Pablo Sequen v. AlbarranPablo Sequen v. Albarran
For 80 years, Congress has commanded federal agencies to think before they act. That instruction—codified in the Administrative Procedures Act—does not require an agency to make the choice that a reviewing court might deem preferable. But it demands that an agency at least provide sound reasons for following its chosen course. In this putative class action, a group of noncitizens assert that several recent policies issued by Immigration and Customs Enforcement (ICE) and the Department of Justice’s Executive Office for Immigration Review (EOIR) contravene the APA’s reasoned-decisionmaking requirement. The challenged policies eliminate previous limits on ICE agents’ civil enforcement activities (i.e., arrests) at immigration courthouses and the duration of noncitizens’ subsequent detention in ICE’s short-term holding facilities. Plaintiffs also bring a constitutional challenge to the conditions under which ICE detains noncitizens in the holding facilities at its San Francisco field office, which is located at 630 Sansome Street.
Now before the Court are plaintiffs’ motion for certification of two provisionally certified classes and the parties’ cross-motions for partial summary judgment as to plaintiffs’ APA claims. Because the provisionally certified classes satisfy the requirements of Rule 23, the Court grants plaintiffs’ motion for class certification. And because the record before the Court demonstrates
BACKGROUND
This case arises from recent changes to ICE and EOIR policies governing civil immigration arrests at courthouses and detention in ICE’s short-term hold facilities, as well as resulting changes in the conditions of confinement at 630 Sansome.1
I. ICE and EOIR issue new guidance authorizing widespread civil immigration arrests at courthouses.
For at least a decade prior to 2025, ICE limited the circumstances in which its officers and agents could conduct civil immigration arrests in or near courthouses. In both 2014 and 2015, ICE issued internal guidance stating that civil enforcement actions at or near courthouses would be undertaken only against noncitizens whom ICE had a heightened interest in detaining immediately because, for example, they were “suspected of terrorism or espionage,” had been convicted of crimes, “participated in organized criminal gangs,” or “otherwise pose[d] a serious risk to public safety.”2
In 2018, ICE issued a formal directive that again authorized “civil enforcement actions inside courthouses” against certain high-priority categories of noncitizens, like “gang members” and those “with criminal convictions.” The directive instructed that other noncitizens whom ICE encountered in courthouses would not be subject to arrest “absent special circumstances, such as where the individual poses a threat to public safety.”3
In 2021, ICE unequivocally extended its restrictions on courthouse arrests to immigration courthouses. In that year, ICE revoked the 2018 directive and issued new guidance explaining that “[e]xecuting civil immigration enforcement actions in or near a courthouse may chill individuals’ access to courthouses and, as a result, impair the fair administration of justice.”5 “[S]o as not to unnecessarily impinge upon the core principle of preserving access to justice,” ICE’s 2021 guidance permitted such actions only if they involved “a national security threat”; “an imminent risk of death, violence, or physical harm”; “hot pursuit” of a person who threatened public safety; “an immediate risk of destruction of [criminal] evidence”; or, subject to advance supervisory approval, if no “safe alternative location” existed for the arrest of “an individual who pose[d] a threat to public safety.”6 The 2021 guidance expressly noted that its restrictions applied to “immigration courts.”7
ICE reversed course in January 2025. That month, the President revoked existing guidance regarding civil immigration-enforcement priorities and instructed federal agencies “to ensure the faithful execution of the immigration laws ... against all inadmissible and removable aliens.” Exec. Order 14,159, 90 Fed. Reg. 8443, 8443 (Jan. 20, 2025) (emphasis added). Based on that executive order, ICE rescinded its 2021 guidance and issued a new interim policy on civil immigration arrests at courthouses in January 2025, followed by a final version in May 2025.13 The new
courthouse-arrest policies acknowledge that “civil immigration enforcement actions in or near courthouses” are generally “against targeted aliens,” like those who pose “[n]ational security or public safety threats,” have “[s]pecific ... criminal convictions,” are “gang members,” or have remained in or re-entered the United States after being ordered removed.14 But in a departure from ICE’s prior guidance, the new policies state that courthouse arrests are “not limited” to these groups and that other noncitizens “encountered … in or near a courthouse … may be subject to civil immigration enforcement action[s]” at courthouses “on a case-by-case basis considering the totality of the circumstances.”15 Under the policies, “ICE officers or agents may conduct civil immigration enforcement actions in or near courthouses” whenever “credible information ... leads them to believe” that the noncitizen they seek to arrest “will be present” at a courthouse.16 But the new policies continue to instruct agents, “to the extent practicable,” to conduct enforcement actions “discreetly,” “in non-public areas of the courthouse,” “in collaboration with court security staff,” and “utiliz[ing] … non-public entrances and exits” in order “to minimize the[] impact on court proceedings.”17 The policies discuss the benefits of courthouse arrests to the government’s enforcement of immigration laws but do not directly address the concerns raised in earlier guidance concerning chilling effects, safety risks, and impacts on hearing attendance.
Unlike the 2021 guidance, ICE’s 2025 courthouse-arrest policies do not discuss immigration courts specifically. But for more than a year after the issuance of the interim guidance in January 2025, the government explicitly and implicitly represented that ICE’s new policies
In March 2026, the government learned that it was mistaken with respect to the scope of ICE’s new courthouse-arrest policies. As the government disclosed in African Communities, ICE had “specifically informed” its DOJ counsel in 2025 that the agency’s new guidance “applied to immigration courthouse arrests.”19 On March 19, 2026, however, ICE sent an internal e-mail memorandum instructing its personnel that the new policies “do[] not apply to [EOIR] (Immigration) courts, regardless of their location.”20 A few days later, ICE informed its DOJ attorneys in African Communities that the new policies “do[] not and ha[ve] never applied to civil immigration enforcement actions in or near [EOIR] immigration courts.”21 Based on these developments, and after conferring with ICE, the government’s counsel in this action has since
EOIR also issued new guidance on courthouse arrests in late January 2025, and that policy remains in effect.22 EOIR’s 2025 courthouse-arrest policy rescinds the office’s prior restrictions on ICE civil enforcement actions in immigration courthouses.23 EOIR states that its earlier policy primarily stemmed from ICE’s since-revoked 2021 guidance and that “the other bases given ... were unpersuasive, inconsistent with current Executive Branch policy, pretextual, or unsubstantiated on any systematic basis.”24 EOIR’s new policy also reasons that it lacks authority to prohibit ICE from taking lawful enforcement actions.25 As a result, the policy places no independent limits on ICE’s civil enforcement actions in immigration courthouses.
In the wake of ICE and EOIR’s 2025 courthouse-arrest policies, ICE sharply increased its civil enforcement activity at immigration courthouses in northern California.26 The government
previously “conceded ... [that] nothing in the record suggests that the arrests have targeted only noncitizens in high-priority groups.” Pablo Sequen VII, 814 F. Supp. 3d at 1020. And a former immigration judge who sat in San Francisco from September 2021 to September 2025 attested that, after the increase in courthouse arrests, she “noticed a dramatic decline in attendance at master calendar hearings in [her] courtroom.”27
II. ICE waives its 12-hour limit on detention in short-term holding facilities.
When ICE arrests an individual for an alleged immigration violation, it generally places the individual in a holding facility in one of its field offices while ICE processes the individual for long-term detention elsewhere. Because the hold rooms in such facilities “are primarily used for … short-term confinement,” ICE previously required its agents to “ensure that … holding facilities are emptied upon the conclusion of daily operations” and instructed that, “[a]bsent exceptional circumstances, no detainee should be housed in a holding facility for longer than 12 hours.”28
In early 2025, however, ICE began receiving requests from individual field offices to waive the 12-hour limit on hold-room detentions. Many of the requesting field offices explained that, due to ICE’s increased enforcement activities after January 2025, there was a nationwide dearth of available long-term detention space for recently arrested noncitizens, necessitating extended stays in short-term hold rooms.29 Some also attributed the lack of long-term detention
space to recently enacted state policies precluding ICE’s placement of noncitizen-detainees in state facilities.30 Other field offices requested waivers so that ICE agents could use their holding facilities to “stage” noncitizens detained in mass-arrest operations for up to 24 hours while those noncitizens were “await[ing] ICE Air Operations … removal flights destined for El Salvador, Guatemala, and Honduras.”31 The field offices therefore requested temporary relief from the 12-hour limit, with most seeking an additional 48 hours to detain noncitizens in hold rooms.32 ICE granted waivers for field offices in at least five cities.33
Based on the volume of these requests, ICE “establishe[d] a streamlined process to submit detention standard waiver requests” in March 2025.34 The process allowed ICE field offices to request, among other things, “[t]emporary waivers” of standards like the 12-hour limit on hold-
In June 2025, ICE dispensed with its case-by-case evaluation of requests for waivers of the 12-hour limit on hold-room detentions. In its place, the agency issued a blanket waiver of the limit, allowing all field offices nationwide to keep detainees in holding facilities “for up to … 72 hours” or longer in “exceptional circumstances.”41 The memorandum announcing the waiver explained that it was “a result of increased enforcement efforts” that had “significantly increased” the number of individuals in ICE detention and “put additional strain on finding and coordinating
As a result of the waiver, ICE has held some detainees at 630 Sansome for more than 12 hours, sometimes overnight or for multiple days.47 Other detainees are held for less than 12 hours.48 Because the length of an detainee’s stay at 630 Sansome depends on the changing availability of beds at long-term detention facilities, they do not know at the outset how long they will remain in the hold rooms.49
ICE’s holding facility at 630 Sansome consists of six large cells with a maximum overnight capacity of ten people and three small cells with a maximum overnight capacity of one person each.50 Each cell contains one or more metal benches, but no permanent beds, and a single toilet and sink that are separated from the rest of the room by a “mid-height privacy wall.”51
Plaintiffs assert that, since the summer of 2025, ICE has created “inhumane” conditions in these cells that “humiliate[] and degrade[]” detainees by treating them like “trash” or “animal[s].”52 As evidence of these conditions, plaintiffs previously submitted declarations from over a dozen individuals who were detained at 630 Sansome and from five attorneys representing individuals detained there.53 As the Court has explained, these declarations “document consistently inadequate
IV. Plaintiffs challenge ICE and EOIR’s courthouse-arrest policies, ICE’s 12-hour detention waiver, and the conditions of confinement at 630 Sansome.
