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Lawfare Daily: The Thousands of Lawsuits Challenging Pres. Trump’s Mandatory Alien Detention Policy
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- [00:00]
Kyle Cheney
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- [01:18]
Kyle Cheney
It's about 350 or so judges that have ruled against this interpretation in varying degrees. And I think some acknowledge there are nuances, there are complications. It's not a totally frivolous position for the administration and there's some that just say it doesn't even pass the common sense test. You know, this is so far of a distortion of law.
- [01:38]
Roger Parloff
It's the lawfare podcast. I'm Roger Parloff, senior editor at lawfare, and I'm with Kyle Chaney, senior legal.
- [01:46]
Kyle Cheney
Affairs reporter for Politico in the thousands. Now, at this point, I'm sure it's tens of thousands of cases that have cropped up under this issue of mandatory detention. Almost invariably it's people with either low level criminal history, parking violation, traffic violations, or misdemeanor type things, or none at all. And increasingly we're seeing people who even had lawful status get roped up in people who are refugees.
- [02:14]
Roger Parloff
Today we're talking about thousands of lawsuits across the country triggered by a Trump administration policy instituted last July that purports to deprive the vast majority of detained aliens that the opportunity for bail. So Kyle, you've been all over a terribly important story that more than any other reporter I'm aware of, that you've written maybe four or five articles about it's an issue that's generated thousands of cases relating to the detention of aliens caught up in the immigration crackdown. And as I understand it, the Trump administration's position now is that the vast majority of these people are not eligible for bail, no matter how long they've lived here while their cases are playing out. No longer how long they've lived here or how peacefully or how productively, or how many children U.S. citizens they have or grandchildren. Where does this start? How did we get here?
- [03:25]
Kyle Cheney
Sure. So you hit it on the head. I mean, this is a very complicated issue that. It still hurts my head when I try to parse every little nuance of it. But it essentially boils down to what you just said, is that for the last 30 years or more, there's been a sort of understanding in the immigration law, which itself is pretty complicated and convoluted, and I think needs reform for people to fully understand it. But the understanding has been that if you're apprehended at the border or just after you cross the border, there's sort of a set of procedures for removing you relatively expeditiously, streamlined procedures that don't take months or years, but that if you're apprehended in this country and teed up for deportation proceedings, when you've been residing within the interior of the country, that is a different set of procedures that apply, and those procedures entitle you to a bond hearing. At the very least, you could make a case to an immigration judge that I should remain free in my community, with my family, while my deportation proceedings are pending, or while I'm seeking asylum, or while I'm pursuing other forms of legal status, too, potentially protection from deportation to a dangerous place, that kind of thing. And what the Trump administration has done is they've come in and completely turned that on its head. They've said, actually, we're going to treat every single person that we tee up for deportation as though they are a newly arriving. That's the key word. Arriving immigrant, arriving alien. And what that does is trigger a trigger, the part of the law that requires people to be detained while their proceedings are playing out. So as, again, while it typically only applied to newly arrived people or people who had criminal histories were considered dangerous or flight risks, it's now been expanded to essentially encompass anyone who this administration wants to deport. That's an enormous number, millions.
- [05:25]
Roger Parloff
And this is because they've started interpreting the statutes differently.
- [05:31]
Kyle Cheney
Yep.
- [05:32]
Roger Parloff
And when did that start?
- [05:34]
Kyle Cheney
So it's interesting because you can trace it back to a very Specific moment, it's a July 8th memo from the head of ICE, Todd Lyons, who said, yeah, every administration for the last 30 years has done it one way. We actually see it differently. And the arriving alien term in the law actually applies to this much broader group. And we're going to just treat it that way. And that means they don't get, not only do we detain them, we have to detain them. It's not even a choice. And they don't get an opportunity for bond with an immigration judge because this is lawfare.
