How New Immigration Court Policy Affects DHS Arrests

On January 28, 2025, the Executive Office for Immigration Review (EOIR) issued Policy Memorandum (PM) 25-06, rescinding a previous rule that limited Department of Homeland Security (DHS) enforcement actions near immigration courts. The now-canceled Operating Policies and Procedures Memorandum (OPPM) 23-01 had placed restrictions on Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) from conducting arrests near EOIR-controlled spaces, such as immigration courts.

This change raises major concerns for immigrants, legal professionals, and advocacy groups. With enforcement actions once again permitted near courts, many fear that individuals seeking legal relief may avoid hearings because they fear detention or deportation. In this blog, we explain what this policy shift means, who is affected, and how immigrants and legal professionals can navigate the new landscape.


What Did OPPM 23-01 Do?

The now-rescinded OPPM 23-01, issued in December 2023, was designed to limit DHS enforcement actions near immigration courts. The policy was based on an earlier DHS memorandum from 2021, which restricted civil immigration enforcement near courthouses to encourage court attendance.

EOIR justified these restrictions by arguing that the DHS’s presence near immigration courts could have a “chilling effect” on noncitizens, discouraging them from attending hearings due to fear of arrest. The policy aimed to clearly separate the DHS’s enforcement role from EOIR’s adjudicatory function.


What Changed with PM 25-06?

With the issuance of PM 25-06, EOIR has removed restrictions on DHS enforcement in and around immigration courts. Key changes include:

  • ICE and CBP can now conduct enforcement actions near immigration courts without prior limitations.
  • EOIR states it lacks the authority to prohibit DHS from carrying out lawful enforcement actions, calling OPPM 23-01 “ultra vires” (beyond its legal authority).
  • DHS will follow its own enforcement guidelines, including a new Interim Guidance on Civil Immigration Enforcement in or near Courthouses (Policy 11072.3).
  • EOIR claims there is no evidence that enforcement actions near courts significantly affect court attendance.

While EOIR acknowledges concerns about enforcement near courts, it argues that the previous policy was inconsistent, lacked legal authority, and did not align with current Executive Branch policies.


Who Is Affected by This Policy Change?

1. Immigrants Attending Court Hearings

The most immediate impact will be felt by noncitizens attending immigration court hearings. Previously, those with pending cases had some protection from ICE or CBP enforcement near court facilities. Now, with those protections lifted, individuals may feel unsafe appearing for their hearings, even if they have strong legal cases.

  • Risk of Arrest: Immigrants with outstanding removal orders or prior deportation cases could face arrest before or after their hearings.
  • Fear-Driven Absences: The presence of ICE near courts may cause some individuals to skip hearings, increasing in absentia removal orders (deportation orders issued when someone fails to appear).

2. Immigration Attorneys and Legal Advocates

For attorneys representing immigrants in court, this change presents new challenges:

  • Increased Client Anxiety: Lawyers may need to spend more time reassuring clients about attending court while also preparing them for potential DHS encounters.
  • Potential Legal Challenges: Advocates may look for ways to challenge arrests that interfere with due process or argue that enforcement discourages lawful participation in the system.
  • Need for Increased Advocacy: Attorneys and organizations may have to push for clearer policies that balance immigration enforcement with due process protections.

3. Immigration Courts and Judges

Judges and court staff may also face disruptions due to enforcement actions near court premises. This could lead to:

  • Delayed Hearings: If individuals are detained before their scheduled hearings, courts may have to reschedule cases, causing further backlog.
  • Uncertainty About Court Attendance Rates: If many immigrants fear attending hearings, courts could see an increase in absent respondents and deportation orders.

Potential Consequences of This Policy Shift

  • Increase in In Absentia Removal Orders
    If immigrants skip hearings out of fear, they may receive automatic deportation orders, even if they had a valid legal defense.
  • Rise in ICE Enforcement Actions Near Courts
    With fewer restrictions, ICE may increase surveillance and arrests near immigration courts, making legal proceedings riskier for noncitizens.
  • Growing Distrust in the Immigration System
    Many immigrants may feel that attending court puts them in direct danger, leading to further mistrust of the legal process.

What Can Immigrants and Advocates Do?

1. Know Your Rights

If confronted by ICE near a courthouse, immigrants should remember:

  • You have the right to remain silent—you do not need to answer questions about your immigration status.
  • Do not sign anything without legal advice.
  • Ask to speak with an attorney before making any decisions.

2. Seek Legal Guidance Before Court Hearings

Anyone with concerns about attending court should consult with an experienced immigration attorney to assess risks and explore options for legal protection.


Conclusion

The rescission of OPPM 23-01 significantly alters the landscape of immigration court proceedings by allowing DHS enforcement actions near EOIR-controlled spaces. While EOIR justifies this move as legally necessary, it raises concerns about court attendance, due process, and the fairness of the immigration system. Immigrants, legal professionals, and advocacy organizations must stay informed, know their rights, and take proactive steps to navigate this changing policy environment. If you or someone you know is concerned about attending immigration court due to this policy change, seek legal counsel as soon as possible.

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