‘Is Bond Now Being Granted?’: Conflicting Orders Leave Detainees, Attorneys in Limbo

Immigration detainees hoping to be released from jail have been thrust into chaos after the chief judge of immigration courts told judges to disregard a federal order that made it possible to request bond. In recent weeks, judges in New York and New Jersey immigration court had been willing to listen to requests for bond, as a California federal judge required in a class-action order that she issued on Nov. 25. The decision struck down a six-month-old Immigration and Customs Enforcement policy that had dramatically expanded the legal definition of mandatory detention. The door, briefly opened, seemed to shut last week when Chief Judge Teresa Riley of the Justice Department’s Executive Office for Immigration Review (EOIR) issued internal guidance instructing judges to stop relying on the class-action order “forthwith.” The directive from Riley, who became chief of the office that runs the U.S. immigration courts last month, is largely unprecedented, immigration lawyers and experts told Documented, and represents the latest challenge to courts’ independence under the Trump administration. Immigration judges are career Justice Department employees who are by law independent adjudicators. Immigration News, Curated Sign up to get our curation of news, insights on big stories, job announcements, and events happening in immigration. Enter your email here... Sign Up For Free ​​“When you have a supervisor who tells you or suggests not to follow a federal district court judge’s decision, that takes away a judge’s independence,” said Jeremiah Johnson, vice president of the National Association of Immigration judges. The Trump administration has fired many immigration judges since taking office in January and also pushed out all Biden administration appointees from making decisions at the Board of Immigration Appeals. Greg Chen, senior director of government relations at the American Immigration Lawyers Association, said that the government appears to be in “open defiance” of judicial orders. “I’ve never heard of the Department of Justice immigration court leadership issuing an instruction to judges essentially to disregard a federal court order, which is essentially what this EOIR email does,” Chen said. EOIR spokesperson Kathryn Mattingly declined to respond to questions, saying the agency doesn’t comment on litigation. ICE and the Department of Homeland Security didn’t respond to requests for comment. Conflicting Orders Riley’s memo scrambled an already confused situation: In Manhattan’s Varick Street court, the two judges who handle the bulk of the detainee immigration cases in New York City began to give opposite rulings. One judge, Charles Conroy, had granted bond hearings in previous weeks in response to the class-action order. But on Jan. 14, after Riley’s directive circulated, he said he could no longer permit the contested bond hearings. Conroy declined to comment. The other judge, Dara Reid, presiding over the detainee calendar the following day, said she had to grant a bond hearing because of the federal class-action order. “I don’t see any way around it,” Reid said, adding, “I’m bound by it.” When the ICE lawyer restated the government’s position, Reid disagreed and said, “maybe we’ll have a real answer” soon. The attorney, appearing in the courtroom by video from ICE’s office in the same building, bowed his head in laughter and covered his face. “I laughed because I didn’t want to cry,” he said. Federal Judge Sunshine Sykes, who had issued the class-action order requiring bond hearings, delayed a previously scheduled hearing last Friday until Jan. 22 to give the government’s lawyers time to respond to reports about the chief judge’s directive. Even before the chief judge’s order, most immigration judges across the country had been accepting ICE’s push to mandate detention for many more noncitizens until their deportation cases are resolved, according to Niels Frenzen, a law professor at the University of Southern California and one of the attorneys in the class-action case. Legal advocates filed the case in July, aiming to strike down a policy ICE adopted in a July 8 memo that redefined who was “seeking admission” and therefore ineligible for release on bond. The term should apply not only to people arriving unlawfully at or near the border—the practice for nearly three decades—but also to those who entered the country “without inspection” long ago, the agency said. That legal stance has helped ICE to fill its lockups. Faced with indefinite