Carmen Aracely Pablo Sequen, an asylum-seeker from Guatemala, commenced this action by filing a petition for a writ of habeas corpus after ICE arrested her as she was leaving a routine hearing at the San Francisco immigration court and detained her at 630 Sansome. This Court issued a temporary restraining order, followed by a preliminary injunction, requiring Ms. Pablo Sequen’s immediate release and enjoining the government from re-detaining her absent prior notice and a hearing before an immigration judge at which the government demonstrated a valid basis for her detention. See Pablo Sequen v. Kaiser (“Pablo Sequen I”), 793 F. Supp. 3d 1114, 1121 (N.D. Cal. 2025); Pablo Sequen v. Kaiser (“Pablo Sequen II”), 800 F. Supp. 3d 998, 1015 (N.D. Cal. 2025).
Ms. Pablo Sequen then amended her complaint, adding Ligia Garcia and Yulisa Alvarado Ambrocio as plaintiffs. Like Ms. Pablo Sequen, Ms. Garcia and Ms. Alvarado Ambrocio are both asylum-seekers. ICE arrested Ms. Garcia as she was leaving a hearing at the San Francisco immigration court. When plaintiffs filed the amended complaint, Ms. Garcia was detained at 630 Sansome. ICE agents attempted to arrest and detain Ms. Alvarado Ambrocio under circumstances similar to those encountered by Ms. Pablo Sequen and Ms. Garcia but refrained from doing so because Ms. Alvarado Ambrocio’s nursing infant was with her. ICE suggested at the time, and the government later conceded to the Court, that ICE would likely arrest Ms. Alvarado Ambrocio at her next appearance in immigration court. Both Ms. Garcia and Ms. Alvarado Ambrocio sought individual relief through a habeas corpus petition, and the Court issued a temporary restraining order requiring Ms. Garcia’s release followed by a preliminary injunction enjoining the government from re-arresting either plaintiff without demonstrating a valid basis for their detention to an immigration judge. See Pablo Sequen v. Kaiser (“Pablo Sequen III”), No. 25-CV-06487-PCP, 2025 WL 2691143, at *4 (N.D. Cal. Sept. 19, 2025); Pablo Sequen v. Albarran (“Pablo Sequen IV”), 806 F. Supp. 3d 1069, 1093 (N.D. Cal. 2025).
The amended complaint also added a fourth plaintiff, Martin Hernandez Torres, who is no longer a party to this action. Mr. Hernandez Torres is a noncitizen from Mexico whom ICE arrested after a reasonable-fear interview conducted as part of his removal proceedings, which culminated in a final order of removal. At the time plaintiffs filed the amended complaint, Mr. Hernandez Torres was detained at 630 Sansome. Mr. Hernandez Torres did not assert an individual habeas claim and did not seek preliminary relief from custody. After the filing of the amended complaint, the government removed him to Mexico.
In addition to the individual habeas claims, the amended complaint included new claims on behalf of two putative classes.
First, Ms. Pablo Sequen, Ms. Garcia, and Ms. Alvarado Ambrocio sought to represent a “courthouse-arrest class” consisting of “[a]ll persons who have an immigration court hearing in a proceeding on EOIR’s non-detained docket in an immigration courthouse in ICE’s San Francisco Area of Responsibility.” On behalf of the proposed class, these three plaintiffs challenged ICE and EOIR’s 2025 courthouse-arrest guidance as arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act (APA).
Second, Ms. Garcia and Mr. Hernandez Torres sought to represent a “detention class” consisting of “[a]ll persons who are now or will be detained in a holding cell in ICE’s San Francisco Field Office” at 630 Sansome. On behalf of the detention class, these two plaintiffs challenged ICE’s 12-hour-detention waiver as arbitrary and capricious in violation of the APA and alleged that the conditions of confinement at 630 Sansome violated the First and Fifth Amendments and federal immigration law.
The government moved to sever the additional claims and plaintiffs added to the amended complaint from Ms. Pablo Sequen’s original habeas claims, arguing that joinder was improper. The Court concluded that joinder of all claims and plaintiffs was proper but exercised its discretion under
Plaintiffs moved for, and the Court granted, provisional certification of the courthouse-arrest and detention classes. See Pablo Sequen v. Albarran (“Pablo Sequen VI”), 810 F. Supp. 3d 1084, 1120–26 (N.D. Cal. 2025). As to the detention class, the Court provisionally certified only Ms. Garcia as a representative because Mr. Hernandez Torres’s removal obviated any risk of his future detention at 630 Sansome, such that Mr. Hernandez Torres was no longer a class member. Id. at 1124–25.
In the same motion, plaintiffs also requested that the Court (1) preliminarily enjoin ICE from subjecting noncitizens detained at 630 Sansome to unconstitutional conditions of confinement related to sleep, hygiene, sanitation, and medical care and (2) pursuant to § 705 of the APA, stay ICE’s 12-hour-detention waiver pending a final judgment in this action. The Court granted plaintiffs’ requested preliminary injunction but denied their requested stay. See id. at 1126–1134.
Plaintiffs separately moved for a § 705 stay of ICE and EOIR’s courthouse-arrest policies pending the final resolution of their APA challenge to those policies. The Court granted that motion and stayed the courthouse-arrest policies within ICE’s San Francisco area of responsibility. See Pablo Sequen v. Albarran (“Pablo Sequen VII”), 814 F. Supp. 3d 1005, 1042 (N.D. Cal. 2025).
The government moved to dismiss plaintiffs’ amended complaint for both lack of subject-matter jurisdiction under
The government has appealed several of the Court’s rulings, including the preliminary injunction concerning Ms. Garcia and Ms. Alvarado Ambrocio’s detention, the provisional certification of the courthouse-arrest and detention classes, the preliminary injunction as to the conditions of confinement at 630 Sansome, and the stay of the courthouse-house arrest policies.
Now before the Court are the plaintiffs’ motions for final certification of the courthouse-arrest and detention classes and the parties’ cross-motions for partial summary judgment as to plaintiffs’ APA claims challenging the courthouse-arrest policies and 12-hour-detention waiver.
ANALYSIS
I. The government’s threshold arguments fail.
Before reaching the heart of the parties’ motions, the Court must address several threshold arguments raised by the government, all of which fail.54
A. The government’s appeals of the Court’s prior orders do not divest the Court of jurisdiction to resolve the instant motions.
As noted above, the government has appealed the Court’s prior orders provisionally certifying the courthouse-arrest and detention classes, staying the courthouse-arrest policies, and enjoining the government from subjecting detainees at 630 Sansome to likely unconstitutional conditions of confinement. The government contends that, while these appeals are pending, the Court lacks authority to grant final class certification and summary judgment. The government is wrong.
Recognizing that its appeals of the Court’s preliminary-injunction and stay orders do not
First, the Court’s provisional certification of the courthouse-arrest and detention classes was ancillary to its grant of a preliminary injunction and stay. See Pablo Sequen V, 810 F.Supp 3d 1084, 1121 (N.D. Cal. 2025) (noting that “provisional class certification” serves the “purpose[] of entering injunctive relief prior to a final ruling on class certification” and that such certification “will dissolve if the injunction does”); see also Vasquez Perdomo v. Noem, 148 F.4th 656, 688 n.15 (9th Cir. 2025). In effect, the provisional certification was part of the Court’s analysis of plaintiffs’ likelihood of success on the merits of their claims. Dickinson v. Trump, No. 26-1609, 2026 WL 1133353, at *9 (9th Cir. Apr. 27, 2026) (framing provisional class certification as part of the likelihood-of-success inquiry on review of an order granting preliminary injunctive relief). And as already explained, an appeal concerning a party’s likelihood of success on the merits at the preliminary-relief stage “does not divest the trial court of jurisdiction to continue with other phases of the case.” Plotkin, 688 F.2d at 1293.
Second, in Melendres, the Ninth Circuit “applaud[ed] how the district court ha[d] expedited th[e] … case and moved with appropriate speed towards a final disposition” pending a preliminary-injunction appeal that required the Ninth Circuit “to review the district court’s decision to certify the plaintiff class.” 695 F.3d at 999, 1002. This statement contradicts the government’s theory that an interlocutory appeal concerning the class certification underlying preliminary relief divests a district court of jurisdiction to award final class-wide relief.
The government’s appeals therefore have not divested the Court of jurisdiction to resolve the parties’ motions for final class certification and summary judgment.
