Trump administration won appeal for mandatory detention, but ICE keeps losing

MINNEAPOLIS (FOX 9) - The split decision by three Republican-appointed judges earlier this year appeared to make it harder for immigrants to challenge their mandatory detention, meaning they could be held without bond while awaiting their deportation.

Federal court ruling shakes up immigration detention

An appellate ruling earlier this year appeared to give U.S. Immigration and Customs Enforcement and the Trump administration a major boost in its mass deportation campaign.

In a split decision, the Eighth Circuit Court of Appeals reversed decades of legal precedent and seemingly paved the way for broader use of mandatory detention.

However, most detainees are still being released or granted bond hearings after successfully arguing they are being unlawfully held.

How cases are playing out

By the numbers:

The FOX 9 Investigators reviewed 132 habeas cases since the appellate ruling went into effect. 

• 67 detainees were released from ICE custody (more than 50%)
• Immigrants were granted bond hearings in Immigration Court in 26 cases which allowed them to argue for their release while awaiting deportation.
• Judges found mandatory detention was lawful in 33 cases (roughly 25%)

In all the cases, immigrants challenged their detention by filing a habeas petition in federal court.

Dig deeper:

Federal judges in Minnesota overwhelmingly granted an unprecedented number of those petitions during Operation Metro Surge, resulting in the release of hundreds of ICE detainees. 

RELATED: ICE must pay for attorney fees in unjustified arrests

The Department of Justice (DOJ) appealed and won. 

"Today's decision by the Eighth Circuit means that about 1,000 orders for release of illegal aliens by federal judges in this district were flatly wrong," U.S. Attorney Daniel Rosen told the FOX 9 Investigators following the March 25 decision.

The 2-to-1 decision by three Republican-appointed judges appeared to make it harder for immigrants to challenge their mandatory detention, meaning they could be held without bond while awaiting their deportation.

But immigration attorneys say they pivoted their legal strategy after the ruling.

Immigration attorneys shift strategy

What they're saying:

They are now arguing their clients should be released because either the initial arrests were unconstitutional or ICE didn’t follow its own administrative policies and procedures in detaining the individual.

"There's no administrative warrant or there's no legal basis," explained attorney Karen Bryan.

In one recent order, Judge Jerry Blackwell wrote that the government "cannot detain first and supply justification later."

In another case, Judge Katherine Menendez ordered the immediate release of a Mexican immigrant caught in a Bemidji workplace raid in June.

"The record fails to establish that the arresting ICE agents had probable cause of unlawful presence to support a warrantless arrest," Menendez wrote.

Immigration attorney Kira Kelley recently spoke to the FOX 9 Investigators after challenging the legitimacy of a client’s arrest by ICE.

"It involves really talking to the client about what actually happened when you were arrested," Kelley explained. "Did they have a warrant? And it's more constitutional arguments about due process in the Fourth Amendment."

The other side:

Asked to respond to the findings from the FOX 9 Investigators, the Trump administration continued to criticize the federal judiciary. 

The Department of Justice (DOJ) said in a statement it will appeal these "legally erroneous" decisions.

 The Department of Homeland Security (DHS) blamed judicial overreach and insisted that the agency is applying the law appropriately.

 "ICE will continue to work with the DOJ to improve its compliance procedures as it also works to overrule these activist rulings in appellate courts," a DHS spokesperson said in a statement to the FOX 9 Investigators.

The backstory:

The Eighth Circuit case involved an immigrant from Mexico who had lived in the United States for nearly 20 years. Joaquin Herrera Avila was arrested by ICE during a traffic stop in Minneapolis last summer and detained without bond.

"And in a foreshadowing of what was to come in Metro Surge, he filed one of these habeas corpus petitions," said Virgil Wiebe, director of the Immigrant Law Center at the University of St. Thomas.

Avila argued he was being held unlawfully.

The Trump administration claimed detention was mandatory in that case and hundreds of others, citing a federal law that historically was used to detain people who had just crossed the border.

The Republican-appointed judge who dissented called that argument a "novel interpretation" of the law that contradicted decades of legal precedent.

"For over four decades, over multiple administrations, the law had been read to say that people who are undocumented, even while they might be here unlawfully, they still have a right to argue their case and they have a right to be free from detention," explained Wiebe.

Appeals Courts split on mandatory detention

Big picture view:

Appeals courts across the country have ruled differently on the issue of an immigrant’s mandatory detention. The Fifth Circuit also ruled in the Trump administration's favor. That district includes Texas, where many detainees were sent during Operation Metro Surge.

Six other circuit courts have ruled against the Trump administration, finding mandatory detention is not justified in many cases, which means the Trump administration cannot automatically hold people without bond in large states like California, Florida, New York, and neighboring Wisconsin.

Legal experts, including Judge Patrick Schiltz in Minnesota, believe the issue is ultimately headed to the U.S. Supreme Court. 

"Then the Supreme Court will take it to resolve the disagreement among the circuits. That's at least what I would anticipate happening," Schiltz said in an interview earlier this year.

U.S. Attorney Daniel Rosen also addressed that possibility in an interview last spring.  

 "I think that the Supreme Court will agree with the Eighth Circuit," Rosen said.

As that legal debate drags on, records show ICE arrests can still be successfully challenged in federal court.

"The Constitution remains," Wiebe said. "And so people have still been able to bring due process challenges to their detentions and have been able to secure release even in the face of these court rulings."