incarceration under poor conditions, many detainees have given up their legal right to contest deportation and asked to leave the country voluntarily. Federal judges have ruled in hundreds of individual cases that the policy was an unconstitutional denial of due process. The case before Sykes, in the U.S. District Court in Riverside, California, was filed on behalf of four people detained in ICE’s intensive and controversial raids in Los Angeles in June. The case garnered national attention when the judge certified it as a national class action on Nov. 25 in what appeared to be a transformative decision in favor of detainees. Since then, the Justice Department has tried various gambits to dodge the order and has also filed an appeal to the 9th U.S.Circuit Court of Appeals. Judge Sykes’s order remains in effect. Seeking Bond Most immigration judges in New York and New Jersey (where many New Yorkers’ cases are heard after they’re detained in the Garden State or Pennsylvania) lined up behind Judge Sykes’s Maldonado Bautista v. Noem ruling, according to interviews with local attorneys and courtroom observations. Still, the bond hearings very often end up with judges refusing to allow release. In immigration court, the burden is on detainees (rather than prosecutors, as in criminal courts) to prove they are not a flight risk or danger to the community. And it’s not so easy to prove a negative. Dulce, a 51-year-old woman born in the Puebla state of Mexico, was able to request bond thanks to the Bautista decision. On Jan. 6, she was led through the corridors of the Elizabeth Contract Detention Center to a low-ceilinged courtroom on the ground floor. Immigration Judge Arya Ranasinghe was presiding, albeit via video from her courtroom in Newark, five miles away. The judge quickly bypassed Department of Homeland Security attorney Sarah Campbell’s argument that she lacked jurisdiction to consider bond. Then Campbell sought to use a minor offense to make the case that Dulce wouldn’t return to court if released. Dulce, whose full name is being withheld by Documented, has lived in the United States since 1993 and doesn’t have a criminal record. But under the DHS lawyer’s questioning, she acknowledged getting a traffic ticket for driving with an expired license 14 years ago. Campbell demanded to know why it didn’t show up in her search of a database of New Jersey municipal court records, and implied Dulce gave a false name to police. Dulce said she didn’t know. Her attorney, Maggie Dunsmuir, quickly located the record under her name in the same database. Judge Ranasinghe set a $10,000 bond, noting that Dulce has a 9-year-old child to care for and that she had lost her husband, a U.S. citizen, to ALS in October. He was 46. Weeping and weary looking beneath a cascade of dark, wavy hair, Dulce followed a guard back to the cells in her blue scrubs to wait for her bond to be processed. She was released three days later, having been detained since Dec. 23, through the Christmas season. She was home in time for her daughter’s 10th birthday. A Challenge to Mandatory Detention The sticking point in the legal battle over this policy is a Sept. 5 decision from the Board of Immigration Appeals, the Justice Department unit that interprets immigration laws. In the decision, known as Matter of Yajure Hurtado, the board provided a legal basis for the detention policy ICE had adopted two months before. It found that a “plain reading” of a 1996 immigration law contradicted the longtime interpretation of who was “seeking admission.” The board’s published decisions are binding on immigration judges. Blocked from seeking bond for their clients in immigration court, many lawyers have gone to federal district courts to file habeas corpus lawsuits, the legal mechanism used to challenge unconstitutional detention. Federal judges have found time and again in these habeas cases that the ICE policy and the immigration board’s “plain reading” of the law were plainly wrong. In a Nov. 26 ruling, Judge Lewis Kaplan of the U.S. District Court in Manhattan cited 350 decisions that rejected the Trump administration’s novel position on mandatory detention (of the 362 total decisions about the administration’s policy). The rulings came from 160 judges in 50 courts. “Thus, the overwhelming, lopsided majority have held that the law still means what it always has meant,” Judge Kaplan wrote in ordering release of Sergio Barco Mercado, a carpenter from Peru. Barco had been granted bond in 2022 but ICE re-arrested him as he left a courtroom at 26 Federal Plaza in New York on Aug. 8. He was