Judge: Biden-era decree deal requires release of 600+ from ICE detention

By Jonathan Bilyk | Legal Newsline
The Center Square

A Chicago federal judge appointed by former President Joe Biden has ruled potentially hundreds of illegal immigrants must be released from federal custody, because the judge determined ICE and Border Patrol under President Donald Trump may have violated a deal struck between the Biden administration and pro-immigrant activists limiting the federal government’s ability to arrest, detain and deport illegal immigrants.

The Justice Department on Friday notified the court it is appealing U.S. District Judge Jeffrey Cummings’ order to the U.S. Seventh Circuit Court of Appeals and has requested a stay of the ruling, pending appeal.

Cummings on Thursday issued an order directing U.S. Immigrations and Customs Enforcement (ICE) to release more than 600 immigrants arrested and detained under ICE’s Operation Midway Blitz immigration enforcement initiative on bond and instead refer them to the government’s so-called “Alternatives to Detention” (ATD) program.

The ATD program has been in place since 2004 and, according to past accounts from the federal government, provides a path for immigrants who may be subject to deportation to remain in a local community, rather than in federal custody, while they wait on their immigration proceedings to play out.

Additionally, Cummings ordered 13 immigrants in ICE custody to be released immediately, as the judge said the government agreed those people had been arrested and detained improperly, allegedly in violation of a court-enforced deal struck between the Biden White House and immigration activists.

That deal had ended a class action lawsuit brought first in 2018 on behalf of illegal immigrants who activists and their attorneys claimed had been wrongfully detained and deported by ICE without first securing proper “targeted warrants” clearly identifying the individuals ICE wished to arrest and deport.

While the lawsuit had been filed against ICE during Trump’s first term in office, it continued after his departure. And in 2022, the Biden administration struck a deal with their political allies.

After he took office in 2021, Biden promptly reversed a wide range of Trump administration policies, notably including Trump’s more stringent approach to immigration enforcement.

According to estimates published by the Migration Policy Institute, federal Department of Homeland Security data showed at least 5.8 million immigrants were allowed into the U.S. under the Biden administration, either under so-called “asylum” status or without any kind of authorization.

Other sources place that number far higher, with The Center Square estimating 14 million illegal immigrants or more who entered the U.S. from 2021-2024.

In 2022, the Biden administration agreed to settle the class action on behalf of illegal immigrants in Chicago federal court, further curtailing enforcement actions to locate, arrest and deport illegal immigrants.

Among other terms, the settlement agreement essentially forbade ICE from conducting “raids,” but rather generally limiting ICE to making arrests and deportations only in cases in which the agency first obtained targeted warrants against specific individuals the agency believes may be in the U.S. illegally or when officers can document probable cause for making a stop and detention.

That agreement further included a provision which would allow the so-called “consent decree” to be reactivated whenever immigration rights activists believe ICE may no longer be following the procedures required in the decree.

Amid ramped up immigration enforcement actions in Chicago and elsewhere, immigration activists, including the National Immigrant Justice Center and the American Civil Liberties Union (ACLU), then used that provision to reopen the case and persuade Cummings to again order ICE, now once again under Trump, to comply with the agreement reached by his predecessor, regardless of the new president’s immigration policy priorities under the law.

In his new order, Cummings said he agreed with plaintiffs that ICE and Border Patrol had violated the consent decree potentially thousands of times during Operation Midway Blitz’s public immigration raids.

In the ruling, the judge faulted the Trump administration for its “abrupt 180º change in their interpretation” of federal immigration law, and their assertions the law requires them to detain all suspected illegal immigrants to force their compliance with immigration proceedings.

Cummings said he intended to enforce the 2022 agreement under the preceding interpretation of the law, which he said was consistent “with the manner in which the Supreme Court and the Bureau of Immigration Appeals had been treating foreign nations,” until he was directed otherwise by a federal appeals court or the U.S. Supreme Court.

Cummings noted more than 60% of those arrested and detained during the immigration raids had already been deported out of the U.S.

But he said hundreds still remained in custody, despite having been arrested during raids and not as the result of specific individual targeted warrants.

Cummings asserted ICE was still free to detain immigrants it classifies as “a high public safety risk.”

The judge gave ICE until noon on Nov. 14 to provide the court with a list of all detained immigrants it classifies as such a risk to public safety.

All others, however, must be released from detention and transferred to ICE’s ATD monitoring program. Bond would be set at $1,500 each, the judge ruled.

The judge further ordered ICE to provide lawyers for immigrants in the case “with the names and threat levels (i.e., risk of public safety and flight risk) of the remaining approximately 3,000 to 3,300 individuals who have been arrested since June 11, 2025, through the present, inclusive of those arrested in connection with Operation Midway Blitz…”

Attorneys from the pro-immigrant activist groups praised the ruling.

“Today was a good day as the court ordered the immediate release of 13 people who have been wrongfully arrested and detained by federal immigration officials,” said Michelle Garcia, deputy legal director at the ACLU of Illinois. “… Most importantly, the court committed to enforcing our agreement with the federal government – a step that creates a pathway for even more of the hundreds of people illegally arrested and detained during Operation Midway Blitz to be released. The court is holding ICE and CBP accountable for breaking the law.”

They said the ruling is a step toward restraining ICE immigration raids, which they said have “traumatized” and “spread terror” in Chicago and other local communities.

In an interview on Fox News, Greg Bovino, the U.S. Border Patrol commander who led Operation Midway Blitz, expressed defiance, saying: “Whether they were criminals or individuals that were taking jobs from Americans — you name it, that’s what they were doing. And I’ll tell you what’s going to happen, is… We’re going to go even harder on the streets. If he (Cummings) releases those 650, we’re going to apprehend 1,650 on the streets of Chicago.”