LEGAL: Track ICE in Illinois – Know Your Rights

Posted on October 23, 2025 by Mike Baker
ICE Tracking in Illinois: Where Law, Rights, and Community Power Collide Bilingual Blog Edition (English & Español)
Chicago flag with First Amendment protections and ICE tracking map pins

Ever wondered whether it’s really legal to track ICE in Illinois? The answer, like good salsa, has layers—federal law, state law, First Amendment rights, robust judicial decisions, and a healthy dose of Chicago spirit. This blog is for everyone: protect your family, inform your community, or just stay updated on the law. Plus, it’s bilingual!

The Best Site for ICE Tracking—And Why It Matters

The gold standard: ICEInMyArea.org

Why this site? Live, anonymous reporting. “Know your rights” resources. Emergency contacts. Bilingual interface. Real-time maps of ICE activity. Strictly follows federal and Illinois law—making it the safest choice for staying informed and protected.

Visit ICEInMyArea.org →

Legal Deep Dive: Federal and State Law—The Battle of Titans

Federal law protects ICE agents. Statutes like 18 USC §111 make it illegal to forcibly impede or assault a federal officer. 18 USC §2101 prohibits inciting or participating in a riot. 18 USC §1505 punishes obstruction of agency proceedings. However, just watching, reporting, or even filming ICE agents does not break federal law unless someone physically interferes or incites violence. Legal experts and the courts confirm: passive observation and public reporting are protected speech and fundamentally different than unlawful interference.

“You have a First Amendment right to record law enforcement, which federal courts and the Justice Department have recognized and affirmed.”

— Electronic Frontier Foundation

Illinois law goes even further with the TRUST Act, which prohibits local law enforcement from cooperating with ICE on civil immigration enforcement. Police cannot detain, arrest, or share info with ICE based solely on immigration status. Chicago and Illinois laws explicitly protect your right to record and report officers in public.

Illinois TRUST Act and First Amendment protection badge
  • Local police must NOT help ICE unless there’s a federal criminal warrant.
  • Illinois and Chicago laws explicitly protect your right to record public officials, including ICE agents, in public spaces.
  • Law enforcement cannot arrest, detain, or share information based only on immigration status.

“Forcing Chicago and Illinois law enforcement officials to help federal agents conduct deportation operations is unconstitutional…It would allow the federal government to commandeer States…barred by the Tenth Amendment.”

— U.S. District Court Judge Lindsay Jenkins

“Unlike the President, we follow the law and listen to the courts.”

— Governor JB Pritzker

“Community members can record law enforcement in public without fear of prosecution. That right…is settled law.”

— Ed Yohnka, ACLU of Illinois

Federal officials sometimes claim ICE tracking “endangers officers,” but courts and civil liberties organizations have held firm: First Amendment rights and public safety outweigh enforcement concerns in this context. Monitoring and reporting help communities ensure enforcement abides by constitutional and state guidelines.

“Government spokespeople cannot diminish that right by mischaracterizing recording as ‘violence’ or ‘doxxing.’ This is the public holding the Administration accountable.”

— ACLU of Illinois Statement

“ICE agents who violate court mandates on warrantless arrests can face contempt or prosecution.”

— U.S. District Judge Elaine Cummings

¿Es legal rastrear a ICE en Illinois?

¡Sí! ICEInMyArea.org es el sitio web ideal para informarse, protegerse y actuar siempre dentro de la ley. Ofrece alertas en vivo, recursos legales y números de emergencia en español e inglés.

En Illinois, la Ley TRUST prohíbe que la policía local ayude a ICE sin una orden judicial. La ley protege tu derecho a grabar y reportar agentes en espacios públicos. Las cortes afirman que monitorear y documentar no es violencia ni obstrucción, sino derecho constitucional.

Citas reales:

  • La jueza Jenkins: “Obligar a funcionarios de Illinois a ayudar con deportaciones es inconstitucional… está prohibido por la Décima Enmienda.”
  • Ed Yohnka, ACLU de Illinois: “La comunidad puede grabar a la policía en público sin miedo. Ese derecho es ley asentada.”
  • El gobernador Pritzker: “A diferencia del Presidente, seguimos la ley y escuchamos a los tribunales.”

