Settling Litigation Challenging ICE’s Warrantless Arrests and Vehicle Stops in the ICE  Chicago Field Office: Overview of Proposed Settlement Agreement (1)

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INTRODUCTION  

The parties have reached a settlement agreement in the class action lawsuit, Castañon Nava et al. v.  Dep’t of Homeland Security et al., No. 18-cv-3757 (N.D. Ill.), which challenged ICE’s practice of  conducting unlawful warrantless arrests and vehicle stops within the ICE Chicago Field Office’s  jurisdiction through large-scale enforcement operations, pre-textual traffic stops, and other  indiscriminate enforcement actions. The settlement has significant implications, within the Chicago  Field Office and nationwide, given certain policy changes and documentation required under the  settlement with respect to making arrests without an administrative warrant and certain vehicle stops.  While the court still must approve the agreement, it is likely to be approved in its current form. The general terms of the settlement and the process for approval is described below.  

BACKGROUND  

In May 2018, persons arrested by ICE and impacted organizations, including the Illinois Coalition  for Immigrant and Refugee Rights (ICIRR) and Organized Communities Against Deportation  (OCAD), challenged ICE’s widespread, indiscriminate immigration sweeps in the Chicagoland area,  which resulted in the collateral arrest of hundreds of individuals through warrantless arrests and pre textual vehicle stops. Plaintiffs argued that ICE failed to comply with the terms of 8 U.S.C. § 1357(a)(2) and the Fourth Amendment in carrying out these arrests, including by failing to make  findings that the person was likely to escape before ICE could obtain a warrant and that there was a  reasonable suspicion that a person in the vehicle did not have lawful status. For more information,  access the complaint here: https://immigrantjustice.org/court_cases/castanon-nava-et-al-v-dhs-et-al.  

After the U.S. District Court for the Northern District of Illinois denied the government’s motion to  dismiss, the parties entered settlement negotiations. The negotiated settlement agreement is subject  to the final approval of the court and will fully resolve the issues raised in this litigation.

(1) Updated November 30, 2021. This overview does not purport to provide legal advice.

SETTLEMENT AGREEMENT: WHAT WILL IT DO?  

The following is a summary of the key points in the settlement agreement. Under the agreement:  

1. ICE Must Issue a New Nationwide Policy Regarding Warrantless Arrests and Vehicle  Stops. Once the settlement agreement goes into effect, ICE will broadcast to all ICE officers nationwide a new policy (attached as Appendix A to the settlement agreement) that  establishes applicable standards for warrantless arrests and certain vehicle stops. The policy  provides various factors required to be considered before ICE may make a warrantless arrest,  including, for example, whether an individual’s ties to the community (such as family, home,  or employment) mitigate against authority to make an arrest without a warrant. Likewise, the  policy establishes that ICE may only make a vehicle stop if it has reasonable suspicion— based on specific, articulable facts—about a particular person inside the vehicle does not  have legal status. ICE may not state to the driver or the occupants of a vehicle that the  purpose for a stop is related to any vehicle or traffic violation.

2. Under Nationwide Policy ICE Must Document the Bases for Warrantless Arrests and  Vehicle Stops. The settlement and policy requires ICE officers nationwide to document the  facts and circumstances surrounding warrantless arrests and vehicle stops in the narrative  section of a person’s Form I-213—including the fact that the person was arrested without a  warrant, the location of the arrest, the person’s ties to the community or lack thereof, and  other particularized facts supporting a finding that the person was likely to escape justifying a  warrantless arrest. With respect to vehicle stops, ICE must document specific facts that  formed the basis for its reasonable suspicion that a person in the vehicle did not have legal  status justifying the stop.  

3. ICE Must Undergo Training Nationwide. ICE will adopt or amend training materials  (subject to counsel’s input and review) that comply with the terms of the new policy. It will  train all officers nationwide within 6 months of the broadcast.  

