Judge Declines to Block Policy That Lets ICE Arrest Illegal Immigrants at Schools

Denver Public Schools sued over the policy, which it said was in contravention of federal law.

An American flag hangs in a classroom as students work on laptops in Newlon Elementary School, in Denver, Aug. 25, 2020. David Zalubowski/AP Photo

A federal judge on March 7 declined to block a new federal immigration enforcement policy that lets agents enter schools to arrest illegal immigrants.

U.S. District Judge Daniel D. Domenico, during a hearing in Colorado, rejected a request from Denver Public Schools to enter a temporary restraining order or a preliminary injunction against the policy. He said that Denver Public Schools failed to prove that a drop in attendance was due to a new policy from President Donald Trump’s administration.

The federal government in January rescinded guidelines that largely barred federal officers from arresting illegal immigrants at certain places, including schools and food banks.

Denver Public Schools said in its lawsuit that the U.S. Department of Homeland Security (DHS) had not demonstrated there were good reasons to implement the change.

“Defendants have provided no evidence that it examined relevant data, or any data. For example, Defendants have not cited any evidence to support its statement that criminals were hiding in schools,” the suit stated.

That means the move was arbitrary and capricious, in contravention of federal law, Denver officials said.

A DHS spokesperson said at the time that the administration was “protecting our schools, places of worship, and Americans who attend by preventing criminal aliens and gang members from exploiting these locations and taking safe haven there because these criminals knew law enforcement couldn’t go inside under the previous Administration. DHS’s directive gives our law enforcement the ability to do their jobs.”

A DHS official said in a Jan. 31 memorandum that a supervisor needed to approve immigration enforcement operations at or near churches and other “protected areas.”

Since the policy change, Denver school officials said that there has been a decrease in school attendance and a slew of reported ICE raids around schools. Denver’s superintendent told the court that students and parents had been arrested in the raids, stoking fear in the school community.

Under a previous version of the policy, agents with Immigration and Customs Enforcement, a DHS component, made just two arrests at schools, under exigent circumstances, from Oct. 1, 2018, through Oct. 31, 2020, according to a court filing. Another 18 arrests were made near schools.

Federal officials said in court filings that Denver officials have not shown the drop in attendance or any other injury was caused by the new DHS policy. “Rather, the evidence shows that any drop is the result of fears among students and parents, not any actual enforcement actions by DHS at schools, and may relate to false reports of immigration enforcement at schools or enforcement actions that did not take place on school grounds or at bus stops,” officials said in one filing.

They also said that the new policy did not differ significantly from the previous policy. While that 2021 policy said in part that “we should not take an enforcement action in or near a location” listed as protected, agents were still able to conduct arrests at or around such places, the officials noted. Schools remain on a list of protected areas, and agents still need authorization before entering the locations, they added.

Domenico, the judge, said on Friday that it wasn’t clear how much of the fear surrounding possible enforcement actions in schools was really due to the new rules as opposed to broader concerns of increased immigration actions.

He noted the requirement that authorities receive supervisory approval before entering sensitive places and said that the fear over the new rules, as well as the belief that the old rules provided protection to schools, both seemed to be overstated.

The Associated Press contributed to this report.