status. See App. A at 19. ICE may not state that the purpose for a stop is related to any vehicle or traffic violation. Id. at 18.
Under the policy, ICE must document the facts and circumstances surrounding a warrantless arrest or vehicle stop in the individual’s I-213, including:
- the fact the noncitizen was arrested without an administrative warrant;
- the location of the arrest (e.g., place of business, residence, vehicle, or a public area);
- If arrested at a business, whether the individual is an employee of the business, if arrested at a residence, whether the person resides at that place of residence;
- ties to the community, if known at the time of arrest, including family, home, or employment;
- the specific, particularized facts supporting the conclusion that the individual was likely to escape before a warrant could be obtained; and
- a statement of how the ICE officers identified themselves as ICE and “state[d] that the person is under arrest and the reason for the arrest.”
See id. With respect to vehicle stops, ICE must also document specific facts that formed the basis for its reasonable suspicion that a person in the vehicle did not have legal status. Id. at 19.
These requirements apply nationwide. For further details, refer to the complete policy attached as Appendix A to the final settlement agreement.
II. REMEDIES FOR UNLAWFUL WARRANTLESS ARRESTS OR VEHICLE STOPS
Warrantless Arrest within ICE Chicago Area of Responsibility: Possible Opportunities to Seek Release
While ICE’s policy applies nationwide, a person is a “class member” entitled to individual remedies if they are arrested without a warrant within the jurisdiction of the ICE Chicago Field Office’s Area of Responsibility, consisting of Illinois, Indiana, Wisconsin, Missouri, Kentucky, and Kansas. This will typically involve individuals who were arrested in the community, rather than transferred from criminal custody.
Specifically, if a class member is arrested contrary to the terms of the policy, the individual must be released from ICE custody as soon as practicable, without paying a bond or being subject to conditions of release, subject to limited exceptions.
In the event of a violation, NIJC will assist class members in seeking release, including by filing a motion with the federal court if necessary.
In addition to these individual remedies, ICE is required to impose appropriate remedial measures on the ICE officer(s) who violated the agreement. Other remedies through the court are also available in the event of repeated, material violations. Violations are enforceable for a period of three years.
Additional Potential Nationwide Remedies: Possible Challenges in Immigration Court
Individuals arrested without a warrant or pursuant to a vehicle stop—even if outside the ICE Chicago Field Office’s Area of Responsibility—may also be able to seek additional remedies in immigration court. For example, individuals may seek suppression of evidence or termination of proceedings in the event of alleged Fourth Amendment violations. Individuals should retain immigration counsel for assistance with seeking challenges in immigration court.
III. PROCESS FOR SCREENING AND REFERRING INDIVIDUALS
The new policy and referral forms are attached to this instruction sheet and are available on NIJC’s settlement website here: https://immigrantjustice.org/NavaSettlement. As described, the referral should include sufficient information to identify and locate the individual, contact a friend or family member, and explain the circumstances surrounding the person’s being taken into immigration custody.
Please email the completed form to the National Immigrant Justice Center (NIJC) at litigation@immigrantjustice.org, with the title “Warrantless Arrest” in the subject line. Please also email the individual’s I-213 and/or any other supporting documentation if available.
Download this guidance and the referral form (.docx file):
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