‘we’ve Never Seen Anything Like This’: Ice’s Detention Crackdown Swamps The Courts

It all started with a two-page memo — a seemingly mundane reinterpretation of a complex immigration law.

Months later, ICE agents whisked away Yair Vargas Torres, shuttling him across three states — and attempting to move him to a fourth — before a federal judge ruled that his detention without bond was illegal. Vargas, who had been granted humanitarian parole in the U.S. in 2022 and settled in Chicago, was separated from his family for 50 days.

Vargas, 31, was able to call his wife about an hour after he was taken into ICE custody. “She was crying, my kids were crying,” he said in an interview. “I only had like five minutes with her [on the phone]. I simply told her — take care of the kids.”

There are thousands of cases like his — more than 16,000 times in the past year, judges have ruled against ICE’s detention tactics. About two-thirds of those rulings stemmed from the policy change in that two-page memo, which broadened the reach of a 1996 detention statute in ways no prior administration had ever attempted.

The flood of cases has stretched the judiciary to a breaking point across the country. Thousands of rulings, from hundreds of judges rushing to respond to the individual cases in front of them, have added up to an overwhelming rebuke of Trump’s unprecedented policy.

“The third branch of government is saying no. We’re not going to do it this way,” U.S. District Judge Fred Biery said in an interview.

POLITICO has reviewed thousands of ICE detention cases and spoken with more than a dozen detainees, lawyers and judges at the heart of this historic controversy. They described the extraordinary strain ICE’s policy has placed on the courts, triggering tens of thousands of emergency lawsuits nationwide — each one a race to file and to decide.

“I didn’t go into it saying, ‘I’m going to free all these people,’ but … we’ve got to get to these cases right now. Get to the cases right away,” said Judge Troy Nunley, the chief judge in the Eastern District of California.

Biery and Nunley are among the 469 judges who concluded that the policy contained in the July 8, 2025 ICE memo was an illegal distortion of long-settled detention policy.

Biery’s courthouse typically gets 1,500 civil lawsuits a year. This year, they hit 4,000 by May — a deluge driven by the thousands of people locked up — without a chance to plead their case — under a novel legal theory that even President Donald Trump’s first administration declined to adopt.

“We’ve never seen anything like this in my career,” the Clinton-appointed judge, who took the bench in 1994, told POLITICO from his San Antonio courthouse.

The Trump administration has defended the new policy and brushed off the courts’ overwhelming rejection of it, attributing its losses to “activist judges” and arguing that it’ll be vindicated in appeals and by the Supreme Court.

“This administration remains fully determined to carry out the president's immigration priorities,” the Justice Department said in a statement to POLITICO. “Legal challenges from activist judges will not deter the Department of Justice from enforcing the law and restoring order to our immigration system."

Asked whether the administration had any concerns about the impact of its mass detention policy on the families of those held by ICE, particularly U.S. citizen spouses and children, a Department of Homeland Security spokesperson responded simply: “No.”

The July 8, 2025, two-page memo from ICE’s acting director, Todd Lyons, sounded innocuous enough: “Interim Guidance Regarding Detention Authority.”

But it was the beginning of an all-out siege on the American justice system — one that would upend tens of thousands of lives, fracture decades of trust between the courts and the Justice Department, overwhelm court dockets in every corner of the country and provoke a lopsided rebuke from judges of every ideological stripe. Soon, it will reach the Supreme Court.

The memo — which would later be endorsed by the Board of Immigration Appeals, the Justice Department-controlled body that binds executive-branch immigration judges — was an effort to erase the due process rights of millions of immigrants who have resided in the U.S. for years, even those without criminal records and people who have attended all of their ICE check-ins or immigration court proceedings.

Vargas was one of them. He said he fled Colombia after the gangs who ran his small town accused him of being an informant for the military. Vargas took his wife, 7-year-old and newborn to Mexico and hired a coyote to shuttle them across the border into the U.S. in 2022. They immediately turned themselves in to immigration authorities and were released with asylum paperwork and an ICE check-in date scheduled for three years later — December 2025.

When he arrived for that check-in, his name was the only one called.

“I remember [an ICE official] telling me that unfortunately, all the people that showed up were going to be detained by ICE, because that was the order from the president of the United States,” Vargas recalled.

Then they took him to a detention facility — his first of three, in three states. “That’s when the odyssey began,” Vargas said.

Until this administration, someone in Vargas’ shoes would likely not have been detained at all. And if he was, he first would have been afforded a bond hearing — a chance to prove to an immigration judge that he presents no threat to the public and would attend his immigration proceedings.

Every prior president applied mandatory detention without bond only to people apprehended soon after crossing the border or who were deemed to be dangerous, not for those who had built law-abiding lives — married U.S. citizens, had children, held jobs, paid taxes — since they arrived.

ICE’s new memo erased that distinction. Now, even people who had lived in the U.S. for years were treated as though they had just crossed the border and were “seeking” to enter the U.S., no matter where they were apprehended or how many years ago they arrived.

