Case Dismissals in Immigration Court to Facilitate ICE Arrests Violates Due Process and Undermines Access to Humanitarian Protections

Rule of Law Facts & Resources

SUMMARY

This report, issued by the Immigration and Nationality Law Committee and the Rule of Law Task Force, documents a troubling pattern in New York immigration courts where U.S. Immigration and Customs Enforcement (ICE) attorneys have moved to dismiss removal cases—often with pending applications for relief—in order to facilitate immediate arrests and expedited deportations. The report details how these dismissals strip noncitizens of due process protections and access to humanitarian relief, while ICE Enforcement and Removal Operations (ERO) officers, sometimes masked and armed, detain individuals directly from courtrooms. The City Bar condemns these practices as unconstitutional, calling them a “bureaucratic trap” that undermines the integrity of the legal system and endangers vulnerable individuals seeking lawful protection.  It further makes recommendations for immigration judges, immigration attorneys, legal services provides and community advocates and members of Congress to help address the issue.

REPORT

STATEMENT BY THE IMMIGRATION AND NATIONALITY LAW COMMITTEE AND THE RULE OF LAW TASK FORCE

THE GOVERNMENT’S USE OF CASE DISMISSALS IN IMMIGRATION COURT TO FACILITATE ICE ARRESTS VIOLATES DUE PROCESS AND UNDERMINES ACCESS TO HUMANITARIAN PROTECTIONS

Recent reports from immigration legal service providers and advocates reveal a deeply concerning pattern in immigration courts across New York State, at 26 Federal Plaza, 290 Broadway, and 201 Varick Street, in New York City, and Buffalo, NY. According to these reports, attorneys from the U.S. Immigration and Customs Enforcement’s Office of the Principal Legal Adviser (ICE OPLA)—the “prosecutors” in administrative removal proceedings—have moved to dismiss cases with the apparent intent to strip noncitizens of the legal protections available in full-blown removal proceedings.  Dismissal of the removal proceedings renders the noncitizen vulnerable to placement into expedited removal proceedings—where noncitizens’ due process rights are considerably circumscribed and incentivizes immediate detention by ICE’s Enforcement and Removal Operations (ICE ERO). Equally alarming is recent reporting that immigration judges are acquiescing in ICE’s strategy, in violation of the fundamental due process rights owed to all.^[1]

Most concerning is that Immigration Judges have entered dismissals even when individuals have pending applications for relief. Moreover, ICE ERO has reportedly stationed officers (some in plainclothes, some in black uniforms or vests, some armed, mostly masked^[2]) inside the courtrooms and within the court buildings to detain such individuals—including those with pending applications for immigration relief like asylum—sending some to detention facilities as far away as Louisiana before legal advocates could intervene.  For those persons who were detained at 26 Federal Plaza in reportedly inhumane conditions, ICE ERO refused access to several members of the New York Congressional delegation after they demanded access, thereby denying U.S. representatives their basic civil and constitutional rights.^[3]

This unfolding crisis is difficult to comprehend even for seasoned legal practitioners, and nearly impossible for unrepresented noncitizens to navigate. To better understand what is happening, it is important to explain the procedural dilemma now faced by individuals in removal proceedings. In a typical case, noncitizens are placed into immigration court proceedings where they may be eligible to seek legal relief such as asylum, cancellation of removal, or other humanitarian protections. These forms of relief are available only in removal proceedings and can take years to resolve.

What has emerged now is a kind of bureaucratic trap. ICE OPLA requests to dismiss the case—seemingly a positive development—yet this very dismissal eliminates the forum in which the noncitizen was eligible to apply for relief. Once dismissed, individuals are no longer in removal proceedings and thus have no pending protection application in court. However, they remain vulnerable to ICE enforcement and are subject to arrest and fast-tracked deportation without the protections of a hearing, especially if they are placed into expedited removal. This creates a perverse legal Catch-22: to seek protection, one must be in court—but going to court can now result in the case being dismissed and the person being immediately arrested and removed. Legal presence and legal vulnerability are now paradoxically linked, with no clear pathway for individuals to secure safety without risking detention or deportation.

This newly emerging practice appears to be the product of a quiet but dramatic shift in enforcement policy. In effect, it has created a seamless and deeply troubling pipeline: dismissal, detention, deportation. This three-step sequence—initiated without public announcement or formal policy change—relies on the sudden dismissal of immigration court cases, often while individuals have pending applications for relief; immediate arrest by ICE ERO officers stationed in or near courtrooms; and rapid transfer of those arrested to detention centers, sometimes across the country, often before legal counsel can intervene. Once detained, individuals are frequently removed from the jurisdiction of their attorneys and family, making it significantly more difficult to reassert their rights or challenge deportation.

The swiftness and coordination of this process signals a strategic shift by ICE and EOIR to circumvent the ordinary protections of due process. Rather than following the traditional and legally required adjudication pathway, this approach seeks to eliminate the courtroom altogether, using procedural dismissals not as a means of case resolution but as a tactical mechanism to expose individuals to unreviewable enforcement and removal.

Those actions are particularly disturbing in light of reports that ICE OPLA has, in some cases, verbally reassured advocates and pro se respondents that they were not seeking enforcement action. Nonetheless, individuals were detained by ICE ERO in the court hallway immediately after their appearance. This contradictory messaging creates a dangerous bait-and-switch dynamic: while ICE OPLA provides assurances and noncitizens inform their actions based on those assurances, ICE ERO operates in the same courtroom and building with the clear aim of doing exactly the opposite.

