Federal judges across the U.S. are increasingly concluding that immigration bond hearings ordered by courts are fundamentally flawed and predetermined to result in detention, prompting some jurists to bypass the hearings entirely.
Judges have been finding that immigration judges working for the Trump administration are conducting proceedings designed to produce predetermined findings of "danger to the community" or "flight risk," according to court documents reviewed by Politico.
"Some federal judges have required do-overs," the outlet reported, "and others have grown so skeptical of the administration’s intentions that they’ve ordered detainees released outright."
In Rhode Island, U.S. District Judge John McConnell, an Obama appointee, ordered the release of a detainee who had been denied bond despite the government presenting no evidence against him. The immigration judge's only basis for detention was an "uncorroborated police report" — supplied by the detainee himself — alleging a speeding violation of 90 mph in a 55 mph zone.
In Missouri, U.S. District Judge Douglas Harpool found that an immigration judge had labeled a detainee a "flight risk" without sufficient evidence, describing the bond hearing as having "indications of predetermined outcome." Harpool noted that the detainee had lived in the U.S. for nine years, had not missed a court hearing, had family in the country including a husband and three children, and owned a home and operated a business. Despite these facts, Harpool wrote, the immigration judge's determination was "clearly untethered by the facts and any logical conclusion to be determined from the facts."
In Pennsylvania, U.S. District Judge Stephanie Haines, a Trump appointee, found that a detainee's interpreter was not fluent in the correct dialect, creating communication barriers, yet the immigration judge ordered the detainee to remain detained regardless.
Similar cases have surfaced in New York, Virginia, North Carolina, Michigan and Massachusetts, according to court filings. The Justice Department defended the immigration judges, with a spokesperson stating that federal judges were "impugning the integrity or competence" of immigration judges "solely to give them a hook to review the IJ decisions they disagree with but would otherwise be unable to directly review."
The dispute has split the federal judiciary. Some judges, citing federal law that forbids courts from second-guessing "discretionary" bond decisions by immigration judges, have concluded that once they order a hearing, their role ends. U.S. District Judge David Bunning, a George W. Bush appointee, declined to intervene in the case of a woman with two decades of U.S. residence, three U.S. citizen children, and steady employment, writing that she was merely arguing "the IJ came to the wrong conclusion after reviewing the evidence."
However, an increasing number of judges are bypassing bond hearings altogether and ordering detainees released, concluding they would not receive fair treatment in immigration courts. West Virginia federal judges have taken the most dramatic action, banding together to reject the Trump administration's detention practices and order the release of dozens of detainees.
U.S. District Judge Irene Berger, an Obama appointee, ruled on Feb. 26 that "a bond hearing before an immigration judge would not comport with due process." Her colleague, Judge Thomas Johnston, a George W. Bush appointee, agreed that ordering such a hearing "would be futile," even when instructed to follow constitutional standards.
Johnston cited a sworn affidavit from Jorge Artieda, ICE's former chief counsel in Virginia and onetime adviser to agency headquarters, who testified that since January, detainees "are now being systematically denied bond based on rationales that would not have been deemed sufficient weeks earlier" in what "appears to be a systematic effort to nullify the constitutional protections that federal courts have recognized and enforced."
The Department of Homeland Security did not respond to requests for comment.