Judge rules four people arrested by ICE without warrants should be
released
[February 16, 2026]
By Maggie Dougherty
CHICAGO — A federal judge Friday ordered the release by Monday of four
people out of hundreds who were detained without warrants by federal
agents amid the ‘Operation Midway Blitz’ immigration enforcement
campaign last year in the Chicago area.
U.S. District Judge Jeffrey Cummings also rejected a recent agency
directive that sought to give immigration agents more discretion to make
arrests without warrants.
“It’s been a long road since Operation Midway Blitz, but we are finally,
finally at the point where we’re starting to see people get released,”
National Immigrant Justice Center attorney Mark Fleming said after the
hearing.
“We feel more motivated than ever after the hearing we just had, and the
various orders that are going to be coming out, to really finally force
this administration to honor their agreement, to honor the consent
decree, and frankly, to start following the law as it comes to
warrantless arrests.”
Friday’s rulings come after a federal appeals court rejected an October
order by Cummings to release hundreds of immigrants arrested without
warrants.
Of 615 people originally arrested between June 11, 2025 and Oct. 7,
2025, the government said 173 were still in custody as of Feb. 2.
However, plaintiffs say they expect many more were arrested without
warrants and proper cause since the list was compiled last fall.
Under a consent decree signed during the Biden administration that
limits immigration agents’ authority to make warrantless arrests in six
Midwestern states, agents have been prohibited from making warrantless
arrests without considering a person’s likelihood of escape before a
warrant for the arrest can be obtained. The decree, originally set to
expire in May 2025, was extended by Cummings until Feb. 2, 2026. Now, it
will be lifted after the alleged violations raised by immigration
advocates are resolved.
The decree has required since May 2022 that an assessment of the
person’s likelihood to escape includes factors such as their community
ties, job history, family, home or lack thereof and past attempts to
evade immigration enforcement.
The rationale behind considering those factors is that those with strong
ties to their communities are likely to follow traditional removal
proceedings while utilizing detention alternatives, such as check-in
calls, GPS ankle or wrist devices, or smart phone facial recognition
technology to verify location.
Immigration and Customs Enforcement’s alternatives to a detention
program allows people “to remain in their communities — contributing to
their families and community organizations and, as appropriate,
concluding their affairs in the U.S. — as they move through immigration
proceedings or prepare for departure,” according to the program webpage.
ICE’s website also describes the program as cost effective, costing
around $4 per day per person, compared to the $152 per day cost of
detention. ICE data shows that nearly 180,000 people have been enrolled
in detention alternative options so far this year. Of those, 97.5% have
attended their court appearances.
The Lyons memo
In a memo issued in late January, ICE Director Todd Lyons sought to
upend that precedent by reinterpreting the definition of likelihood of
escape to refer to escape at the time of encounter, rather than to leave
the area before a warrant could be obtained and the person could be
arrested at home or at their place of employment.
Rather than considering community engagement factors, Lyons directed ICE
agents that they may conduct warrantless arrests considering only
factors like the person’s behavior and their “ability and means to
promptly depart the scene of the encounter.”
The immigrants’ rights advocates argued that the memo “wholly ignores,
undermines and effectively supplants” the consent decree.
Cummings agreed, calling it “inconsistent” with the requirements of the
decree. The first couple pages of the Lyons memo, he said, looked good
to him.
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National Immigrant Justice Center attorneys Mark Fleming and Keren
Zwick, right, and ACLU of Illinois attorney Michelle García speak to
reporters at the Dirksen Federal Courthouse in downtown Chicago
after a Feb. 13, 2026, hearing on warrantless immigration arrests
amid Operation Midway Blitz. (Capitol News Illinois photo by Maggie
Dougherty)
“But where we run into issue is this question of likelihood of escape
compared with risk of flight,” Cummings said. “The Broadcast Policy of
the decree does not make any distinction between likelihood of escape
and risk of flight.”
The Broadcast Statement of Policy lays out requirements that DHS must
follow for warrantless arrests and vehicles stops under the consent
decree.
Though he acknowledged the lawyers in the room may be able to find a
reading of the Lyons memo and the Broadcast Policy, Cummings said he
would not expect an agent working in the field to take the time to
reconcile the two, leading to potential use of the Lyons memo to justify
warrantless arrests which are not permitted under the decree.
While the decree itself only covers Illinois, Indiana, Wisconsin,
Kansas, Kentucky and Missouri, ICE was required to issue the Broadcast
statement as a nationwide policy and to train all ICE officers on its
requirements.
Cummings ordered DHS to resend the Broadcast statement to all agents
nationally and communicate that it will be in effect until the decree is
lifted.
Notice of release
Plaintiffs also requested that DHS provide notice to them before
releasing those detained under the decree.
Government lawyers argued it was considered a law enforcement security
risk to telegraph motions such as release in advance and that having to
give notice might result in further delays for release.
Those detained by ICE in Illinois are often sent to one of 20 detention
facilities in surrounding states, or sometimes further away. Attorneys
representing those detained said they are often released late at night
into very hot or very cold climates without appropriate attire.
“There is a scramble to find people in the state where the person was
released to then literally caravan the person back to the Chicago area,”
Fleming told reporters. “We were begging the government just give us
some notice so that we can facilitate safe returns for individuals.”
Cummings directed DHS to give at least 12 hours’ notice of release to
attorneys for those detained to allow attorneys to coordinate pickup and
transport of them from custody.
Of hundreds of people released so far, attorneys said there had been
“absolutely no notice” for any of them.
Conditions for release, such as bond or check-in requirements, should be
lifted for all those released, Cummings ruled. That should include those
already released. They will still be required to attend court
appointments and respond to notices from the government.
Cummings also ordered DHS attorneys to begin reporting weekly on its
production of arrest records to the attorneys representing immigrants,
who said the records are needed to identify additional potential
violations of the consent decree.
“What we’ve been seeing in the records is that people were either
warrantlessly arrested, in which they either put boilerplate or no
justification for flight risk, or they were trying to do these warrants
in the field,” Fleming said.
That number may be in the hundreds, if not thousands, he said, who were
arrested without a targeted cause. Only a “significant minority,” had
prior criminal convictions, Fleming added.
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