- [06:05]
Roger Parloff
I'm going to give the readers the statutes that we're talking about in case they want to look them up. The one that seems to have mandatory detention, that does have call for mandatory attention is 8 USC 1225. It says along the lines of, in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt in entitled to be admitted, the alien shall be detained. So that's the one they're relying on. The other one, which used to apply in a lot in a tremendous number of these cases was 8 USC 1226A says an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.
- [07:03]
Kyle Cheney
And may being the key word, the.
- [07:05]
Roger Parloff
Attorney general may release the alien on bond and so on. So that's the thing that they're reinterpreting. And so they are basically saying that everyone, no matter how long they've lived here and where they live, is in effect, still applicant for admission.
- [07:27]
Kyle Cheney
Right. And you know, you hit it on the head because what we're seeing, you know, and what I've been reporting on is this over overwhelming rejection of this new interpretation by the court. I mean, it's just across. There's some exceptions. There's a minority of judges out there that support this interpretation, but overwhelmingly it's been rejected. And they key on that phrase seeking admission that you mentioned in the first statute, because one of the judges, I think put it best, I think it was Judge Ho in New York who said, if you go into a movie theater and you don't pay, you don't buy a ticket, but you go sit in there and they catch you. They don't say, oh, you're here seeking admission to this movie theater, you're in, you're in the movie theater. You may not be supposed to be there. And we can put you through one set of proceedings, but we can't just pretend that you're seeking admission, you're here. So it's the same thing. If you've been living in the country for years, you're not seeking admission anymore, so that mandatory detention shouldn't apply. And that's what most courts are saying.
- [08:26]
Roger Parloff
And what are the approximate numbers as far as you've been keeping track? You've been trying to keep track of trying. Yeah. How many cases have there been so far? And how are they coming out?
- [08:41]
Kyle Cheney
I mean, it's exploding. I didn't set out trying to track this vast number. They started to crop up and the judges opinions were so alarmed and colorful that I started paying attention to them. And there were a few dozen at a time back in July and August, and that's now ballooned. There's hundreds of habeas petitions filed every day keying on this issue. And what I've been tracking is the number of rulings in these cases. And what I've found is about 2,600 as of this taping, rulings rejecting the administration's interpretation of the policy and either ordering a bond hearing or just outright freeing people who were detained. And these are judges across the spectrum. It's about 350 or so judges that have ruled against this interpretation and, and varying degrees. And I think some acknowledge there are nuances, there are complications. It's not a totally frivolous position for the administration. And there's some that just say it doesn't even pass the common sense test. You know, this is so far of a distortion of law.
- [09:44]
Roger Parloff
And how many have ruled the other way for the Trump administration?
- [09:48]
Kyle Cheney
As of the morning of this taping, about 21 judges.
- [09:52]
Roger Parloff
Oh, that's more than. It's increasing.
- [09:57]
Kyle Cheney
I mean, it is increasing, certainly, you know, and it's increased more steadily in the last couple of weeks, I've noticed. But what is fascinating is the judges opposing this policy that have said it's not a valid interpretation of the law have been over across the spectrum, presidents of every party, including about almost 40 Trump appointees. On the other side, the judges that are endorsing the policy are almost exclusively Trump appointees. There's about, I think it's 15 or 16 out of the 21 where there's a more, more of a cross section on the other side.
- [10:30]
Roger Parloff
By the way, can you estimate the number of people that this impacts that if, if the Trump administration is right, the number of people that are suddenly ineligible that used to be eligible?
- [10:48]
Kyle Cheney
So I haven't seen a precise figure, but the, but the estimate's in the millions you know, it's essentially, however many people have been residing in the interior states for decades. And, you know, we're seeing those kinds of cases. You know, someone's been living here since 2002. Their children are US citizens, they've served in the military. There's. It's like these long. And they have no criminal history. There's no, you know, they run a business. You know, it's. It's very, you know, elaborate stories about someone who's a fabric of the community. Some other cases, they've been. They were brought here as children in, you know, the early 2000s and similar circumstances there. But so it really stretches back to an enormous number of people.
- [11:26]
Roger Parloff
Wasn't there one guy who was like a superintendent of schools? Does that ring a bell?
