A Win ... And A Setback
A good court order ... and a bad BIA regulation. BONUS: NM Gov. Signs Immigrant Protection Act!
U.S. District Judge Mustafa T. Kasubhai (D. Oregon), American Hero, Just Doing His Job
Innovation Law Lab: “Operation Black Rose is a DHS operation launched in Oregon in October 2025 that combines intrusive surveillance (facial recognition, drones, massive data-scraping and more) with aggressive and often violent warrantless arrests of immigrants and people perceived to be immigrants under a policy described as “Arrest First, Justify Later.” Since Operation Black Rose started, DHS detentions have soared. Nearly half of the population of Oregon is living under a declared state of emergency because of DHS’s violent and aggressive tactics. Two Oregonians, M-J-M-A-, an asylum-seeker; and Victor Cruz Gamez, a decades long resident, father and grandfather, who were swept up under the “Arrest First, Justify Later” policy, sued DHS in Oregon’s federal court arguing that “Arrest First, Justify Later” was unlawful. On February 4, 2026, the federal court ordered federal agents to stop carrying out their unlawful policy of making illegal warrantless arrests in Oregon. Unlawful Warrantless Arrests. The law says that normally, ICE must have an “administrative warrant” in order to arrest someone for immigration violations. An administrative warrant names the person ICE wants to arrest and describes why ICE believes that that person has violated immigration law. ICE can make an arrest without an administrative warrant, but in order to do so must have probable cause both that the person has a) broken immigration law and b) is a flight risk, meaning that they are likely to flee before the agent can get a warrant. “Probable cause” means that the agent can point to specific facts, or evidence, about the person that gives them reason to believe that something is true. A warrantless arrest is illegal when ICE does not have probable cause for either requirement. ICE must have probable cause for both requirements in order for a warrantless arrest to be lawful. Preliminary Injunction. The court’s order applies to anyone arrested in Oregon for an alleged immigration violation since September 29, 2025, if they were or are arrested without a warrant and the immigration agents did not have evidence that they were likely to escape. The court ruled that the government had a policy of making warrantless immigration arrests without probable cause for flight risk. The court’s order requires ICE to first identify facts about a person that gives ICE probable cause to find they are a flight risk before they make a warrantless arrest; otherwise, ICE has to get an administrative warrant to make an arrest. The court ordered ICE and other federal agents to stop carrying out this unlawful policy of making warrantless immigration arrests without first considering whether someone is a flight risk, largely halting the “Arrest First, Justify Later” policy. ICE has to write down what they believe makes someone a flight risk whenever they arrest someone without a warrant. The court’s order requires ICE and other federal agents to list the facts they know at the time of arrest related to the person’s ties to the community. These can include: having family in the area, having a job, living in the area for a long time, and being part of a church or other community group. This order does not stop ICE and other federal agents from making immigration arrests at all. Rather, it requires them to either get an administrative warrant first, or, if conducting a warrantless arrest, first consider whether someone is a flight risk. Class Action. The Court ordered that the case, for the time being, can proceed as a class action. A class action means the cases of the M-J-M-A- and Mr. Cruz Gamez are examples of what has happened to other people in Oregon like them and that the order applies to people like them who are part of the class. Next Steps. The court’s order is a preliminary injunction, meaning that it is a temporary order while the full case is still being decided. Courts issue preliminary injunctions when they believe that one side is likely to win and will be seriously harmed if the court does not intervene before the case ends, which can take years. The government can appeal this order, first to the U.S. Court of Appeals for the Ninth Circuit and, if they lose, then to the U.S. Supreme Court. Either of those courts could undo this court order. Report Unlawful Arrests. If ICE arrested you or someone you know in Oregon without a warrant and without asking you any questions related to your community ties (or any questions at all), please email mjma-class-counsel@innovationlawlab.org to reach class counsel, Innovation Law Lab. Be sure to also report arrests immediately to one of Oregon’s rapid response hotlines (PIRC 1-888-622-1510 and get connected to legal assistance through ECO, www.equitycorps.org.”
Hats off to the Immigration Law Lab’s litigation team on this case, Jordan Cunnings, Nelly Garcia Orjuela, Tess Hellgren, Kelsey Provo and Steve Manning!
