On March 25, 2026, the Department of Justice admitted to a federal judge in Manhattan that for nearly a year, the government had been citing a policy memo that never applied to the very arrests the government was using it to justify — ICE’s arrests of people at immigration courthouses, the buildings where the government itself had ordered them to appear. The admission came to light through NYU Law professor Ryan Goodman, co-editor-in-chief of Just Security and the architect of the “Presumption of Regularity” tracker documenting cases where courts have found Trump administration representations unreliable. Goodman called it one of the most dramatic entries yet.
What that admission means — for the people who showed up for court and got arrested, the people who didn’t show up and got deported anyway, and the lawyers who watched the government defend all of it with a document that was, functionally, a fiction — is worth understanding in detail.
Going to Court Became a Trap
Imagine you are an asylum seeker in Manhattan. You fled violence. You applied for protection. The government scheduled your hearing at 26 Federal Plaza, the federal building that houses both the immigration court and the ICE field office. You have been told, by every lawyer and legal aid organization you’ve encountered, that you must attend. Miss your hearing and the immigration judge enters an order of removal in absentia — you lose your case without ever making your argument.
So you go. You sit in the courtroom. The government’s prosecutor stands up and asks the judge to dismiss your case. Not because you did anything wrong, but because EOIR has a new policy encouraging rapid docket clearance. The judge grants the motion. You walk out the courtroom door.
ICE agents — sometimes in plainclothes, sometimes masked, often without displaying badges — are waiting in the hallway. They arrest you. Within hours you may be in a detention facility hundreds of miles from your home, your attorney, your family.
This was the reality at immigration courthouses across the country from May 2025 onward. At San Francisco’s two immigration courts alone, advocates documented 129 arrests between May and December. At 26 Federal Plaza, it became routine. The NYCLU described it as a “catch-22”: attend your legally mandated hearing and risk arrest, or skip the hearing and guarantee an order of removal.
Now imagine the alternative. You’ve heard what’s happening. Your lawyer tells you the risks. So you don’t go. You skip the hearing you were ordered to attend. The judge enters the removal order. ICE can now pick you up anywhere, at any time, with an order in hand. Either path leads to the same outcome — the only difference is whether it happens in a courthouse hallway or somewhere else, weeks later.
People Stopped Coming to Court
The people who stopped coming to court were not limited to respondents in immigration proceedings. NPR reported that crime victims across the country began dropping cases rather than risk appearing at a courthouse. In Albemarle County, Virginia, a court clerk confirmed that two criminal prosecutions had to be abandoned because the victims — people who had been harmed and were seeking justice — were too afraid of encountering ICE to testify. A road rage victim stopped cooperating with the prosecution of her attacker. In one case, a naturalized U.S. citizen of fourteen years became afraid to serve on a jury.
Court interpreters stopped wanting to work. Public defenders reported that clients accepted unfavorable plea deals rather than appear for trial. California Supreme Court Chief Justice Patricia Guerrero stated publicly that immigration enforcement at courthouses “hinders, rather than helps, the administration of justice.” Alameda County Public Defender Brendon Woods was more blunt: he called it “the destruction of our judicial system.”
The practical consequences of courthouse arrests extended well beyond immigration law. They reached into criminal cases, family court, civil disputes — anywhere a person had to physically appear before a judge. The courts depend on people being willing to show up, and that willingness was collapsing.
Courthouse Arrests Have Been Prohibited for Centuries
Before getting to what the government admitted, it’s important to understand why courthouse arrests are different from arrests anywhere else.
The privilege against civil arrest while going to, attending, or returning from court is one of the oldest protections in Anglo-American law. It traces back to at least fifteenth-century England. Blackstone described it. American courts have recognized it since the founding. The principle is straightforward: a legal system that allows people to be seized for showing up to court is a legal system that stops functioning. If people cannot safely access a courthouse, the courts lose witnesses, litigants, jurors — and with them, the ability to function.
This isn’t a technicality. It is the foundation of how courts maintain their authority. Courts can compel appearance, but that power is meaningless — and unjust — if appearance carries the risk of arrest unrelated to the proceeding. The privilege exists precisely to prevent the government from turning court attendance into a trap.
When Judge P. Kevin Castel considered this privilege in September 2025, he declined to apply it, in part because the government persuaded him that ICE’s courthouse arrests were conducted under a structured policy with built-in safeguards and constraints. The government told him: this is not arbitrary; there is a framework. That framework, it turns out, did not exist.
