Opinion: 'The Agency Wants Everyone Arrested': What a Federal Judge Found Inside ICE's Warrantless-Arrest Paperwork

On September 2, a federal judge in Los Angeles quietly signed a 54-page order that reads, in long stretches, like a forensic audit. Buried in it is a finding that deserves far more attention than it has gotten: of 113 people whose warrantless arrests immigration agents documented on paper, roughly four out of five records show no genuine, individualized justification for skipping a judge-issued warrant at all. That conclusion, from U.S. District Judge Maame Ewusi-Mensah Frimpong, is not a bureaucratic footnote. It goes to whether one of the few legal checks left on the government's record-setting deportation campaign is being honored, or merely performed on paper after the fact.

The Math Behind "Likely to Escape"

Federal law is not ambiguous on this point. Under 8 U.S.C. § 1357(a)(2) and its implementing regulation, an immigration officer may arrest someone without a judicial warrant only if the officer has probable cause both that the person is removable and, separately, that the person "is likely to escape before a warrant can be obtained." It is an individualized, case-by-case judgment, not a status a person simply has by virtue of lacking papers.

To test whether agents were actually making that judgment, lawyers for the plaintiffs in Vasquez Perdomo v. Mullin, a class-action suit over immigration enforcement in Southern California, combed through 871 government-produced arrest records tied to 113 unique arrestees. The results, laid out in Judge Frimpong's order: 41 of the 113 files — more than a third — contained no escape-risk language whatsoever. Of the 72 that did mention it, 48 relied on a nearly identical form paragraph, reciting that the person "ignored agent commands" and cited "illegal presence in the United States" as the basis for concluding he would flee. Add the two categories together and documented, individualized analysis was effectively missing in about 89 of 113 cases — close to 80 percent.

The court's record also captured what that looked like from the inside. In a text exchange quoted in the order, one ICE agent complained about the inconsistency of the guidance being enforced in the field:

"[T]he agency wants everyone who is not a usc to be arrested. Things change every day[;] not consistent."

That is not the voice of an agency carefully weighing flight risk case by case. It is the voice of an agency working backward from a target.

A Memo Written to Get Around the Law

The order traces much of this practice to a January 28 memo from Todd Lyons, then the acting head of ICE, instructing "all ICE personnel" on how to satisfy the escape-risk requirement. Judge Frimpong found that the memo, in places, "suggests that an immigrant's legal status alone can form the basis for the likelihood-of-escape determination" — which would collapse an individualized judgment call into a blanket rule, since unlawful presence is the one fact common to nearly everyone ICE wants to arrest. Treating it as sufficient by itself, as her order lays out, empties the statute's requirement of any real meaning.

To be fair to the government, and to the judge, this ruling is narrower than its critics might wish. Frimpong explicitly declined the plaintiffs' request to categorically ban "boilerplate" language, reasoning that recurring language isn't automatically illegitimate — sometimes similar facts really do recur — and that policing wording at that level of generality would create unworkable line-drawing problems for the court. Nor is this the first time this same lawsuit has reached a judge with more sympathy for aggressive enforcement: a year earlier, in Noem v. Vasquez Perdomo, the Supreme Court stayed a related injunction in the same case over three dissents, with Justice Brett Kavanaugh's concurrence allowing agents to weigh a person's apparent ethnicity, language or location as one factor — not the sole one — in deciding whom to stop. The government has real latitude from the nation's highest court on who agents can approach. What this new order says is narrower and, in some ways, more damning: once agents decide to arrest someone without a warrant, the government's own paperwork mostly fails to show they did the legally required analysis to justify skipping the warrant in the first place.

A District Order, a National Practice

It would be a mistake to file this away as a Los Angeles story. The Lyons memo went to ICE personnel nationwide, not a single region, and the enforcement surge behind it is national in scale: ICE recorded nearly 50,000 arrests in July alone, the highest monthly total of the second Trump administration, with California arrests running roughly 15 percent above the prior year's pace, according to one investigation into the same court fight. If a similar share of warrantless arrests elsewhere lack genuine flight-risk findings, the number of people arrested on paperwork that would not survive judicial review is not in the dozens. It is potentially in the thousands, spread across a country where relatively few plaintiffs have the resources or standing to force the kind of document-by-document review that produced this record.

There is also a transparency problem layered on top of the legal one. The order itself was originally filed under seal on September 2 and only reached the public docket weeks later, after the parties agreed no redactions were needed — meaning the public learned the scope of the government's noncompliance well after a federal judge had already found it. For a program operating at this scale and touching this many people, that lag between judicial fact-finding and public accountability is itself worth scrutinizing.

What Should Happen Now

Judge Frimpong's injunction, which the government asked her to stay and which she refused to stay, requires agents in the Central District of California to do several concrete things going forward:

• Make an individualized, pre-arrest determination — based on the totality of the circumstances, not immigration status alone — that a person is likely to escape before a warrant can be obtained.
• Stop relying on the Lyons memo's theory that unlawful presence by itself satisfies that standard.
• Document, after every warrantless arrest, the specific facts supporting the escape-risk finding, along with the date, time and location of both the arrest and the documentation.

Those are not radical demands; they simply restate what the statute already says. The problem this case exposes is that it took a class-action lawsuit, a document-by-document review of 871 records, and a federal judge willing to work through a 54-page order to get one region of one agency to say it will follow them. That is not a sustainable way to enforce the law nationally. DHS's own Office of Inspector General has the authority to audit warrantless-arrest documentation across every ICE field office, not just the one currently under a court order, and Congress's homeland security committees can demand that it do so. Absent that kind of systemic check, the next court to review a batch of arrest records elsewhere in the country may well find the same pattern Judge Frimpong did — a legal requirement that exists in the regulations and in the training memos, and largely nowhere else.