detained under what the court ruled elsewhere were deplorable conditions. The government’s argument “does not and has never had a reasonable basis in statutory text, structure, or history,” Kaplan wrote. “Their position has been rejected with near unanimity in the overwhelming majority of cases across the country.” In his order, he required the government to pay Barco’s legal fees. More such rulings have followed. In a Jan. 2 decision, Judge Clay Land of U.S. District Court in Columbus, Georgia, ordered bond hearings for the plaintiffs in 44 separate habeas cases with a single two-page ruling. He wrote: “The brevity of this order is appropriate given that the issue presented is exactly the same as the issue previously decided on numerous occasions by the Court and yet Respondents [the government agencies] insist upon denying the relief that the Court has found is required.” But all of these rulings were for individual cases. Judge Sykes’s Nov. 25 decision to grant class-action status to her previous ruling in the Maldonado Bautista case changed that. Immigrant advocates rejoiced. But ICE lawyers went on to tell immigration judges for more than three weeks that the ruling didn’t apply because Judge Sykes had not entered a final judgment in the case. In the Elizabeth court, Immigration Judge Tamar Wilson rejected several bond requests on Dec. 18 because in her view, the Hurtado case remained in effect. In one instance, she told the lawyer for a Guatemalan man, Jose Madrid-Vargas, that if she did have jurisdiction, she would grant release on $7,500 bond. Later that same day in California, Judge Sykes filed the final judgment in the class-action case; it “vacates” the policy described in the July 8 ICE memo across the country. She also made clear she’d invalidated the Hurtado ruling. She said she didn’t specifically vacate the Hurtado decision because it came after the lawsuit before her was filed. But, she wrote, the Hurtado interpretation contradicted her order and therefore “is no longer controlling.” DHS attorneys sought to sidestep Sykes’s Dec.18 order by telling judges in immigration courts in Newark, Elizabeth and New York that the ruling had not formally vacated the Hurtado decision. This was true, but misleading: Sykes’s clarifying order on Dec. 18 stated that Hurtado should no longer be relied on. In a Jan. 9 report to the court, the plaintiffs in the class action case said that “remarkably,” judges are taking different positions even within the same immigration court. Further Confusion This back and forth between ICE’s attorneys and immigration judges, on whether to conform to Hurtado or Bautista, has left an uncertain terrain for any immigration detainee who hopes to be released on bond. “Is bond now being granted?” the lawyer for a Senegalese detainee asked Newark Immigration Judge Michael Neal on Dec. 29. “Are you referring to Bautista?” the judge responded. “Yes.” “There have been developments on that case” was all the judge would say. It’s the question of the hour for detainees and their lawyers. “What’s your position with the Maldonado [Bautista] bond hearings?” attorney Sebastian Estrada asked on Jan. 7 on behalf of a Mexican client held in an Orange County, New York, jail. “Are you hearing them?” “Yes, I am,” Conroy, the New York immigration judge, answered. Nonetheless, the DHS attorney on duty in Judge Conroy’s court continued to present the Trump administration’s argument in each bond hearing. “I don’t agree with that, based on Bautista,” Conroy replied. That didn’t help an Indian immigrant who appeared before him. The judge found that he failed to prove he wasn’t a danger to the community, based on a conviction for aggravated driving under the influence. Across the hall on Jan. 8, Immigration Judge Thomas Mungoven was filling in on detainee docket duty for the week. He tried to avoid declaring where he stood between the rock and the hard place of the two legal decisions. DHS once again argued that the Hurtado case barred a hearing, this time for a Staten Island man from Mexico, whose supporting documents included a letter from Bishop Peter Byrne of the Roman Catholic Archdiocese of New York. ALSO READ How New Yorkers Are Stepping Up to Protect Immigrant Neighbors BY Eileen Grench Jan 23, 2026 The judge refused bond, based on the man’s 2014 conviction for assault and two more recent criminal cases that were dismissed. “I’m not addressing the Hurtado-Bautista issue,” he emphasized. But in a sense, he was. Just by hearing the request, the judge had taken a position. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.