How ICE defies judges’ orders to release detainees, step by step

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A POLITICO review reveals a pattern of ICE noncompliance with court orders to release detainees, causing frustration among judges nationwide. Even when complying, ICE delays releases, leaving detainees without belongings or proper coordination. Judges are increasingly frustrated with ICE’s actions, citing constitutional violations and unnecessary burdens on the court system.

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A POLITICO review of hundreds of cases brought by ICE detainees shows a pattern of noncompliance that has frustrated judges across the country.

Kyle Cheney

The Justice Department said in a statement that it is complying with court orders and enforcing federal immigration law: “If rogue judges followed the law in adjudicating cases and respected the Government’s obligation to properly prepare cases, there wouldn’t be an ‘overwhelming’ habeas caseload or concern over following orders.”

When detainees win release, ICE delays 

The most acute concern from judges has been a recent surge of violations that occur after judges have ordered ICE to release people. In a growing number of cases, ICE has taken days or weeks to comply, sometimes requiring emergency motions by detainees’ lawyers and contempt threatsfrom judges.

“Detention without lawful authority is not just a technical defect, it is a constitutional injury that unfairly falls on the heads of those who have done nothing wrong to justify it,” U.S. District Judge Jerry Blackwell, a Biden appointee based in Minnesota, said during a hearing Tuesday. “The individuals affected are people. The overwhelming majority of the hundreds seen by this Court have been found to be lawfully present as of now in the country. They live in their communities. Some are separated from their families.”

The Justice Department has repeatedly cited failed efforts to communicate with their ICE counterparts to carry out court orders and the fact that they are drowning in habeas cases driven by the Trump administration’s mass deportation strategy. But the delayed releases also add to the burdens on the court system and lawyers for detainees.

Minnesota’s chief federal judge, Patrick Schiltz, cited these delayed releases in a public rebuke of the Trump administration’s conduct. The George W. Bush appointee had threatened to haul ICE chief Todd Lyons into court on Jan. 30, only to rescind the demand once the administration released a man he had ordered released a week earlier.

Detainees released without belongings, devices or documents

In recent days, judges in Minnesota have expressed frustration that even when complying with their orders, ICE has been doing so in bad faith. Detainees that the agency had whisked to Texas, for example, were being released far from home with no way to contact loved ones or lawyers, and sometimes without their phones, documents or other possessions.

U.S. District Judge John Tunheim, a Minnesota-based Clinton appointee, recently included a requirement that a released detainee should not be “left outside in dangerous cold” and emphasized that ICE should coordinate the release with a detainee’s lawyer to “ensure humane treatment.”

Frank recently required that if ICE ultimately released a detainee, they must do so: “(1) in Minnesota; (2) with all personal documents and belongings, such as his driver’s license, passport, other immigration documents, and cell phone; (3) without conditions such as ankle monitors or tracking devices; and (4) with all clothing and outerwear he was wearing at the time of detention, or other proper winter attire.”

Administration officials “may not shield their unlawful arrest of Petitioner by hiding behind an [immigration judge]’s conclusory, two-line determination of flight risk,” U.S. District Judge Pamela Chen, a New York-based Obama appointee, wrote in a Feb. 4 decision.

U.S. District Judge Max Cogburn, an Obama appointee based in Charlotte, ruled Wednesday that a bond hearing he ordered in December turned out to be constitutionally deficient. The immigration judge in the case, he said, failed to permit the detainee to offer evidence in support of his release and relied on uncorroborated claims to support his continued detention.

Cogburn ordered a new bond hearing for the man, saying his original order had “presupposed that this hearing would be conducted in accordance with Petitioner’s due process rights. It was not.”

And U.S. District Judge John McConnell, an Obama appointee in Rhode Island, ordered a man freed Monday after concluding that two bond hearings conducted by immigration judges were constitutionally deficient — including one in which a judge ordered the man detained as a danger to the community over an uncorroborated report that the man drove 90-mph in a 55-mph zone.

Errors abound in habeas cases

Above all else has been a parade of mistakes: crucial attachments left off court filings or filled with incorrect information, claims that detainees are being housed in one state only to learn they were in another.

But the mistakes are at their most severe when they lead to deportations in violation of court orders. Judge Jill Parrish, the chief federal judge in Utah, recently confronted this when the administration acknowledged shuttling a man to Wyoming and deporting him to Mexico despite her order to block his immediate deportation.

“When a court exercises jurisdiction over a petitioner’s claims, Respondents may not ‘deport first, litigate later,’” the Obama appointee wrote.

It’s happened a handful of times in recent months. And the administration has, at times, facilitated their return to ensure they receive due process.

In another recent case, the Trump administration told a judge that a man seeking release from custody had been deported — when in fact he had not. Because of the administration’s representation, U.S. District Judge Kyle Dudek, a Florida-based Trump appointee, tossed his habeas case, saying it was moot.

“There is no live controversy left to adjudicate, and the Court is powerless to grant relief for a detention that has already ended,” Dudek wrote.

But on Thursday, Dudek rescinded his ruling.

“The Court dismissed this habeas action as moot on the representation that Petitioner was deported. That fact turned out to be untrue,” he wrote.

Judges increasingly lose patience with ICE 

The incessant skirmishing between the courts and ICE has begun to wear on judges, who have made their fury known in increasingly pointed rulings and orders. They have, in some cases, personally rejected dozens of detentions as illegal and taken note as their colleagues around the country have done so in more than 3,000 cases — compared to just over 100 cases in which judges have sided with the mass detention strategy.

U.S. District Judge Jerry Edwards, Jr., a Biden appointee in Louisiana, said he was “fatigued” by the deluge. Chen, the New York-based Obama appointee, lamented “the toll Respondents have exacted on the judiciary by continuing to pursue their new mandatory detention policy, despite its near-universal rejection.”

But it was U.S. District Judge Harvey Bartle III, a George H.W. Bush appointee in Pennsylvania, who wrote most animatedly.

“These petitions are filed due to the illegal actions of Immigration and Customs Enforcement,” he wrote. “Despite hundreds of similar rulings in this and other courts resoundingly in favor of the ICE-detainee petitioners, ICE continues to act contrary to law, to spend taxpayer money needlessly, and to waste the scarce resources of the judiciary.”