B. The Court declines to grant a discretionary stay.
The government argues that even if the Court is not required to stay proceedings in this
First, the government waited two months to request a stay. The government’s request for a discretionary stay focuses entirely on its appeal of the Court’s order provisionally certifying the courthouse-arrest and detention classes. The government filed that appeal on December 23, 2025. Three days later, it filed an emergency motion in this Court to stay the preliminary injunction concerning conditions of confinement at 630 Sansome pending the appeal, but it did not seek to stay further proceedings in this Court. Instead, on January 23, 2026, defendants stipulated to a briefing schedule for the parties’ cross-motions for partial summary judgment on plaintiffs’ class APA claims, suggesting its willingness to proceed to the final resolution of those claims. Only on February 12, 2026, in its opposition to plaintiffs’ subsequent motion for final class certification, did the government reverse course and ask the Court to stay all proceedings in this case. Such a delay weighs against staying this action. See, e.g., Sec. & Exch. Comm’n v. Sripetch, No. 20-CV-01864, 2024 WL 4030679, at *4 (S.D. Cal. Sept. 3, 2024) (citing PersonalWeb Techs., LLC v. Apple Inc., 69 F. Supp. 3d 1022, 1030 (N.D. Cal. 2014)).
Second, it is unclear when (or if) the government’s appeal will be resolved. As the government recently explained to the Ninth Circuit, its notice of appeal was purely “protective,” and the Solicitor General has yet to decide whether to proceed with the appeal. For that reason, the government has not filed an opening brief in its appeal and has requested three extensions of its deadline to do so. If the government decides to pursue its appeal, its opening brief will be filed no sooner than July 21, 2026, six months after it first appealed the provisional class-certification order. A final ruling by the Ninth Circuit may be more than a year away. That uncertainty and delay also counsels against granting a stay. See Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007) (explaining that “a stay should not be granted unless it appears likely the other proceedings will be concluded within a reasonable time” and that, “[g]enerally, stays should not be indefinite in nature”).
The government’s request for a stay is therefore denied.
C. Plaintiffs have standing to pursue nationwide vacatur of the challenged policies.
The government also argues that plaintiffs lack standing to challenge the implementation of the courthouse-arrest policies and 12-hour-detention waiver outside the confines of 630 Sansome.57 This argument mistakes “the concept of standing,” which “asks who has a right to sue,” with “the scope of an appropriate remedy.” Suzie’s Brewery Co. v. Anheuser-Busch Companies, LLC, 519 F. Supp. 3d 839, 850 (D. Or. 2021). Standing requires a “personal stake” in the litigation sufficient to create a “case or controversy” within the meaning of Article III of the Constitution. TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). A plaintiff can establish that personal stake by showing an injury in fact, caused by the defendant, that would likely be redressable by “relief that federal courts are capable of granting.” In re Google Play Store Antitrust Litig., 147 F.4th 917, 958 (9th Cir. 2025) (quoting Kirola v. City & Cnty. of S.F., 860
II. The Court grants certification of plaintiffs’ proposed classes.
Plaintiffs seek certification of the two classes that the Court provisionally certified in November 2025:
Courthouse-Arrest Class: All persons who have an immigration court hearing in a proceeding on EOIR‘s non-detained docket in an immigration courthouse in ICE‘s San Francisco Field Office Area of Responsibility.
Detention Class: All persons who are now or will be detained in a holding cell in ICE‘s San Francisco Field Office.
All three named plaintiffs propose to represent the courthouse-arrest class, and Ms. Garcia proposes to represent the detention class.
Under
- the class is so numerous that joinder of all members is impracticable [“numerosity“];
- there are questions of law or fact common to the class [“commonality“];
- the claims or defenses of the representative parties are typical of the claims or defenses of the class [“typicality“]; and
- the representative parties will fairly and adequately protect the interests of the class [“adequacy“].
“Before it can certify a class, a district court must conduct a ‘rigorous analysis’ to ensure that the[se] requirements ... are satisfied,” and “[p]laintiffs wishing to proceed through a class action must actually prove—not simply plead—that their proposed class satisfies each requirement of Rule 23.” Noohi v. Johnson & Johnson Consumer Inc., 146 F.4th 854, 862 (9th Cir. 2025) (first quoting Olean, 31 F. 4th at 664; and then quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 275 (2014)). The Court undertook this “full Rule 23 analysis” when resolving plaintiffs’ motion for provisional class certification and determined that plaintiffs had satisfied the requirements of
A. Class Definitions
As an initial matter, the Court must determine the scope of the proposed classes. The government does not contest the definition of the proposed detention class. But it argues that the proposed definition of the courthouse-arrest class “[l]acks [c]lear, [w]orkable [b]oundaries.” In the government‘s view, this deficiency requires the Court to deny certification of the courthouse-arrest class without reaching the
First,
Second, even if
The government‘s remaining arguments about the definition of the courthouse-arrest class do not concern “workability” at all. In essence, the government protests that the class definition sweeps in some noncitizens whom ICE should be able to arrest at immigration courthouses and to whom the Court therefore should not grant relief. That is an argument about the merits of plaintiffs’ challenge to the courthouse-arrest policies, not about class certification.58
The government‘s arguments as to the proposed courthouse-arrest class definition fail.
B. Rule 23(a)
Both the proposed courthouse-arrest class and the proposed detention classes satisfy the
Plaintiffs have demonstrated that both of their proposed classes are “so numerous that joinder of all members is impracticable.”
The proposed courthouse-arrest class is sufficiently numerous because joinder of its membership “would impose very substantial logistical burdens.” A.B., 30 F.4th at 837. The proposed courthouse-arrest class consists of all noncitizens with upcoming immigration hearings on EOIR‘s non-detained docket at an immigration courthouse in ICE‘s San Franciso Area of Responsibility, which covers northern California, Hawaiʻi, Guam, and Saipan. That group of noncitizens is presumably large in number and is spread across northern California and several Pacific islands. Joining such a group as individual plaintiffs would clearly be logistically impracticable, and the government has not argued otherwise.
The detention class is also sufficiently numerous. That proposed class includes “all persons who are now or will be detained in a holding cell” at 630 Sansome. The membership of the class is both potentially very large in number and, critically, “changes continually over time,” which “weighs in favor of concluding that joinder of all members is impracticable.” A.B., 30 F.4th at 838. Again, the government has not argued otherwise. Plaintiffs therefore satisfy the numerosity requirement.
2. Commonality
Plaintiffs have also demonstrated commonality. “Commonality mandates there be a common question of law or fact among the class members where the same evidence will suffice for each member to make a prima facie showing or the issue is susceptible to generalized, class-
Each of the proposed courthouse-arrest class‘s APA claims turns on a common question: whether ICE and EOIR‘s 2025 courthouse-arrest guidance is arbitrary and capricious. The answer to that question “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350.
The government argues that the proposed courthouse-arrest class lacks commonality because it includes noncitizens “at various stages of the immigration process” whose arrest and detention may be governed by different statutes and some of whom ICE may choose not to arrest. But these differences do not bear on the “common issue, with a common answer, as to whether a sufficiently reasoned explanation was provided” for the policies the courthouse-arrest class seeks to challenge. Thakur v. Trump, 787 F. Supp. 3d 955, 1003 (N.D. Cal. 2025), rev‘d in part on other grounds by No. 25-4249, 2026 WL 1466303 (9th Cir. May 26, 2026). “[E]ither each of the policies” is insufficiently reasoned and “is unlawful as to every [class member] or it is not. That inquiry does not require [the Court] to determine the effect of those policies ... upon any individual class member (or class members) or to undertake any other kind of individualized determination.” Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014).
The government also argues that the courthouse-arrest class lacks a common question because it includes noncitizens across northern California, Hawaiʻi, Guam, and Saipan, yet the named plaintiffs “have not proffered any evidence that they have had experience with [ICE and EOIR‘s] challenged policies at any ... courthouse” outside San Francisco. But by their own terms, ICE and EOIR‘s 2025 courthouse-arrest policies rescind prior limits that had applied to all immigration courthouses nationwide. So the policies impact every immigration courthouse in which class members are scheduled to appear and may be arrested. The record reflects that scope: Plaintiffs have submitted multiple declarations from immigration attorneys attesting that ICE
At least one common question also underlies the proposed detention class‘s APA claim challenging ICE‘s 12-hour-detention waiver—namely, whether that waiver is sufficiently reasoned or whether it is arbitrary and capricious in violation of the APA. And the proposed detention class shares common questions as to whether the policies and practices governing conditions of confinement at 630 Sansome, to which all members of the class have been or will be subjected, are constitutional. For example, plaintiffs’ claims challenging the conditions at 630 Sansome relating to sleep, hygiene, and medical care turn on a determination of whether those conditions are punitive in nature. See Pablo Sequen VI, 810 F. Supp. 3d at 1128. That inquiry, in turn, asks whether detainees at 630 Sansome are subject to conditions that are motivated by an intent to punish, are similar to or more restrictive than the conditions imposed upon criminal detainees, and serve legitimate government interests. See Jones v. Blanas, 393 F.3d 918, 933-34. (9th Cir. 2004). The detention class‘s conditions-of-confinement claims will thus involve common factual questions concerning the intent and interests underlying ICE‘s alleged practices of leaving lights in hold cells on at all times and not providing detainees held overnight with mattress pads, pillows, or blankets.60 The claims also require the resolution of common questions concerning the similarity of such conditions to those in criminal detention settings. “The court‘s broad ... answer
The government asserts that plaintiffs “cannot establish commonality” for the detention class because “experiences at 630 Sansome vary based on individual circumstances.” Certainly, the record reflects that some detainees at 630 Sansome are held for fewer than 12 hours and may not be subjected to the full panoply of conditions challenged in this action. But “[p]laintiffs challenge the overall conditions in which they were detained ... [and] need not prove that every single class member was subjected to every single adverse condition to establish a custom or practice of unconstitutional conditions.” Aichele v. City of Los Angeles, 314 F.R.D. 478, 490 (C.D. Cal. 2013). “What all members of the putative class ... have in common is their alleged exposure” to “specified [ICE] policies and practices that govern the overall conditions of ... confinement,” which are unreasoned and unconstitutionally punitive as to all or as to none. Parsons, 754 F.3d at 678. Though the challenged waiver and conditions “may ultimately result in different future harm for different [detainees] ... every [detainee] suffers exactly the same constitutional injury when he is exposed to a single [facility-]wide [ICE] policy or practice that” is arbitrary and capricious, punitive in nature, or denies access to counsel. Id.; see also Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) (“Differences among the class members with respect to the merits of their actual [experiences] ... are simply insufficient to defeat the propriety of class certification“); Hernandez, 305 F.R.D. at 156 (finding commonality where “[p]laintiffs have produced adequate evidence of specific system-wide policies and practices exposing inmates to a substantial risk of serious harm, violating their constitutional or statutory rights; and they have clearly defined the class claims“).