- [11:32]
Kyle Cheney
I think that's right. I can't remember. I don't remember that specifically in this context. But again, you name it, the scenario. I mean, there are situations where people who have been, who have criminal records are subject to this. And there's a little more of a complicated analysis. But for many of these cases, so many of them, it's not that. That's not even at issue.
- [11:53]
Roger Parloff
So if there's 2600 cases and more than 360 judges, 70 judges are all deciding the same legal question, some viewers or listeners, if they aren't named Samuel Alito, and they probably aren't named Samuel Alito, are probably thinking, is that the most efficient way to handle this? Why not have a class action and then have a ruling and then have that appealed and so on.
- [12:32]
Kyle Cheney
That's a great question. I get that question a lot from my editors every time I write these stories. And, you know, for my own mental health and bandwidth purposes, I would love that to get a higher court to rule to weigh in on this, too. But I think what we're seeing is, number one, the Supreme Court has said very unequivocally in other immigration cases arising this term, like the Alien Enemies act, that habeas cases, cases where someone is detained and so they should be released, have to be decided one in the venue where the case is filed. And with some exceptions, you know, mostly on an individual basis. I mean, there can be class actions and there have been some. But generally, first of all, these are usually filed in emergency scenarios. Someone is grabbed off the street by ice, and they say, I don't want to be detained for a day, let alone months. I'm going to file a suit immediately. There's not this sort of long process where you have lawyers combining petitions, but we have seen them crop up in Massachusetts, in Colorado and a couple other places. There have been statewide class actions. And then, of course, there was one nationwide class action in California that was granted. But we're seeing now because of the way the Supreme Court has treated habeas petitions and the limits of what class actions can do to compel courts in other jurisdictions how to act. And the second piece is another layer of complication is the immigration court system itself, which is run by the executive branch. They have their own set of laws and precedents for how to treat these cases.
- [14:05]
Roger Parloff
And.
- [14:05]
Kyle Cheney
And the class action that was issued in California, the nationwide one, didn't block the immigration court's own rulings on this issue. So those courts are still saying, yeah, we can still detain, you know, order, the detention of people without due process, to be specific.
- [14:21]
Roger Parloff
This is the before Sunshine Sykes, is that right?
- [14:25]
Kyle Cheney
Yes, Sunshine Sykes out in Central. The Central District of California.
- [14:29]
Roger Parloff
Okay. So that's in the Los Angeles area. I don't know which exact, exactly where. We never turned down an opportunity to say her name.
- [14:40]
Kyle Cheney
I always find it amazing that he appointed Sunshine Joe Biden appointed Sunshine Sykes and Sparkle Sukhnanan in D.C. two of them together.
- [14:48]
Roger Parloff
So what she entered, if I'm correct, it was a class declaratory judgment, is that right? It's not an injunction. And I think the reason she did that is that there is this jurisdiction stripping provision that bars injunctive relief, a class injunctive relief for certain categories of immigration issue. Is that. Is that correct?
- [15:16]
Kyle Cheney
That that is right? Yes.
- [15:17]
Roger Parloff
Okay. And so what people are grappling with is whether they have to follow a class action declaratory judgment.
- [15:26]
Kyle Cheney
Is that outside of the district that she's in?
- [15:29]
Roger Parloff
Yeah, yeah. Which defeats the purpose of the nationwide.
- [15:34]
Kyle Cheney
You know, it's interesting, she's gotten increasingly frustrated in some of her more recent rulings that it's not being followed elsewhere, that she keeps getting even in her own court. She's still getting these petitions because the Trump administration has taken the position that the class action has basically has no teeth. And it is a bit convoluted. She kind of backed into it. You know, she granted the declaratory judgment relief just for about this. I think it was six petitioners who had filed in her court. And she later certified the nationwide class and said, by the way, that my declaratory judgment for those six people applies now to the nationwide class that I'm certifying. But the way it was structured is a bit complicated. And other judges in Texas and elsewhere have said we're not bound by that. You know, one court out in California with issuing a declaratory judgment does not bind us.
