A confluence of developments — including the Trump administration's novel sweeping interpretation of Section 1225(b)(2)(A) of the Immigration and Nationality Act as requiring mandatory detention without bond, the Board of Immigration Appeals' limit of bond review, and repeated government compliance failures — has been met with federal judges ordering increasingly bold relief.
In some cases, judges have ordered outright release, sometimes with sharp rebukes of the government.
Some district courts have honed in on due process issues, even as split Fifth Circuit and Eighth Circuit panels have signed off on the administration's position that the INA mandates detention for immigrants arrested in the interior U.S., no matter how long they've lived in the country. Prior administrations have treated those arrested in the interior as being eligible for release on bond.
The judges' rulings have evolved at a rapid clip. In response to the first wave of habeas petitions lodged after the Board of Immigration Appeals stripped immigration judges of authority to grant or even hear bond requests last September, federal judges initially ordered the government to conduct bond hearings.
However, over the past several months, judges in some parts of the country started issuing more sweeping remedies after attorneys returned to court to argue the bond hearings were constitutionally deficient, according to Andrea Saenz, a former BIA judge who was removed from the board last year, along with all the other Biden appointees.
"We're having to increasingly do double‑round habeas cases, where you win a habeas, you go have a bond hearing but the bond hearing doesn't comport with due process — it's sort of a predetermined loss," Saenz said. "And you have to go back to the habeas judge and go, 'Well, they didn't really follow your order. We need you to make them do it, or we need you to just cut your losses and order my client released.'"
Saenz said immigration judges by and large have denied release on bond in hearings ordered by federal judges in habeas cases, making across the board determinations that detained noncitizens can't be safely released because they pose a flight risk.
In February, U.S. District Judge Anthony J. Trenga took issue with how a bond hearing went after previously ruling that a Salvadoran man's ongoing detention violated his due process rights. Judge Trenga said the immigration judge relied on improper considerations in deeming the man a flight risk, calling those factors "so lacking in probative value … that their use in determining flight risk failed to provide the petitioner with constitutionally sufficient due process."
Judge Trenga cited his prior ruling that immigrants detained in the interior U.S., and who entered the country unlawfully, are subjected to discretionary detention under Section 1226(a) of the INA, which he said entitles those individuals to bond hearings.
In some cases, judges have also ordered U.S. Immigration and Customs Enforcement to return noncitizens' belongings, including their identification, work permits and other documentation, and have barred ICE from re-detaining those they are ordering released from immigration detention.
"It almost feels parental. Judges are saying, 'Here's all the rules, and then you prove to me that you followed the rules. I mean, in normal times, that's not necessary," Saenz said.
The relief judges are now ordering is also a response to the judiciary's growing sense of urgency about these cases, which immigration law professor Denise Gilman of the University of Texas said stems from judges' recognition of deeper, systemic issues with the immigration bond process.
When she started filing habeas immigration cases back in 2017, Gilman said judges would give the government a full 60 days to respond, treating the cases like ordinary civil suits. Now, she says federal judges are recognizing them as high-stakes liberty cases that require prompt resolution.
"Now all the courts are requiring immediate responses and are taking these up much more quickly," said Gilman, who is currently serving as a visiting professor at Georgetown University.
Gilman said one of the clearest signs of how much the judiciary has shifted in a short time is that some judges are ordering outright release from immigration detention without ordering a bond hearing first.
"Not so much because they've been distressed by what they're hearing about bond hearings, but just because they're understanding that the detention is unlawful … and, therefore, the appropriate remedy is release," she added.
In February, U.S. District Judge Jason Pulliam ruled that, even if the Fifth Circuit's split Feb. 7 decision siding with the administration's interpretation of the INA foreclosed his consideration of whether a Mexican national was properly detained under Section 1225, it did not bar her due process claim.
The judge found that detaining the woman — a mother of four U.S. citizen children — without any individualized process violated her due process rights, and that a bond hearing wouldn't be an adequate remedy, because due process required the government to conduct a deliberative assessment before stripping her of her liberty.
Kel White, associate director of public education and training at ACACIA Center for Justice, said the shift in habeas rulings "is the only bright light" amid the Trump administration's push to subject even longtime residents to mandatory detention.
"Federal courts are now reviewing more rapidly, and more discerningly, what the immigration courts are doing," White said.
According to an analysis from Politico, 410 judges have ruled against the government's interpretation of Section 1225(b), while 41 have ruled in its favor as of April 1.
The relief issued by district judges have varied by geographic region, according to Jeremy McKinney of McKinney Immigration Law. In Georgia, one of the states where he practices, federal judges have largely stuck to ordering bond hearings in immigration court within seven days. They have sped up the pace of those decisions, issuing them in less than a week now instead of the previously standard three to five weeks, McKinney said.
But judges have been reluctant to wade into requests for release on due process grounds, he said.
"We got decisions very, very quickly from federal judges in Georgia on the initial legal issue, but on these more due process issues — where they are being very cautious — we just don't have any decisions yet that we can use to fight back to get our clients released," McKinney said.
Former immigration judge Dan Weiss, who serves as senior counsel at Roy Petty & Associates, said the shift toward expanded detention might be reshaping how quickly cases move through the system, because detained individuals' cases are typically processed on a faster track.
"Immigration proceedings notoriously take a long time. They go faster when you're detained, and I think that's part of the driver behind all of this," Weiss said.
But Weiss said detention can also make it significantly more difficult for people to pursue removal relief, and can make those detained "more likely to give up more readily."
"It's a miserable circumstance to be locked up," Weiss said.
McKinney said that reality is playing out at scale, as relatively few detained immigrants are challenging their detention in habeas cases.
"This is how they fuel the deportation machine," McKinney said. "These folks that are suing are a fraction — less than 20% of the detained population. Most people don't fight."
--Additional reporting by Rae Ann Varona, Tom Lotshaw and Ganesh Setty. Editing by Nicole Bleier.
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