The Crazy Loophole DOJ Is Exploiting to Keep My Immigrant Clients Imprisoned

Jurisprudence The Crazy Loophole DOJ Is Exploiting to Keep My Immigrant Clients Locked Up By Alexander Urbelis April 28, 20265:40 AM This is not justice. This is a lottery. Getty Images Plus Copy Link Share Share Comment Copy Link Share Share Comment Sign up for Executive Dysfunction, a newsletter that highlights one under-the-radar story each week about how Trump is changing the law—or how the law is pushing back. You’ll also receive updates on the latest from Slate’s Jurisprudence team. I got a man out of immigration detention last week. Four days, start to finish. Filed a habeas corpus petition on a Thursday night, and by Monday a federal judge had ordered his immediate release. No ankle monitor, no GPS, no conditions. He walked out of the Orange County Jail in Goshen, New York, at 4:09 on Tuesday afternoon. He had been locked up since New Year’s Day. Nearly four months. Now 22 years old, he was brought to this country as a 12-year-old fleeing gang violence in El Salvador after his father was murdered. All he needed was for someone to show up and assert his constitutional rights. The law was on his side the entire time he sat in that cell. Nobody had filed for him. The reason my client’s case moved so fast is that we drew a judge who had already ruled on the exact same legal question: whether Immigration and Customs Enforcement can detain a person under a mandatory detention statute that Congress never intended to apply to people already living in the United States. This judge had already said no. The government’s lawyers knew it and conceded that they could not distinguish our case from the judge’s prior ruling, and she granted the writ the same day. I represent another man in the same courthouse. Also from El Salvador. Also detained at the Orange County Jail. ICE arrested him at his own green-card interview. He walked into a scheduled appointment at the immigration office in Holtsville, New York, cooperating with the system exactly as the system asked him, and they took him into custody on the spot. I filed his habeas petition in early February. It is now late April. He is still in a cell. Same legal question. Same courthouse. Same government lawyers on the other side of the caption. Different judge. Advertisement Advertisement Advertisement Advertisement One man walks free in four days. Another has been litigating for 11 weeks with no end in sight. Same Constitution. Same rights. The only variable is a case assignment wheel. That is not justice. That is a lottery. Related From Slate Alexis Romero and Mark Joseph Stern The Trumpiest Court Just Openly Defied SCOTUS Read More And the Department of Justice knows it. The government changes its litigation posture depending on which judge it draws. Before one judge, it concedes that a person’s detention is unlawful. Before another, it fights for months. The United States government does not have a single position on whether these imprisonments are legal; it has several, and it selects the one that matches the judge. Think about what that means for the person sitting in the cell. Whether you sleep tonight on a concrete slab or in your own bed. Whether your children see you tomorrow. That turns on a random assignment. This is not a procedural quirk. It is a betrayal of the foundational promise of American law: that the rules apply equally to everyone. Equal protection. Due process. The principle that the government cannot take your liberty without first showing cause and giving you a…

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