¿El gobierno federal quiere proteger a sus agentes? Sí, pero la Corte Federal de Illinois dictamina que el derecho constitucional a documentar, reportar y observar es MÁS fuerte en este contexto.

No cruces la línea: informar o grabar es legal. Interferir físicamente o incitar violencia NO lo es.

¡Así que reporta, infórmate, y mantente seguro! Tu derecho es real y está respaldado por la Constitución y las leyes de Illinois.

The Bottom Line (and a Visual Pop!)

Robust federal and state law make it complex. Yes, there is legitimate interest in protecting officers during aggressive law enforcement, but First Amendment protections and public support for transparency fundamentally outweigh those enforcement concerns in Illinois.

Visit ICEInMyArea.org Now

Know Your Rights If ICE Approaches You

  • You have the right to remain silent. You do not have to answer questions about your immigration status, where you were born, or your citizenship.
  • You do not have to show documents unless you are driving and required to show license & registration.
  • You can refuse searches. You do not have to consent to a search of yourself, your belongings, or your home without a warrant.
  • Request an attorney. You have the right to speak with a lawyer before answering questions.
  • Do not sign anything. Never sign documents from ICE without consulting a lawyer.
  • If detained, you have the right to make a phone call to a lawyer or trusted contact.

Chicago & Illinois Emergency Help Numbers
ICIRR Family Support Hotline (English/Español/Korean/Polish): 1-855-HELP-MY-FAMILY (1-855-435-7693)
Instituto del Progreso Latino (Legal Aid, Chicago): 773-890-0055 ext 4515
Legal Aid Chicago: 312-341-1070

Tip: Save these numbers in your phone. Share with your family and friends!

Conozca Sus Derechos Si Se Le Acerca ICE

  • Tiene derecho a permanecer en silencio. No tiene que responder preguntas sobre su estado migratorio, lugar de nacimiento o ciudadanía.
  • No tiene que mostrar documentos a menos que esté manejando y la ley le exija mostrar la licencia y la registración.
  • Puede negar registros. No tiene que permitir el registro de usted, sus pertenencias o su hogar sin una orden judicial.
  • Solicite un abogado. Tiene derecho a hablar con un abogado antes de responder preguntas.
  • No firme nada. Nunca firme documentos de ICE sin consultar con un abogado.
  • Si le detienen, tiene derecho a hacer una llamada a un abogado o persona de confianza.

Números de ayuda y emergencia en Chicago y Illinois
Línea de Ayuda Familiar ICIRR (inglés/español/coreano/polaco): 1-855-HELP-MY-FAMILY (1-855-435-7693)
Instituto del Progreso Latino (Ayuda legal, Chicago): 773-890-0055 ext 4515
Legal Aid Chicago: 312-341-1070

Visite ICEInMyArea.org ahora

Consejo: Guarda estos números en tu teléfono. ¡Comparte con tu familia y comunidad!

Share the site, share your voice, share your law knowledge—because in Illinois, tracking ICE isn’t just smart; it’s constitutionally celebrated!

Posted in Chicago, ICE, ICE Detainers, ice-tracking-legality-illinois-know-your-rights | Leave a comment

BIA’s Radical Move: Indefinite Immigration Detention Without Bond After YAJURE HURTADO

Posted on September 5, 2025 by Mike Baker

Breaking: BIA Eliminates Bond Hearings for Millions in Matter of YAJURE HURTADO –

On September 5, 2025, the Board of Immigration Appeals (BIA) issued one of its most controversial decisions in recent memory. In Matter of YAJURE HURTADO, the BIA ruled that Immigration Judges completely lack authority to conduct bond hearings for anyone present in the United States “without admission”—a category that includes millions of people who crossed the border without inspection, even decades ago.

This sweeping decision represents a radical departure from 28 years of established practice and creates a constitutional crisis that federal courts are unlikely to tolerate.

Nearly all BIA members are appointees of Republican Attorneys General—Bondi, Barr, Mukasey—with just two Holder Democrats left out of eighteen. Bondi’s recent moves force out all Biden appointees. The Board fast-tracks cases involving detainees. The intent is to pressure noncitizens to give up and leave. Panel assignment remains tightly controlled, blocking any fair draw for immigrants. The Board now acts as a removal engine, not as a neutral appellate body.

