Ruling rejects government’s “good faith” defense; new order requires ICE to check its own records before every removal
- For media inquiries, email Alex Comisar with Actum here.
- Read the court’s opinion here.
- For more on J.O.P. v. DHS, click here.
BALTIMORE, MD— A federal judge has found the Department of Homeland Security in civil contempt, ruling that the government repeatedly removed young asylum seekers it was legally barred from deporting, including in cases where the government’s files expressly reflected a restriction against deportation.
The ruling in J.O.P. v. DHS, a case centered on the asylum rights of people who came to the U.S. as unaccompanied children, found that at least 107 people protected by the 2024 settlement—54 confirmed class members and 53 more the government itself had flagged as potentially protected—were removed under final removal orders before their asylum claims were ever decided.
“DHS ignored a judge’s direct order, over and over, even after getting caught the first time,” said Michelle Mendez, Legal Director at the National Immigration Project and a member of the class counsel team. “They violated the settlement agreement repeatedly. Their actions have been contemptible and we’re glad Judge Gallagher called it exactly that.”
The court rejected DHS’s defense that it had acted in good faith. Cleaning up after a violation, the court found, isn’t the same as making a real effort to avoid the violation in the first place. The court also noted that DHS’s willingness to self-report its removal of class members slowed down considerably right as the true scope of the problem became clear. The worst numbers came out only through surprise sworn testimony at an evidentiary hearing, not through the government volunteering information.
Testimony described in the ruling laid out disconcerting patterns: ICE officers who acknowledged seeing internal flags marking someone as protected and removed them anyway; officers who said they’d gotten verbal clearance to proceed with the removal, only for the person purportedly providing the clearance to later testify under oath that no such conversation ever happened.
Going forward, the court has ordered DHS to check its own records for protective flags before removing anyone, add those flags within two business days of newly identifying someone as potentially protected, and issue written guidance to ICE staff nationwide. DHS must also report to the court every two weeks on any class members it has removed and what it’s doing to fix the problem.
“This ruling sharpens the teeth of our settlement agreement,” said Kristen Jackson, Interim Vice President, Chief Advocacy Officer at Public Counsel and a member of the class counsel team. “We will hold the government to these strict new safeguards and reporting obligations, and we will not stop fighting until every young person’s rights under the agreement are honored.”
The court separately declined to order the return of one class member, E.M.P., who was removed to Guatemala earlier this year after signing a voluntary departure form. The court found that voluntary departure falls outside the settlement’s specific protections against executing a final order of removal, but shared class counsel’s concerns about whether E.M.P.’s departure was truly voluntary, pointing to the government’s own file notes describing E.M.P.’s inability to read or write, noting that other legal avenues may still be available to him.
“This decision underscores how important it is for advocates representing Class Members to advise them of the right to receive an asylum adjudication on the merits from USCIS, even if they are in removal proceedings,” said Wendy Wylegala, Senior Director for Legal Strategy at Kids in Need of Defense. “Unfortunately, not every Class Member has counsel to represent them in their immigration matters. But knowing these rights is particularly important for Class Members who have been detained by ICE.”
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