Remir Gutierrez Montiel had been in the U.S. for two years and was employed as an Amazon delivery driver, before ICE agents grabbed him while he was chatting with a neighbor outside their home last September. His wife was cooking breakfast and didn’t know what had happened. She filed a missing person’s report and didn’t hear from him for three days.

Gutierrez fled Venezuela at 16 after participating in student protests against the repressive regime of Nicolás Maduro. After spending years working their way through Panama, Costa Rica and Nicaragua, he and his wife crossed the U.S. border in 2023. They were released on humanitarian parole while they pursued asylum, living quietly in Chicago until agents confronted him.

“We’re detaining everyone,” Gutierrez recalled the agents telling him when he was detained last September. “Your work permit does not give you status to be here.”

Gutierrez recalled his response: “I’m not going to run.”

The thousands of similar cases that have landed in federal court over the past year included: the mother of four U.S. citizen children, including a nursing 6-month-old; a father and owner of a roofing company who has lived in Minnesota since 2019 with no criminal record; a 22-year-old, pregnant Mexican woman who had lived in the U.S. since she was 6; and scores more like them.

Gutierrez said he waited two months at a detention facility in Brazil, Indiana, hoping to plead his case to an immigration judge, before ICE officials abruptly awakened him and said, with no explanation, that he was being released. “I thought they were lying. I didn’t believe it until I was able to leave,” he recalled.

It was his 25th birthday.

Wherever ICE has gone over the past year, mountains of lawsuits have followed. Enforcement surges in Los Angeles and Chicago led to a sharp increase in so-called “habeas petitions” in California and Illinois courts. The opening of Alligator Alcatraz in Florida sent habeas cases surging there. New Jersey has seen an explosion of cases lately, and Texas courts routinely field dozens of new petitions every day.

But nowhere was hit harder than Minnesota. Thousands of federal agents descended on the state this past winter to detain and deport as many targets as possible. Operation Metro Surge drew intense protests that galvanized public opinion against the administration’s deportation policy, especially after agents killed two American citizens — Renee Good and Alex Pretti.

As tension rose on the streets, a crisis began unfolding in the courts.

“The enormous ramp-up in such a small window of time. I just don’t know of a precedent anywhere, at least in modern times,” U.S. District Judge Patrick Schiltz, who until July 1 was the chief of Minnesota’s federal district court, said in an interview.

Schiltz, an avuncular George W. Bush appointee who clerked for the late Supreme Court Justice Antonin Scalia, said he spent the months of Operation Metro Surge essentially glued to his phone.

Schiltz began staffing his office in shifts so that someone was always available to receive habeas petitions. Biery, too, described the toll on court staff, whom he called the “infantry” of the court system. The goal, both men said, wasn’t to simply rubber stamp victories for ICE detainees, but to ensure their claims were considered before it was too late.

“We wanted to make sure they got heard,” Schiltz said.

ICE detainees must file habeas petitions in the federal court district where they’re being held — a particular challenge because of ICE’s penchant for whisking detainees to other states while they seek out lawyers who can locate them and quickly file lawsuits before they’re moved again.

“All of our judges, we were up in the wee hours of the morning doing these cases because we had never seen these before. It was all hands on deck,” Nunley, an Obama appointee, recalled. And the strain extended to staff, not just judges.

When habeas cases began cresting in Nunley’s district, the courts there were already underwater thanks to a shortage of judges and the region’s rapidly growing population. The district had four immigration habeas cases in 2021. In May of this year alone, it had 675.

And while many federal judges say they’ve moved at record speed to respond to detainees’ cases, immigrants’ lawyers say it varies from courthouse to courthouse. Despite some judges’ efforts to adjust and meet this frantic moment, others are more plodding, taking weeks or even months to resolve habeas petitions. In the meantime, immigration courts — which are part of the executive branch — are issuing deportation orders at a blistering pace.

“The immigration judges seem to know they’re in a race and the district judges don’t,” said Simon Sandoval-Moshenberg, an immigration attorney who represents Kilmar Abrego Garcia, the Salvadoran man illegally deported by the Trump administration last year.

Sandoval-Moshenberg said his practice has evolved dramatically in the second Trump term. He now has five attorneys dedicated entirely to habeas cases, which used to be rare. His firm guarantees prospective clients that it will file a petition within 24 hours.

Even the Justice Department has struggled to keep up. The Trump administration has bungled or outright defied an extraordinary number of court orders, and has simply thrown in the towel in hundreds of cases. Judges have grown increasingly frustrated and alarmed, distrustful of the Justice Department’s representations and increasingly doubtful that ICE is acting in good faith.

“There has been an undeniable move by the Government in the past month to defy court orders or at least to stretch the legal process to the breaking point in an attempt to deny noncitizens their due process rights,” U.S. District Judge Michael Davis, a Clinton appointee, wrote in January, at the height of Operation Metro Surge.

After it reached a boiling point, Schiltz catalogued more than 90 orders, just from his district, with which ICE had failed to comply. Another judge in New Jersey compelled the Justice Department to make its own catalogue of violated court orders.

