Seattle Prosecutors Stop Defending Many ICE Habeas Cases

Federal prosecutors in Western Washington will no longer defend ICE in many immigration habeas cases, and the first detainee freed under the new approach has already walked out of the Northwest ICE Processing Center in Tacoma. In an Oct. 26 letter to Chief U.S. District Judge David Estudillo, Acting U.S. Attorney Charles Neil Floyd wrote that his office “does not have the available resources, at this juncture, to continue entering AUSA appearances in every one of the dozens of § 2241 Immigration Petitions filed each week.” If no government lawyer files a notice of appearance within seven court days of the court’s standard scheduling order, the letter says, the court may assume no response is coming and rule on the petition using only the petitioner’s papers.

The letter surfaced through an order by U.S. District Judge Tiffany M. Cartwright granting the habeas petition of Baljit Singh, an asylum seeker from India, on Saturday, Nov. 7, Raw Story reported. Singh had been released under supervision while his asylum claim was pending, but ICE detained him in September after he and friends visiting Peace Arch Historical State Park ended up at the exit to the Canadian border. Because no government lawyer appeared within the seven-court-day window, Cartwright treated the petition as “intentionally unopposed.” The government’s answer was not due until Nov. 12. Cartwright ordered Singh released five days before that deadline and gave the government one day to comply, and final judgment was entered Monday. She wrote that she knew of no precedent for the Justice Department declining to appear for a federal agency instead of filing a statement of non-opposition, but she accepted the letter as the department’s official position. At least one other Western Washington petition has been granted unopposed since the letter, according to court records cited by Raw Story.

What the U.S. Attorney’s letter changes

The office is not walking away from habeas cases entirely. Floyd wrote that it will keep reviewing every petition and scheduling order, forward scheduling orders to ICE, and enter appearances and file returns “as the USAO determines appropriate.” It also reserves the right to appear in any case at any time. In the cases it skips, though, the office says it will take no responsibility for moving them through the court and will not relay communications between the court and ICE. Release orders in those cases can be emailed by the court directly to the Northwest ICE Processing Center under a process already in place.

Floyd’s stated reason is volume. He wrote that the surge of petitions, many copied from earlier filings, has hurt the office’s ability to respond both to petitions that need real attorney work and to other civil litigation in the district. He also pointed to the work an appearance creates after a detainee is released or gets a bond hearing: status reports, supplemental briefing, oppositions to fee motions under the Equal Access to Justice Act, and show-cause orders over what he called “often technical violations” of the scheduling order. The district’s caseload is large. The grassroots tracker habeasdockets.org counted more than 1,400 active habeas cases in the Western District of Washington last month, KING 5 reported.

What it means for pending ICE habeas cases

The clock runs from the scheduling order. The seven-court-day window starts when the court issues its standard scheduling order, not when the petition is filed. Any pending case where that window has passed without a notice of appearance now falls into the group the court may decide on the petitioner’s filing alone. Lawyers should watch the docket for a notice of appearance in each case, because that is now the signal of whether the government will contest it.

The petition has to carry the case. An unanswered habeas petition is not a default judgment. The judge still has to find that the detention is unlawful, and without a government brief the judge will look for gaps in the record on their own. Petitions built on issues this district has decided many times, such as bond eligibility for long-time residents who entered without inspection or the re-detention of people already on supervision, are best placed to win. Petitions filed without a lawyer are more exposed. Many detainees in Tacoma file handwritten petitions, and Seattle University law students have begun helping some of them under attorney supervision, according to KING 5.

Decisions may come faster. Singh’s case went from an expired appearance window to release days before the government’s answer would have been due. When the government stays silent, petitioners may get rulings shortly after the seven-court-day window closes instead of waiting for a full round of briefing. Floyd’s letter itself predicts the change will speed up most petitions and give the court more discretion.

An unopposed win may not be the last word. Because the office reserves the right to appear at any time, nothing in the letter prevents it from stepping into a case later. Fee motions are an open question too. The letter lists EAJA oppositions among the burdens the office wants to shed, and it is not yet clear whether fee requests will go uncontested in the cases it skips.

What Colorado’s habeas fight suggests for Washington

Washington is the second district this fall to let government silence decide immigration habeas cases, and our recent coverage of Colorado shows where that model can break. Colorado’s version is a formal Oct. 8 agreement between the U.S. Attorney’s Office and the court clerk: if the government does not answer within seven days, the petitioner must be released within 24 hours. Washington’s approach is different. It is a one-sided letter, not an agreement with the court, and release is not automatic. A judge still decides each case, which is why Cartwright wrote a merits order for Singh.

The Colorado cases show that the weak point is the handoff between the court and ICE officers. In one case, a release order did not reach the responsible ICE supervisor for nearly a week. In others, ICE added GPS monitoring that an official said is headquarters policy, and a supervisor testified to a directive to re-arrest some people freed on habeas orders. Floyd’s letter removes the U.S. Attorney’s Office from that handoff entirely in the cases it skips, leaving the court to email orders straight to the detention center. That is the same link that failed in Colorado, now without a prosecutor checking that the order arrived.

The Colorado dispute moved again on Monday. Nathan Rasper, the acting head of ICE’s Denver field office, testified before Judge Charlotte N. Sweeney that he gave a verbal instruction to re-arrest people released on judges’ orders, that he had not known about the court’s agreement when he did, and that the practice has stopped, Colorado Politics reported. Judge Nina Y. Wang has given the government until Tuesday to produce ICE’s directives on release conditions. Colorado judges have since begun writing release orders that limit re-arrest, including one that allows it only on a final removal order and another that requires advance notice to the court.

For Washington petitioners, the practical lesson is to ask for release terms in writing. Proposed orders can say that no conditions may be added beyond the petitioner’s prior supervision terms and that ICE may not re-detain the petitioner without notice to the court or a hearing first. If the GPS rule really is a national headquarters policy, it would apply to releases from Tacoma too. More broadly, two heavily burdened districts have now moved toward letting unopposed petitions resolve quickly, and other overloaded U.S. Attorney’s offices may follow. Whether ICE can hold many of these detainees without bond at all is headed to the Supreme Court in a mandatory detention case, and that ruling could reshape the volume behind all of this.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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