Court motion argues ICE violated legal settlement, doctored documents in Liberty raid

An immigrant justice nonprofit claims that U.S. Immigration and Customs Enforcement violated a legal settlement agreement around warrantless arrests after recent raids across the Midwest, including one in a Liberty restaurant, and that the agency doctored documents to support its actions.

“We have serious concerns that they are, you know, trying to find strategies, patterns of practice to avoid the requirements both of the law and the settlement,” said Mark Fleming, associate director of litigation at the National Immigrant Justice Center (NIJC) — an organization that provides legal services, policy advocacy and litigation on behalf of immigrants.

The NIJC has an ongoing settlement with ICE that’s been in effect since May 2022 in the agency’s Chicago region of operations — made up of six states including Illinois, Wisconsin, Indiana, Kentucky, Missouri and Kansas.

The settlement resulted from a lawsuit filed during President Donald Trump’s first term in 2018 when ICE conducted large-scale immigration enforcement actions that involved arresting bystanders in addition to specific individuals that officers had warrants to arrest. The lawsuit challenged the legality of making such sweeping arrests.

The settlement that ICE agreed to raises the legal bar for when immigration officers in the Midwest region of the U.S. can arrest someone without a warrant. It pulled language from the Immigration and Nationality Act, which doesn’t allow the agency to make a warrantless arrest unless they have probable cause that the person they are arresting is “likely to escape before a warrant can be obtained for their arrest,” Fleming said.

“What that means is anyone that has community ties, like stable employment, homes, a family, these are all indices that show they are not going to escape before being detained. They would have to get a warrant,” Fleming said.

The NIJC claimed in a motion filed on March 13 in the United States District Court for the Northern District of Illinois, Eastern Division, that ICE has violated the settlement at least 22 times since Jan. 21, including the raid at El Potro Mexican restaurant in Liberty, when the organization contends that agents arrested and detained 12 individuals without a warrant or the required probable cause.

ICE North Deputy Communications Chief Erin Bultje told The Star in an email that ICE doesn’t comment on pending litigation.

ICE will respond to the NIJC’s motion in three weeks, Fleming said. A federal judge will then look at the documents submitted and either issue a written order or hold a hearing.

‘The Liberty 12’

In February, more than 10 agents from Homeland Security Investigations (HSI), a branch of ICE, showed up at El Potro just before lunchtime, claiming they were looking for someone who was a registered child sex offender. The agents never provided owners with a name or a photograph, according to the motion, which cited security camera footage.

By the end of the operation, they apprehended 12 employees and took documents from the restaurant.

Agents can access private areas of a business without a warrant with the owner’s permission, which was given through a complicated exchange due to language barriers, according to previous Star reporting.

According to the motion, the 12 employees were held in four booths for nearly two hours before they were handcuffed and escorted out of the restaurant. Beyond requesting identification, agents did not question the employees at that time.

After initial processing, 11 of the 12 employees were detained by ICE in Kansas, and one person was taken to Kentucky and then Indiana. The majority received and posted a minimum bond.

One individual was deported, and one remains detained, the motion says.

Rekha Sharma-Crawford, a partner at Sharma-Crawford Attorneys at Law who represents several individuals who were detained, told The Star that her team should have a disposition on the last person in custody soon. She said the rest have motions pending in immigration court.

“I think our first priority, of course, is to get everybody released,” she said.

Fleming told The Star that the individual deported had a “very old removal order,” which means she had been ordered to be deported in the past.

“Unlike say in the criminal context where there’s a statute of limitations on all crimes except serious violent crimes… in the immigration context, they stay on your record forever,” he said. “To be clear in her case she received what is called an expedited order of removal. She was stopped at the border decades ago — pre-2000 — she had barely entered the country, ordered removed, and at some point she came back in.”

Part of the NIJC’s motion asks that she be returned to the U.S., where she would likely get to go in front of a judge.

“As to the Liberty 12 as I like to call it, very few of them had any criminal record at all,” Fleming said. “Most of them had been here a long time, long-standing roots in the community as far as we can tell, and obviously gainfully employed and law-abiding.”

Doctored documents

As part of considering the ties an individual has to the community and whether they can arrest someone without a warrant, officers are required to document the probable cause showing that they have reason to believe an individual is likely to escape — in a form known as an I-213 — as soon as possible after making an arrest.

The motion alleges that ICE agents didn’t take these required steps when they arrested workers at El Potro.

“Because none of this information was collected (for the 12 people arrested in Liberty), it could not be documented,” according to the motion. “Indeed, based on the two hours of security footage, the agents did not ask them any questions.”

After the raid at El Potro, which occurred on February 7, the NIJC requested the I-213 forms showing probable cause for each individual.

Instead of providing those forms, ICE provided something called a Report of Investigation — which details ICE activity and investigations — that was written 12 days after the arrest, according to the motion.

“The documented probable cause finding was required to have been based on information gathered at the time of arrest, not information gathered after the fact,” the motion stated.

ICE didn’t provide the forms to the NIJC. Instead, immigration attorneys representing the workers provided 10 of the 12 I-213 forms — which showed that they had been filled on Feb. 10.

Then almost a month after the arrests, on March 5 and March 7, ICE provided copies of the I-213 forms to the NIJC as well. However, the forms from ICE did not match the ones previously provided by immigration attorneys.

“So we already had copies of the I-213s (from the immigration attorneys), but the ones that the government sent us on Monday were not the true copies. Instead they were self-servingly supplemented with, you know, post-hoc justifications for why they warrantlessly arrested all the individuals,” Fleming said.

Fleming said that the descriptions the government provided for justifying the arrests don’t match what video evidence from security footage shows.

“On the one hand they had filed form I-213 with the immigration court that had none of the justification for how they complied with the settlement, and instead sent us these supplemented ones with justifications that, one, they did not present to the immigration courts,” he said. “And two, as I said, were fairly self-serving and for the most part reliant on information that was gathered after the fact and frankly information that I don’t even think provides a probable cause to make a warrantless arrest.”

As part of its motion, the NIJC is requesting that the federal government produce all of their communications around I-213 forms that occurred from February 14 to the present, and asked the court to hold ICE, HSI or any other government officials that participated in “the supplementation of the I-213s” to be held in contempt of court.

“[We] hope that the judge will empower us to better monitor … and ensure that ICE is complying and HSI are complying with the terms of the settlement, which, frankly, are not that extreme,” Fleming said. “We’re not asking for the moon. We’re asking for basic fidelity to the rule of law.”

This story was originally published March 14, 2025 at 1:48 PM.