ICE Detainees Successfully ‘Swarm’ Courts Seeking Due Process

The Trump administration’s radical reinterpretation of its detention powers under a bedrock federal immigration statute is largely falling flat in court, with federal district court judges broadly rejecting the view that noncitizens who have lived in the US for years don’t have the right to a bond hearing.

This summer, the Department of Homeland Security adopted a new view of the Immigration and Nationality Act, declaring that nearly all noncitizens arrested by immigration authorities must be detained while their cases proceed.

The policy shift, a key part of President Donald Trump’s aggressive immigration enforcement agenda, has placed immigration law in unprecedented flux. Courts are flooded with habeas corpus petitions claiming the new policy infringes on the rights of the detainees, some of whom have lived in the US for years and have put down roots in their communities.

“It’s not like our system was lacking in ways to detain people who had dangerous criminal histories and shouldn’t be allowed out into society,” said Sabrina Damast, a Los Angeles-based immigration attorney. “This new policy is just sweeping up everybody else instead.”

Federal judges have almost uniformly sided against the government, granting detainees a chance at bond or ordering their release outright. One analysis last month by a judge in the Southern District of New York found that out of 362 cases nationwide, judges rejected the government’s stance in all but 12.

“Thus, the overwhelming, lopsided majority have held that the law still means what it always has meant,” wrote Judge Lewis Kaplan, a Clinton appointee.

The administration is sticking with its interpretation despite widespread rejection from lower courts, priming the issue for appellate dockets in 2026. Some attorneys speculate the administration is staying the course because it believes it can win on the issue at the US Supreme Court.

Interpretation Shift

For decades, the government recognized that noncitizens arrested in the interior of the country—as opposed to those seeking admission at a point of entry—were entitled to bond hearings in immigration court.

A few years ago, however, immigration judges in Tacoma, Wash., began to find that even undocumented people who have resided in the US for years are covered by the same statutory provision as arriving noncitizens, and so didn’t have the right to a bond hearing.

Those judges were outliers until July, when the Department of Homeland Security adopted that interpretation as its formal policy. The Board of Immigration Appeals followed with a binding decision that immigration judges don’t have authority to hear bond requests from noncitizens present “without admission.”

In a statement, a Department of Justice spokesperson said the agency’s Executive Office for Immigration Review is “restoring integrity to the immigration adjudication system” and “will continue to enforce the law as it is written to defend and protect the safety and security of the American people.”

The new policy aligns with the administration’s goal of mass deportations: people who remain in custody as their case pends are far more likely to be deported or just give up and agree to leave, attorneys say.

“This is a seismic shift,” said attorney My Khanh Ngo of the ACLU Immigrants’ Rights Project, who is working on cases challenging the government’s interpretation. “No administration before this has ever read this kind of broad authority into the detention statutes.”

Legal Response

Immigration attorneys quickly turned to the courts, filing both individual petitions and proposed class actions challenging the new reading of the law.

New York-based immigration attorney Heidi Meyers likened the surge in habeas cases to a “swarm” tactic in drone warfare.

“Everybody’s sort of doing their own thing, filing their own petition,” she said. “But since everybody has the same goal, the same target, you end up with a good result.”

Between Dec. 9 and 10, at least 34 orders were entered in cases involving the mandatory detention question, according to a Bloomberg Law analysis of court rulings. In all but one, judges found against the administration.

Judges have regularly cited the overwhelming number of rulings against the policy shift.

And many of the people being detained, a Chicago federal judge said from the bench last month, are “highly unlikely” to be the violent criminals the administration says it’s prioritizing. According to Judge Jeffrey Cummings’ analysis of habeas petitions in the Northern District of Illinois, immigration agents have arrested landscapers, taxi drivers, street vendors, and people attending their immigration hearings.

Class Complaints

The Justice Department continues to advance the same argument over and over again, while pledging to fight rulings against the government.

In one of the pending class complaints, a Central District of California judge recently expanded her declaration that the new DHS policy was unlawful to cover a nationwide class of noncitizens.

The immigration bar cheered, anticipating their clients would be given a chance to argue for release. Generally, though, that hasn’t happened, attorneys said.

“We’re not getting any bonds,” Damast said. “What should have happened and what did happen were complete opposites.”

A recent motion accused the government of “flagrantly” disregarding the ruling by claiming it wasn’t actually final. The plaintiffs want Judge Sunshine Sykes to “expressly confirm” that class members are entitled to bond hearings.

In a response, DOJ attorneys said the judge “expressly declined to enter final judgment.”

Appellate Outlook

Appeals regarding the mandatory detention policy are pending around the country, including a challenge in a regional class complaint that the US Court of Appeals for the Ninth Circuit could hear as early as March.

Some attorneys said they expect the administration wants to take the matter to the US Supreme Court, where justices have often sided with Trump in early shadow docket rulings on his use of executive power. Meanwhile, the flow of habeas petitions continues.

“This issue will get to the Supreme Court one way or another,” Damast said. “I think many of us doing habeas work are saying ‘Do as many as you can while the law is on your side.’”