More than 220 judges have now rejected the Trump admin’s mass detention policy

[Thiệu Ngô]

The number has skyrocketed in recent weeks and includes at least 20 judges appointed by Trump himself.

By Kyle Cheney

The Trump administration’s bid to systematically lock up nearly all immigrants facing deportation proceedings has led to a fierce — and mounting — rejection by courts across the country.

That effort, which began with an abrupt policy change by Immigration and Customs Enforcement on July 8, has led to a tidal wave of emergency lawsuits after ICE’s targets were arrested at workplaces, courthouses or check-ins with immigration officers. Many have lived in the U.S. for years, and sometimes decades, without incident and have been pursuing asylum or other forms of legal status.

At least 225 judges have ruled in more than 700 cases that the administration’s new policy, which also deprives people of an opportunity to seek release from an immigration court, is a likely violation of law and the right to due process. Those judges were appointed by all modern presidents — including 23 by Trump himself — and hail from at least 35 states, according to a POLITICO analysis of thousands of recent cases. The number of judges opposing the administration’s position has more than doubled in less than a month.

In contrast, only eight judges nationwide, including six appointed by Trump, have sided with the administration’s new mass detention policy.

Courts, increasingly aware of the one-sided rejection of the administration’s policy, have grown exasperated by the deluge of litigation that has flooded their dockets. Some have made a partial accounting of the sheer volume of rulings against the administration. But even those don’t capture the breadth of rulings against the administration revealed on dockets across the country.

“The Court is unable to remain current on all new case authority supporting the Court’s conclusion, given the continued onslaught of litigation being generated by [the administration’s] widespread illegal detention practices,” U.S. District Judge Christina Snyder, a California-based appointee of Bill Clinton, wrote in a Nov. 21 ruling.

U.S. District Judge Hala Jarbou, a Michigan-based Trump appointee, described receiving more than 100 cases herself before another 97 detainees filed a joint lawsuit pleading for release. Judges have assailed the administration for defying the law and suggested the unprecedented interpretation of the law could subject millions of people to detention, even if they have lived in the country for decades without incident.

“Dozens of district courts across the nation — with more each day — have rejected DHS’s expansion of … mandatory detention,” U.S. District Judge Lynn Winmill, an Idaho-based Clinton appointee, wrote in a Nov. 19 ruling releasing 17 people detained during an Oct. 19 ICE raid at a racetrack. “This court joins the overwhelming majority.”

Nationwide relief could be on the way

Because the cases are typically brought by individual detainees on an emergency basis, there have been few broad attempts to block the ICE policy. But that may be changing. Judges in Massachusetts and Colorado recently certified class action lawsuits against ICE’s new approach. And on Tuesday, a judge in California approved a nationwide class, which could immediately force the administration to provide bond hearings to those subject to the ICE policy.

Appeals courts have just begun grappling with the policy and could issue rulings in weeks or months that help guide lower courts and stem the tsunami of litigation. The Trump administration has asked appeals courts in the Texas-based 5th Circuit and the Missouri-based 8th Circuit for expedited rulings on the matter. But it has also asked appeals courts in other parts of the country to slow-walk their consideration, leading to frustration from advocates for detained immigrants as they seek legal clarity.

DHS officials expressed confidence that their view of mass detention would be upheld when it reached appellate — and perhaps Supreme Court — review and said Biden-era immigration policies had forced their hand.

“President Trump and Secretary Noem are now enforcing this law as it was actually written to keep America safe,” Assistant Secretary Tricia McLaughlin said in a statement.

The Trump admin’s detention policy

At the heart of the issue are two complex provisions of federal immigration law that have confounded courts for decades.

One of them requires immigration officials to detain “arriving” immigrants who are “applicants for admission” and are also “seeking admission” to the United States. Judges and all previous administrations have interpreted these provisions to apply primarily to those who were apprehended at the border shortly after entering the country.

The second provision permits — but does not require — the attorney general to seek the detention of immigrants while they face deportation proceedings. It has long been applied to the millions of undocumented immigrants who have lived in the nation’s interior for years, often paroled into the country after encountering immigration officials at the border. Many have established deep roots, with U.S. citizen spouses, children and family members, as well as employment authorization and pending efforts to seek asylum or other pathways to remain in the country legally.

The Trump administration broke from 30 years of precedent when it concluded that millions of immigrants who have lived in the U.S. for years could still be treated as “seeking admission” to the country — subjecting them to mandatory detention typically only meant for new arrivals.

One judge said this was a logical fallacy akin to saying someone who snuck into a movie theater was still “seeking admission” to the cinema, and dozens of judges have said the policy change defied a common sense reading of the law.

Until the administration’s new policy, the bulk of people facing deportation were allowed to remain free while their proceedings were pending in immigration courts — a distinct, executive branch-run network of courts meant to handle deportation matters.

Immigrants targeted for detention were permitted to seek release on bond from those immigration judges, who would decide whether those seeking release pose a danger to society or a risk of flight before ruling on whether to release them on bond.
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But that process is also in jeopardy: The Board of Immigration Appeals, the executive branch body that oversees immigration courts, recently adopted the administration’s policy as its own, concluding that immigration judges have no authority to release people detained under ICE’s new policy.

That has left the federal judiciary as the last option for immigrants who have been locked up.

Judges are flooded with these cases

A POLITICO review of thousands of dockets across the country has shed light on the one-sided rebuke of ICE’s mass detention policy.

As of Tuesday, at least 225 federal judges have ordered release or bond hearings for more than 500 people facing deportation proceedings. Among those judges are 166 appointed by Democratic presidents, including 80 by Joe Biden, 66 by Barack Obama and 20 by Bill Clinton. Another 59 were appointed by Republican presidents, including 28 by George W. Bush, 23 by Trump, four by George H.W. Bush and four by Ronald Reagan.

And while many of the cases were concentrated in major cities, where Trump’s mass deportation campaign has been most aggressive, the emergency lawsuits have cropped up in nearly every state. Judges have ruled against the administration’s position in red states such as Missouri, Florida, Kentucky, Louisiana, Nebraska, Texas and others.