The Facts: A Venezuelan’s Years-Long Wait for Justice

Jonathan Javier Yajure Hurtado, a Venezuelan citizen, crossed the U.S. border without inspection near El Paso in November 2022. USCIS granted him Temporary Protected Status (TPS) in 2024, but that status expired on April 2, 2025. Six days later, DHS issued a Notice to Appear charging him as inadmissible under INA § 212(a)(6)(A)(i) for being present without admission.

Crucially, DHS arrested Yajure Hurtado on a warrant—the exact trigger that normally gives Immigration Judges bond authority under INA § 236(a). The Immigration Judge denied bond, ruling he lacked jurisdiction because Yajure Hurtado was subject to mandatory detention under § 235(b)(2)(A). The respondent had been in the U.S. for almost three years and had previously received legal status, yet the BIA affirmed: no bond hearing, ever.

The BIA’s Ruling

Immigration Judge’s Authority on Bond Requests

The BIA made clear that Immigration Judges lack authority to grant bond to aliens present in the U.S. without admission, as mandated by the Immigration and Nationality Act (INA). The Board reviewed the case and requested supplemental briefs specifically addressing the authority of Immigration Judges regarding bond hearings for individuals in Yajure Hurtado’s situation.

The Immigration Judge denied bond due to lack of jurisdiction under section 235(b)(2)(A) of the INA, even though the respondent had entered the U.S. without inspection in November 2022 and was detained only after his temporary protected status expired in April 2025—nearly three years later.

Statutory and Regulatory Framework Analysis

The BIA emphasized that the authority of Immigration Judges is strictly defined by the INA and related regulations, which limit their jurisdiction over bond requests. Key findings include:

  • Immigration Judges can only adjudicate matters specifically delegated by the INA and the Attorney General
  • Section 235 of the INA governs the detention of aliens who have not been admitted, mandating their detention during immigration proceedings
  • The INA categorizes applicants for admission and specifies that those who are not admitted are subject to mandatory detention

Detention Categories Under the INA

The BIA outlined how the INA creates different categories of applicants for admission, each with specific detention requirements:

  • Section 235(b)(1): Includes arriving aliens and those not admitted or paroled, both subject to mandatory detention
  • Section 235(b)(2)(A): Serves as a catchall for applicants for admission who are not clearly entitled to be admitted, also mandating detention
  • Section § 236(c): Provides a different framework for aliens who are deportable, allowing for bond hearings under certain conditions. “The Attorney General shall take into custody any alien who is deportable by reason of having committed” these crimes. INA § 236(c)(1).
    • INA § 236(c) Mandatory Detention Applies To:
    Aggravated felonies (murder, drug trafficking, major fraud)
    Crimes involving moral turpitude (within 5 years of admission, 1-year+ sentence)
    Controlled substance offenses (not single small marijuana)
    Firearms offenses
    Domestic violence, stalking, child abuse/neglect
    Human trafficking
    Espionage, sabotage, terrorism

    No bond hearing is available for these categories.

The Board’s Rejection of Respondent’s Arguments

Time-Based Argument

The respondent argued that his prolonged presence in the U.S. without lawful status should exempt him from mandatory detention under section 235, claiming he cannot be considered “seeking admission” after residing in the U.S. for nearly three years. The Board found this argument legally unsupported, as it creates ambiguity regarding his status and would undermine the statutory framework established by the INA.

Legislative History and Intent

The BIA conducted an extensive analysis of legislative history, finding that it supports the interpretation that aliens present without admission are subject to mandatory detention:

  • The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) changed the terminology from “entry” to “admission,” affecting the rights of those entering without inspection
  • Congress aimed to eliminate disparities in procedural rights between those who entered without inspection and those who presented themselves at ports of entry
  • The legislative history confirms that aliens who enter without inspection are considered applicants for admission and thus subject to mandatory detention

Statutory Interpretation Methodology

The BIA emphasized that the interpretation of the Immigration and Nationality Act (INA) is complex due to its historical modifications and interrelated provisions:

  • The INA consists of various legal provisions created and modified over time
  • Statutory provisions must be read in context, not in isolation
  • Immigration Judges cannot perform acts that are not specifically authorized by the INA

Definition of Applicants for Admission

The Board clarified that aliens present in the U.S. without formal admission are considered applicants for admission under the INA:

  • An alien who has not been admitted is deemed an “applicant for admission”
  • This includes those who have crossed the border unlawfully and have not been inspected
  • Applicants remain in this status until they are clearly entitled to admission
  • Aliens who unlawfully enter the U.S. remain applicants for admission and are subject to mandatory detention

The Board’s Final Determination

Immigration Judges lack authority to grant bond hearings for applicants for admission who crossed unlawfully, regardless of the time elapsed since entry. The Board stated that holding otherwise would create an “incongruous legal situation” where those who evaded detection longer would receive better treatment than those who presented themselves at ports of entry.

The BIA noted significant consequences for violating the INA:

  • Violations can lead to significant consequences for aliens seeking relief from removal
  • Certain aliens may face a rebuttable presumption of asylum ineligibility if they did not use lawful pathways to enter the U.S.
  • Aliens not inspected and admitted are ineligible for adjustment of status under section 245(a) of the INA
  • Asylum applicants must file within one year of their last arrival to be eligible for relief

What This New Case Actually Does: Mandatory Detention for All EWI Cases

YAJURE HURTADO creates a rule of mandatory detention for nearly all noncitizens in removal proceedings who entered the United States without inspection—regardless of criminal history, community ties, or length of time inside the country.

The BIA’s Sweeping Rule

The Board holds that anyone present in the United States “without admission” (meaning uninspected entrants, EWI), is classified as an “applicant for admission” under INA § 235(b)(2)(A). Under that statutory section, Immigration Judges cannot conduct bond hearings or authorize release on bond for any such person. The only exceptions involve parole granted directly by DHS or the Attorney General, but judges themselves have zero discretion to consider release or conditions.

Legislative History Confirms Congressional Intent for Mandatory Detention

The legislative history of INA § 235(b) makes clear—particularly in H.R. Rep. No. 104-469, pt. 1, at 225–226, 229 (1996)—that Congress intended mandatory detention without bond hearings for applicants for admission, including those present without lawful admission.

In House Judiciary Committee Report H.R. Rep. No. 104-469, pt. 1, at 225–226 (1996), Congress replaced the concept of “entry” with “admission” and clarified that aliens who enter without inspection are not entitled to more rights than those who present themselves for inspection at a port of entry.

This House Report states:

“…the pivotal factor in determining an alien’s status will be whether or not the alien has been lawfully admitted.” H.R. Rep. No. 104-469, pt. 1, at 225.

It specifies further:

“…such aliens will not be considered to have been admitted, and thus, must be subject to a ground of inadmissibility, rather than a ground of deportation, based on their presence without admission.” Id. at 226.

The report discusses the transition of bond authority for deportable aliens and clarifies that this does not alter Congress’s intent to apply mandatory detention to those not lawfully admitted.

“…section 236(a) restates the current provisions in section 242(a)(1) regarding the authority of the Attorney General to arrest, detain, and release on bond an alien who is not lawfully in the United States.”

Key Takeaways

  • The legislative history confirms that Congress intended to eliminate the greater procedural and substantive rights (such as bond hearings) previously available to those who entered without inspection, compared to those inspected at a port of entry.
  • After IIRIRA, applicants for admission—including those present without inspection—are covered by the mandatory detention provision in section 235(b), and bond hearings by Immigration Judges are not authorized.
  • The challenge must be on constitutional due process and equal protection grounds.

How Is This Different From the Laken Riley Act?

This is where many practitioners get confused. The Laken Riley Act and YAJURE HURTADO work differently:

  • The Laken Riley Act creates mandatory detention for EWI and other noncitizens who have been arrested, charged, or convicted of specified offenses, barring them from bond and requiring ICE to detain them.
  • YAJURE HURTADO makes detention mandatory for all EWIs in removal proceedings under INA § 235(b)(2)(A)—not just those with crimes. This case applies even to those who have lived in the U.S. for years with no criminal history.

