Federal judges have ruled more than 7,000 times in recent months that ICE has illegally locked people up without — at the very least — a chance to prove they can live safely in the community.

Politico West Wing Playbook
By Kyle Cheney, Ben Johansen and Sophia Cai

Most of the time, judges have simply rejected the administration’s legal claims that it can detain people under an expansive and unprecedented view of ICE’s power. Other times, the administration has dropped the ball — missing deadlines and failing to respond to emergency lawsuits brought by the people ICE has detained, leading judges to rule in the detainees’ favour.

Now, in a growing number of cases, the administration is simply raising the white flag.

DOJ offices across the country are inundated with emergency immigration cases, laboring to keep up with the pace and in constant triage mode. They have repeatedly told judges that they’ve struggled to get information from their ICE counterparts in order to defend detention decisions. And now, those struggles are leading to decisions to simply fold in court.

In those cases, the administration has simply agreed to provide a bond hearing, or even outright release, telling judges that officials “do not have an opposition argument to present” or saying they couldn’t cobble together enough information to mount a defence.

“Undersigned counsel was unable to obtain documentation … sufficient to provide factual support for a response,” a Justice Department attorney wrote in a March 13 response to a detainee’s lawsuit in Arizona. “Accordingly, [administration officials] do not oppose the Court ordering Petitioner to receive a bond hearing at this time.”

The phenomenon is the latest manifestation of the extraordinary strain that the administration’s deportation agenda — compounded by the mass detention of people who have lived for years without incident in the U.S. interior — has exacted on the justice system.

— On Jan. 23, Judge GARY KLAUSNER, a George W. Bush appointee in the Los Angeles area, ordered the release of a 70-year-old Iranian woman who was ordered deported in 1999 but whose deportation could not be effectuated at the time. She was detained by ICE in November, but when she filed a lawsuit seeking release, the administration did “not have an opposition argument to present.”

Klausner was floored: “It appears that Respondents arrested a chronically ill, 70-year-old woman, who came to this country to avoid religious persecution and applied for asylum, who has lived here peacefully for 26 years and complied with all check-in requirements and other conditions of release, who has no known criminal record and poses no threat to anyone … then kept her in detention for months without sufficient medical care — and they do not have any argument to offer to even try to justify these actions.”

— On Jan. 26, Judge KENLY KATO, a Biden appointee, ordered the release of another Iranian national who had been ordered deported after drug convictions in 2018 but whose deportation to Iran could not be arranged. ICE detained the man last June but has been unable to deport him since, so the man filed a lawsuit seeking release in January. The Trump administration’s response: “At this time, Respondents do not have an opposition argument to present.” A week later, for the same reason, Kato ordered the release of a man born in the Soviet Union, who was ordered deported to Russia in 2005 after a conviction but whose deportation could not be arranged.

— On Jan. 27, Judge DOLLY GEE, an Obama appointee, ordered the release of an Afghan man who had been detained for a year while the administration was unable to secure his deportation to the Taliban-led nation or an alternate “third country.” Once again, the administration had “no opposition argument” to his release from custody.

— On Feb. 17, a judge ordered the release of a Vietnamese man with paranoid schizophrenia who had been ordered deported after a 2000 burglary conviction but whose deportation could not be effectuated because of Vietnam’s longstanding reluctance to repatriate nationals who fled prior to 1995. The administration told Judge MARK SCARSI, a Trump appointee, it had “no opposition argument to present.”

The same pattern has played out in dozens of cases centred in California and Arizona, two states where ICE has housed thousands of detainees facing immigration and deportation proceedings. Justice Department and Department of Homeland Security officials declined to respond to requests for comment.