ICE blocked for the third time from banning surprise lawmaker oversight visits

WASHINGTON (CN) — A federal judge on Monday froze the Department of Homeland Security’s policy barring members of Congress from conducting surprise oversight visits to Immigration and Customs Enforcement facilities.

U.S. District Judge Jia Cobb granted a stay requested by 13 Democratic lawmakers, led by Colorado Representative Joe Neguse, blocking the latest version of the policy that required lawmakers to provide seven days of advance notice before being allowed into an ICE facility.

Cobb, a Joe Biden appointee, determined that the Justice Department had failed to show that the Jan. 8 version of the policy pulled funds purely from the One Big Beautiful Bill, rather than the latest 2024 congressional appropriations bill.

Since 2020, appropriations bills have included a provision, Section 527, that bars the department from using its appropriated funds to prevent lawmakers from conducting oversight visits or make any modifications that would hide conditions from lawmakers.

“The language of the Jan. 8 memorandum supports plaintiffs’ contention that at the time the new policy was issued and first implemented, DHS and ICE had not attempted to ensure that only [Big Beautiful Bill]-funded resources were employed,” Cobb wrote in a 44-page opinion.

“Indeed, the language of the memorandum anticipates that the steps taken to ensure DHS and ICE’s compliance with Section 527 are largely prospective,” Cobb added. “The memorandum states that DHS and ICE officials ‘shall ensure’ — not have ensured — ‘appropriate funding for the promulgation’ and ‘implementation and enforcement of the policy.’”

Monday’s decision marks the third time Cobb blocked a version of the DHS policy, first on Dec. 17 and again on Feb. 2.

Cobb ruled in December that an initial version of the policy violated the reoccurring provision. DHS then enacted a nearly identical policy on Jan. 8, which the government defended during a Jan. 14 hearing as drawing funds exclusively from the One Big Beautiful Bill Act, not the department’s annual appropriations.

The Big Beautiful Bill appropriated $191 billion to DHS, as well as Congress’ short-term continuing resolution, which maintains 2025 appropriation levels through Jan. 30, 2026.

Cobb rejected that representation, finding significant evidence that the Jan. 8 policy was also “promulgated, implemented and is presently being enforced with the use of Section 527 funds.”

The section, last included in the 2024 appropriations bill, specifically prohibits DHS from making any temporary modification at an immigration facility that would alter what is observed by a visiting member of Congress.

On Feb. 2, Cobb issued a two-week temporary restraining order while she considered the lawmakers’ request for a more substantial stay.

In response, DHS Secretary Kristi Noem issued a memorandum stating that the relevant appropriated funds had lapsed on Jan. 30, 2026. The memo, Cobb noted, did not include an effective date for the policy and only instructed the DHS general counsel to “provide further guidance regarding the effective date” of the policy.

However, when Congress passed a partial appropriations bill the next day temporarily extending DHS’s annual appropriations through Feb. 13, it incorporated the Section 527 rider.

‘The court finds that it is highly likely that Section 527-restricted annual appropriations funds were used in promulgating and enforcing the Jan. 8 notice policy, and that defendants’ legal theories for curing those violations were unpersuasive, given that the purpose statutes would prohibit defendants from using [One Big Beautiful Bill Act] appropriations to fund at least some of the expenditures in question,” Cobb wrote.

Skye Perryman, CEO of Democracy Forward and representing the lawmakers, applauded Cobb’s decision in an emailed statement and said it affirmed that “human rights do not disappear at the doors of a detention center.”

“The president continued to try to convince the American people not to believe what they can see: a government abusing its power behind closed doors,” Perryman said. “The Trump-Vance administration’s efforts to hide detention conditions and block congressional oversight is not just an optics strategy — it is an attempt to evade accountability for policies that are cruel, unlawful and deeply unconstitutional. Today’s ruling makes it clear that Secretary Noem cannot operate detention facilities in the shadows or silence elected officials who are doing their jobs.”

The Justice Department immediately appealed Cobb’s ruling to the DC Circuit, setting up a protracted legal battle and further delaying a more substantial record.

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