Plaintiffs have therefore demonstrated commonality for both the proposed courthouse-arrest class and the proposed detention class.
3. Typicality
Plaintiffs have established that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”
Plaintiffs are typical of the proposed classes for the same reasons they share common questions of law and fact with the classes. See Wal-Mart, 564 U.S. at 349 n.2 (noting that, in the context of
The government contends that the existence of some differences among class members and the plaintiffs destroys typicality. The government notes, for example, that Ms. Alvarado Ambrocio has never been arrested at an immigration courthouse yet seeks to represent the courthouse-arrest class. But that does not make Ms. Alvarado Ambrocio atypical. The courthouse-arrest class includes many individuals who have not yet been arrested at an immigration courthouse but, like Ms. Alvarado Ambrocio, face a substantial risk of arrest at future removal hearings. In any case, “[i]t does not matter that the named plaintiffs may have in the past suffered varying injuries ...
As to the courthouse-arrest class, the government also argues that “whether a putative class member should be arrested at a courthouse requires an individualized assessment ..., not a common course of conduct suffered uniformly by all members,” so “[p]laintiffs cannot represent a cohesive group with aligned injuries or legal claims.” This argument either misunderstands or misconstrues the nature of plaintiffs’ claims on behalf of the courthouse-arrest class. Plaintiffs do not challenge ICE‘s decisions to arrest particular noncitizens at immigration courthouses; they challenge the parameters ICE and EOIR have placed (or removed) on ICE‘s discretion to conduct such arrests. In other words, plaintiffs’ claims concern the framework governing ICE‘s decisionmaking rather than the decisions themselves. Like all members of the proposed courthouse-arrest class, plaintiffs are subject to that overarching framework. That suffices to demonstrate typicality.
4. Adequacy
Plaintiffs have established that they “will fairly and adequately protect the interests of the class.”
As to the proposed class counsel, plaintiffs assert that counsel has no conflicts with the interests of the class and is competent to vigorously prosecute the action on behalf of the class. The government does not argue otherwise.
For purposes of representing the courthouse-arrest class, Ms. Pablo Sequen, Ms. Garcia, and Ms. Alvarado Ambrocio all assert that they are members of the class, have no conflicts with the class‘s interests, and will vigorously prosecute this action on behalf of the class. For purposes of representing the detention class, Ms. Garcia similarly asserts that she is a member of the class,
The government insists that plaintiffs are inadequate representatives based on many of the arguments already rejected above or in the Court‘s prior orders. So it should be little surprise that the arguments fail here too.
First, the government argues that plaintiffs’ interests differ from the proposed classes because they do not face the same injuries (i.e., a risk of arrest at an immigration courthouse or detention at 630 Sansome) due to this Court‘s issuance of preliminary injunctions prohibiting the government from re-detaining plaintiffs without prior notice and a bond hearing. As the Court has previously explained, however:
The relief granted by this Court is temporary in nature, prohibiting the re-detention of Ms. Pablo Sequen, Ms. Garcia, and Ms. Alvarado Ambrocio without a pre-detention hearing only “during the pendency of these proceedings.” Pablo Sequen [II], 800 F. Supp. 3d at 1015; Pablo Sequen [IV], 806 F. Supp. 3d at 1092-93. ... And the preliminary injunctions permit the government to re-detain Ms. Pablo Sequen, Ms. Garcia, and Ms. Alvarado Ambrocio if the government first demonstrates at a bond hearing that they present dangers to the community or flight risks and that such harms cannot be prevented through means other than detention. See Pablo Sequen [II], 800 F. Supp. 3d at 1015; Pablo Sequen [IV], 806 F. Supp. 3d at 1092-93. In that case, as the government conceded ..., Ms. Garcia would again be subject to detention at 630 Sansome and the conditions of confinement there. There thus remains a strong possibility that the government will re-detain one of the plaintiffs either after a final judgment in the government‘s favor or after a bond hearing.
Pablo Sequen VI, 810 F. Supp. 3d at 1119. “For that reason,” like other members of the proposed classes, “plaintiffs retain a[n] ... interest in permanently [vacating]” the courthouse-arrest policies and 12-hour-detention waiver and in “enjoining the allegedly unconstitutional conditions of confinement at 630 Sansome.” Id.
Next, the government argues that Ms. Alvarado Ambrocio “is not an adequate class representative of the [c]ourthouse [a]rrest [c]lass because she has never been subject to a courthouse arrest.” As discussed above, many members of the proposed courthouse-arrest class have not yet been arrested at an immigration courthouse. Such past luck neither obviates their risk
Finally, the government argues that plaintiffs cannot adequately represent members of the courthouse-arrest class “across all of [n]orthern California, Hawai[ʻ]i, Guam, and Saipan” because “[t]here is no evidence that [p]laintiffs have ever been to Hawai[ʻ]i, Guam, Saipan, or any other facility in [n]orthern California other than 630 Sansome.” Plaintiffs need not fly to Honolulu to adequately represent class members who reside there. Because the proposed courthouse-arrest class challenges ICE and EOIR policies that apply with equal force across the United States, plaintiffs’ risk of exposure to and interest in vacating the challenged policies is the same as members of the proposed courthouse-arrest class regardless of those class members’ locations.
Accordingly, both proposed classes and all proposed class representatives satisfy the
C. Rule 23(b)(2)
Plaintiffs also satisfy the requirements of
First, the government argues that the Court cannot grant an injunction that would provide relief to each member of the proposed classes because
Second, the government argues that the Court could not craft appropriate class-wide injunctive relief on plaintiffs’ due-process claims challenging conditions of confinement because detained noncitizens’ constitutional due-process rights vary based on individualized factors,
Accordingly, plaintiffs have established that they satisfy all the prerequisites of
III. The Court grants plaintiffs’ motions for partial summary judgment and vacates the challenged policies.
Plaintiffs challenge ICE and EOIR‘s 2025 courthouse-arrest policies and ICE‘s 12-hour-detention waiver under the APA, which “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). With limited exceptions, judicial review under the APA is available for “final agency action for which there is no other adequate remedy in a court.”
Both plaintiffs and the government move for summary judgment as to plaintiffs’ APA claims. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
“It is well-settled in this circuit and others that the filing of cross-motions for summary judgment ... does not vitiate the court‘s responsibility to determine whether disputed issues of material fact are present.” Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quoting United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978)). Instead, “[w]here ... the parties have both filed summary judgment motions,” the Court “considers each party‘s evidence to evaluate whether” a genuine factual dispute exists. Herrera v. Command Sec. Corp., 837 F.3d 979, 985 (9th Cir. 2016) (citation modified).
Here, plaintiffs have established that there are no genuine factual disputes material to their APA claims and that they are entitled to judgment as a matter of law. The Court therefore grants their motions for partial summary judgment, denies the government‘s countermotions, and vacates the challenged policies.
A. The challenged policies are reviewable under the APA.
“In general, there is a strong presumption that Congress intends judicial review of administrative action.‘” Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 718-19 (9th Cir. 2011) (citation modified). The government nevertheless argues that ICE and EOIR‘s courthouse-arrest policies and ICE‘s 12-hour-detention waiver are not reviewable because (1) the challenged
1. The challenged policies are reviewable “agency action” under § 704.
Each of the challenged policies constitutes reviewable “agency action” within the meaning of the APA.
ICE‘s Courthouse-Arrest Policies. The government contends that plaintiffs may not challenge ICE‘s interim courthouse-arrest policy because it is not ”final agency action.”
ICE‘s final courthouse-arrest policy is unquestionably “final agency action.” Agency action is final under the APA “if it both (1) marks the consummation of the agency‘s decisionmaking process,” i.e., is not “of a merely tentative or interlocutory nature,” and “(2) is one by which rights or obligations have been determined, or from which legal consequences will flow.” Ctr. for Biological Diversity v. Haaland, 58 F.4th 412, 417 (9th Cir. 2023) (citation modified) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). In assessing whether these criteria are satisfied, courts “look to whether the action amounts to a definitive statement of the agency‘s position or has a direct and immediate effect on the day-to-day operations of the subject party.” Id. “The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Tohono O‘odham Nation v. U.S. Dep‘t of the Interior, 138 F.4th 1189, 1200 (9th Cir. 2025) (quoting Franklin, 505 U.S. at 797).
