Gilberto Pacheco was driving to work for a construction job in California when he was pulled over in what court papers called a “traffic stop” in January. He was not accused of any crime, not even a traffic infraction, but he was imprisoned without bond for months because he arrived illegally in the United States more than 30 years ago from Mexico.

Cases like that of Pacheco, who has applied for legal status through three U.S. citizen children, are what the Supreme Court has to consider when it rules next year on the Trump administration’s mandatory detention policy. 

Justices are expected to hear the case as soon as October after the U.S. solicitor general requested the court to resolve conflicting rulings on the matter from appeals courts. 

The Trump administration’s policy requires detention without bond for anyone who crossed a border illegally, and has been used to pressure immigrants into voluntary departure to escape sometimes squalid conditions.

For now, plenty of U.S. district judges are questioning the idea that immigrants should be incarcerated indefinitely at the whim of the executive branch. 

Stateline reviewed every immigrant habeas petition case decided in a single day — June 16 — across the country, in order to sample judicial opinion. A habeas case is a request from an immigration prisoner for a judge to review the legality of his imprisonment and order a bond hearing or release. 

Of the cases that were decided that day, judges released detainees immediately or ordered bond hearings 142 times, and denied them only 36 times. Many of the judges, even Republican appointees, argued that unlimited detention was unconstitutional.

One of those judges was U.S. District Judge Keith Ellison, who heard Pacheco’s case.

After being picked up in California, Pacheco was held in Houston, and filed a habeas case in Texas.  Ellison ruled that it was a violation of Pacheco’s civil rights to detain him for months. He ordered Pacheco to be freed immediately.

“Given the severity of this ongoing unconstitutional deprivation of liberty, the Court concludes that immediate release from custody is required,” Ellison wrote. 

He wrote that he recognized that the Trump policy applied to Pacheco, and that it was upheld by the Fifth Circuit Court of Appeals, which governs Texas, but said that he was releasing the man anyway. 

“The Due Process clause does not permit the government to ‘detain any noncitizen, no matter how long they have actually lived in the United States, for any length of time, without any individualized justification [merely because] that person initially entered the country without lawful admission,’” Ellison wrote, partially quoting a 2003 Supreme Court ruling. 

Ellison is a Democratic appointee from the Bill Clinton administration, but judges from both parties, including Trump nominees, ordered bond hearings for immigrants and found the Trump policy unconstitutional. They included judges in states where appeals courts had already upheld the policy. 

Many judges are going beyond bond hearings and ordering release directly, as Ellison did. In some situations the judges are holding the legal cases open to make sure releases are made or bond hearings are fair. 

Few immigrants get bond hearings because of the policy, making court challenges their only recourse, said Xin Tian, an attorney representing an immigrant who was released June 16 in a California case. His client’s case was among those reviewed by Stateline.

“The individual’s only recourse for release is to seek a writ of habeas corpus,” Tian wrote in an email to Stateline. “Fortunately, federal judges uphold the Constitution and will grant such a writ, leading to direct release. Aside from this, there are virtually no other ways to obtain release.”

A Trump appointee in Texas, U.S. District Judge Jason K. Pulliam, ordered five releases in one day, calling the detentions “unlawful” and ordering immediate release during court proceedings. In each case, he wrote that the detainee “has no known criminal history, had been complying with the terms of a prior release, and there is no indication of flight risk or danger to the community.”  

He acknowledged in court papers that he made the rulings despite the fact that an appeals court ruling for the Fifth Circuit — affecting Texas, Louisiana and Mississippi — had concluded mandatory detention was legal in those cases.

A President Joe Biden appointee in Utah, U.S. District Judge Ann Marie McIff Allen, was one of the rare judges to agree with the Trump administration’s policy, according to Stateline’s review. 

McIff Allen denied a petition for a bond hearing by a man from Venezuela who had arrived in Texas in 2024 to seek asylum. He had scheduled an appointment with U.S. Customs and Border Protection through an official mobile app, then settled in Florida. 

His immigration case was still pending when the Trump administration revoked his parole and arrested him in May. The man was “not entitled to immediate release or a bond hearing,” McIff Allen ruled, acknowledging that “some district courts have determined the issue differently.” 

The detention was legal under a Trump administration policy that interprets immigration law to mean all immigrants who arrived illegally can be treated as if they’re at the border “seeking admission” to the country. 

Stateline found only seven cases where judges favorably cited the administration’s policy of mandatory detention when denying a habeas case. Besides the ruling from a Biden appointee in Utah, there were six involving Trump judicial appointees: four in New York and one each in Puerto Rico and Texas. 

