A federal judge on Tuesday ordered the government to follow the legal requirements for warrantless immigration arrests, finding a practice of agents in Colorado taking noncitizens into custody without evaluating the likelihood they are a flight risk.

In a Nov. 25 order, U.S. District Court Senior Judge R. Brooke Jackson acknowledged federal employees are authorized to pursue an “aggressive deportation agenda.” But based upon the evidence before him, he found personnel for U.S. Immigration and Customs Enforcement and other agencies have arrested people without warrants in violation of federal law.

“To be sure, ICE could choose to arrest every undocumented person it encounters even where there is no probable cause of flight risk to authorize a warrantless arrest. It could do this by obtaining an administrative warrant after the initial encounter and then finding and arresting them,” he wrote. “But again, the record does not suggest that this is what’s happening.”

Jackson preliminarily allowed the challenge to warrantless arrests to proceed as a class action, encompassing approximately 169,000 noncitizens in Colorado. These are individuals who both have legal status, such as holders of green cards and student visas, and people illegally staying in the U.S. He also issued an injunction requiring employees with the U.S. Department of Homeland Security to evaluate the probability of flight risk before arresting someone without a warrant, in accordance with federal law. Furthermore, agents must document the circumstances of the arrest and provide a random sample of the documentation to both Jackson and the plaintiffs’ attorneys at regular intervals.

As for three of the named plaintiffs, who were all noncitizens arrested unlawfully, Jackson ordered the government to refund the costs they incurred to post bond and to remove their ankle monitors.

The U.S. Attorney’s Office for Colorado had no comment about Jackson’s order.

“ICE has the power to enforce the law. Now, ICE must follow the law,” said Kenzo Kawanabe, one of the plaintiffs’ lawyers. 

The ACLU of Colorado and other law firms filed suit on behalf of four named plaintiffs who spent between 15 and 100 days in immigration detention this year. Each was a “collateral” arrest, meaning authorities were not specifically targeting them and did not have a warrant prepared upon the encounter. In fact, one plaintiff was arrested in Mesa County by agents who were actually looking for someone else.

Jackson, a Barack Obama appointee, held a two-day hearing last month, when he learned about the circumstances of each arrest and about immigration attorneys’ observations that the practice had become widespread. He heard the former head of Denver’s ICE office state that, if targets of ICE operations “have people who are with them also illegally present, they will be arrested, as well.”

Jackson further listened to Greg Davies, ICE’s assistant field office director in Denver, describe the standard for warrantless arrests as considering a person’s “possibility” of escape, even though federal law requires a “probability” of flight.

“His testimony does not imbue the Court with great confidence that ICE rigorously applies the individualized-flight-risk-assessment requirement,” Jackson wrote in his order.

The challenge in Colorado resembled litigation brought previously in the Northern District of Illinois that culminated in a settlement agreement. Last month, a Chicago-based judge prompted ICE’s top legal officer to send a broadcast message to all employees about the need to adhere to the requirements for warrantless arrest.

At multiple points in the Colorado case, Jackson questioned the government about why it would not agree to an injunction reflecting what it had committed to do in Illinois.

“The notion that the government should stipulate to an injunction, which is basically a reprobation for doing something wrong, it’s unfair,” said Assistant U.S. Attorney Brad E. Leneis.

Jackson concluded ICE has a “larger policy, pattern, or practice” of unlawful arrests, and the issuance of warrants after the fact did not correct the underlying problem. Moreover, while none of the plaintiffs “have a categorical right to be free from contact with ICE,” they had suffered concrete harms from the way in which agents took them into custody.

“If instead of being arrested immediately by ICE, plaintiffs were allowed to go home until summoned into immigration court or arrested on an administrative warrant, they would have had the opportunity to speak to their families, pay their rent, put their items in storage, and try to obtain representation by an immigration lawyer,” Jackson wrote, noting some plaintiffs had lost housing and went into debt as a result.

He further believed Colorado is at risk of increased improper arrests, given the substantial boost in funding Congress awarded to immigration enforcement agencies this year to expand staffing and detention capacity.

Jackson determined the plaintiffs were likely to succeed on their underlying legal claims. Although one named plaintiff did not have standing because he gained permanent resident status after his arrest, the remaining three had properly filed suit after no “objectively reasonable officer” could have determined each was a likely flight risk upon their warrantless arrest.

“Plaintiffs were not ICE targets. They were not the ‘worst of the worst,'” Jackson noted.

Among the terms in the injunction, Jackson directed the government to “restore” the plaintiffs to their pre-arrest status, meaning refunds of bond and termination of their electronic monitoring. He also directed the parties to agree upon “regular intervals,” where the plaintiffs’ lawyers can review a random sample of arrest reports. If they cannot agree, Jackson will impose a reporting timetable on the government.

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