Here, ICE‘s final courthouse-arrest policy clearly reflects that the agency has completed its decisionmaking process. The policy “stat[ed] a definitive position” that ICE agents’ discretion to
The government suggests that ICE‘s final courthouse-arrest policy is not “agency action” at all, let alone “final agency action,” and instead stems from individual officers’ discretionary enforcement decisions. The APA defines “agency action” to “includ[e] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”
Because the final courthouse-arrest policy is a “final agency action,” the interim policy is reviewable as the preliminary agency action that preceded it.
EOIR Courthouse-Arrest Policy. The government asserts that “there is no EOIR ‘Courthouse Arrest Policy‘” subject to APA review. That is, it asserts that EOIR‘s courthouse-
12-Hour-Detention Waiver. The government argues that the 12-hour-detention waiver is not “final agency action” because it merely confers discretion upon ICE individual field offices to detain noncitizens for up to 72 hours without determining how long to detain any particular noncitizen. But in removing the prior limits on field offices’ discretion, the waiver “prescribe[s] ... policy” for the agency as a whole with “future effect,” constituting agency action. Prutehi Litekyan, 128 F.4th at 1107. While the government is correct that the waiver is not the “final step” in the process of determining the precise length of noncitizens’ detentions, the waiver is nevertheless “final” within the meaning of the APA because it “mark[s] the consummation of the agency‘s decisionmaking process” as to the extent of field offices’ discretion and “amounts to a definitive statement of [ICE‘s] position” about the maximum length of detentions in hold rooms. Id. at 108 (citation modified).
Under
“[T]he APA‘s basic presumption of judicial review can only be overcome if there is clear and convincing evidence that Congress intended to preclude judicial review.” Washington v. U.S. Dep‘t of State, 996 F.3d 552, 560 (9th Cir. 2021). So “where substantial doubt about the congressional intent exists, th[at] general presumption ... is controlling.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984). Accordingly, “[s]ection 701(a)(2)‘s exception for action committed to agency discretion is read ‘quite narrowly.‘” Johnson Tr. of Charley E. Johnson Revocable Living Tr. v. United States, 145 F.4th 1158, 1163 (9th Cir. 2025) (quoting Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S. 9, 23 (2018)). “[A]gency action is ‘committed to agency discretion’ only in ‘those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency‘s exercise of discretion.‘” Id. (quoting Dep‘t of Com. v. New York, 588 U.S. 752, 772 (2019)). In other words, “judicial review is unavailable when there is ‘no law to apply.‘” Id. (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)). And the Supreme Court “generally limit[s] the exception to certain categories of administrative decisions that courts traditionally have regarded as committed to agency discretion.” Dep‘t of Com., 588 U.S. at 772 (citation modified).
Here, there is no evidence—let alone clear and convincing evidence—that Congress intended to preclude APA review of the challenged policies. And though the government argues otherwise, this is not one of “one of those rare instances ... in which there is truly no law to apply.” Jajati v. U.S. Customs & Border Prot., 102 F.4th 1011, 1014 (9th Cir. 2024) (citation modified). To the contrary, as set forth in detail below, well-established principles of APA review guide the Court‘s analysis of plaintiffs’ claims.
ICE‘s Courthouse-Arrest Policies. The government contends that “the INA ... leaves
One such source of “law to apply,” even in cases “where statutory language grants an agency ‘unfettered discretion,‘” is “agency practice.” ASSE Int‘l, Inc. v. Kerry, 803 F.3d 1059, 1068 (9th Cir. 2015) (quoting Spencer Enters., Inc. v. United States, 345 F.3d 683, 688 (9th Cir. 2003)). The Supreme Court explained as much in INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996), another action challenging an agency‘s exercise of discretion under the INA. There, the Supreme Court reasoned that:
Though the agency‘s discretion is unfettered at the outset, if it announces and follows ... a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as ‘arbitrary, capricious, [or] an abuse of discretion within the meaning of the [APA].
Id. (quoting
Here, ICE‘s prior policy—i.e., its 2021 guidance—provides a meaningful benchmark for judicial review of its 2025 courthouse-arrest policies. Even if ICE‘s “discretion [wa]s unfettered at the outset,” it subsequently “announce[d] and follow[ed] ... a general policy” governing “its exercise of discretion” by limiting the circumstances under which agents could conduct civil arrests at immigration courthouses. See Yueh-Shaio Yang, 519 U.S. at 31. As detailed below, ICE‘s 2025 courthouse-arrest policies are “an irrational departure” from, not “an avowed alteration of,” that existing practice concerning immigration courthouses. Id. That is because the 2025 policies “failed to display a conscious awareness that [they were] rescinding an arrest policy applicable to immigration courts” and therefore “failed to offer even a rudimentary reason” for that departure. Afr. Comtys. II, 2026 WL 1382944, at *5. Under these circumstances, the 2025 courthouse-arrest policies are subject to arbitrary-and-capricious review under the APA. See id.; Yueh-Shaio Yang, 519 U.S. at 31.
12-Hour-Detention Waiver. There is also “law to apply” in reviewing ICE‘s 12-hour-detention waiver. As just discussed, an agency‘s own policies and practices can supply “a meaningful standard by which this [C]ourt may review its exercise of discretion.” ASSE Int‘l, Inc., 803 F.3d at 1068 (quoting Spencer Enters., 345 F.3d at 688). Here, ICE‘s longstanding practice of prohibiting hold-room detentions for longer than 12 hours absent exceptional circumstances provides such a standard. That practice predates ICE—the U.S. Immigration and Naturalization Service, ICE‘s predecessor agency, imposed a 12-hour limit on hold-room detentions in its 2000 national detention standards.63 ICE‘s current Performance-Based National Detention Standards
The government argues that this longstanding practice, embodied in the still-effective PBNDS, provides no meaningful standard because it conferred discretion on individual field offices to determine the precise length of individual noncitizens’ detentions. But as already explained, the fact that an agency‘s policies or practices confer some discretion does not mean that the limits on that discretion do not supply a standard. See Pinnacle Armor, 648 F.3d at 719.
The government also argues that resolving plaintiffs’ challenge to the 12-hour-detention waiver would require the Court to determine whether certain executive orders preceding the waiver constitute “exceptional circumstances” that would permit extended hold-room detentions even under ICE‘s usual practice.66 “Exceptional circumstances” is not, in the government‘s view, a meaningful standard. Cf. Ekimian v. INS., 303 F.3d 1153, 1156-59 (9th Cir. 2002) (holding that a requirement of “exceptional situations,” without any definition of that phrase, did not supply a sufficiently meaningful standard to enable judicial review). But nothing in the memorandum announcing the waiver suggests that ICE understood the 12-hour-detention waiver to be the
Thus, neither the challenged courthouse-arrest policies nor the 12-hour-detention waiver are “committed to agency discretion” by law within the meaning of
3. 8 U.S.C. § 1226(e) does not “preclude judicial review” of plaintiffs’ claims.
4. Plaintiffs have no other adequate remedy in court.
As to the courthouse-arrest policies, the government suggests in a single sentence that “[p]laintiffs have another remedy available for allegedly unlawful arrests in the form of a habeas [corpus] action.” But habeas petitioners may challenge only the fact or duration of confinement. Plaintiffs could not use habeas to challenge the location of their arrests (i.e., at immigration courthouses). The government has repeatedly argued as much in this and other cases.
As to the 12-hour-detention waiver, the government contends that plaintiffs could instead pursue (and have pursued) claims to remedy the unsafe and unhygienic conditions to which the waiver has allegedly given rise at 630 Sansome. Such claims are grounded in broad constitutional protections against punitive civil confinement. Those broad rights are not the sort of “precisely drawn, detailed statute” setting forth “a special ... review process” for agency action that might constitute an “adequate remedy” for plaintiffs’ APA claims. See Wilson, 705 F.3d at 990 (first quoting Hinck v. United States, 550 U.S. 501, 506 (2007); and then citing Bowen, 487 U.S. at 903). Accordingly, there is no risk that “a legal remedy under the APA would impermissibly provide for duplicative review” of the 12-hour-detention waiver. Hyatt v. Off. of Mgmt. & Budget, 908 F.3d 1165, 1173 (9th Cir. 2018) (quoting City of Oakland v. Lynch, 798 F.3d 1159, 1165 (9th Cir. 2015)).
The challenged policies are therefore reviewable under the APA.
B. Each of the challenged policies is arbitrary and capricious.
“Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016). At a minimum, an agency that “changes its existing position” must “‘display awareness that it is changing position’ and ‘show that there are good reasons for the new policy.‘” Id. (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). An agency undertaking “policy change” must also provide “a reasoned explanation ... for disregarding facts and circumstances that underlay or were engendered by the prior policy,” including any “serious reliance interests” stemming from the prior policy. Id. at 221-22 (quoting Fox Television Stations, 556 U.S. at 515-16). “[A]n unexplained inconsistency in agency policy is a reason for holding [a new action] to be an arbitrary and capricious change from agency practice.” Id. (citation modified) (quoting Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)).