More importantly, the procedure presents noncitizens in removal proceedings with an appalling Hobson’s choice:  either to attend one’s removal hearing and risk dismissal of one’s case (and immediate arrest and detention) on one hand, or to skip the hearing and be ordered removed from the United States in absentia.  Indeed, colloquial reports indicate that the level of attendance at 26 Federal Plaza hearings has dropped precipitously in recent weeks, with a concomitant rise in the number of noncitizens ordered removed in absentia for missing their hearings.

Such sharp practices by government officers not only erode the integrity of the process and undermine trust between government actors and those whom they are charged to serve, but also raise serious constitutional and legal concerns, particularly with respect to due process under the Fifth Amendment. The Supreme Court has long held that noncitizens are entitled to due process protections in immigration proceedings.^[4] The government’s actions in dismissing cases without notice or adequate justification—thereby extinguishing any legal protections—undermine these foundational rights.^[5]

Moreover, the use of dismissals in this context contradicts the principle that immigration court proceedings must be fair, transparent, and consistent with humanitarian obligations under both domestic and international law.^[6] In fact, for many years, the Executive Office of Immigration Review (EOIR) explicitly prohibited such enforcement action within or near its courthouses.^[7] Previous EOIR guidance dating back to as early as 1996 warned of the “chilling effect” that courthouses arrests would have in immigration courts.^[8] The rescission of this policy by EOIR’s Acting Director Sirce E. Owens pursuant to EOIR Policy Memorandum 25-06 raises serious legal issues under the Administrative Procedure Act as to whether such rescission adequately accounts for the strong public policy and legal rationales for prohibiting immigration arrests within or near immigration courts.^[9] EOIR’s stated reasons for rescinding its prohibition of immigration arrests within immigration courts falls far short of the legal standard for such an abrupt change in policy.^[10]

Critical public safety enforcement functions rely on the community. Integral to this trust is the right of access to courthouses free from the threat of civil arrests. The current immigration court arrest policy chills cooperation of noncitizen parties in all judicial proceedings and impairs functioning and trust in not only immigration proceedings, but also in state and federal courts as well.^[11] Indeed, civil enforcement action in courts has previously shown to severely hamper the functioning of the justice system at large, and decrease trust in the legal system, including even deterring domestic violence victims from reporting crime.^[12]

It is contrary to fundamental principles of due process to use court appearances—mandated under the threat of removal—as opportunities to entrap individuals into legal vulnerability. It is a form of procedural ambush to compel appearances under official order, only to dismiss the case mid-hearing stripping the individual of their right to pursue their protections under the law. This practice disproportionately harms the majority of noncitizens who often lack English proficiency and access to legal representation and are thus even more vulnerable in a procedure that is already stacked against them. The image of plainclothes ICE ERO agents stationed in hallways waiting to “sweep up” respondents—many of whom were statutorily shielded from removal by pending claims for relief—offends both legal ethics and basic principles of human dignity. It is a misuse of the judicial process in service of prosecution.

Recommendations and Call to Action:

In light of these developments, the New York City Bar joins other members of the legal community in expressing grave concern and urges the following immediate actions:

1. For Immigration Judges:
2. • Refrain from ruling on dismissal motions on the spot but, rather, give noncitizens facing such motions the full ten days afforded by EOIR’s Practice Manual (or more, in light of many noncitizens’ pro se status) to respond to the ICE OPLA’s motion, thereby avoiding the possibility that the noncitizen might be immediately placed into expedited proceedings.

1. • When possible and appropriate, conduct hearings—specifically master calendar hearings—remotely to mitigate the risk of ICE ERO surveillance and detention within court premises.

1. • Carefully scrutinize motions to dismiss filed by ICE OPLA and request clarity as to the government’s intent in respondent’s particular case and the implications for pending relief if such relief has already been filed or if the respondent intends to file for relief shortly thereafter.

1. • Where appropriate, exercise discretion to deny dismissal requests that would leave applicants without recourse or expose them to removal, particularly where relief applications are pending.

1. • Insist that all present in the courtroom follow the rules of the court, and prohibit ICE OPLA from using their cell phones.

2. For Immigration Attorneys:

1. • Be vigilant and strategic when ICE OPLA seeks dismissal of a case. Do not stipulate to the dismissal sought without first assessing the full immigration consequences for the client, including the risk of being placed in expedited removal and immediate detention and deportation.

1. • Consider opposing any motion to dismiss where it would violate respondent’s due process, under the framework of Mathews v. Eldridge, and make the argument on the record.

• • Submit written opposition and request oral argument if needed. Where appropriate, argue that dismissing the case without affording respondent an opportunity to be heard on any pending relief violates fundamental fairness.

3. For Legal Service Providers and Community Advocates:

1. • Monitor and document ICE ERO presence in and around immigration courts and inform legal teams immediately when enforcement actions are observed.

1. • Support respondents in requesting remote appearances and provide know-your-rights information about the consequences of dismissal, including disseminating pro se materials.^[13]

• • Urge bar associations, courts, and policymakers to investigate these practices and protect the integrity of the immigration adjudication process.

4. For Members of Congress:

1. • Conduct investigations through hearings, public inquiry, or formal requests for data and accountability from ICE leadership.

We call upon EOIR and ICE OPLA leadership to clarify that case dismissals must not be used as a tool for circumventing due process or fast-tracking removal without a hearing. We further urge ICE to cease enforcement operations in courts that threaten the safety, dignity, and legal rights of noncitizens seeking protection under our laws.

Immigration & Nationality Law Committee
Dorian E. Rojas, Co-Chair
Ludivine Van Der Heyden, Co-Chair

Rule of Law Task Force
Susan Kohlmann, Chair (2025-2028)
Hon. Marcy Louise Kahn (Ret.), Chair (2022-2025)

July 2025