ICE Cites 9/11-Era Regulation to Override Bond Decisions for Immigrants Nationwide

U.S. Immigration and Customs Enforcement is increasingly using a post-9/11 regulation to keep immigrants in detention even after immigration judges grant their release on bond, according to newly disclosed federal data.

The policy, known as an "automatic stay," allows ICE to block release by filing a short notice with the court. It was created in October 2001 "to prevent the release of aliens who may pose a threat to national security," but does not require sign-off from a judge or the Board of Immigration Appeals.

Records obtained by Documented through a Freedom of Information Act request show ICE invoked the measure 877 times between July 1 and September 16, after using it only three times in the previous five years.

One detainee, a Colombian man identified as Juan due to his pending asylum case, was granted bond on August 6 by a New York immigration judge who found "no evidence whatsoever" of danger or flight risk. Juan had support from family, his employer, and a local church. His $1,500 bond was the minimum allowed.

But ICE blocked his release within hours. He ultimately spent 133 days in detention before a federal judge ordered him freed on October 21.

Federal courts have repeatedly found that the government's reliance on the stay rule violates constitutional rights. Manhattan U.S. District Judge Vernon Broderick wrote on November 25 that district courts across the country have issued "more than 50" decisions since June holding that ICE's use of the regulation deprived detainees of due process. He said the government had cited only two rulings in its favor, one of which was later overturned.

"This 'heads I win, tails you lose' process deprives Petitioner of his due process rights and has no place in the law," another federal judge wrote in an earlier case ordering the release of a Salvadoran detainee.

Advocates say the automatic stays are part of a broader strategy aligned with the administration's July 8 policy memo reinterpreting immigration law to expand mandatory detention. That policy has also been repeatedly struck down in habeas corpus rulings, including in cases where detainees had lived in the United States for years without criminal records.

Judges have expressed frustration at the pattern of litigation. "I decline that invitation," Broderick wrote, rejecting a government request to disregard prior rulings from multiple courts. Attorneys involved in the cases say the stays pressure detained immigrants into abandoning their challenges and agreeing to voluntary departure.