Judges have rebuked the administration for violating rules on detaining pregnant or nursing women, drawing upwarrants to justify arrests retroactively, subjecting detainees to flawed or unconstitutional bond hearings, and increasingly deporting people in violation of court orders.

In an age of hyperpartisanship and social media-fueled information silos, judges say courts are an imperfect but rare exception — where facts matter and must be reckoned with.

“The judiciary is the glue that’s holding the country together,” Schiltz said. “I do believe that’s true right now.”

The Trump administration has expressed no concern about the courts’ extraordinary rejection of its detention policy, attributing those losses to “activist” judges who refuse to let Trump carry out the agenda voters chose.

In the administration’s view, articulated by the Justice Department in thousands of habeas cases, the expansion of mandatory detention is an assertion of maximal authority that has been available to — but unused by — every administration since Bill Clinton’s. Just because Trump’s ICE has opted to exercise this authority doesn’t make it illegal, the administration argues.

“This administration's immigration enforcement is about restoring law and order and ensuring our immigration system operates for the safety and benefit of the American people,” the Justice Department said in its statement. “The Department of Justice will continue to enforce the law fairly and consistently.”

In their view, Congress could not possibly have intended to establish a system in which someone arrested at the border must be detained without bond but someone who had evaded detection for years inside the country couldn’t be. Trump administration officials also say prior administrations — especially Biden’s — released too many people who would typically have been subject to mandatory detention, granting them humanitarian parole. They cast the new ICE policy as an antidote to Biden’s leniency.

About 54 federal district judges across the country have agreed with the administration’s position on mandatory detention. That’s a small minority, but those judges — about three-quarters of whom are Trump appointees —say the law is simply on the president’s side.

When one detainee argued to U.S. District Judge Joshua Divine that the “overwhelming majority” of federal judges had rejected the administration’s approach, the Missouri-based Trump appointee had an answer.

“The overwhelming majority of district courts sometimes get the law very wrong,” he wrote. “What governs this case is the text of the statute, not what other district courts have concluded.”

Responding to written questions from POLITICO, Divine — a Trump appointee confirmed by the Senate a year ago — said he does not mind being in the minority among his colleagues.

“Although I was a new judge, it never bothered me to have to disagree with hundreds of other rulings. My oath demands that I rule according to what I understand the text to say,” Divine said. “As a textualist judge, I stress to my clerks never to be afraid to stand alone. Not too long ago, textualism itself was a minority view.”

Divine added that he drafted his opinion siding with the administration before surveying the field for contrary views. “As a judge, it’s my job to focus on the statutory text that exists,” he said. “What policy consequences follow from that text is the concern of Congress and the President.”

Divine has seen his view echoed by two federal appeals courts, but six have since gone the other way.

That patchwork of appeals court rulings is the type of split that only the Supreme Court can settle. The Justice Department and ACLU have already asked the justices to intervene. The court could hear a case in its next term.

“The law is on our side,” the Department of Homeland Security said in a statement, citing its record at the Supreme Court on matters restricting asylum and temporary protected status for people the administration is seeking to deport.

“ICE is NOT slowing down.”

“Families are scared,” said Kelli Stump, an Oklahoma-based immigration lawyer. “They need someone to yell at and they’re yelling at me.”

“I cry a lot,” she said. “I sit there as a human doing what I can do.”

Everyone on the receiving end of ICE’s amped-up detention philosophy — detainees themselves, their lawyers and the judges who hear their cases — described the past year as both logistically and emotionally draining. Every case is existential for the people being detained as well as their families and communities. That makes the work weightier for both attorneys and judges. And there are more cases than attorneys or judges were ever equipped to handle.

“Some people start shaking in my office when you talk about what they went through,” said Todd Pomerleau, a Boston-based immigration attorney who has handled more than 150 habeas cases. “The same stories about the food, how ice cold it was, the lights were on all hours of the day, how they’re rattling the cell bars late at night. Making noises, slamming doors. It’s almost like everyone has PTSD.”

Pomerleau helped spearhead “The Habeas Project,” a New England-based coalition that pairs immigration lawyers — who have typically worked in administrative proceedings and immigration courts — with experts in federal litigation.

Nunley, the California-based judge, pulled in judges from Washington, Hawaii and other parts of California to help shoulder some of the habeas caseload. Schiltz, in Minnesota, leaned on judges from Missouri, Nebraska and North Dakota for assistance.

Schiltz and Biery both said they’ve experienced a surge in threats of violence against judges.

“There were some death threats and stalky emails. ‘Who is this old judge, he’s senile.’ That goes with the territory,” Biery said, describing the response to his emotional ruling in the case of Liam Conejo Ramos, the 5-year-old Minnesota boy whose detention by ICE was captured in a viral photo showing him scared, in a bunny hat on a snowy suburban street with an immigration agent gripping his tiny backpack.

“I’ve been a judge for 20 years now. We have never had a period of time when we are facing more threats to us, to our safety, to our families, to our staff. It is just an acrid, poisonous atmosphere out there,” Schiltz said.

While the legal dispute grinds on, ICE is once again picking up the pace of arrests, which could lead to yet another surge in lawsuits from the people it has detained.