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The Trump administration has gone to great lengths to arrest and detain as many people as possible during its immigration crackdown. But in recent weeks, a deluge of court cases has led federal judges to release hundreds of immigrant detainees back into the country, and threatens to overwhelm the court system.
In case after case, federal judges have found that the Trump administration has been ignoring longstanding legal interpretations that mandate the release of many people who are taken into immigration custody if they post a bond.
The surge in such cases has dominated the court dockets in some districts, overwhelming government lawyers who have to defend the detentions. And the wave of people who have been set free has upended the Trump administration’s effort to keep detained immigrants locked up indefinitely, even if they do not pose a public safety threat.
Lawyers representing detainees have been filing rafts of what are known as habeas corpus petitions — court filings that compel the government to justify holding someone in custody. In the vast majority of cases, judges are siding with the detainees and ordering their immediate release, or ordering immigration judges to hold bond hearings, according to 10 lawyers interviewed by The New York Times, who said their practices had filed dozens of habeas petitions over the last couple of months.
Jessie Calmes, an immigration lawyer in Atlanta, said that she had filed at least 40 petitions since November. Every one had been granted, she said.
“A lot of these people have been here more than 10 years and have U.S.-citizen kids,” she said. “They’re people who were picked up on the way to work, at their job site or for a traffic violation.”
The surge in habeas petitions has strained federal courts in some states, including Arizona, New Mexico and Texas, with hundreds of new cases a month in some court districts, according to a person with knowledge of the process. That influx has led the Justice Department to pull some criminal prosecutors off regular duties to help with habeas cases, the person said.
The wave of habeas petitions traces to a key change the Trump administration made in how immigration detention decisions are made.
For decades, immigration judges — who are separate from the federal courts and overseen by the Justice Department rather than the judiciary — granted bond to immigrants in detention who were not public safety threats or flight risks, allowing them to live and work in the community while pursuing their cases.
But last year the Trump administration moved to make virtually everyone who is in the country unlawfully subject to mandatory detention. When the policy change was affirmed by the Justice Department’s Board of Immigration Appeals, it took discretion away from immigration judges.
Federal judges in Massachusetts, Rhode Island, Georgia, Nevada and other states, have recently taken issue with the mandatory detention policy and have been ordering immediate releases or bond hearings in immigration court.
A spokeswoman for the Justice Department, Natalie Baldassarre, said in a statement that “the Trump Administration is complying with court orders and fully enforcing federal immigration law.”
“If rogue judges followed the law in adjudicating cases and respected the government’s obligation to properly prepare cases,” she said, “there wouldn’t be an ‘overwhelming’ habeas caseload or concern over DHS following orders.”
The deluge of cases has been a growing frustration for the federal bench.
“This district has been flooded with petitions for relief with similar stories — families ripped apart, and people who pose no danger or risk of fleeing imprisoned with no end in sight, flown to far-off detention centers for reasons that the government lawyers who appear in court themselves can’t explain,” Judge Arun Subramanian, of the Southern District of New York wrote in a December opinion in which he ordered the release of a woman from Guinea in West Africa.
Chief Judge Wendy Beetlestone of the Eastern District of Pennsylvania, in an opinion in favor of an immigrant detainee, noted that orders granting relief were being filed “nearly every day.”
In the Western District of Texas, according to court documents, one judge’s docket as of Jan. 29 had 134 pending habeas cases involving immigrant detainees.
Not all petitions are being granted. But as word about releases has spread, lawyers have been barraged with calls.
David Spitzer, an immigration lawyer in Boston, said that he has been contacted “constantly,” by people held as far away as Louisiana, asking, “Someone told me about a thing called habeas. Can you do it for me?”
The overarching legal question — whether anyone in the country unlawfully may be held indefinitely without bond — will probably come before the Supreme Court, said Josh Blackman, a conservative legal scholar at the South Texas College of Law Houston.
The administration’s interpretation of that question is a sharp departure from past practice, but not necessarily incorrect, Mr. Blackman said: “Trump’s reading is certainly a plausible one.”
For now, though, courts all over the country are struggling to handle the flood.
Kara Hartzler, a lawyer with Federal Defenders of San Diego, said that her caseload had flipped from 95 percent criminal cases to 95 percent immigration cases.
“Habeas cases have turned federal courts upside down,” she said.
Lawyers at her organization filed more than 400 habeas petitions in the last three months, she said — for Afghans who served with U.S. troops, for a former “Lost Boy” from Sudan, and for immigrants from Asia, Europe and Latin America.
About 70,000 people are currently in immigration detention across the United States, up from 40,000 before President Trump took office last January. Unless detainees have a final removal order or have been in the country less than two years, most have the right to fight their cases — even while in detention.
More than two-thirds of undocumented immigrants have lived in the United States for at least a decade. Though the administration has said it is targeting criminals, more than 70 percent of people detained have not been convicted of a crime — making them more likely to prevail in a bond hearing.
To avoid those court fights, the administration has been goading immigrants to leave on their own. The Department of Homeland Security has run threatening ads and ominous social media posts, while offering cash incentives, typically between $3,000 and $5,000, for detained people who take up the offer to leave.
One of Mr. Spitzer’s clients, Kelvin Nectaly, was arrested in September on a street corner in Boston while waiting for a ride to work. His detention documents, reviewed by The Times, said that he was apprehended “in an area known for immigration violators” and was unable to prove to agents that he was a U.S. citizen or legal resident.
Mr. Spitzer told an immigration judge that Mr. Nectaly had no criminal history, was not a flight risk and was pursuing asylum based on his political opposition activity in El Salvador. The judge said she could not conduct a bond hearing. After Mr. Spitzer filed a habeas petition, a federal judge ordered the immigration court to conduct such a hearing, and two weeks later, Mr. Nectaly, 33, was released on bond.
Nadia da Rocha, 39, a Brazilian who lives in Milford, Mass., was detained last spring and sent to a detention center in Arizona.
Her lawyers at the firm Celedon Law asked if she wanted to file a habeas petition. “The lawyers didn’t give me any assurances,” she recalled, “but I was desperate to get out.”
Her employer agreed to help pay legal fees, and she was released.
Allison McCann contributed research.
Miriam Jordan reports from a grass roots perspective on immigrants and their impact on the demographics, society and economy of the United States.
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