Federal judges in Philadelphia have ruled dozens of times against a Trump administration policy that mandates detention for nearly all undocumented immigrants — joining a nationwide wave of decisions criticizing the government for applying the policy in unlawful ways.
In the Eastern District of Pennsylvania, U.S. District Judge Juan R. Sánchez wrote in a memorandum this week that more than 40 people who have been detained in the region under that policy, which was rolled out by Immigration and Customs Enforcement last summer, have sought relief in the courts — and judges have ruled against the government in every case.
Chief Judge Wendy Beetlestone was even more blunt in an opinion filed last month, writing that “the law is piled sky high against the government’s position” to mandate detention and deny bond hearings for all undocumented immigrants — even those seeking to stay here via appropriate legal channels.
The administration’s insistence on employing the policy and defending it in court, Beetlestone wrote, was akin to the Greek myth of Sisyphus pushing a boulder up a hill.
“The Government’s hope, presumably, is that if it keeps pushing the boulder of its argument up the hill, at least one judge may rule against the weight of the authority,” Beetlestone wrote. “But the tale before the courts is the traditional one of Greek mythology: the Government returns again and again to push the same theory uphill, only for courts to send it rolling back down again.”
The pushback has added to a chorus of similar decisions in courts nationwide. Sánchez, appointed by George W. Bush, wrote in his memo that people challenging their detention in federal district courts “have prevailed, either on a preliminary or final basis, in 350 … cases decided by over 160 different judges sitting in about fifty different courts spread across the United States.”
A Politico analysis of court dockets published this week put that tally even higher, reporting that over the last six months, more than 300 federal judges — comprising appointees of every president since Ronald Reagan — have ordered some form of relief in mandatory detention cases to about 1,600 challengers.
Spokespeople for ICE did not reply to questions about the judicial rebukes, and many of the government’s court filings in cases challenging detention have been made under seal.
Still, the Trump administration has made no secret of its desire to boost the number of people in federal immigration detention. And the mandatory detention policy has helped push the number of confined immigrants past 65,000, a two-thirds increase since Trump took office in January.
Lilah R. Thompson, an immigration attorney in the community defense unit at the Defender Association of Philadelphia, said in an interview that mandatory detention “plainly violates the law and is an illegal policy.” But she said most challenges to it so far have come in individual cases, and the potential legal avenues seeking to strike it down nationwide are protracted and legally complex.
In the meantime, Thompson said, the government has seemed content to use the policy in its attempt to apply pressure to immigrants and, ultimately, increase deportations.
“[Authorities] are applying a blanket policy because when people are in detention, they aren’t able to withstand the horrors of detention,” Thompson said. “It makes their circumstances much more difficult.”
A dramatic change in precedent
ICE’s detention mandate was rolled out amid the Trump administration’s aggressive push to crack down on immigrants nationwide.
It came as the Board of Immigration Appeals — the highest administrative body for interpreting the nation’s immigration laws — issued three precedential rulings that made it dramatically harder for detainees to be released on bond.
In one of those rulings, the board held that immigration judges lack the power to hear or grant bond requests to people who entered the United States without permission — even if they had been in the country for years, or had few other infractions that might warrant detention as their cases wound through the immigration system.
That upended decades of established government practice, which typically allowed otherwise law-abiding people who entered the country illegally to at least receive a bond hearing and determine if they could remain in the community as their cases moved forward.
The decision also meant that thousands of detained immigrants who previously would have been eligible for bond hearings could be released only if they filed and won a federal lawsuit.
For many detainees that created an impossible situation because they have neither a lawyer nor the money to hire one.
“There are so many people that are getting picked up [under] the unlawful mandatory detention policy, but because they don’t have an attorney to file a [legal challenge], they’re still experiencing the consequences of the policy,” said Maria Thomson, another attorney in the Defender Association’s community defense unit.
Officials at the federal Executive Office for Immigration Review, which oversees the BIA, declined to answer questions about the rulings.
“The Executive Office for Immigration Review does not comment on federal court decisions,” spokesperson Kathryn Mattingly said in a statement.
Detainees who have been able to hire attorneys and appear before federal judges have been winning relief at near-universal rates, with the courts ordering their freedom or directing the immigration court to hold a bond hearing.
“The district courts have been overwhelming on this question. It’s been extremely lopsided,” said Jonah Eaton, a veteran immigration attorney who teaches law at Temple University and the University of Pennsylvania, adding that even some Trump-appointed judges “have said this is nonsense.”
Earlier this week, District Judge John Murphy said in a court filing that judges had sided with detainees in all 50 cases filed so far in Pennsylvania’s Eastern District.
And in November, District Judge Paul Diamond wrote that he’d found 288 district court decisions nationwide addressing the issue — and that judges had ruled against the administration in 282 of them.
Diamond then went on to criticize the government’s attempts to justify its policy using what he said were competing interpretations of the law.
It is “difficult to credit the Government’s squarely contradictory position here,” Diamond wrote.
Significant challenges
Still, not all wins for detainees are comprehensive.
In some instances, immigrants are granted bond hearings before an immigration judge. But Eaton said some of those immigration judges will either deny bond or set an impossibly high figure. In Philadelphia, he said, it’s become common for attorneys to ask the federal judges to order release themselves, “because immigration judges won’t do it.”
Immigration Court is part of the executive branch, not the judiciary, run by the Department of Justice. That has for years called the courts’ impartiality into question.
“Even when we’re seeing bond hearings happening, they’re being denied at a higher rate,” said attorney Emma Tuohy, a deportation-defense specialist at Simon, Choi & Tuohy in Philadelphia. So immigrant defenders “are going straight to district court and filing habeas corpus, on the premise that people are being unlawfully detained.”
Habeas corpus, Latin for “you have the body,” is a demand that the government bring a detained person to court and prove that they have been legally imprisoned. It’s considered a fundamental protection against arbitrary detention.
Beyond bond hearings, Thompson, of the Defender Association, said there are challenges in seeking to provide ample legal assistance to people who have solid grounds to fight their detention: Many can’t afford lawyers, she said, there is no statewide funding to support lawyers pursuing such challenges, and ICE can move detainees to different jurisdictions at its discretion, increasing the difficulty of petitioning for release.
“They are doing it because they can, and because the consequences are that most [immigrants] cannot fight this and will end up being deported,” she said.
Cases that might threaten the overall detention policy, meanwhile, are likely to take time to wind through appellate courts, she said — and the administration could seek to litigate the matter in jurisdictions that have been more traditionally conservative.
In the meantime, federal judges are going to continue having to confront the issue in district courts. Murphy wrote this week that there are approximately 25 petitions awaiting a ruling in Philadelphia’s federal courthouse.
If Beetlestone’s opinion is any guide, the judges would prefer that ICE change its position — rather than continuing down the same path and hoping the ruling will be different next time.
Relying on hope in the courts, Beetlestone said, “resembles a game of whack-a-mole, in which the mole (here, the Government) insists on repeatedly volunteering to get struck by the judicial gavel.”
