The Memo That Never Applied

From the spring of 2025, immigration officers arrested people as they walked out of hearings in immigration courts, including at 26 Federal Plaza in Manhattan, and for seven months of a lawsuit the government told a federal judge in New York which written policy allowed it. On Wednesday that judge, P. Kevin Castel of the Southern District of New York, set the policy aside. He did not hold the arrests forbidden. He held that the agency had never explained its decision to allow them.

The suit, African Communities Together v. Venturella, was brought in August 2025 under the Administrative Procedure Act by two organisations that serve noncitizens, African Communities Together and The Door. It challenged two policies from May 2025 that, the plaintiffs said, worked in tandem: an email telling immigration judges they could dismiss removal cases on a government lawyer’s oral motion, and Immigration and Customs Enforcement’s guidance on arrests in or near courthouses. In their account, a dismissal in the courtroom was the prelude to an arrest in the hallway and a transfer into expedited removal.

The judgment does two narrow things. It vacates ICE’s January 2025 interim guidance and its May 2025 final guidance “to the extent they purport to rescind the April 2021 Guidance as applied to civil enforcement actions in or near immigration courts.” And it dismisses the challenge to the court system’s email as moot, because the Executive Office for Immigration Review formally withdrew it on 23 September 2025, eleven days after the judge first paused it, calling its paraphrase of the law “poorly drafted.”

The effect of the first holding is that ICE’s rule for immigration courts, in the court’s words, “reverts to the pre-existing policy.” That policy, issued on 27 April 2021, allowed a civil immigration arrest in or near a courthouse if it involved a national security threat, an imminent risk of death, violence or physical harm, hot pursuit of someone posing a threat to public safety, or an imminent risk that evidence in a criminal case would be destroyed. Other arrests of public-safety threats needed a supervisor’s advance approval and no safe place to make them elsewhere. It said in terms that a courthouse included “immigration courts.”

The memo that did not apply

The 2025 guidance said nothing of the kind. The May 2025 memorandum, signed by Todd M. Lyons, then ICE’s acting director, allowed officers to make arrests in or near courthouses “when they have credible information that leads them to believe the targeted alien(s) is or will be present at a specific location.” Its stated reasons were general ones: people entering courthouses are screened for weapons, and some jurisdictions refuse to honour immigration detainers.

Until 24 March 2026, the government’s position was that this memo governed immigration courts too. Relying on that, the judge in September 2025 refused to pause the arrest policy, reasoning that the agency had acknowledged and explained its change from 2021. Then two Assistant United States Attorneys wrote to him “to correct a material mistaken statement of fact.” ICE’s lawyers had told them that morning that the May 2025 memo “does not and has never applied” to arrests at immigration courts. Attached was an internal email sent to ICE’s enforcement staff five days earlier, described as a “reminder” that the guidance “does not apply to Executive Office for Immigration Review (Immigration) courts, regardless of their location.” The government’s lawyers wrote that they had been “specifically informed by ICE” of the opposite, had cleared every brief with agency counsel, and that the error “appears to have occurred because of agency attorney error.”

That left the 2025 documents doing only one thing at immigration courts: rescinding the 2021 limits and putting nothing in their place. The judge paused that rescission on 18 May 2026; the final opinion completes the analysis. Under the Supreme Court’s 2009 decision in FCC v. Fox Television Stations, an agency changing course must ordinarily “display awareness that it is changing position” and may not do so “sub silentio.” The 2025 memos, the judge wrote, “make no mention of this change in policy,” and the only document in ICE’s 55-page administrative record that expressly mentions immigration courts is the 2021 guidance. ICE’s policy for them had become one in which officers exercise “unfettered discretion ... with no guidance whatsoever.” Reasons given for other courthouses could not be borrowed to explain it.

The government did not argue otherwise. Its briefs, the opinion notes, “are silent as to whether the policy is arbitrary and capricious.” What it argued instead was that the place of an arrest is left by the immigration statute to ICE’s discretion, so there is no law for a court to apply. The judge disagreed: ICE’s courthouse memoranda from 2018 through 2025 each set some limits, and an agency that announces a policy for its discretion cannot depart from it irrationally. He repeated, too, the conclusion of his second ruling that the claim that immigration courts were never covered “was a recent invention and not the intent at the time of the issuance of the 2025 Policies.”

The plaintiffs lost their larger argument, that a common-law privilege against civil arrest at courthouses was carried into the immigration statute and would bar such arrests whatever ICE wrote. The judge rejected it, as he had in 2025.

Vacatur after CASA

The remedy is where the ruling reaches beyond New York. In Trump v. CASA, in June 2025, the Supreme Court held that district courts lack authority to issue universal injunctions. In footnote 10 it added: “Nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.” The APA’s section 706(2) tells a court to “hold unlawful and set aside” arbitrary agency action, and a policy set aside is gone for everyone, not only the parties.

The government asked for relief limited to the plaintiffs, quoting Justice Gorsuch’s 2023 concurrence in United States v. Texas that vacatur, like the universal injunction, can “stymie the orderly review of important questions, lead to forum shopping” and “render meaningless rules about joinder and class actions.” The judge conceded the point in principle: “It certainly could be that vacatur of agency action raises the same concerns as nationwide injunctions.” But he held himself bound by a 2014 Second Circuit decision, Guertin v. United States, under which a court vacates “in the usual case” when an agency breaks the APA’s rules, leaving it, as another judge of his court had put it, “to the Second Circuit (and the Supreme Court) to decide if circuit precedent should be overruled.” Nor, he said, had the government explained how his order would “create friction” with an overlapping vacatur of the same guidance by a federal judge in California.

What the agency can do

The government has two routes. Under the appellate rules it has 60 days from the entry of judgment to appeal to the Second Circuit, where the reach of vacatur could be tested. Patrick Young, an immigration law professor at Hofstra, told Newsday that the case could reach the Supreme Court, though likely not until next year. The Department of Homeland Security did not immediately respond to requests for comment from Newsday or Gothamist.

The other route is the one the opinion describes. “Agencies are free to change their existing policies,” it says, quoting the Supreme Court, “as long as they provide a reasoned explanation for the change.” The judgment does not forbid ICE from arresting people at immigration courts, and it does not decide whether such arrests are wise. It holds that ICE removed its limits there without saying so. A new memo that names immigration courts and gives reasons would be a different agency action, open to its own challenge.

Sources

Judge Castel’s opinion of 30 September 2026 in African Communities Together v. Venturella, No. 25-cv-6366 (S.D.N.Y.), and the government’s letter of 24 March 2026, with the ICE email of 19 March 2026 and the May 2025 memorandum attached, were read on CourtListener. The April 2021 guidance, the EOIR withdrawal memorandum, the Fox Television, Guertin and Texas decisions and the May 2026 stay opinion are quoted as they appear in Judge Castel’s opinion. Trump v. CASA was read on supremecourt.gov; 5 U.S.C. 706 and Federal Rule of Appellate Procedure 4 at Cornell’s Legal Information Institute. Professor Young’s comment is from Newsday; the requests for comment from Newsday and Gothamist. The two stay opinions themselves, the administrative record and the California ruling, Pablo Sequen v. Albarran, were not read. Whether the government has appealed was not established.