- [16:20]
Roger Parloff
And those decisions about who feels bound and who doesn't are those do those show political colors or.
- [16:29]
Kyle Cheney
It's been less frequent because that issue is just still like newly percolating. People at petitioners are even claiming that they're members of the class. And so we're seeing that bubble up. So you know, Judge Hendricks in Texas, who's in the Northern District of Texas, he's a Trump appointee and he's the only judge that takes those kind of immigration cases. So he gets every one of them. And he is been one of the few, one of the 21 who sided with the administration. And he has issued a fairly lengthy opinion explaining why he doesn't feel bound by the Sykes class action ruling, not the least of which is that her ruling. Again, it did not vacate the immigration court's precedent that upheld the administration's interpretation of the law. And so he said that's still on the books. So I'm going to defer to the immigration courts on that.
- [17:14]
Roger Parloff
The Bureau of Immigration Appeals ruling. Exactly.
- [17:17]
Kyle Cheney
Sort of presidential, nationwide ruling that they had.
- [17:20]
Roger Parloff
And to be clear, all of these immigration judges are they're not just it's not like administrative law judges. They are employees of Pam Bondi, essentially.
- [17:31]
Kyle Cheney
And more so than ever, like, they've always been executive branch, executive branch function. But I think we've seen Bondi and this administration really push to have immigration judges that align with the administration's views on this, on these issues.
- [17:45]
Roger Parloff
What about appeals? Where are we in terms of the appellate courts?
- [17:50]
Kyle Cheney
So that's the right. That's back to your original question, which is when are we going to get to the higher courts here? Which is there are now actually dozens of appeals pending. And the one that's the most imminent is in the fifth Circuit. And that's I think, by design of the administration, which is they think they probably have the best chance with the circuit there. And they've pushed to expedite some of the appeals there. They've bundled a bunch of them together. And that actually is a hearing. I believe it's next week on that.
- [18:17]
Roger Parloff
Yeah, I think February 4th.
- [18:19]
Kyle Cheney
Yep. Yeah, that's right.
- [18:21]
Roger Parloff
And I think close behind that is another very, very conservative circuit, the 8th circuit.
- [18:27]
Kyle Cheney
Yes.
- [18:28]
Roger Parloff
The Avila case. I don't think there's an argument set yet, but I think it's fully briefed.
- [18:34]
Kyle Cheney
Yes, it is fully briefed. And that is, I mean, the 8th Circuit's important for a lot of reasons these days, but there's Minnesota's in there and then. And there's been an enormous influx of these ex cases in Minnesota. You know, again, those aren't the ones that are going to be at the appeals court, but it's very relevant in that circuit right now.
- [18:52]
Roger Parloff
Yeah. And just for the listeners, Steve Laudic has mentioned that the 8th Circuit has 11 active judges. Ten are appointed by Republican presidents, including four by Trump. There's one senior judge who hears cases, and he's a Republican appointee, too. And so it was the government pushed for expedited appeal in those two circuits, is my understanding is that.
- [19:20]
Kyle Cheney
Yes, they pushed. And then they've been pushing to stay appeals in other circuits. And often, and actually what I've seen even more frequently is the appeals get dropped. You know, people are deported, you know, while these proceedings are playing out and kind of moots the issue. You know, a lot of them are not. They're not in it to try to get the circuit law. They're in it to either get out of detention or not. And so either. If they are on the losing end in the district court and they either get deported or released through some other means, then they may drop the case.
- [19:51]
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- [23:01]
Roger Parloff
We will answer your call as soon as we can.
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Roger Parloff
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- [24:40]
Kyle Cheney
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- [24:41]
Roger Parloff
Amazon One Medical Healthcare just got less painful. You have slogged through a lot of these cases now and you've read a lot of the rulings and see the fact patterns. And of course, you know, we've heard from Trish McLaughlin and Kristi Gnome that 70% of these people arrested are violent criminals. Is that what you're finding?
