The Trump administration’s move to overturn years of legal precedent and require mandatory detention for all immigrants facing deportation has sparked outrage from advocates who say they are being denied due process.
Now, the migrants are fighting back in a torrent of legal challenges — and are on a winning streak in federal court.
Since September, when the mandatory detention policy took effect, judges have ruled overwhelmingly in favor of immigrants challenging the change, ordering the administration in case after case to hold immigration bond hearings for detainees or release them, according to a Washington Post review of hundreds of court cases.
In a decision that could have sweeping implications for thousands of detainees, U.S. District Judge Sunshine Sykes of the Central District of California ruled on Nov. 26 that the administration’s policy is unlawful and said the government must provide noncitizens across the country a chance to seek their release on bond.
She also granted class-action status to all migrants subject to the administration’s mandatory detention policy. The administration is likely to appeal, but immigration attorneys in Massachusetts and western Washington have secured similar class-action standing for detainees in their regions.
Those rulings are significant because the Supreme Court ruled in June that lower-court judges have exceeded their authority in issuing injunctions that ban the U.S. government from enacting policies across the country. However, the justices left open the door for judges to award nationwide injunctions in class-action cases.
“This is a classic example of the government putting their policy and agenda ahead of the law,” said Matt Adams, legal director at the Northwest Immigrant Rights Project who serves as the lead attorney for the plaintiffs in the California case.
Not all migrants targeted for deportation face mandatory detention. Those who entered the country legally but overstayed their visas maintain the right to seek bond, including Bruna Ferreira, the former fiancée of White House press secretary Karoline Leavitt’s brother, Michael. A judge this week ordered Ferreira, 33, who is from Brazil but has lived in the United States since arriving with her family on a tourist visa when she was 6, released on a $1,500 bond after Immigration and Customs Enforcement officers arrested her last month.
Among the hundreds of migrants across the country who have challenged their mandatory detention is Ruben Torres Maldonado, 40, a painter in suburban Chicago who entered the country illegally from Mexico in 2003. He was arrested by ICE on Oct. 18 outside a suburban Chicago hardware store — just days after his 16-year-old daughter Ofelia, an American citizen, began cancer treatment — and was sent to an immigration detention center and then to the Clay County Jail in Brazil, Indiana.
Under past administrations, legal experts said, Torres Maldonado and others like him would almost certainly qualify for release on bond. During his time in a cold, crowded jail, he recounted in an interview, he met fathers, workers and small-business owners with families who were told that a bond was not an option.
Even violent criminals are entitled to bail, he said, and “we are not criminals. This is a land of laws, and we have a right to fight for our cases.”
Attorneys wrote in his court petition — known as a writ of habeas corpus — that Torres Maldonado was facing “the prospect of months, or even years, in immigration custody, separated from his community and family, including his terminally ill daughter who may die in the interim.”
Tricia McLaughlin, an assistant Homeland Security secretary, said the administration’s no-bond rule aims to enforce the law “as it was actually written.” She expressed confidence that the nation’s highest court would rule in favor of the administration if the legal battle over the policy reaches that level.
“Judicial activists have been repeatedly overruled by the Supreme Court,” McLaughlin said in a statement.
The Justice Department declined to comment.
The spike in habeas petitions accelerated in September after the Board of Immigration Appeals — acting on a July policy memo from the Homeland Security Department — ruled that the federal government would no longer allow immigration courts to grant bond to individuals who pose no flight risk or public safety threat.
Under the new policy, which reversed decades of precedent, undocumented immigrants who have lived in the country for years are to be kept in detention until their deportation cases are resolved, which could take weeks or months. Trump administration officials say they are closing “loopholes” that allowed previous administrations to let these immigrants remain free.
The policy is rooted in the administration’s belief that federal immigration law does not draw a distinction between migrants who are arrested while crossing the border and those who entered the United States without authorization but have lived here for years.
For decades, immigration judges viewed these groups as having distinct legal rights: Those arrested at the border are “seeking admission to the country” and can be held in detention, while those who have been in the country for more than two years without committing other crimes have established community ties and are generally eligible for an immigration bond.
This discrepancy is based on judges drawing from two different sections of U.S. law, legal experts said.
