From left, Defense Secretary Pete Hegseth, border czar Tom Homan and Attorney General Pam Bondi attend the swearing-in for Homeland Security Secretary Markwayne Mullin in the Oval Office of the White House, Tuesday, March 24, 2026, in Washington (AP Photo/Alex Brandon).
The DOJ threw ICE under the bus for “agency attorney error,” a “material mistaken statement of fact” repeatedly cited in briefs that undermines a “core” defense of civil arrests at or near the executive branch”s immigration courthouses.
U.S. Attorney for the Southern District of New York Jay Clayton, once the SEC chairman during President Donald Trump’s first term, submitted a letter to U.S. District Judge P. Kevin Castel on Tuesday to “regrettably” inform the jurist that he issued a ruling in September based on false information from the government defendants.
“We write respectfully and regrettably to correct a material mistaken statement of fact that the Government made to the Court and Plaintiffs. Specifically, this morning, counsel from U.S. Immigration and Customs Enforcement informed the undersigned of the following: the memorandum entitled Civil Immigration Enforcement Actions in or Near Courthouses, dated May 27, 2025 – which the Government relied on in presenting its arguments in this case and referred to as the ‘2025 ICE Guidance’ – does not and has never applied to civil immigration enforcement actions in or near Executive Office for Immigration Review immigration courts,” the letter said, acknowledging that a do-over will be needed to decide the plaintiffs’ claims “on the merits.”
The Door and African Communities Together filed suit in Castel’s court in August, seeking a declaration that the DOJ’s Executive Office for Immigration Review (EOIR) practice of “summarily” dismissing removal proceedings for noncitizens who show up to court, only for ICE to arrest them pursuant to a May 2025 memo, “effectively turn[ed] mandatory court hearings into traps” and amounted to “arbitrary and capricious” agency action under the Administrative Procedure Act (APA).
The DOJ’s immigration courts, unlike federal U.S. district courts, circuit courts, and the Supreme Court, are not part of the judicial branch. Rather, they are an executive branch function composed of immigration or “deportation” judges who are appointed by the U.S. attorney general to conduct hearings on removal, bond, asylum, and more.
In early September, the George W. Bush-appointed judge held a motion hearing, where the government apparently insisted — as it did in its briefs — that “2025 ICE Guidance” permitted “civil immigration enforcement actions” in or near courthouses and applied not just to federal, state, and local courts, but also the executive’s immigration courts. Ultimately, Castel declined to grant The Door a stay of “ICE Courthouse Arrest Policies,” finding it had “neither shown a likelihood of success in establishing a common law privilege against courthouse arrests” nor that the policies were “arbitrary, capricious or otherwise contrary to law.”
By December, the DOJ forged ahead and filed a motion to dismiss the case, again referring at length to acting ICE Director Todd Lyons’ May 2025 memo.
The federal government is now singing a markedly different tune, with Clayton’s letter assigning blame for the “agency attorney error” to ICE and specifically withdrawing the “portions” of its filings which relied on the false assertion.
“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. This error, however, was not caused by a lack of diligence and care by the undersigned attorneys,” the letter stated. “The undersigned 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. We also transmitted copies of the Court’s orders, the transcript of the September 2, 2025 oral argument, and Plaintiffs’ filings to ICE counsel throughout this litigation.”
The memo itself says ICE officers and agents “should generally avoid enforcement actions in or near courthouses, or areas within courthouses that are wholly dedicated to non-criminal proceedings,” naming family court or small claims court as examples of “non-criminal or specialized courts.”
The ACLU responded Wednesday on behalf of the plaintiffs by referring to what Clayton called a “material mistaken statement of fact” as a “false statement of fact” that undermined the “core of the government’s defense” — after summary judgment has already been briefed.
“[T]hat false statement of fact was relied upon by this Court to deny Plaintiffs preliminary relief on their challenge to that policy,” the letter noted, adding that the “implications of this development are far-reaching” and harms are still stacking up. “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 letter concluded by suggesting that a motion for reconsideration may follow.