- [25:13]
Kyle Cheney
No. And the opposite. And you know, again, it's always tricky to sort of extrapolate, you know, when there's so many, so many of these cases never reach the courts at all. You know, and that's one of the most amazing things is the just overwhelming deluge of these cases is probably just a fraction of the people who are going through these proceedings, you know, maybe without a lawyer or maybe before they get a chance to, to files to challenge something. But the. In the thousands now, at this point, I'm sure it's tens of thousands of cases that have cropped up under this issue of mandatory detention. Almost invariably it's people with either low level, you know, criminal history, you know, parking violation, traffic violations or misdemeanor type things, or none at all. And increasingly we're seeing people who even had lawful status get roped up in people who are refugees. Like in Minnesota, there was a judge actually just hours before we started taping this, who ruled that, you know, the administration could no longer just scoop up lawfully admitted refugees and claim that they were reevaluating their status and use that as a basis to detain them. And that's coming up in the same context too. Wow.
- [26:23]
Roger Parloff
Can you tell us some examples of fact situations, disturbing fact situations you've, you've come across?
- [26:33]
Kyle Cheney
Absolutely. I mean there's, you know, it's hard to. When there's so many recall with decision the specifics. But I've seen a number of cases of, you know, pregnant detainees and where, you know, they're nursing, they have nursing children, children at home. Again, no criminal record, no aggravating circumstances that you say, okay, well maybe that person should have been detained. Despite the, despite that. No, it's just. And actually we've seen in Minnesota in particular a number of cases that really jumped out to me all in a row where you had. That was an example of one. There was a mother who was nursing a five month old grabbed off the street, I think while getting her heart medication or something like that. She did have a heart condition, too. And the issue is not only that are they being arrested and detained, but what the administration is doing to try to defeat the jurisdiction in Minnesota, where they're losing a lot of cases, is quickly rush people to Texas or Louisiana, where they have not, you know, number one, they have deportation staging facilities, but also more favorable judiciary. And the judges in Minnesota are acting. Are responding with sort of horror. You're grabbing people with what we consider an illegal detention in circumstances where these are pillars of their community. They're people who've been there for 10, 20, 30 years, might have young kids, might have US citizen kids. And. And not only are you grabbing them, you're sending them across the country without even a chance to challenge that. And so that's where we're seeing the judges in Minnesota, including the chief judge there, say, you know, this is, you know, unacceptable.
- [28:10]
Roger Parloff
Yeah. The chief judge there, Schilitz, I'm not sure how to pronounce it, who was a Scalia clerk, he got a lot of attention, recently threatened Todd Lyons, the ICE director, with contempt, basically. And it was one of these cases. He. He had ordered release, and. And it just didn't happen.
- [28:36]
Kyle Cheney
Right.
- [28:37]
Roger Parloff
Release or bail hearing, and neither happened.
- [28:40]
Kyle Cheney
Right.
- [28:40]
Roger Parloff
And that he. Subsequently, the judge that. That individual was released. But Tr. But Judge Schlitz just wrote yesterday that There were about 96 violations of orders in 74 cases just this month. This month, yeah. Yeah.
- [29:05]
Kyle Cheney
Well, that's the other side of this, too. So, again, you have thousands of rulings where judges are saying this form of detention is illegal. People are being denied due process. They're, you know, their rights are being abused, essentially constitutional and legal. But then you have the. What's. What's exacerbating it is even where judges are ruling that the administration is finding, you know, technicalities or ways not to comply with the spirit of those orders, which is give them a bond hearing or let them out. That's essentially what judges are saying over and over again. And what the administration is doing is, number one, maybe not even complying at all. Like, that's why you had Judge Schultz get so upset was, you know, we're seeing. We're ordering release. Judges, I think, pretty uniformly in every case, not just immigration cases, understand that taking away someone's liberty is about the most extreme thing government can do, short of death penalty. And so even for a day, to take someone's liberty away unlawfully is, again, the most unacceptable thing a government can do. And so here, where you have this sort of rampant violation of court orders or ordering release where people are losing their liberty, you know, with regularity. That's why you saw him react so sharply. But we're seeing that all over the country, too. I may write something imminently on that and how it's not just Minnesota, but everywhere. And some of it's just a function of how many cases there are. Because of this indiscriminate mass detention. The administration doesn't have the resources. They're not giving the Justice Department the resources to deal with these cases. I don't think they're defying court orders. You can debate this necessarily, because out of malice, although maybe they are in some cases, but some of it's just a resource thing. They're just not. They can't keep up.
