Federal prosecutors in western Washington have said they lack the resources to defend every immigration detention challenge, allowing judges to decide many cases without a government response.
Acting US Attorney Charles Neil Floyd set out the change in an October 26 letter to US District Judge David Estudillo, saying the office was receiving dozens of habeas corpus petitions each week. Such cases allow detainees to challenge the legality of their detention.
Mr Floyd said responding to the petitions often led to lengthy litigation involving hearings, written submissions, status reports and other motions. The workload, he added, had affected the office’s ability to handle both immigration matters and unrelated civil cases.
Under the new approach, prosecutors will continue to review petitions and send court scheduling orders to the relevant Immigration and Customs Enforcement officials. But if no government lawyer files a notice of appearance within seven court days, judges may proceed on the basis of the detainee’s papers alone.
The US Attorney’s Office has stressed that it can still enter a case later if it considers that necessary. It will also no longer act as the channel for communications between the court and immigration authorities in cases where it does not appear.
The policy has already had a direct effect. On November 7, US District Judge Tiffany Cartwright granted a habeas petition from Baljit Singh, an Indian national who had been detained at the Northwest ICE Processing Center in Tacoma.
Court records say Mr Singh had previously been released under supervision while pursuing an asylum claim. He was detained in September after travelling with friends to Peace Arch Historical State Park and inadvertently reaching an exit near the Canadian border.
Because the government had not appeared within the seven-day period, Judge Cartwright treated the petition as intentionally unopposed and ordered Mr Singh’s release within one day, restoring his previous conditions of release.
The decision came as federal courts face a sharp rise in challenges brought by immigration detainees. US border official Tom Homan recently said there were about 85,000 immigration-related habeas cases across the courts, although the Western District of Washington has not given a precise figure for the number affected by the new policy.
The move also comes as the US Supreme Court prepares to consider whether immigrants who have lived in the country have a right to a bond hearing while contesting their possible deportation. Courts of appeal have reached conflicting conclusions over whether people can be held without such a hearing during removal proceedings.
