The Crazy Loophole DOJ Is Exploiting to Keep My Immigrant Clients Imprisoned

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I got a man out of immigration detention last week. Four days, start to finish. Filed a habeas corpus petition on a Thursday night, and by Monday a federal judge had ordered his immediate release. No ankle monitor, no GPS, no conditions. He walked out of the Orange County Jail in Goshen, New York, at 4:09 on Tuesday afternoon. He had been locked up since New Year’s Day. Nearly four months. Now 22 years old, he was brought to this country as a 12-year-old fleeing gang violence in El Salvador after his father was murdered. All he needed was for someone to show up and assert his constitutional rights. The law was on his side the entire time he sat in that cell. Nobody had filed for him.

The reason my client’s case moved so fast is that we drew a judge who had already ruled on the exact same legal question: whether Immigration and Customs Enforcement can detain a person under a mandatory detention statute that Congress never intended to apply to people already living in the United States. This judge had already said no. The government’s lawyers knew it and conceded that they could not distinguish our case from the judge’s prior ruling, and she granted the writ the same day.

I represent another man in the same courthouse. Also from El Salvador. Also detained at the Orange County Jail. ICE arrested him at his own green-card interview. He walked into a scheduled appointment at the immigration office in Holtsville, New York, cooperating with the system exactly as the system asked him, and they took him into custody on the spot. I filed his habeas petition in early February. It is now late April. He is still in a cell. Same legal question. Same courthouse. Same government lawyers on the other side of the caption. Different judge.

One man walks free in four days. Another has been litigating for 11 weeks with no end in sight. Same Constitution. Same rights. The only variable is a case assignment wheel.

That is not justice. That is a lottery.

And the Department of Justice knows it. The government changes its litigation posture depending on which judge it draws. Before one judge, it concedes that a person’s detention is unlawful. Before another, it fights for months. The United States government does not have a single position on whether these imprisonments are legal; it has several, and it selects the one that matches the judge. Think about what that means for the person sitting in the cell. Whether you sleep tonight on a concrete slab or in your own bed. Whether your children see you tomorrow. That turns on a random assignment.

This is not a procedural quirk. It is a betrayal of the foundational promise of American law: that the rules apply equally to everyone. Equal protection. Due process. The principle that the government cannot take your liberty without first showing cause and giving you a chance to be heard. These are not aspirations. They are not policy preferences. They are the floor beneath which a constitutional democracy does not sink. When the government treats them as optional it is telling you that equality under the law is a performance: a fiction maintained where convenient and abandoned where not.

The Department of Justice is not a private law firm. Its lawyers do not represent a client seeking to maximize wins. They represent the United States, and their obligation, by statute, by tradition, and by the ethical rules that govern every attorney who stands in a federal courtroom, is to seek justice. When the government concedes in one courtroom that a man’s detention is unconstitutional and argues in the next that an identically situated man’s detention is lawful, it is not seeking justice. It is optimizing for outcomes. Those are not the same thing, and the distance between them is measured in months of someone’s life.

A single decision from the U.S. Court of Appeals for the 2 ^nd Circuit could resolve this inconsistency. That case has been argued and is pending right now. The Department of Justice could resolve it even faster: one internal memorandum acknowledging what nearly every district court judge in the Southern District of New York has already held. They have not. Instead, they concede before the judges who have ruled against them and fight before the judges who have not. That is not law enforcement. That is forum-shopping with human lives.

And most people caught in this machinery will never see a lawyer. They will never file a petition. They will sit in county jails across the Northeast, not knowing that the law is on their side, not knowing that a federal judge four days away might order them released if only someone would ask. For every person we get out, there are scores in the same facility, with the same rights, and no one to assert them.

So we pro bono lawyers keep filing. One petition at a time, one person at a time. Not because the system is working. But because it is not. And because no one who is locked up in this country should have to wait for the system to fix itself.