- [30:44]
Roger Parloff
And in fact, the Judge Schilletz order, in a, in a footnote, he said, this is not the fault of the AUSA on the case, Anna Voss, she's working her butt off, basically. This is. They're just totally unprepared. The ICE or DHS is just totally unprepared to deal with it.
- [31:07]
Kyle Cheney
And the question is that by design. So you may say there is a intentional strategy of this administration to make this process so onerous and so painful that a lot of people will just not even want to go through with it. They'll agree to deportation. They won't fight it. And I think a lot of immigration advocates will say it's been successful in a lot of ways. People are leaving rather than risk being detained for months to fight, even if they have a meritorious case because of. Exactly. Situations like this.
- [31:36]
Roger Parloff
Yeah. And actually in that same vein, you know, when, when they changed the policy back in July, and as you've said, this is going to impact potentially millions of people. Surely they must have taken steps to obtain facilities to house all of these detainees that have never needed to be detained before. Is that how the Trump administration handled it?
- [32:13]
Kyle Cheney
Yes and no. I mean, I think they would say they did get this sort of unprecedented infusion of funds in the one big beautiful bill act that has given put ICE at unprecedented levels of funding. They've been on a hiring binge. They are talking about building facilities. I don't know how far along they are with those, but I know what you're getting at, which is that a corollary to all of this influx of cases, detentions, is that people have been filing lawsuits about the conditions of their confinement and some of the atrocious conditions of confinement that have really led to second order consequences of all this.
- [32:48]
Roger Parloff
And tell us about those cases.
- [32:50]
Kyle Cheney
Yeah. So we've seen a couple of big ones. The biggest that I'm aware of are in New York and in Illinois, where judges have ruled that the conditions they saw at some of the major facilities are essentially third world kind of conditions. They're atrocious, people are overcrowded, they're sleeping without bedding, on hard floors with minimal foil blankets. And the food is not good, the access to hygiene products is not good. And then maybe most importantly, their access to counsel is limited, their ability to converse with lawyers. In some cases, the judges are finding intentionally so that they're just not being given their constitutional right to counsel. In other cases, just lack, again, lack of resources, lack of preparation for the number of people. So those were two big orders in those cases requiring improvements. And now there is a new one that was filed in Minnesota that's still working its way, but it is on a fast track as a TRO filed within the last couple of days.
- [33:50]
Roger Parloff
I think the Perdomo Vasquez case had a apply to.
- [33:55]
Kyle Cheney
Right, right.
- [33:56]
Roger Parloff
The case that went to the Supreme Court, but a different prong was also focusing on this.
- [34:02]
Kyle Cheney
And that's part's not on hold, as I understand it. The part that's on hold was the roving arrests on the streets. But the part about the, the access to counsel, I think is still in force.
- [34:10]
Roger Parloff
I see. Oh, and I do want to recommend to viewers and listeners you did a thread about some of the cases that you had come across in many in Minnesota that I think just ought to win a Pulitzer Prize. I don't know if threads yet.
- [34:32]
Kyle Cheney
That's very generous.
- [34:34]
Roger Parloff
And was that converted to an article yet or.