1. ICE‘s Courthouse-Arrest Policies
As detailed above, ICE issued guidance in 2021 that limited the circumstances in which ICE agents were authorized to conduct civil enforcement actions in or near courthouses, “including immigration courts,” because such actions “may chill individuals’ access to courthouses” and thereby “impair the fair administration of justice.”69 The 2021 guidance authorized civil arrests at courthouses only where concerns about such chilling effects were outweighed by ICE‘s “heightened interest in apprehending an individual, either due to increased time pressure (e.g., because a failure to arrest the individual immediately would allow them to
ICE‘s 2025 courthouse-arrest policies rescinded the 2021 guidance.70 The new policies—which do not specifically address immigration courthouses—created a far more permissive regime for ICE‘s civil enforcement actions at courthouses. While the policies note that “ICE‘s civil immigration enforcement actions in or near courthouses” will “[g]enerally” target noncitizens in specified high-priority groups, the policies instruct that ICE agents are “not limited” to arresting those groups and may target other noncitizens.71 The 2025 policies authorize ICE agents to “conduct civil immigration enforcement actions in or near courthouses” whenever “credible information ... leads them to believe [a] targeted alien[] is or will be present” at a courthouse.72 And ICE agents may also arrest “[o]ther aliens encountered ... in or near a courthouse” while pursuing a predetermined target.73 Still, the new policies continue to instruct that ICE agents should, “to the extent practicable, ... minimize their impact on court proceedings” by conducting arrests “discreetly,” “in non-public areas of the courthouse,” “in collaboration with court security staff,” and using “non-public entrances and exits.”74
The government spent more than six months arguing to this Court that ICE‘s 2025 courthouse-arrest policies represented an intentional and reasoned choice to expand arrests at immigration courthouses. The argument was unconvincing. As the Court explained in its order staying the policies, ICE‘s stated reasons “may be sound as to [non-immigration] courthouses,” but “there is no ‘rational connection between the facts’ on which the policies rely” and the expansion of arrests at immigration courthouses. Id. at 1033 (quoting All. for the Wild Rockies, 68 F.4th at 493). For example, the policies reason that other “law enforcement agencies routinely engage in enforcement activities in or near courthouses” against individuals who appear in a courthouse for “criminal or civil violations” that are “unrelated” to the offense for which the authorities seek to arrest them.”75 That analogy does not make sense with respect to civil enforcement actions at immigration courts, where ICE is not arresting individuals who appear for criminal or civil violations ‘unrelated’ to the arrest but instead arresting noncitizens based on the very immigration offenses for which the noncitizens are appearing in immigration court.” Id. The policies also cite a need to “reduce safety risks,”76 yet they fail to explain how public safety is improved by unfettered arrests at immigration courthouses of the many noncitizens whom ICE has determined do not endanger public safety. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017) (noting that ICE‘s release of a noncitizen pending removal proceedings “reflects a determination ... that the noncitizen is not a danger to the community“), aff‘d sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018). And the policies reason that “enforcement activities in or near courthouses are often required when jurisdictions refuse to cooperate with ICE, including when such jurisdictions refuse to honor immigration detainers and transfer aliens directly to ICE custody.”77 That reasoning applies only to noncitizens who are taken into state or local authorities’ custody—that is, to noncitizens arrested for or convicted of criminal activity” in state or local court. Pablo Sequen VII, 814 F. Supp. 3d at 1034.
It is now clear that the lack of connection between ICE‘s stated rationales for the 2025 courthouse-arrest policies and the expansion of arrests at immigration courthouses results not from merely unreasoned decisionmaking but a complete lack of decisionmaking. As the government recently revealed, contrary to its prior representations, ICE‘s 2025 courthouse-arrest policies do not cover immigration courthouses at all.78 Thus, the 2025 policies rescind the 2021 guidance‘s
As applied to arrests at immigration courthouses, ICE‘s 2025 courthouse-arrest policies are arbitrary and capricious for three overlapping reasons.
First, ICE failed to “at least ‘display awareness that it [wa]s changing position‘” with respect to arrests at immigration courthouses. Encino Motorcars, 579 U.S. at 221 (quoting Fox Television Stations, 556 U.S. at 515). Nothing on the face of ICE‘s 2025 courthouse-arrest policies or in the administrative record suggests that ICE recognized it was removing all prior limitations on civil enforcement activities at immigration courthouses without any substitute guidance. Indeed, the 2025 courthouse-arrest policies do not mention immigration courthouses at all. And for more than a year after the rescission of the 2021 guidance, ICE itself represented to its DOJ counsel that the 2025 courthouse-arrest policies apply to immigration courthouses, suggesting that ICE only belatedly realized the scope of the change it had effected.79 Such an unacknowledged change in policy necessarily violates the APA‘s dictates. See Fox Television Stations, 556 U.S. at 515 (“An agency may not ... depart from a prior policy sub silentio...“).
Second, ICE‘s new policies “disregard[] facts and circumstances that underlay ... the prior policy“—namely, the 2021 guidance‘s concerns about the impact of widespread arrests on the functioning of immigration courts—without the requisite “reasoned explanation.” See id. at 516. Again, the 2025 policies entirely fail to address immigration courts despite rescinding the guidance that previously limited civil enforcement activities there.
Third, and similarly, ICE‘s 2025 courthouse-arrest policies make no attempt to
For the avoidance of doubt, simply extending the 2025 courthouse-arrest policies to cover immigration courthouses would not cure those policies’ fatal defects. As the Court has previously detailed, the policies entirely fail to address the chilling effect of courthouse arrests on noncitizens’ attendance at court proceedings, which is both a critical factor underlying ICE‘s 2021 guidance and an “important aspect of the problem” in its own right. See Pablo Sequen VII, 814 F. Supp. 3d at 1030-33 (quoting Nat‘l Urb. League v. Ross, 977 F.3d 770, 777 (9th Cir. 2020)). And even if the 2025 policies applied to immigration courts, ICE‘s stated rationales for those policies do not logically explain the expansion of civil arrests at immigration courthouses for the reasons noted above. But because the government now concedes that the 2025 policies rescinded the prior limits on immigration courthouse arrests without providing any reasoning whatsoever in support of that specific rescission, the 2025 policies fail APA review for an even more fundamental reason.
In sum, ICE‘s 2025 courthouse-arrest policies are devoid of rational explanation for (or even acknowledgement of) the agency‘s choices (1) to remove its earlier restrictions on civil arrests at immigration courthouses and (2) not to extend the new policies’ limitations to immigration courthouses. The 2025 courthouse-arrest policies thus fall far short of the reasoned decisionmaking required by the APA and are “arbitrary” and “capricious” within the meaning of
2. EOIR‘s Courthouse-Arrest Policies
Before 2025, EOIR also limited civil arrests at its immigration courthouses. After forbidding most civil arrests in immigration courtrooms in 1996,81 EOIR expanded the restriction on civil arrests in 2023 to cover all spaces where immigration-court business took place.82 EOIR‘s 2023 guidance explained that civil enforcement actions at immigration courthouses would have a “chilling effect” that “would disincentivize noncitizens from appearing for their hearings, which in turn would create inefficiencies for all parties involved and hinder the ability of [the Office of the Chief Immigration Judge] to carry out the mission of the agency.”83 Such actions could also, the guidance reasoned, “create safety risks for those who may be present during such enforcement actions, including children and adults appearing for hearings.”84 Finally, the 2023 guidance reasoned that limiting ICE arrests at immigration courthouses would “reinforce the separate and distinct roles of DHS,” including ICE, “and [EOIR].”85 EOIR therefore permitted civil immigration arrests at or near its courthouses only in the limited circumstances outlined by ICE‘s 2021 guidance.86
EOIR issued its new policy on the heels of ICE‘s interim 2025 courthouse-arrest policy.87 EOIR stated that its earlier guidance had primarily stemmed from ICE‘s since-revoked 2021 guidance. According to EOIR, the rescission of ICE‘s 2021 guidance meant there was “no longer a basis to maintain” EOIR‘s 2023 guidance because EOIR “lacks the authority to prohibit
EOIR‘s 2025 courthouse-arrest policy is arbitrary and capricious for three reasons. First, it is based on a false premise. Second, even crediting EOIR‘s assumptions, the policy fails to provide a rational explanation for its removal of all prior limits on civil enforcement actions at EOIR‘s immigration courthouses. Third, it disregards at least one key factor underlying EOIR‘s 2023 guidance without reason.93
The primary rationale provided for EOIR‘s 2025 courthouse-arrest policy was that “EOIR lacks the authority to prohibit [ICE] from conducting any action it is otherwise lawfully authorized to take,” and the rescission of ICE‘s 2021 guidance left “no ... basis” for EOIR‘s prior restrictions on arrests at its immigration courthouses.94 Plaintiffs argue that EOIR‘s assessment of its own legal authority (or lack thereof) is incorrect and that EOIR‘s new policy therefore lacks a reasoned basis. But the Court need not resolve this dispute.95 Even if EOIR is correct that it lacks authority to restrict enforcement activities in its own courthouses, EOIR‘s new policy is arbitrary and capricious because it is based on the false premise that ICE had validly rescinded its 2021 guidance. As discussed above, ICE‘s new policies rescinding its 2021 guidance are arbitrary and capricious, and as detailed below, those policies must be vacated. The result is that one of the core assumptions underlying EOIR‘s own 2025 courthouse-arrest policy—i.e., that ICE‘s rescission of its 2021 guidance left “no ... basis to maintain” EOIR‘s prior restrictions on immigration courthouse arrests—was wrong.96 Agency action premised on “the incorrect assumption that it is compelled by” other executive-branch action “stands on a faulty legal premise” and “is arbitrary and capricious.” Gomez v. Trump, 485 F. Supp. 3d 145, 194 (D.D.C. 2020) (citation modified).
Even if EOIR‘s understanding of the relevant circumstances had been correct, its 2025 courthouse-arrest policy would be arbitrary and capricious because the agency failed to appreciate the scope of its own discretion in responding to the perceived illegality of its 2023 guidance. As the Supreme Court explained in Regents, “deciding how best to address a finding of illegality ... can involve important policy choices[.]” 591 U.S. at 25. Where an agency does not “appreciate the full scope of [its] discretion” in addressing the illegality of a prior policy and therefore fails to provide a reasoned explanation for choosing one solution over other available options, the agency‘s decision is arbitrary and capricious. Id. at 26-28. Of course, an agency need not expressly consider every option that falls within its discretion. But at a minimum, it “must consider the ‘alternatives’ that are ‘within the ambit of the existing policy.‘” Id. at 30 (quoting State Farm, 463 U.S. at 42).
