Judges Fear Immigration Hearings Are Becoming A Charade

For months, the Trump administration has been engaged in an unprecedented campaign to lock up thousands of immigrants with longstanding roots in the United States. And for months, aghast federal judges have ordered ICE to give them a chance to prove they can safely remain free while their deportation proceedings are pending.

Increasingly, however, judges are finding that the hearings they’re ordering — conducted by immigration judges who work for the Trump administration — have been fundamentally flawed or even pre-cooked, designed to result in findings of “danger to the community” or “flight risk” without a fair consideration of the evidence.

Some federal judges have required do-overs, and others have grown so skeptical of the administration’s intentions that they’ve ordered detainees released outright.

It happened last month in Rhode Island, where U.S. District Judge John McConnell, an Obama appointee, ordered the release of a man who was denied bond even though the administration presented no evidence against him. Instead, the immigration judge in his bond hearing relied on an “uncorroborated police report” — supplied by the detainee — in which he was accused of driving 90 mph in a 55 mph zone.

It happened in Missouri, where U.S. District Judge Douglas Harpool foundthat an immigration judge had labeled an ICE detainee a “risk of flight” without sufficient evidence — a ruling he said appeared to be the result of frustration about being ordered to conduct the hearing in the first place.

“The bond hearing has indications of predetermined outcome,” Harpool, an Obama appointee, wrote. “The [immigration judge’s] order enumerates that Petitioner: has been in the U.S. for 9 years, has not missed a court hearing, has family in the U.S. (husband and 3 children), and owns a home and operates a business in the U.S. The IJ’s determination regarding flight risk is clearly untethered by the facts and any logical conclusion to be determined from the facts.”

And it happened in Pennsylvania, where U.S. District Judge Stephanie Haines, a Trump appointee, concluded that a detainee’s interpreter was not fluent in the correct dialect, creating communication challenges with the immigration judge, who nevertheless ordered the man to remain detained.

“These federal judges simply disagree with the outcomes of the immigration judge bond decisions," a Justice Department spokesperson said. "They are impugning the integrity or competence of our immigration judges solely to give them a hook to review the IJ decisions they disagree with but would otherwise be unable to directly review."

Representatives for the Department of Homeland Security did not respond to requests for comment.

Similar cases have emerged in New York, Virginia, North Carolina, Michigan, Virginia, Massachusetts and a slew of other states. It’s the latest rupture between the Trump administration and federal judges, who have described rampant abuses, violations of court orders and unconstitutional efforts to deprive ICE detainees of due process in a byzantine immigration court system.

But unlike the broad judicial consensus that the administration’s mass detention strategy is illegal, questions about the adequacy of bond hearings have split the judiciary.

Federal law forbids the courts from second-guessing “discretionary” bond decisions made by executive branch immigration judges.

As a result, some judges have concluded that once they’ve ordered bond hearings, their part in the process has ended. U.S. District Judge David Bunning, a George W. Bush appointee, said he was precluded from intervening in the case of a woman who claimed her immigration judge failed to “give meaningful weight” to her two decades of residence in the U.S., three U.S. citizen children, steady work and taxpaying history and community ties.

“She does not claim that her bond hearing lacked necessary procedural safeguards or that the IJ did not have statutory authority to deny bond,” Bunning, a George W. Bush appointee, wrote on March 2. “Instead, she merely argues that the IJ came to the wrong conclusion after reviewing the evidence.”

Increasingly, though, judges are bypassing bond hearings and ordering the release of detainees outright, concluding that they’re unlikely to get a fair shake in immigration courts. That dynamic flared most dramatically in West Virginia, where judges have banded together to reject the Trump administration detention practices and order the release of dozens of detainees.

“The Court … finds that a bond hearing before an immigration judge would not comport with due process,” U.S. District Judge Irene Berger, an Obama appointee, ruled on Feb. 26.

Berger’s West Virginia colleague, George W. Bush-appointed Judge Thomas Johnston, agreed that ordering a bond hearing “would be futile” — even when courts were ordering them to be conducted according to constitutional standards.

He cited testimony provided to the court by Jorge Artieda, ICE’s former chief counsel in Virginia and a onetime adviser to the agency’s headquarters. Artieda, in a sworn affidavit, said 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.”