The Government Said a Memo Authorized All of This
The document at the center of the government’s defense is ICE Policy 11072.4, a memorandum dated May 27, 2025, titled “Civil Immigration Enforcement Actions in or Near Courthouses.” Signed by Acting ICE Director Todd M. Lyons, the memo authorized ICE to arrest individuals in or near courthouses based on “credible information” that a target would be present. It listed priority categories — national security threats, gang members, absconders, convicted criminals — but stated enforcement was “not limited to” those groups. It even authorized “collateral” arrests of people accompanying a target, such as family members.
When African Communities Together and The Door sued to block the policy in August 2025, the government’s defense hinged on this memo. In four separate briefs and at oral argument on September 2, 2025, the government told Judge Castel that the May 27 guidance applied to immigration courthouse arrests and that it provided the policy framework governing ICE’s conduct at EOIR courts. Judge Castel relied on those representations in his September 12 opinion denying the plaintiffs’ motion to stay the arrest policy. The government’s argument was: the memo provides structure, priorities, and guardrails. The policy is not arbitrary. It reflects reasoned agency decisionmaking.
On March 24, 2026, the government admitted that none of this was true.
In a letter signed by U.S. Attorney Jay Clayton and filed as Document 77 on the docket, the DOJ informed Judge Castel that the May 27 guidance “does not and has never applied to civil immigration enforcement actions in or near Executive Office for Immigration Review (EOIR) immigration courts.” The DOJ called this a “material mistaken statement of fact.” It withdrew the relevant portions of ECF Nos. 39, 66, 70, and 74 — four briefs — and the statements from the September oral argument.
The letter revealed a chain of failure. The DOJ attorneys said they had been “specifically informed by ICE that the 2025 ICE Guidance applied to immigration courthouse arrests.” They had obtained ICE counsel’s approval before filing every brief. They had shared copies of the court’s orders and the plaintiffs’ filings with ICE throughout the litigation. And yet ICE’s own lawyers were wrong — or ICE’s lawyers told the DOJ something that bore no relation to the actual scope of the memo they had drafted.
The DOJ blamed “agency attorney error.” It expressed “deep regret.” But buried in a footnote on the same page, the government added a caveat: the withdrawal of its representations about the memo did not affect its arguments that the arrests don’t violate what it called “any so-called common-law privilege against courthouse arrests,” its arguments supporting the EOIR Dismissal Policy, or its motion to dismiss on mootness grounds. In other words: we lied about having authority for these arrests, but we still think the arrests are legal anyway.
DHS, for its part, issued a statement that made the position even more explicit: “We will continue to arrest illegal aliens at immigration courts following their proceedings. Nothing prohibits arresting a lawbreaker where you find them.”
What This Means Legally
Start with the narrow legal question. The government’s defense against the charge that its courthouse arrest policy was arbitrary and capricious under the Administrative Procedure Act depended on the existence of a policy framework — a document explaining the agency’s reasoning, setting priorities, establishing procedures. Without the memo, ICE was conducting immigration courthouse arrests under no applicable guidance at all. There was no document governing these arrests. No articulated rationale. No priority structure. No reporting requirements.
From a legal standpoint, this is worse than a bad policy. A bad policy can at least be defended as an exercise of agency discretion. The absence of any applicable policy is the textbook definition of arbitrary agency action. The government spent a year telling a federal judge that its conduct was governed by a specific, reasoned framework, and the framework didn’t apply. The court will now have to reconsider its September 12 opinion on a fundamentally different factual record — something the government itself acknowledged.
Then there is the common-law privilege — the one the government dismissed in its footnote as “so-called.” That framing is worth pausing on. This is a protection that predates the Constitution. It is not obscure or debatable. When Judge Castel declined to apply it in September 2025, he did so in part because the government persuaded him that ICE’s arrests operated within a structured policy framework. That framework is gone. The government is now asking the court to accept that the privilege doesn’t apply, while simultaneously admitting it had no policy governing the arrests the privilege was designed to prevent. That is a much harder argument to make.
Then There Are the People
Ryan Goodman’s “Presumption of Regularity” tracker now catalogs over ninety cases where federal courts have found Trump administration representations unreliable or false. This is one of them.
But the question that matters most is what happens to the people who were arrested under the authority of a memo that didn’t apply to them. Some have already been deported. Some are in detention facilities across the country. Some are family members who were swept up as “collateral” arrests while accompanying someone to a hearing that the government itself had ordered that person to attend.
The government’s position, stripped of the legal framework it spent a year constructing in court, now amounts to this: we can arrest anyone at a courthouse, for any immigration violation, with no policy constraints. Whether that position survives scrutiny — in the Southern District of New York, in Northern California where a stay is already in place, in Oregon where a judge called ICE’s conduct “violent and brutal” — will be decided in the coming months. The people who were arrested while it was being sorted out don’t get that time back.
I’m Leonard French, your favorite copyright attorney. I look forward to reading your thoughts in the comments below.
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