U.S. District Judge Raúl M. Arias-Marxuach, a Trump appointee, denied release to Marcelo Jerez, a Dominican Republic native living in Puerto Rico with a U.S. citizen wife and sick 1-year-old child who required his help with monitoring and care.  

“The crux of this case has been the subject of myriad lawsuits throughout the nation and dutiful judges have reached divergent answers,” Arias-Marxuach wrote. 

But relatively few judges in the Stateline review considered the mandatory detention policy valid: Four of the other six cases for the day that did so, other than the Utah case, were denied by a single judge, Trump appointee Judge John L. Sinatra in New York’s Western District court.

Sinatra wrote in one of the cases, for a Venezuelan man who had been allowed into the country in 2024 on parole, that such people should be treated as if they were still at the border “seeking admission,” and face mandatory detention, and should not get the constitutional rights of someone already in the United States with legal status.

“How could it be otherwise? If he were not seeking admission he would have given up and departed already,” Sinatra wrote in his decision. 

David Wilson, a Minnesota immigration attorney who serves on an immigration court committee for the American Immigration Lawyers Association, said that criminal records among immigration detainees are a bone of contention among judges. There’s widespread disagreement over whether they should be detained indefinitely without bond, he said, even if a U.S. citizen in the same circumstance would be freed on bond in a criminal court. 

“This kind of lingering question is, how long is too long for people with criminal records? Some circuits have come along and said, ‘There is not too long because your criminal activity is what it is, you’re just stuck, if you want to end this stop fighting your case,’” Wilson said. 

Stateline reporter Tim Henderson can be reached at thenderson@stateline.org.

WASHINGTON — An appeals court Tuesday cleared the way for the Trump administration to use fast-track deportations within the interior of the country and not just at the Southern border, a key pillar in the president’s mass deportation campaign.

The 2-1 decision from the U.S. Court of Appeals for the District of Columbia means the Department of Homeland Security can continue with an expanded use of expedited removal after lower courts blocked the policy over concerns that immigrants were not receiving due process. 

Last year, the Trump administration expanded the use of expedited removal to apply to immigrants in the interior of the United States who cannot prove they have remained in the country for more than two years, greatly expanding the numbers of migrants affected. Previously the policy applied only to migrants at the Southern border, rather than those in the interior of the country.

Tuesday’s ruling, by Judge Justin R. Walker, argued that Congress allowed the executive branch to decide when to apply an expedited removal policy to immigrants. President Donald Trump appointed Walker, along with Judge Neomi Rao, who also ruled in favor of the government. 

They found in addition that the Trump administration’s policy did not violate the due rights of immigrants. The judges vacated lower court decisions that blocked the Trump policy. 

No immigration judge

The expanded policy allows the removal of some immigrants – sometimes within hours – without an appearance before an immigration judge, which is key to the Trump administration’s mass deportation campaign. 

Judge Robert L. Wilkins disagreed and said he would have kept the lower court’s decision in place that blocked the policy. Former President Barack Obama nominated Wilkins. 

In a statement, James Percival, the Department of Homeland Security’s general counsel, praised the appeals court ruling. 

“For years, DHS has arbitrarily limited expedited removal to 14 days even though it applies to illegal aliens who entered the country illegally within the last two years,” Percival said. “Today, the DC Circuit vindicated our decision to apply the law as written.”

Due process questions

In December, the Department of Justice argued that due process is not guaranteed for immigrants in a fast-track deportation. 

The immigrants’ rights group that sued the Trump administration, Make the Road New York, contended that the expanded policy did not give adequate notice to immigrants and that immigration officials did not provide proper information to an immigrant who may or may not fall under the policy. 

Walker wrote that a notice of removal was satisfactory and that an immigration official notifying a migrant if they fall under the policy would be akin to providing them with legal counsel.

“Make the Road’s contrary reasoning would require immigration officers to provide what amounts to legal advice,” Walker wrote. “If due process requires the government to inform individuals of the two-year continuous-presence rule, it presumably also requires informing them of every other basis for contesting expedited removal.”

Wilkins, in his dissent, argued that immigration officials should inquire about how long an immigrant has been in the country before making a decision if expedited removal should be applied.

“A procedure that can result in persons being deported pursuant to the expedited removal statute without even being asked how long they have been in the country might satisfy due process for persons encountered at the border, but it is woefully inadequate for persons encountered in the interior of the country,” Wilkins wrote.

Make the Road New York did not immediately respond to States Newsroom’s request for comment.