A federal judge on Friday grilled the government over its position that an internal policy defining the ability of immigration agents to make warrantless arrests should not be enforceable through a court order.

“As a citizen of Colorado and of the United States, I am dumbfounded that the government won’t agree to a court order that orders them to do precisely what they have told their employees they must do,” said U.S. District Court Senior Judge R. Brooke Jackson during a virtual hearing. “If they won’t stipulate to that, then I have to wonder why. What is the reason?”

In the underlying case, the ACLU of Colorado and other law firms filed suit on Oct. 9. They alleged U.S. Immigration and Customs Enforcement is not making warrantless arrests only when there is probable cause that the person is in the country illegally or is a flight risk, as federal law requires. Four named plaintiffs sued on behalf of themselves and others who have been arrested since January without a warrant or individualized consideration of those factors.

Jackson, a Barack Obama appointee, scheduled a preliminary injunction hearing beginning next Thursday. However, on Oct. 23, the government asked him to convene a conference as soon as possible. The U.S. Attorney’s Office disclosed that on Wednesday, the government sent a memo to ICE employees advising them to adhere to the law when making warrantless arrests.

“The policy further requires all ICE officers to document the facts and circumstances surrounding a warrantless arrest in appropriate immigration documentation as soon as possible following the arrest,” wrote the government.

Although the government did not share the memo on the court’s docket due to “sensitivity and law enforcement implications,” it represented that the statement came in response to an Illinois judge’s recent order. In that case, Castañon Nava v. Department of Homeland Security, there was a previous settlement agreement in effect that required ICE agents to follow the law and document their actions. A Chicago judge extended those terms to February 2026 earlier this month.

During the Oct. 24 call with the parties, Jackson asked the attorneys point-blank: Will you agree to an injunction in Colorado with those provisions?

“Yes,” said plaintiffs’ lawyer Kenzo Kawanabe. “If they were serious that this actual policy were in effect, defendants would agree to these terms in a settlement agreement subject to this court’s approval and enforcement.”

However, the government balked at that idea.

“You’re not going to treat immigrants in Illinois differently than immigrants in Colorado,” said Jackson. “Why would the government object to what’s in that memo you just sent out being put in a form of an injunction, and giving the exact same status to individuals in Colorado that they’re getting in Illinois?”

The Illinois document is “a contractual arrangement, and it has terms in it that create the enforcement mechanism,” responded Brad E. Leneis with the U.S. Attorney’s Office. “There’s a real difference there between an injunction that is enforceable in a contempt proceeding … and the contractual enforcement of the settlement agreement.”

He added that ICE employees in Colorado “are required to follow” the policy. However, Leneis did not believe an automatic preliminary injunction should memorialize those terms.

“Here is what you’re saying to me,” interjected Jackson. “You’re saying that ICE employees are now instructed to and required to do what’s in (the memo) in Colorado. They’ve been ordered to do that, but they’re not willing to have a court say, ‘OK, you do that, and you’re fine.'”

He asked if the memo amounted to “idle words.” Leneis denied that ICE planned to let its employees circumvent its own policy. Instead, the policy “calls into question the need to have a hearing” next week.

To the contrary, said Jackson, he believed Leneis’ comments suggested a court order was necessary after all.

“If the government is not willing to stipulate to an injunction order on the same terms that they say they’re going to do, then I have to wonder why,” he said. “The only reason I can think of is they’re afraid that they’re going to violate it, and they don’t want some court, whether it’s Colorado or Illinois, to be on their case if they don’t follow their own agreement. That’s what concerns me.”

Jackson recommended both sides’ attorneys talk over the weekend and determine if the government will agree to conditions that would eliminate the need for a preliminary injunction on warrantless arrests. He also warned the government against being cavalier about the hearing.

“What I will tell you is all cards are on the table if we go through (with) this hearing, including the duration of any court order I might issue,” said Jackson.

The case is Ramirez Ovando et al. v. Noem et al.