Here, as plaintiffs argue, EOIR‘s 2025 courthouse-arrest policy fails to recognize the extent of the agency‘s discretion under its own view of the relevant law. Three factors informed EOIR‘s understanding of its own discretion. The first was EOIR‘s belief that it lacks authority to place independent limits on ICE‘s enforcement activities in immigration courthouses.97 The second was that ICE had validly rescinded the 2021 guidance on which EOIR had based the contours of its own 2023 guidance.98 And the third was that, in the place of ICE‘s 2021 guidance, ICE had issued a new 2025 policy that applied to immigration courthouses and authorized arrests in a wider (but not unlimited) set of circumstances.99 (ICE only later clarified that its 2025 courthouse-arrest policy does not apply to immigration courthouses.) Thus, EOIR‘s understanding
Based on this understanding, EOIR concluded that there was “no basis to retain” any of its past restrictions on ICE‘s civil enforcement activities at immigration courthouses.101 But lifting all of the limitations imposed by EOIR‘s 2023 guidance was not the only way to bring the agency back within its self-understood bounds. EOIR might instead have permitted civil immigration arrests at its courthouses under the same circumstances it believed ICE‘s 2025 courthouse-arrest policies permitted such arrests—for example, only when ICE agents had credible information that a targeted alien would be present. Doing so would comport both with EOIR‘s understanding of the limits placed on immigration-courthouse arrests by ICE‘s new policy and EOIR‘s view that it lacked authority to impose independent limits beyond ICE‘s policy. And such an approach was “within the ambit” of EOIR‘s existing 2023 guidance, Regents, 591 U.S. at 30 (citation modified), which itself had adopted the limits prescribed by ICE at the time the 2023 guidance took effect.102
Under EOIR‘s own view of the relevant circumstances, EOIR was free either to withdraw all limits on civil enforcement actions at immigration courthouses or to retain those limits it understood ICE to have retained. But EOIR was not free to take the former course “without any consideration whatsoever” of the latter. Id. (quoting State Farm, 463 U.S. at 51). EOIR‘s failure to recognize and explain its choice not to adopt an alternative approach that was within the ambit of its prior guidance “alone renders [its] decision arbitrary and capricious.” Id.
c. EOIR failed to address a key concern of its prior policy.
EOIR‘s 2025 courthouse-arrest policy is also arbitrary and capricious because it fails to provide “a reasoned explanation ... for disregarding facts and circumstances that underlay ... [the
EOIR‘s new policy dismisses concerns about a “chilling effect” as “vague” and “contrary to logic” because noncitizens with meritorious immigration claims have no reason to fear arrest at a courthouse.103 To the extent the new policy contends that such individuals face no possibility of arrest, ICE‘s policies make clear that this is not the case, as nothing in the policies exempts individuals with meritorious claims from arrest. To the extent the policy suggests that individuals with meritorious claims should not fear arrest because they will ultimately be released either after a bond hearing or upon the successful adjudication of their applications for relief, that suggestion presumes that noncitizens know whether or not they have valid immigration claims before deciding whether to attend their removal hearings—in other words, before any immigration judge has ever adjudicated their claims. EOIR‘s policy offers no reason to conclude that noncitizens would not be dissuaded by the threat of arrest—potentially resulting in a loss of physical liberty and all the consequent harms for the duration of their removal proceedings, see Garro Pinchi v. Noem, 813 F.Supp.3d 973, 1032-34, 1035-36 (N.D. Cal. 2025)—merely because they believe their as-yet-unadjudicated claims to be meritorious.
Further, even if it were true that widespread arrests at immigration courthouses would not deter noncitizens with meritorious claims from attending removal proceedings, EOIR tacitly concedes that such arrests will disincentivize attendance by other noncitizens. The proper functioning of the immigration system depends on such noncitizens attending their scheduled removal proceedings. That is why, as the Supreme Court has recognized, “ensuring the appearance of aliens at future immigration proceedings” is one of two primary goals of the INA and its implementing regulations. Zadvydas v. Davis, 533 U.S. 678, 690 (2001); see also
EOIR‘s new policy also reasons that no evidence supports the existence of any chilling effect because many noncitizens failed to appear in immigration court even when such arrests were not taking place.105 This is a non sequitur. Multiple factors could independently affect noncitizens’ participation in removal proceedings. The fact that some noncitizens fail to appear for reasons other than a fear of being arrested at the courthouse does not suggest that the possibility of arrest could not also impact attendance. Neither EOIR‘s 2025 courthouse-arrest policy nor the administrative record before the Court provide a reason to think otherwise.
Both of the new policy‘s attempts to provide a “reasoned explanation” for rejecting the prior policy‘s concerns about chilling effects thus fail. See Fox Television Stations, 556 U.S. at 515. While the government offers additional criticisms of the prior policy‘s approach in its briefing before this Court, the Court cannot consider such post hoc rationalizations. See Regents, 591 U.S. at 19.
Plaintiffs also argue that EOIR‘s 2025 policy irrationally disregarded two other concerns underlying the 2023 guidance: (1) the safety risks attendant to courthouse arrests and (2) the need to maintain public perceptions of the separation between EOIR‘s adjudicatory functions and DHS‘s investigative and prosecutorial functions. These arguments fail for the reasons already explained in the Court‘s order granting a preliminary stay of the 2025 policy. See Pablo Sequen VII, 814 F. Supp. 3d at 1038-39. In short, as to safety risks, EOIR‘s new policy reasons the 2023 guidance‘s approach was irrational because it permitted courthouse arrests in less dangerous circumstances while allowing arrests in more dangerous circumstances, such as where an arrestee posed a national security threat. And the new policy rejects the 2023 guidance‘s concerns about
Still, EOIR‘s failure to provide a reasoned explanation for rejecting the 2023 guidance‘s concerns about chilling effects and access to justice independently renders EOIR‘s 2025 courthouse-arrest policy arbitrary and capricious.
3. ICE‘s 12-Hour-Detention Waiver
Before 2025, ICE required agents to ensure that the short-term holding rooms in ICE field offices were “emptied upon the conclusion of daily operations” and, “[a]bsent exceptional circumstances,” to not detain any noncitizen “in a holding facility for longer than 12 hours.”106 But after the rapid uptick in arrests for alleged immigration offenses in January 2025, ICE began granting waivers of that policy for individual field offices upon request, allowing detention in hold rooms for up to 48 additional hours.107 ICE then “establishe[d] a streamlined process to submit detention standard waiver requests” in March 2025, which required requesting field offices to
In June 2025, ICE replaced its case-by-case process for evaluating waiver requests with a blanket, nationwide waiver of the 12-hour limit on hold-room detentions. This 12-hour-detention waiver allows all ICE field offices to keep detainees in holding facilities “for up to ... 72 hours” or longer in “exceptional circumstances.”110 ICE justified the waiver as “a result of increased enforcement efforts” that had “significantly increased” the number of individuals in ICE detention and “put additional strain on finding and coordinating transfers of aliens to available beds” in long-term detention facilities within 12 hours.111 When issuing the waiver, ICE suggested that “holding aliens in holding facilities beyond the 12-hour limit” was necessary because ICE “no longer has the option to discretionarily release aliens” or “decline to take aliens into custody” from other agencies.112 The memorandum announcing the 12-hour-detention waiver did not address the suitability of short-term hold rooms for overnight or multi-day detention, nor did it discuss any modifications to other policies governing such holding facilities, which “continue to apply.”113
The 12-hour-detention waiver is arbitrary and capricious for three reasons.
First, ICE failed to consider alternative options to address its capacity issues, which were the driving force behind the 12-hour-detention waiver. Plaintiffs assert, and the government does not dispute, that many of the individuals whom ICE detains in holding facilities are arrested by ICE itself. Thus, ICE had another tool at its disposal to manage the lack of available long-term detention space—rather than increasing the duration of detention in short-term hold rooms, ICE might simply have arrested fewer people until it procured additional long-term detention space. While an agency is “not required to ... consider all policy alternatives in reaching its decision,” it was clearly “within the ambit” of ICE‘s prior policy not to arrest more people than ICE had the capacity to process out of hold rooms within 12 hours. Regents, 591 U.S. at 30, 33 (citation modified).
The memorandum announcing the 12-hour-detention waiver evinces no consideration of this alternative. As the government notes, the memorandum considers and rejects other alternatives, such as the possibilities that ICE would release noncitizens after their arrest or decline to take noncitizens into custody from other agencies within DHS.114 The memorandum reasoned, and the government argues before this Court, that these possibilities are foreclosed by recent executive orders.115 Indeed, at least one of the executive orders cited in the memorandum appears to mandate that detained noncitizens remain in federal custody until the completion of their removal proceedings, seeming to prohibit discretionary release.116 But neither ICE‘s memorandum
b. The 12-hour-detention waiver is inconsistent with existing ICE policy.
Second, the 12-hour-waiver memo is arbitrary and capricious because it expressly leaves in place contradictory policies governing hold rooms. ICE‘s Performance-Based National Detention Standards (PBNDS) prohibit detention longer than 12 hours in holding facilities.117 Because the 12-hour-waiver memo provides that “[a]ll other hold room and hold facilities requirements continue to apply,”118 the PBNDS prohibition remains in place, directly conflicting with the 12-hour-detention waiver‘s allowance for detention up to 72 hours. Such “an internally inconsistent analysis is arbitrary and capricious.” Nat‘l Parks Conservation Ass‘n v. EPA, 788 F.3d 1134, 1141 (9th Cir. 2015).
