A Cambodian national convicted of aggravated robbery in 1993. A stateless Palestinian man who pleaded guilty to driving under the influence and drug crimes in 2018. A Ukrainian man who fled the war with Russia in 2022 only to lose lawful status last year when he accidentally drove his UberEats delivery across the Mexican border. A Cuban man convicted of child abuse in 2020.
All four had previously been ordered deported from the U.S. and were arrested by ICE in recent months. But all four were ordered released by federal judges appointed by President Donald Trump who concluded that their detentions violated constitutional limits. They are among hundreds of immigrants targeted amid the Trump administration’s mass deportation drive with murky histories — and sometimes sordid criminal records — who nevertheless have been found by federal courts to be illegally detained.
ICE’s drive to lock up thousands of undocumented immigrants with no criminal records and yearslong ties to the U.S. has ignited a political and legal backlash to the Trump administration’s unprecedented policy of mass detention. But federal judges have routinely found that this second population — immigrants, including some with criminal records, who have been issued final deportation orders yet remain in the country — have faced similar abuses of due process and violations of constitutional rights.
A POLITICO analysis of immigration detention cases has found that federal judges have ordered bond hearings and, more often, outright release for more than 400 people detained under these circumstances. And the rebukes have come from judges appointed by every president since Ronald Reagan.
“President Trump always prioritizes the safety and wellbeing of the American people. Certain activist judges, however, have purposefully sought to promote the interests of dangerous criminal aliens whom they have ordered released into American communities to victimize the public with impunity,” said White House spokesperson Abigail Jackson. “This Administration will stop at nothing to uphold the rule of law, and protect our country from these dangerous illegal aliens.”
At issue is a complex aspect of immigration law that governs the treatment of people issued “final orders of removal” by immigration courts. In some cases, those final orders were issued decades ago but could not be carried out because the country on the other end of the order — China, Russia, Cuba, Syria, Iran — has strained relations with the U.S. or generally resists accepting deportees. In other cases, the immigrants are stateless, born in a now-obsolete Soviet Union or lacking ties to any country. And in yet another category, immigration judges have credited deportees’ fears of persecution or torture and granted them protections from being sent to their home countries.
U.S. District Judge John Hinderaker, a Trump appointee in Arizona, ordered the release of a Cameroonian woman who was ordered deported but protected from being sent to her home country over concerns about torture. U.S. District Judge Dominic Lanza, another Arizona-based Trump appointee, recently ordered the release of a Honduran woman, convicted of sex crimes in 2006 and incarcerated until 2022, who received similar protections from torture in her home country.
The Supreme Court has agreed that people in this category can be detained for roughly six months without constitutional concerns — a period in which ICE is expected to arrange their deportations by securing travel documents and scheduling flights. But once that period elapses, a constitutional presumption for liberty kicks in.
In some cases, the Justice Department claims in court that the administration has renewed efforts to arrange long-stalled deportations, reigniting conversations with reluctant countries or finding alternate “third countries” willing to accept deportees. The Trump administration has partnered with African countries to receive some deportees who can’t be sent to their home countries, for example. But here, too, judges say the administration is often supplying wishful thinking rather than concrete evidence of progress.
“The Government offers no documents, no diplomatic agreements, and no concrete evidence. … Instead, the Government extends hope and a placeholder,” U.S. District Judge Kyle Dudek, a Trump appointee, said in a recent order releasing a Cuban man from immigration custody, despite the administration’s efforts to send him to Mexico. “A mere representation from an agency to its lawyers — unbacked by a shred of evidence — cannot justify keeping a man locked in a cell.”
The constitutional principles at stake mean that people deemed by the government and courts to be deportable — even if they have committed crimes ranging from drug trafficking to burglary to rape to murder — may be released from federal custody so long as they’ve served their criminal sentences.
Judges have often wrestled with this issue, noting that immigration detention is merely a step in a civil process ending in deportations, not a punishment akin to criminal incarceration. One judge, an Obama appointee in Louisiana, recently underscored that point in a decision releasing several ICE detainees.
ICE officials, U.S. District Judge John deGravelles noted, “assert that ‘[n]o matter how Petitioners color it, each of them was a criminal.’ That is exactly right — each was convicted of a crime, and each served his sentence. And then ICE itself determined that each should be released into regular, free civilian life. Petitioners’ criminal histories are not at issue here.”
Adding to the complexity, many of the people targeted in recent months by ICE hit the six-month detention mark years or even decades ago and were released on orders of supervision. Yet the Trump administration has been rearresting them, holding them for months before judges have intervened.
The administration has argued that the six-month limit on detention restarts each time ICE detains someone with a final deportation order, a position that has provoked a dispute among judges. In December, U.S. District Judge Charles Eskridge, a Texas-based Trump appointee, rejected that contention in the case of a man ordered deported to Qatar in 2009. But last month, U.S. District Judge Wendy Berger, a Trump appointee in Florida, said a rigid six-month limit “would present a perpetual ‘get-out-of-jail-free’ card to any detainee whose cumulative prior detention exceeds six months.”
The cases also open a window into the federal government’s diplomatic relationships around the globe. Vietnam, for example, has been historically reluctant to repatriate people who fled to the U.S. prior to 1995 — a vestige of the Vietnam War. And Mexico has at times declined to accept people over 60 years old.
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