4. ICE Must Submit Documentation to Counsel to Confirm Compliance with the  Settlement. On a monthly basis, ICE will produce copies of all Form I-213s related to  warrantless arrests and vehicle stops conducted in the Northern District of Illinois to ensure  compliance with the agreement.  

5. Enforcement Provisions for ICE Chicago Field Office: ICE Warrantless Arrests and  Vehicle Stops in Illinois, Indiana, Kansas, Kentucky, Missouri, and Wisconsin.  Violations of the settlement agreement and policy are enforceable through class counsel and  the Court for a period of three years. Individuals subject to arrests that violate the agreement  and policy may be eligible for release or refund of bond money. ICE officers that violate the  settlement and policy are subject to remedial measures and training. Finally, additional  remedies are available in the event of repeated, material violations of the settlement and  policy.
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SETTLEMENT AGREEMENT: WHO IS COVERED?  

A person is a “class member” covered by the settlement agreement if they have been arrested, or are  arrested in the future, without a warrant within the jurisdiction of the ICE Chicago Field Office,  consisting of Illinois, Indiana, Wisconsin, Missouri, Kentucky, and Kansas. While certain terms of  the agreement apply nationwide, such as the training and documentation requirements described  above, only class members are eligible for individual remedies through the settlement itself.

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SETTLEMENT AGREEMENT: WHAT IF ICE MAKES A WARRANTLESS ARREST OR  VEHICLE STOP IN ILLINOIS, INDIANA, WISCONSIN, MISSOURI, KENTUCKY, OR  KANSAS?  

If a class member is arrested contrary to the terms of the settlement agreement, the person must be  released from ICE custody as soon as practicable, without paying a bond or being subject to  conditions of release. This applies to all class members, unless the person is subject to mandatory  detention, a criminal detainer, or is deemed to pose a danger to the community (2) such that neither ICE  nor an immigration judge set a bond amount. ICE will also ensure that appropriate remedial  measures and / or training is imposed on the ICE officer(s) who violated the settlement agreement.  

The hope and expectation is that the settlement agreement will preclude unlawful warrantless arrests  and vehicle stops from occurring in the first place, both within the ICE Chicago Field Office and  across the country. In the event of a violation, however, counsel is available to assist class members  in seeking release under the agreement, including by filing a motion to enforce the terms of the  statement of policy with the district court.

If you believe the settlement agreement has been violated—i.e., that you or someone you represent was arrested by ICE in Illinois, Indiana, Wisconsin, Missouri, Kentucky, or Kansas without a  warrant or during a vehicle stop—please contact counsel as soon as possible.

(2) This determination must be confirmed by an Assistant Field Officer Director or higher; be based in the totality of  the circumstances; and be supported by a written explanation and supporting materials. In addition, an immigration  judge’s finding regarding mandatory detention or dangerousness shall control for purposes of the agreement.

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NEXT STEPS & APPROXIMATE TIMELINE  

Counsel anticipates that the settlement agreement will be approved and implemented by the  beginning of 2022. Assuming the district court approves the settlement and policy, ICE then must  revise its training materials to conform with the new warrantless arrest and vehicle stop policy.  Counsel will have an opportunity to review the new training materials and raise to the Court any  concerns where the training diverges from the policy. Once the training materials are approved, the  new policy will be issued and the settlement will go into effect.  

The agreement will last three years from the date it becomes final, but ICE is allowed to ask to  terminate the agreement after two years upon a showing of compliance.  

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Counsel will provide further updates, including with information on how to object to the settlement,  as soon as possible. Counsel is available to respond to questions on this litigation in the meantime.  

Rebecca Glenberg  

AMERICAN CIVIL  

LIBERTIES UNION  

RGlenberg@aclu-il.org  

Mark Fleming  

Mary Harper  

NATIONAL IMMIGRANT  JUSTICE CENTER  

MFleming@heartlandalliance.org  MHarper@heartlandalliance.org

Ivan Poullaos

Patrick O’Meara  

WINSTON & STRAWN LLP  IPoullao@winston.com  POMeara@winston.com