Federal courts are taking an unprecedented look at immigration bond hearings. Since mid-2025, the federal government has argued that longtime noncitizen residents of the United States without immigration status are subject to mandatory immigration detention, ineligible for release on bond from an immigration judge (IJ). Immigrants subjected to this reading of the law have no choice but to file habeas corpus litigation in federal courts to have any chance of regaining their liberty, resulting in a deluge of filings.
The government’s new position follows from a novel reading of the 1996 law that created mandatory and discretionary immigration detention categories. Under the new interpretation, undocumented people who never were admitted to the United States by immigration officials are treated as if they were at the border and subjected to mandatory detention under the border detention statute. Immigrants’ habeas petitions are overwhelmingly granted—most federal judges disagree with the government’s reading of the law—and the remedy is frequently an immigration bond hearing. Under the normal rules of immigration bond, the noncitizen must prove he merits release. However, many federal courts are flipping that burden, placing it instead with the government to justify detention, consistent with due process. (Those that haven’t followed the immigration court default; however, even those orders may not be complied with and can be enforced.)
An unintended consequence of this court-ordered burden flip is confusion in the court-ordered bond hearings. IJs, perhaps due to the lack of guidance in the immigration law on how to require the government to carry its burden in bond and pressure to uphold the Trump Administration’s mass detention and deportation prerogatives, are repeatedly failing to hold the government to its burden. We know this because of a rapidly growing number of orders issued by the same federal judges who granted the original petitions, enforcing their prior order after the petitioning noncitizen was denied bond. These orders scrutinize the IJ’s work for compliance with the underlying habeas order; many determine that they did not comply because they failed to flip the burden.
A sample of these enforcement orders can be excavated for what might be considered constitutionally adequate procedure in an immigration bond hearing. In this piece, by examining the guidance litigants have been given piecemeal from various federal judges considering a variety of claims and practices, I surface the factors that would constitute adequate procedure. I draw on a sample of enforcement orders from district courts around the country that discuss due process issues with immigration bond hearings held pursuant to their habeas orders. Within the orders lies a roadmap to push an agency, long complicit in the routine and arbitrary denial of noncitizens’ liberty, to comply with the mandates of due process.
1. Time Allowed
Immigration bond hearings, normally conducted quickly and informally, must be sufficiently slowed down to allow the IJ to meaningfully engage with the evidence presented and deliberate. For example, Judge Sorokin in the District of Massachusetts stated, after issuing three similar orders in other cases and decrying a “perfunctory” hearing, that “adjudicating whether to detain or release another person is one of the more serious matters resolved by judges. It requires review and consideration of all relevant evidence submitted.” Thus, the first feature of the procedure for constitutionally adequate immigration bond hearings are hearings that hit the brakes on the normally frenetic pace of immigration court. As Judge Sorokin implies, the IJ should calibrate the time allowed for the hearing to the stakes of their decision.
2. Order of Parties’ Presentation of Evidence
Enforcement orders also clarify the obvious—but important—principle that the government must present its case first as the party that carries the burden. Judge Gallagher of the District of Colorado found that his order had not been followed because the IJ “asked Petitioner to present his argument first and then asked the Government to respond.” As he put it, “Usually in legal proceedings, the party bearing the burden of proof presents their case first.” Requiring the government to go first provides more process because it makes the burden more concrete.
Indeed, Judge Jackson of Colorado found that an IJ had not complied with his order by failing to set forth “what evidence presented by [the government]” carried the government’s burden of proof and had instead considered evidence without regard “for what party proffers the evidence or the order in which it was considered” (emphasis added). The ordering of the parties’ presentation of evidence therefore raises an important procedural and tactical evidentiary issue. In theory, once the government has presented its case, the IJ could make a finding as to whether the government has carried its burden. If the IJ finds that it has fallen short, bond could be set without a presentation by the noncitizen. If, by contrast, the IJ finds the government has carried the burden, the noncitizen can provide rebuttal and could provide evidence at that time.