The Trump administration argues that the law authorizes mandatory detention for everyone awaiting deportation proceedings. That reading takes away the power to decide on a bond from immigration judges, who work for the Justice Department. Instead, decisions about release are now reserved for ICE, which has parole authority under DHS.
“Honestly, the government’s authority under the [Immigration and Nationality Act] is pretty broad,” said David McConnell, who spent 30 years as a federal prosecutor before resigning from Justice’s Office of Immigration Litigation in February after the Trump administration sought to transfer him to another section. “This is trying to exercise authority in the broadest possible way.”
The administration’s approach has incensed immigration attorneys, who responded by seeking habeas petitions in U.S. district courts. Court records reviewed by The Post show that federal judges in at least 51 judicial districts rejected the government’s position, saying the no-bond policy violates the Constitution.
Across 10 of those districts, migrants have filed, on average, more than 100 petitions since September.
The administration’s determination to deny bond to immigrant detainees has come up so often during the Trump administration’s targeted enforcement operations in Chicago, local attorneys said, that they are sharing templates for how to file a habeas petition and offering free seminars to help educate other attorneys.
“We are fighting for due process one person at a time,” said Chicago attorney Jennifer Peyton, whose law firm has filed more than 100 habeas cases in recent months.
Yet the federal cases are costly and time-consuming, providing a barrier to those who cannot afford legal consultation. Habeas petitions must be filed quickly in the court district where an immigrant is first detained.
Attorneys say they struggle to locate or contact clients, because federal immigration officers move them between facilities. Many are crowded and unsanitary, a factor in persuading some migrants to give up fighting their deportations, the attorneys say.
The Supreme Court has made it clear that the government can detain new arrivals at the nation’s borders. But the justices have not clarified whether that power extends to the broader category of noncitizens such as Hector, a Chicago-area resident who has lived in the U.S. for decades after illegally crossing the U.S.-Mexico border.
Hector, who spoke on the condition that The Post not use his last name because of his immigration status, was arrested on Oct. 18 in a suburban neighborhood as he was standing near his work truck.
He told federal officers that he was in the process of applying for a green card that would award him legal permanent residency. His application, submitted through his wife, Rosa Morales, a U.S. citizen, was approved by the government, putting him about a year away from a final interview, according to Hector’s attorney and legal records. Officers detained him anyway.
“We just don’t know where the line is,” said Sarah Wilson, an immigration attorney who served in the Justice Department’s Office of Immigration Litigation. “How far into the United States do you have to be and how long do you have to be in the U.S. to develop those rights?”
In detention, Hector missed his daughter’s 7th birthday. Morales said the girl has been so frightened by her father’s absence that she feared the family would be arrested after she saw a DHS commercial on television. “They’re going to find us,” the girl said, according to Morales.
ICE transferred Hector to several different facilities while his wife and attorneys pursued a habeas claim. Ultimately, a federal judge granted him a bond hearing, and an immigration judge ordered his release on Nov. 10.
In Torres Maldonado’s case, he is not “seeking admission” to the country, because he has lived here for decades and should not be lumped in with new arrivals at the border, his attorneys argued in his habeas petition filed two days after his arrest.
His only other legal transgressions involve traffic violations, including speeding and driving without a license and insurance. He has worked for the same employer for 20 years and is his family’s sole financial provider, according to court documents. His wife, Sandibell Hidalgo, is not working while she helps care for their daughter, Ofelia, amid her battle with cancer.
Hidalgo said she was informed about her husband’s arrest while draining fluids from her daughter’s abdomen. Ofelia reacted by recording a short video about her father’s detention that has been viewed by thousands of people and brought attention to his case.
“She didn’t care that she was exposing herself by going public,” Hidalgo said of Ofelia, who had been reticent to document her cancer treatment online. “She felt like she had to help her father.”
A Chicago law firm filed the habeas petition on Torres Maldonado’s behalf two days after his Oct. 18 arrest, and a U.S. district judge in the Northern District of Illinois ordered a bond hearing later that month. An immigration judge released Torres Maldonado on Oct. 30 on a $2,000 bond. His deportation case is continuing.
After the court hearing, Torres Maldonado returned to the detention facility to be processed for release and told other detainees that he made bond.
“They started hugging me and saying how good it was that I was returning to my family,” he said. “The majority of those guys have families, too.”
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