- [34:37]
Kyle Cheney
It was partly because of the response to that thread, I think. I think people took note of it because, you know, it was happening at a time where, I mean, there still is this intense focus on the surge in Minnesota, the Operation Metro surge, and the sort of indiscriminate arrests that have led to violent confrontations on the streets in a way that's really reaching a climactic point here for the country. And then again, Judge Shilts, recoiling against his administration, I think shined a light on this, too. But amid that, I've said, why is Judge Schultz reacting this way? Well, he's the chief judge in Minnesota and he's hearing from his colleagues who are seeing these cases that are of the same mandatory detention variety we talked about. But there's some of the more extreme examples. Again, I mentioned the nursing mother, but there's other ones, too. People are being arrested outside their healthcare appointments. They're being grabbed in ways they're again shipped to Texas. And judges are saying, hey, I issued an order saying, don't send the person out of Minnesota. And you did it anyway. 12 hours later, like, you're violating my order. And Judge Schiltz see that over and over again. That's why he's reacting with horror. So I highlighted some of those cases and I did thread those into a story because the collective response of the Minnesota bench has been so mostly uniform and alarmed.
- [35:57]
Roger Parloff
Yeah. And people who have been here 10, 20 years, productive members of society. It's really horrifying.
- [36:08]
Kyle Cheney
Well, and I should say this too, which is that the Minnesota bench is interesting because it has, you know, Donald Trump appointees on that bench too. Eric Tostrud is one of them. And he's been ruling in favor of the non citizens filing the petitions in most cases. And these judges are getting major, you know, important cases that are not aside from these individual habeas cases. You know, Judge Menendez, a Biden appointee, is going to weigh, is weighing right now whether to kick ICE out of Minnesota altogether. You know, Judge Toastrut is dealing with the preservation of evidence from the shooting of Alex Pretty. And then there's a couple other cases that are much broader in scope. But I thought it was important to note that these judges, while they're weighing these big issues, are getting this drumbeat of individual habeas cases, some of them really outrageous, that are informing their view of the larger policy questions.
- [37:00]
Roger Parloff
Yeah, exactly. It was a great point and a great thread. One thing, without giving away sources, how did you get onto this? I mean, because you were, I think you were the first to really see that this was exploding.
- [37:17]
Kyle Cheney
You know, I have to retrace my history on this because I noticed it probably in August that there were some rules. I think we've been writing a lot about the administration's violations of due process in the Alien Enemies act context. And as we sort of scoured for cases in that vein, and we saw a lot of judges issuing really blistering opinions about violations of due process on this particular question. I think the Judge Ho opinion I mentioned that, where he mentioned the movie theater analogy, came out pretty early on. And I said, wow, that's a very colorful example. I started seeing more of those similarly pointed and really, again, recoiling kind of opinions. So I said, I'm just gonna keep an eye on this. And it started to explode. Yeah. You know, once this policy really took root, and then that's why. So I think it was sort of inadvertent that I ended up tracking these. There was no secret tip to watch these cases, but it's now become the heart of so much of these mass deportation policies across the country.
- [38:25]
Roger Parloff
Yeah. So when these cases are being litigated, I know, you know, the attorneys always go for the look for what is the closest Supreme Court guidance that exists. What is the key case that they're debating.
- [38:43]
Kyle Cheney
Yeah. So what we're seeing is one of the reasons that the judges are overwhelmingly siding against the administration is that they very routinely point to the Supreme Court's Jennings opinion, which is a few years old. And I actually don't remember the specifics of the underlying facts, factual basis of that case. But one of the, at least in the dicta, you can argue, arguably, in the holdings, was that the Supreme Court recognized the distinction between 1225 applying to people who were newly arrived and 1226 as applying to people who were already in the country. And they treated it like a given that that was the dynamic. And so judges keep pointing to that to say that's the basis to reject this interpretation because the Supreme Court kind of laid it out for us, and we have to, you know, Supreme Court's been pretty know, up in arms when people don't. Don't adhere faithfully even to their dicta, when it seems clear where they're going. So they're saying, this is, we're obligated to do this. They're required here. And that minority, that growing minority of judges says, well, actually, that's not how we read that opinion. We actually read it a little differently than that, actually. Another thing I should mention, too, is the Lake and Riley act, one of Trump's sort of signature first law that he signed when his second term began, which required detention for people who were arrested or charged or convicted of a certain range of serious violent crimes. The judges opposing the administration's detention policy say, if you could just detain everybody in the country without bond, if you.
