Trump’s Aggressive ICE Tactics Often Checked by Federal Courts

The Trump administration’s extraordinarily aggressive deportation campaign has been met with a cascade of litigation—and Immigration and Customs Enforcement is frequently losing.

Lawsuits have been filed challenging nearly every aspect of the crackdown, from agents’ tactics to conditions in detention facilities to inter-agency information sharing. The administration has faced adverse outcomes, either fully or partially, at least 30 times in lawsuits involving ICE, according to a Bloomberg Law analysis of three dozen immigration cases with an initial court decision.

“A lot of courts are checking the excesses of the Trump administration. That’s what our country is designed to do,” said Paul Hunker, former chief counsel for ICE’s Dallas office during Republican and Democratic administrations. “Trump has definitely, I think, expanded the authority often beyond what the law permits, and then courts are checking them on that.”

Rulings by federal district court judges over the past year have chipped away the administration’s efforts to arrest and detain more immigrants and more quickly deport them. Judges have blocked the administration from restricting congressional visits and attorney access to immigration detention centers, while also curbing some of the agency’s harsher arrest tactics against undocumented immigrants and protesters.

The administration has nonetheless continued to defend its immigration campaign, despite in some cases losing multiple times on the same or similar issues.

The government has faced at least five rulings in cases across the US requiring changes at immigration detention facilities, where plaintiff attorneys have alleged noncitizens are held in filthy, overcrowded conditions without proper access to counsel.

Government lawyers have also struggled, at least initially, to defend the administration’s move to detain nearly all arrested immigrants without bond hearings. Judges have certified classes in at least five cases challenging the administration’s policy on mandatory detention of noncitizens, and so far have ruled against the practice in three of those.

Immigration detention has swelled since President Donald Trump returned to office last year with a pledge to deport millions of undocumented immigrants.

More than 68,000 people were in immigration detention as of Feb. 7, a significant jump from the fewer than 40,000 in detention at the end of the Biden administration, according to TRAC, a clearinghouse for government data. The administration also has issued travel and visa bans affecting dozens of nations and restricted foreign worker visas, sowing confusion for businesses navigating the changes.

While the administration loses at the trial courts, ultimate case outcomes may shift as challenges wind through appellate circuits. The administration has often lost at the lower courts but fared better in appeals courts in other challenges.

A spokesperson for the Department of Homeland Security, ICE’s parent agency, said in a statement that the department “complies with all court orders, even as radical NGOs shop for the most favorable forum and activist judges seek to thwart our operations.”

“As our record in the U.S. Supreme Court demonstrates, the law is on our side,” the spokesperson said.

Litigation ‘Crosshairs’

The administration’s hardline approach has “put themselves in the crosshairs as far as attracting litigation,” said attorney Kerry Doyle, who worked for ICE and DHS during the Biden administration.

“This administration is being incredibly aggressive and taking novel approaches to the law,” Doyle said. “I think, fundamentally, they believe that noncitizens do not have constitutional rights and are acting accordingly.”

The administration has notched at least four notable wins at the trial courts in cases involving ICE.

Washington federal judges have greenlit information-sharing between ICE and the Internal Revenue Service, allowed more immigration enforcement activities near churches, and denied a request by attorneys for more access to immigrants who were detained at Guantanamo Bay.

The administration has also won a ruling in Minnesota federal court related to its enforcement surge in the state.

In at least three additional instances, appeals courts have agreed to lift all or part of rulings against ICE’s actions while litigation continues, including over its tactics against protesters in Minnesota and use of a detention facility in the Florida Everglades.

In September, the Supreme Court also allowed immigration agents in Los Angeles to engage in tactics criticized as racial profiling, though parts of the case are still continuing at the lower court.

Regardless of a case’s ultimate outcome, courts can perform a crucial truth-seeking function, said Scarlet Kim, a senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. The ACLU has brought multiple free-speech claims challenging immigration agents’ treatments of protesters and journalists.

“The courts are basically sifting through the facts presented to them and providing a kind of narrative account of what’s happening,” said Kim. “We shouldn’t discount the importance of that down the line, especially when there may be an opportunity to seek accountability in other ways, for example if the government were to change hands or new laws were to come into place.”

Bloomberg Law’s analysis includes outcomes of cases where ICE is a defendant, as well as some where DHS is the defendant but ICE is a focus of the complaint. It includes policy challenges and class actions, but doesn’t include individual habeas petitions, which have flooded courts in recent months as a result of the administration’s enforcement operations. The government has overwhelmingly lost those cases, too.

Aggressive Stances

Litigation has often been the way to resolve problems and answer questions arising from a flawed immigration system, Doyle said.

But the Trump administration has taken such a hard line that there’s now very little wiggle room to resolve a dispute any other way, she said.

“Their policies are so absolute,” she said. “There’s no way to actually negotiate a case or resolve a case without going to court.”

The agency’s frequent losses in court may stem, in part, from the aggressive legal positions the government has taken, said Steve Bunnell, who served as a general counsel for DHS under Obama.

He pointed to the government’s claim that immigration agents may enter homes without judicial warrants as a position he described as “at the outer edges of aggressive lawyering.”

It’s as if the government’s position is “unless there is a statute that specifically addresses what they want to do and says you can’t do it,” then “they have discretion to do it,” Bunnell said. “That’s not a typical way for a government lawyer to look at the authority and limitations of executive power. It’s certainly not a wise way to do it.”

The government appears to be less sensitive to losing in court in these cases than is usual, indicating the administration may be more interested in sending a message to immigrant communities with its actions, said another former DHS official, who spoke on condition of anonymity.

At the same time the agency is taking legal positions that push the boundaries, judges have found the government’s attorneys are violating court orders, particularly in cases involving individual noncitizen petitioners.

The chief judge of the Minnesota federal trial court found that the government has violated more than 100 court orders in immigration cases.

Another judge in his district, where the administration ramped up immigration arrests during “Operation Metro Surge,” ordered the district’s top prosecutor and ICE officials to appear earlier this week and explain why the agency was failing to return property to immigrants when released in violation of court orders.

Judges have also excoriated the agency for positions defending its broader policies.

A Minnesota federal judge said in a Feb. 27 opinion that the administration’s recent policy to arrest refugees “turns the refugees’ American Dream into a dystopian nightmare.” A West Virginia federal judge described ICE’s practice of wearing masks to hide their identities during arrests as “the elimination of constitutional accountability itself.”

In Chicago, a federal judge hammered the immigration agencies for their use of tear gas, pepper balls and other violent tactics against nonviolent protesters, and said she found government witnesses weren’t credible.

That “trust deficit” for both ICE and the Justice Department “casts a pall over everything that they do,” Bunnell said.