The government does not dispute that the PBNDS remain in place and generally forbid detention in hold rooms for longer than 12 hours. Instead, the government argues that the 12-hour-detention waiver is consistent with the PBNDS because the PBNDS permit extended hold-room 117detention waiver is consistent with the PBNDS because the PBNDS permit extended hold-room
ICE‘s failure to reconcile the 12-hour-detention waiver with its existing and still-applicable policies independently renders the waiver arbitrary and capricious.
c. ICE failed to consider the “important factor” of constitutional protections against punitive conditions of confinement.
Third, the 12-hour-detention waiver is arbitrary and capricious due to ICE‘s failure to consider an “important aspect of the problem” when issuing the waiver. All. for the Wild Rockies, 68 F.4th at 492 (quoting State Farm, 463 U.S. at 43). Whether something is an important factor
Here, ICE‘s obligation under the
Because “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law,” Bell v. Wolfish, 441 U.S. 520, 535 (1979), “a civil detainee awaiting adjudication is entitled to conditions of confinement that are not punitive,” Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). “A restriction is punitive where it is intended to punish, or where it is excessive in relation to its non-punitive purpose, or is employed to achieve objectives that could be accomplished in so many alternative and less harsh methods.” Fraihat v. U.S. Immigr. & Customs Enf‘t, 16 F.4th 613, 636, 648 (9th Cir. 2021) (quoting Jones v. Blanas, 393 F.3d at 933-34). “[A] presumption of punitive conditions arises where the individual is detained under conditions identical to, similar to, or more restrictive than those under which pretrial criminal detainees are held.” Id. at 648 (quoting Jones, 393 F.3d at 934). “But if a particular condition or restriction of [civil] detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to punishment.” Id. (quoting Wolfish, 441 U.S. at 539).
Nothing in the memorandum announcing the 12-hour-detention waiver or in the administrative record suggest that ICE engaged in reasoned consideration of its obligation to avoid creating punitive conditions of confinement. Before the 12-hour-detention waiver, ICE had required individual field offices seeking relief from the 12-hour limit to “provide articulable facts with supporting evidence” showing that the limit could be extended “without diminishing service delivery or detention care and custody” and detailing “what systems will be implemented to ensure
ICE‘s lack of reasoned consideration about how to comply with its constitutional obligations is apparent from the agency‘s choice to retain all existing policies governing hold-room detention other than the 12-hour limit. As discussed above, the PBNDS are among those existing policies. And the PBNDS provide that “bunks, cots, beds and other sleeping apparatus are not permitted inside hold rooms.”124 Multiple courts have held that “a jail‘s failure to provide [pretrial criminal] detainees with a mattress and bed or bunk runs afoul of” constitutional due process protections. Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989), overruled on other grounds by Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010). So depriving civil immigration detainees held overnight of basic sleeping needs is presumptively punitive. See Fraihat, 16 F.4th at 648 (assuming that this presumption applies in the context of federal immigration detention). No evidence in the administrative record suggests that ICE considered whether such deprivation serves any “legitimate governmental objective”
The government‘s arguments to the contrary fail.
The government contends that concerns about punitive conditions are “speculati[ve],” suggesting that individual ICE field offices “retain[] the discretion about how to hold aliens safely for more than 12 hours” and therefore may not deprive detainees of beds or mattresses. That argument runs headlong into the PBNDS‘s clear command—which the 12-hour-detention waiver expressly leaves in place—that “sleeping apparatus are not permitted inside hold rooms” in any ICE field office.125 In any event, the fact that some field offices may not in fact subject hold-room detainees to punitive conditions does not obviate ICE‘s duty to give reasoned consideration to the risk that its 12-hour-detention waiver would create such conditions.
The government also argues that, because the 12-hour-detention waiver applies nationwide, ICE had no obligation to consider the risk that its waiver would result in conditions of confinement that are unconstitutional under Ninth Circuit case law. But constitutional protections against punitive conditions of civil confinement apply nationwide. See Bell, 441 U.S. at 535-37. It may be true that ICE was not required to base its consideration of its constitutional obligations under the law of any particular circuit, but it at least needed to provide a reasoned consideration of the nationally applicable principle that punitive civil detention is inconsistent with due process. It did not do so.
For this additional reason, the 12-hour-detention waiver is arbitrary and capricious.126
C. Vacatur of the challenged policies is the proper remedy.
Having concluded that ICE and EOIR‘s 2025 courthouse-arrest policies and the 12-hour
The government nevertheless suggests that this Court cannot vacate the challenged policies and is authorized, at most, to enjoin the enforcement of the challenged policies only against members of the detention and courthouse-arrest classes. In other words, the government contends that the Court must limit relief from the courthouse-arrest policies to ICE‘s San Francisco area of responsibility and limit relief from the 12-hour-detention waiver to 630 Sansome. None of the authorities on which the government relies support that position.
The government first points to a three-Justice concurrence suggesting that
The government next insists that this Court lacks authority to vacate the courthouse-arrest policies and 12-hour-detention waiver in light of Trump v. CASA, Inc., 606 U.S. 831 (2025). There, the Supreme Court considered “whether Congress has granted federal courts the authority to universally enjoin the enforcement of an executive or legislative policy.” Id. at 839. To answer that question, the Court examined the
The reasoning and holding in CASA were grounded in and limited to the statute at issue there. The opinion says nothing that calls into question the longstanding practice of vacating agency action under the APA. To the contrary, CASA expressly declined to address “the distinct question whether the [APA] authorizes federal courts to vacate federal agency action.” Id. at 847 n.10; see also id. at 873 (Kavanaugh, J., concurring) (explaining that traditional APA relief remains available even where it is “the functional equivalent of a universal injunction“).
The Ninth Circuit has neither held nor suggested that CASA limits vacatur under the APA.
By contrast, there is significant persuasive authority suggesting that CASA‘s complete-relief principle does not limit the scope of relief under
This conclusion reflects the fact that Congress has already determined the appropriate remedy for arbitrary and capricious agency decisionmaking. As already noted,
The government argues that even if the Court has authority to vacate the challenged policies, the Court should decline to do so as a matter of discretion and instead grant relief only to the detention and courthouse-arrest classes. But the government‘s proposal would effectively require the Court to rewrite the policies, which by their own terms apply nationwide, to cover only a particular region or facility. Rewriting a deficient policy is the agency‘s role, not the Court‘s. See Rose v. Becerra, No. 19-CV-2848, 2024 WL 3202342, at *29 (D.D.C. June 27, 2024) (explaining that the APA ordinarily does not authorize a reviewing court “to judicially re-write what the agency did so that it somehow does not apply to a narrow group of people or so that it persists piecemeal“), appeal dismissed sub nom. Rose v. Kennedy, 169 F.4th 294 (D.C. Cir. 2026). Nor has
To be certain, while the APA includes no textual exception to the requirement that unreasoned agency action be set aside, the Ninth Circuit has instructed that equitable considerations may “in limited circumstances” warrant remanding a policy to the agency without vacatur “while the agency corrects its errors.” Mont. Wildlife Fed‘n, 127 F.4th at 50; see also All. for the Wild Rockies v. United States Forest Serv., 907 F.3d 1105, 1121 (9th Cir. 2018). The government argues that this is one of the “rare” cases warranting remand without vacatur. Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010). As the government concedes, however, remand without vacatur is appropriate only “when [the] agency may be able readily to cure a defect in its explanation of a decision.” Id. (quoting Heartland Reg‘l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009)). The Ninth Circuit also requires that courts determining
The government has not borne that burden. It offers only conclusory assertions that ICE and EOIR “can cure any defects identified by the Court,” without any attempt to explain how the agencies might do so. Similarly, the government speculates in general terms that vacatur “could produce disruptive consequences to the Executive‘s implementation and enforcement of immigration laws” and “potentially encompasses a breadth of enforcement action necessary to execute the immigration laws of the United States.” Yet the government does not articulate with any specificity what those disruptive consequences will be. To the contrary, the government concedes that “vacatur of the [12-hour-detention waiver] would still allow [ICE] field offices to hold aliens longer than 12 hours” so long as field offices “apply for individualized waivers as they did before ICE issued the [waiver].” And it is far from obvious that vacating the courthouse-arrest policies will significantly hinder ICE‘s operations. Vacatur does not preclude ICE from conducting civil enforcement actions at courthouses; it merely reinstates ICE‘s 2021 guidance and EOIR‘s 2023 guidance, which authorized courthouse arrests in defined circumstances. Were it true that vacatur of the 2025 courthouse-arrest policies would be hugely disruptive, as the government insists, surely the government could point to some evidence of disruption resulting from the suspension of those policies within ICE‘s San Francisco area of responsibility since December 2025 or to evidence of disruption during the time period that the prior policies were in place. It has not done so.
Accordingly, in compliance with the text of the APA and Congress‘s judgment regarding the appropriate remedy for arbitrary and capricious agency actions, vacatur of the challenged policies is the proper remedy here.
For the foregoing reasons, plaintiffs’ motions for final class certification and partial summary judgment as to their APA claims are GRANTED, and the government‘s counter-motions for partial summary judgment are DENIED. Pursuant to
IT IS SO ORDERED.
Dated: June 23, 2026
P. Casey Pitts
United States District Judge