But all evidence from both parties should be presented to the immigration court in advance so that, as Judge Sorokin explained, all relevant evidence could be considered as a whole. Similarly, Judge Martinez of Colorado commented favorably on the quantity of evidence a noncitizen submitted to the IJ. This makes intuitive sense and provides for efficient case management. It also avoids technical difficulties for mid-hearing filings. But Judge Jackson warned that consideration of all evidence can “subtly reassign[]” the burden back to the noncitizen; as such, he instructed that “[o]nly after the IJ is satisfied that the evidence proffered by DHS, standing on its own,” meets the burden should the IJ consider whether the noncitizen’s evidence “sufficiently rebuts, mitigates, or undermines” the government’s.
The takeaway from these orders is that both parties should file evidence in advance, but the government must present its case first in open court in pursuit of meeting its burden, and the IJ should consider the government’s evidence first.
3. Immigration Judge Analysis
Federal courts have also described constitutionally adequate IJ analysis.
First, the federal courts refuse to tolerate IJs improperly shifting the burden back to the noncitizen. Magistrate Judge Chung in the District of Colorado granted an enforcement order because the IJ found that the noncitizen had not demonstrated he was not a flight risk: “In short, the bond hearing before the [IJ] did not comport with the minimal requirements of due process because the [IJ] placed the burden of proof on the petitioner.”
Next, the federal courts expect IJs to clearly state the burden and incorporate the burden when applying the law. As an example, Judge Gallagher found that the IJ and the government attorney failed to state the applicable burden. He also noted that the phrasing of the IJ’s ruling indicates she placed the burden on the respondent: “I am not convinced he’s not a flight risk.” He wrote, “If the burden were correctly placed . . . a more accurate phrasing would have been, ‘The Government has proven he is a flight risk.’”
However, merely invoking the standard is not sufficient. Judge King in the Western District of Washington held that bond hearings “in name only” have been deemed constitutionally inadequate. Similarly, that “the correct words appear in the IJ’s decision [but] analysis shows that they were, in practice, disregarded” caused Judge Jackson in Colorado to find a bond hearing constitutionally deficient.
The enforcement orders also fault IJs for failing to analyze and cite record evidence. Judge Chung disapproved of the IJ making the flight risk finding without pointing to any evidence in the record – indeed, he noted that the entire bond order was a single sentence. Judge Martinez also rejected an IJ’s bond denial where that denial was “wholly bereft of any analysis whatsoever” and “perfunctory and conclusory.”
Finally, the federal courts have weighed in on how IJs assess the evidence. Judge Harpool in the Western District of Missouri held that IJ conclusions “untethered” from facts have unacceptable “indications of [a] predetermined outcome.” In Idaho, Judge Winmill, noting that “the integrity of [immigration] bond proceedings has now been cast sharply into doubt,” found that his order had not been complied with where the IJ denied bond based on evidence outside the record which “the court had neither admitted nor examined.” In Rhode Island, Chief Judge McConnell faulted an IJ for not requiring “probative and specific” evidence.
IJs who overemphasize or ignore evidence have also been found noncompliant by Judge Curiel in the Southern District of California. There, the IJ’s decision to rely on three pieces of evidence “’bear[ing] little if any relevance’ to Petitioner’s risk of flight, . . .while seemingly ignoring all evidence in Petitioner’s favor,” constituted a misapplication of the standard. Similarly, Judge Sorokin enforced his order where “the IJ rested her denial of bond on a single fact . . . . She did not mention, let alone indicate that she had reviewed or evaluated, [Petitioner’s] ample [evidence].”
The takeaway is that federal judges expect rigorous analysis from IJs, and conclusory or slanted analysis is constitutionally insufficient. It follows that, procedurally, the parties should insist on IJs articulating their reasoning and explaining first whether the government has met its burden and then whether the noncitizen can rebut.
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I do not purport to have reviewed every enforcement order issued in the last year, nor have I grappled with the small but significant body of law flipping the burden prior to the second Trump Administration. However, the puzzle pieces I describe above prescribe a set of procedures for constitutionally adequate bond hearings: at a deliberative pace, where the government must go first, and where the government’s evidence and position will be meaningfully scrutinized. It is worth querying whether this is possible, given the long-ringing alarms about procedural failures in immigration custody determinations; in my experience, the paucity of deliberation and analysis the federal judges are responding to is par for the course in immigration court. But these orders indicate that anything less is unconstitutional.