- [40:16]
Roger Parloff
Had to, if it was mandatory you.
- [40:18]
Kyle Cheney
Had to, then why on earth would Congress have passed a law saying you must detain these people who committed crimes, it would be superfluous. It would be meaningless. And we never assume as courts that Congress acts in a superfluous and meaningless way. And again, the judges who have sided with the administration have kind of parsed that and said, you know, we disagree that, you know, Congress can do things that are redundant sometimes, and it doesn't affect the plain meaning of how we Read the law. But most judges are saying, no, that doesn't work that way. Like why would you. Congress, why would they passed something that had no effect? Yeah.
- [40:52]
Roger Parloff
And the pro Trump administration rulings, they are, for the most part, they focus on this phrase seeking admission and say, well, in effect, you must be seeking admission.
- [41:12]
Kyle Cheney
They say that if you are, they actually mostly ignore the seeking admission part of it. They say if you're an applicant for admission, it means whether you're here or you just got here, or you've been here for 30 years, you haven't been admitted, therefore you are an applicant for admission. And there is a sort of natural understanding of it that way. You could say someone's here, they haven't been admitted, so they want to be admitted, so they're applying for admission. But the judges on the other side ruling against say, look, there's long understood legal interpretations of these words, applicant for admission, seeking admission, that run counter to that.
- [41:47]
Roger Parloff
Right. I think the, I've heard immigration lawyers referred to the two groups of aliens as the iwi's versus the ers. Have you heard that?
- [41:59]
Kyle Cheney
No, that's a new one for me.
- [42:01]
Roger Parloff
It's the immigrants entering without inspection, iwi versus the ER's expedited removables.
- [42:10]
Kyle Cheney
Well, that's where you get a lot of nuances here is like, for example, a lot of the people that are being mandatory, ambitiorily detained are people that were, that came in, you know, during the Biden administration and were released on parole and what the administrator. And when they were released, they were.
- [42:25]
Roger Parloff
Which is different, we should say, from bond. It's a different. Go ahead.
- [42:29]
Kyle Cheney
Essentially, essentially they're people who the administration said, at least at the letter of the law, says you can be, you're supposed to be detained when you cross the border, but you can be released for humanitarian reasons or, you know, emergency reasons. And the administration, the Biden administration released a lot of people on parole saying we don't have bed space. And they let him, they let him in. And what the Trump administration is doing is basically saying all of those people must be detained. We don't disagree essentially with the Biden administration's decisions, but what the courts are saying is that's too bad. Like that was the same agency making a determination and they released them specifically, even in the release form said you were here under the, under the statute 1226. Oh, you're here under this discretionary, you know, law, you know, and, and so when the Trump administration says no, no, no, they're under 1225 well, the judges say, well, the paperwork says they're here under 1226. You can't just go rewrite history now.
- [43:25]
Roger Parloff
Right? Interesting. Well, listen, I, I think we'll have to leave it there, but thank you so much for appearing and for for writing about these and bringing all of this to people's attention.
- [43:40]
Kyle Cheney
I appreciate it. I'm glad to get to air the nuances because it's very complicated and I don't always get to do that. So thank you.
- [43:49]
Roger Parloff
The Lawfare Podcast is produced by the Lawfare Institute. If you want to support the show and listen ad free, you can become a Lawfare material supporter@lawfaremedia.org support supporters also get access to to special events and other bonus content we don't share anywhere else. If you enjoy the podcast, please rate and review us wherever you listen. It really does help. And be sure to check out our other shows, including Rational Security, Allies, the Aftermath, and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. You can also find all our written work@lawfaremedia.org the podcast is edited by Jen Pacha with audio engineering by Kara Schillen of Goat Rodeo. Our theme song is from Alibi Music. As always, thanks for listening.
- [44:59]
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