Bond Hearings for Immigrants Cease Despite Federal Rulings

The Trump administration’s immigration courts have largely stopped conducting bond hearings, despite three federal judges’ explicit declarations that noncitizen detainees have the right to argue for their release.

On Feb. 13, Judge Sunshine Sykes, who issued a final declaratory judgment pertaining to a nationwide class of detainees, will consider what to do next in a matter she has said poses serious constitutional concerns. Her decision will come as the Fifth Circuit on Friday backed the Trump administration’s policy.

Sykes and two other federal judges overseeing class suits have declared that immigration courts should hold the hearings, at which detainees are given a chance to argue for their release.

Some immigration judges complied, briefly, until Chief Immigration Judge Teresa Riley told the judges on Jan. 13 they weren’t bound by Sykes’s order because it’s not an injunction. Declaratory judgments, she said, don’t compel them to do anything.

The conflict affects thousands of noncitizens in custody and has left immigration judges struggling.

Immigration Judge Holly D’Andrea wrote in an order last month that the conflict between the judicial branch’s declaration and the executive branch’s precedent in immigration matters meant the noncitizen before her “is entitled to a bond hearing but is not eligible for a bond,” according to records reviewed by Bloomberg Law.

Immigration judges have been put in a bind, said Jeremiah Johnson, executive vice president of the National Association of Immigration Judges.

Not only are they receiving conflicting messages from the executive and judiciary, they should be free to exercise their independent decisionmaking authority without political pressure, said Johnson, who was an immigration judge in San Francisco before the administration fired him in November.

The bond hearing issue is “the clearest example so far of political interference in an immigration judge’s independence,” he said.

The Executive Office for Immigration Review, part of the Justice Department that operates immigration courts, declined to comment for this story.

Mass Deportation in the Courts

The Trump administration says it has deported more than 3 million people, more than 2.2 million of which were self-deportations. Its reinterpretation of immigration law has been a crucial tool toward the administration’s removal goals.

For decades, the INA was interpreted to draw a distinction between immigrants coming in at the border and those arrested inside the US, potentially after having lived in the country for years. The latter had the right to a bond hearing to argue for their release as their case proceeded.

The Trump administration changed their interpretation of the law last year, saying noncitizens arrested in the interior of the country instead would be detained mandatorily. A Board of Immigration Appeals decision, Yajure Hurtado, made that interpretation binding on immigration judges around the country.

Releasing immigrants as their cases proceed tends to give them better odds at fighting their removal from the country. And as conditions deteriorate in holding facilities, detainees are more likely to give in and agree to be deported, said Emma Winger, an attorney at the American Immigration Council.

Without automatic access to a hearing to argue for their release, detainees with access to legal counsel have flooded federal courts with individual habeas petitions to force their bond hearings. More than 1,000 have been filed—though that represents just a fraction of the some 70,700 people in immigration custody.

Judges in habeas cases are often using boilerplate language, at times decrying the waste of judicial resources.

“The cases are basically the same,” said California-based immigration attorney Cesar Montoya. “It’s extremely inefficient. It makes no sense.”

So attorneys sought more widespread relief in class cases, and judges have ruled their way.

A Western District of Washington judge in September declared that a class of people detained at the Northwest ICE Processing Center is entitled to bond hearings under the law. A District of Massachusetts judge made a similar declaration for regional detainees in December, finding the mandatory detention policy violates the INA.

And in a breakthrough case out of the US District Court for the Central District of California, Sykes entered a final judgment finding that every member of the class of detained immigrants had the right to a bond hearing.

The US Supreme Court’s Garland v. Aleman Gonzalez decision bars broad class-based injunctions in certain immigration matters, causing the judges in these cases to issue declaratory judgments instead, defining the noncitizens’ right to bond hearings. Noncompliance with declaratory judgments can’t be punished with contempt proceedings.

With the administration’s stance that those judgments aren’t enough, immigration judges “have no choice but to follow Matter of Hurtado over the Sykes decision,” said former immigration judge David Kim, who was fired by the administration in September. “There may be some brave souls who may not do that right away, and ask both parties to brief the issue.”

‘The Border is Now Everywhere’

The administration’s interpretation of the INA is making its way up to appellate courts. The government made its case before the Fifth and Seventh Circuits last week, and appeals are also pending in circuits around the country.

During oral arguments before the Seventh Circuit, Deputy Assistant Attorney General Drew Ensign told judges that since the law doesn’t allow bond hearings for noncitizens who present themselves at ports of entry, providing hearings for “aliens that unlawfully barge past our borders” would be a “perverse reward for breaking United States laws.”

The Fifth Circuit took only days to decide the issue, overturning the lower court Friday and backing mandatory detention. The majority found no legal distinction between people “seeking admission” at the border or from within the US and those arrested in the interior of the country. Judge Dana Douglas, in a blistering dissent, called the administration’s position “totally unsupported,” adding that “the border is now everywhere.”

Attorneys in the Massachusetts and California class cases have asked the judges to vacate Yajure Hurtado, a move that could potentially weaken the executive branch’s posture. But in filings before the Massachusetts judge, the DOJ said that still wouldn’t stop immigration courts from denying bond hearings.

“The executive branch is trying to push as far as it can,” said Nicole Hallett, director of the Immigrants’ Rights Clinic at University of Chicago Law School. “And it doesn’t openly violate explicit injunctions, but degrades the rule of law through these decisions to try to play games and do tricks and try to find loopholes through which to avoid complying with court orders.”