Federal agents detain an individual as he exits immigration court in New York City in July. Immigrants released at the border are being targeted for arrest when they show up for court hearings. (Photo by Michael M. Santiago/Getty Images)
Inside immigration courts around the country, immigrants who crossed the border illegally and were caught and released are required to appear before a judge for a preliminary hearing.
But in a new twist, the Trump administration has begun using an unexpected legal tactic in its deportation efforts. Rather than pursue a deportation case, it is convincing judges to dismiss immigrants’ cases — thus depriving the immigrants of protection from arrest and detention — then taking them into custody.
The practice, affecting immigrants released at the border and given a “notice to appear” in court under both the Trump and Biden administrations, sometimes leads to people being quickly deported by Immigration and Customs Enforcement through a process called expedited removal.
Many of the immigrants had requested asylum, as allowed under U.S. law. Late last month, advocates filed a lawsuit on behalf of a dozen immigrants unexpectedly arrested by ICE, often after having their cases dismissed.
When an immigrant crosses the border illegally and is caught, they may be given a “notice to appear,” or NTA, ordering them to appear before an immigration judge. It can sometimes take years, however, before their case comes up.
One of the immigrants in the lawsuit was caught at the border with Mexico and given a court appearance ticket in 2022 after fleeing Cuba. His opposition to forced conscription and the communist government in Cuba led to his arrest there and he was raped in custody, according to the lawsuit.
At his first hearing in U.S. immigration court in May, his case was dismissed with no reason given and his attorney agreed, thinking the relatively new maneuver was a positive development.
But as he left the Miami court, the immigrant was arrested and sent to Washington state for detention, thousands of miles from his family and his wife, who is a U.S. citizen, according to the lawsuit.
“The aftermath of these courthouse arrests and dismissals for placement in expedited removal wreaks further havoc on people’s lives,” according to a class-action lawsuit against the U.S. Department of Justice filed in July by a group of immigrant advocates. The group argued the practice is illegal and contrary to the traditional way people are treated when released at the border for court dates.
The lawsuit includes 12 immigrants: three from Cuba, three from Venezuela, two from Ecuador, two from Guinea and others from Liberia and the Chechen Republic. A Department of Justice spokesperson, Natalie Baldassarre, said the department had no comment on the lawsuit.
After a courthouse arrest in New York City in July, Department of Homeland Security Assistant Secretary Tricia McLaughlin told CBS News that the new policy “is reversing [President Joe] Biden’s catch and release policy that allowed millions of unvetted illegal aliens to be let loose on American streets.”
However, the Trump administration has also released immigrants seeking asylum at the border pending court dates, according to a June 27 report from the Transactional Records Access Clearinghouse (TRAC) at the University of Syracuse, an organization that tracks federal statistics.
Almost 18,000 people were released at the border in May “even after Trump officials closed the border, vowed not to allow anyone in and to immediately detain anyone not legally in the country caught inside the U.S.,” the report stated.
Other immigration attorneys who spoke with Stateline said the new practice of arresting people when they show up for court hearings but declined to speak on the record for fear of drawing negative attention to their clients’ cases.
Vanessa Dojaquez-Torres, practice and policy counsel for the American Immigration Lawyers Association, which represents more than 17,000 immigration attorneys and is not involved in the lawsuit, said the Department of Homeland Security is now arguing in court that anyone caught crossing the border should be arrested and detained, though it’s not happening in every case.
“There is a large number of people going to court and getting arrested, and also people in detention not getting let out,” Dojaquez-Torres said. “This happens to people with no criminal background, no negative immigration history — they might even have a sponsor that says, ‘We will house them and feed them and make sure they show up to their court hearings.’”
There are also cases of people arrested in court even if their case isn’t dismissed, Dojaquez-Torres said.
One of the immigrants in the lawsuit, a Venezuelan who said he faced persecution in his home country as a gay man with HIV, was arrested July 1 after a hearing in New York City even though his case is still active, according to the lawsuit.
One woman born in Venezuela, who fears persecution because of her sexual orientation and opposition to the Venezuelan government, applied for asylum within a year of entering the United States in 2022, but was arrested at her first court hearing May 27. She now faces an expedited removal order, which could mean an immediate deportation if she loses appeals. She is currently in detention in Ohio, according to the lawsuit.
Other cases mentioned in the lawsuit involved arrests at immigration courts in Illinois, Iowa, Minnesota and Nevada.
There is a large number of people going to court and getting arrested, and also people in detention not getting let out.
– Vanessa Dojaquez-Torres, practice and policy counsel for the American Immigration Lawyers Association
Most of the immigrants mentioned in the lawsuit were caught crossing illegally. But two presented themselves at the border legally via an appointment set up through a phone app for asylum-seekers, CBP One, designed to limit the number of people who could cross the border asking for asylum. (The Trump administration shut down the app on its first day in office.)
In one of those cases, a gay man from Ecuador, facing government threats over his LGBTQ+ advocacy efforts, used the app in January and appeared in court June 4, according to the lawsuit.
The government moved to dismiss his case, and he was deported back to Ecuador within a month, despite asking for more time to file an asylum case, according to the suit. He is now living in hiding.
The class-action lawsuit has not yet been answered by the government, though the chief judge of the U.S. District Court for the District of Columbia, James Boasberg, ruled July 18 that the immigrants suing could use pseudonyms without identifying information as long as they provide real names and addresses in documents sealed from public view.
Courthouse arrests may cross a new line legally but they’re not likely to increase deportation significantly the way current large-scale workplace raids and transfers from local jails might, said Muzaffar Chishti, an attorney and policy expert at the Migration Policy Institute, a Washington, D.C., think tank. The administration’s goal of 1 million deportations a year still seems unlikely, he said.
Arrests declined in July over the previous month, but deportations increased, according to an Aug. 2 TRAC report, with 56,945 people in detention. The number of detainees will increase with more federal funding for detention, but is still unlikely to reach the level needed to deport a million people in a year, Chishti said.
The issue of courthouse arrests makes legal representation for immigrants all the more important, Chishti said.
“Even in these horrendous cases, if you have a lawyer, he’ll know how to handle it and say, ‘He can’t be removed, he’ll be subject to torture,’” Chishti said. “The difference between arrest and deportation could be the presence of a lawyer.”
Nevertheless, the prospect of arrest and detention during a case that may last years could make immigrants hesitant to show up for court dates, which in turn could make them subject to immediate deportation.
“If you don’t show up for a court date, they will enter what’s called an in absentia removal order. If you come into any contact with ICE after that, you will be most likely detained and removed,” Dojaquez-Torres said.
Stateline reporter Tim Henderson can be reached at thenderson@stateline.org.
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