BAD BIA REGULATION:
Federal Register / Vol. 91, No. 25 / Friday, February 6, 2026 / Rules and Regulations: “This interim final rule (‘‘IFR’’) amends Department of Justice (‘‘Department’’ or ‘‘DOJ’’) regulations to streamline administrative appellate review by the Board of Immigration Appeals (‘‘Board’’ or ‘‘BIA’’) of decisions by Immigration Judges by making review of such decisions on the merits discretionary, by setting appropriate times for briefing in cases that are reviewed on the merits, and by streamlining other aspects of the appellate process to ensure timely adjudications and avoid adding to the already sizeable backlog at the Board. Additionally, the Department is making various technical and non-substantive changes to its regulations. DATES: Effective date: This IFR is effective March 9, 2026. Comments: Electronic comments must be submitted, and written comments must be postmarked or otherwise indicate a shipping date on or before March 9, 2026. The electronic Federal Docket Management System at https://www.regulations.gov will accept electronic comments until 11:59 p.m. Eastern Time on that date.”
Immigration lawyers, file a comment!
NEW MEXICO VOLUNTEER OPPORTUNITY:
Innovation Law Lab: “Come volunteer with Innovation Law Lab to support immigrants detained at ICE and CoreCivic’s infamous Torrance County Detention Facility (TCDF) in Estancia, New Mexico. Read on and sign up to learn how you can help! Since launching the Torrance Pro Bono Project in July 2025, Law Lab staff and volunteers have met with hundreds more people in ICE detention at TCDF. We provide legal orientation so that people can make the best decision available under harsh circumstances, for themselves and their family. We support folks with crucial legal tasks such as asylum applications and document translation. We also provide folks detained with opportunities to speak out about their experiences and advocate for their rights and dignity. Law Lab is looking for in-person and remote volunteers to support people detained who are fighting their immigration cases:
In-person volunteers in New Mexico can join us for our weekly Thursday legal orientations and biweekly Wednesday asylum application workshops.
Remote volunteers who speak Spanish can support document translation for Wednesday workshops and at other assigned times.
Trained and vetted volunteers and operate under the supervision of Law Lab staff and attorneys. Prior legal experience is NOT needed. Volunteers assist Law Lab staff in scaling up legal service provision, as well as documenting harms and violations as they occur inside the ICE prison. Many conversations with people detained require fluent Spanish, but we are able to use the support of monolingual English. We are also looking for support from other language speakers, including Arabic, Haitian Kreyol, Mandarin Chinese, French, Turkish, Portuguese, and more. Under the intense challenges of current US immigration policy, providing people detained with the ability to fight their case is a way to show solidarity and keep a door open to safety and community instead of isolation and separation. Huge shout out to the incredible volunteers that have already joined us!
Over 50% of people that have volunteered in person have done so more than once – come find out for yourself why this is such an important and powerful experience.
Our remote team has supported dozens of translations and counting, and taken on a range of other key support tasks.
Learn more and sign up here. Thank you for joining us in this fight!”
I can tell you from personal experience that this program is amazing. (This is why I was offline yesterday.) If you participate, you will be astonished, and probably outraged, at what goes on behind closed doors at TCDC. Sign up today!
BONUS: NM GOV. SIGNS IMMIGRANT PROTECTION ACT!
Border Report, Feb. 5, 2026: “Gov. Michelle Lujan Grisham, D-New Mexico, on Thursday signed into law a bill getting local public entities out of the business of non-violent migrant detention. The Immigrant Safety Act (House Bill 9) calls for the termination or non-renewal of interagency contracts that facilitate the operation of detention centers such at the ones in Torrance, Cibola and Otero counties. It also bans the use of state land for immigration detention and prohibits local police from entering into 287(g) federal agreements allowing them to perform immigration duties. … The American Civil Liberties Union of New Mexico immediately hailed signing of the Immigrant Safety Act. “New Mexico’s three detention centers have facilitated this system of harm, with documented cases of excessive use of solitary confinement, inadequate medical care, lack of clean water and food and five deaths in custody in recent years,” the ACLU-NM said in a statement. “The Immigrant Safety Act ensures New Mexico will no longer be complicit in these abuses.”
That’s all for now. THANK YOU! to all subscribers, new, free and paid. Comments always welcome: punch that Leav a Comment button below!
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