Immigration and Customs Enforcement has been lying for more than a year about its authority to arrest people when they show up to their routine immigration court hearings, according to a letter the U.S. Attorney for the Southern District of New York filed yesterday.
The letter by Jay Clayton says that ICE legal counsel told him and other SDNY attorneys that the memo they had been using to justify their courthouse arrests did not actually grant the authority they previously insisted it did. That memo, dated May 27, 2025, is titled the Civil Immigration Enforcement Actions in or Near Courthouses, commonly referred to as the “2025 ICE Guidance.” According to Clayton, it “does not and has never applied to civil immigration enforcement actions in or near Executive Office for Immigration Review immigration courts.”
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Clayton continued, saying that an email dated March 19, which SDNY attorneys saw for the first time Wednesday, was sent to ICE Enforcement and Removal Operations agents as a “reminder that the May 27, 2025, Guidance does not apply to Executive Office for Immigration Review (Immigration) courts, regardless of their location.”
Federal agents previously used the guidance to stalk immigrants for more than a year outside of immigration courts, lingering in the halls, grabbing people as they exit their hearings, and disappearing them into federal detention, even when judges say they have credible asylum claims. Once in the system, ICE then moves prisoners around the country to stop them from meeting with lawyers.
Clayton’s letter came as part of the lawsuit African Communities Together v. Lyons, a case the New York Civil Liberties Union, ACLU, Make the Road NY and Emery Celli brought last year challenging arrests after immigration court appointments at 26 Federal Plaza in Manhattan. The plaintiffs had asked Clayton to halt those arrests while the case was resolved; he denied the stay because ICE said the 2025 ICE Guidance justified them.
“It’s shocking. It’s a shocking revelation at this stage in the litigation,” NYCLU Director of Immigrants’ Rights Litigation Amy Belsher told the Prospect. “The arrests are justified by this memo … the only defense they gave in federal court in their claims is that the memo explained their reasoning.”
The court should reconsider its prior decision, she said, adding that plaintiffs have asked the court for two weeks to come up with a plan.
“We need some answers from ICE about how this misrepresentation was perpetuated in multiple federal courts for many months without anybody realizing, across multiple jurisdictions. 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.”
According to the government, it was a mistake Clayton puts squarely on ICE.
“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,” Clayton wrote.
He tried to shift responsibility for the mistake away from SDNY attorneys, who were “specifically informed by ICE that the 2025 ICE Guidance applied to immigration courthouse arrests.”
“In addition, we discussed with and obtained the approval of assigned ICE counsel before filing every brief in this case and making any oral representations to the Court and Plaintiffs,” Clayton wrote. “Based on our discussions with ICE today, this regrettable error appears to have occurred because of agency attorney error.”
Clayton’s letter says ICE will withdraw portions of its filings and statements referencing the 2025 ICE Guidance, but does not indicate that he will reconsider his earlier judgment.
Former NYC comptroller Brad Lander, who is running for Congress in the city’s 10th District, said in an emailed statement to the Prospect that courthouse arrests should end in light of the new information.
“This is outrageous, even by Trumpian standards of lawslessness,” he said. “All courthouse arrests must cease immediately, and Congress must launch a full investigation into every unlawful abduction of immigrants who were simply trying to show up to court and follow the law.”
Belsher said the arrests will continue for now and agents will likely continue their illegality.
“A through line here is that ICE has acted with reckless disregard as to the truth in front of federal courts across the country,” she said. “This is not an incident specific to our case, we are seeing this happen everywhere, and here, it’s just all the more egregious because of the enormous harm this policy has been inflicting on New Yorkers and people who were just trying to follow the rules.”