Under this new case, the mere fact of entry without inspection is enough to bar Immigration Judges from considering release on bond. The case declares that, while proceedings are pending, Immigration Judges “lack authority to hear bond requests or to grant bond” for these individuals.

Practical Consequences

  • No bond hearings: Individuals who crossed the border without inspection cannot ask an Immigration Judge for a bond, even if they’ve never been arrested, have U.S. citizen family, or strong community ties.
  • Mandatory ICE detention: They are held in detention for the entire period of their case, unless DHS (not the judge) grants parole for humanitarian purposes—a rare event.
  • Years-long detention: This ruling allows ICE to detain people for months or years without judicial review, based entirely on the manner of initial entry decades ago.

Bottom Line: YAJURE HURTADO means mandatory detention, no possibility of judicial release on bond, for almost all people placed in removal proceedings who entered without inspection, unless separately eligible for humanitarian parole by DHS or the Attorney General.

The Laken Riley Act: A Critical Distinction You Need to Understand

To fully grasp the devastating impact of YAJURE HURTADO, you must understand how it differs from the Laken Riley Act—and why this distinction matters enormously for your clients.

What the Laken Riley Act Actually Does

The Laken Riley Act, signed into law in January 2025, expands mandatory detention under INA § 236(c) to include certain noncitizens who are:

  • Present in the United States without being admitted or paroled (EWI), AND
  • Have been arrested, charged with, or convicted of specific crimes, including:
    • Theft (including shoplifting, burglary, larceny)
    • Assault on law enforcement officers
    • Causing serious bodily injury or death

Key Point: The Laken Riley Act requires both unlawful presence AND criminal conduct to trigger mandatory detention.

Why YAJURE HURTADO Is Far More Dangerous

While the Laken Riley Act targets EWI individuals with criminal issues, YAJURE HURTADO eliminates bond hearings for ALL EWI cases under INA § 235(b)(2)(A)—regardless of criminal history. Here’s the critical difference:

Scenario Laken Riley Act YAJURE HURTADO
EWI + No Criminal History Bond Hearing Available NO BOND HEARING
EWI + Old Arrest (No Conviction) Mandatory Detention NO BOND HEARING
EWI + U.S. Citizen Children Bond Hearing Available NO BOND HEARING
EWI + 20 Years in U.S. Bond Hearing Available NO BOND HEARING

The BIA’s Flawed Logic on Laken Riley

In YAJURE HURTADO, the respondent argued that if all EWI individuals were already subject to mandatory detention under § 235(b)(2)(A), why would Congress need to pass the Laken Riley Act to detain some of them? This is actually a powerful argument that the BIA dismisses too quickly.

The BIA responds that the Laken Riley Act doesn’t “alter or undermine” § 235(b)(2)(A), but this misses the point entirely. The real question is: If Congress believed all EWI individuals were already detained under § 235(b)(2)(A), why create redundant detention authority?

The Logical Problem

  • Congress specifically targeted criminal EWI cases in the Laken Riley Act
  • This suggests Congress believed non-criminal EWI cases were eligible for bond
  • Otherwise, why distinguish between criminal and non-criminal EWI cases at all?

Practical Impact: Who Gets Hurt Most

The YAJURE HURTADO decision creates a perverse result where people with zero criminal history face the same mandatory detention as those arrested for crimes:

Under Laken Riley Act ONLY:

  • ✅ Mother with U.S. citizen children, no criminal history → Bond hearing available
  • ✅ Long-term resident, community ties, no arrests → Bond hearing available
  • ❌ Person arrested for shoplifting → Mandatory detention

Under YAJURE HURTADO + Laken Riley:

  • ❌ Mother with U.S. citizen children, no criminal history → NO bond hearing
  • ❌ Long-term resident, community ties, no arrests → NO bond hearing
  • ❌ Person arrested for shoplifting → NO bond hearing

Why This Matters for Constitutional Challenges

The distinction between Laken Riley and YAJURE HURTADO provides powerful ammunition for constitutional challenges:

  1. Congressional Intent: The Laken Riley Act shows Congress distinguished between criminal and non-criminal EWI cases, undermining the BIA’s broad interpretation
  2. Equal Protection: YAJURE HURTADO creates arbitrary distinctions where manner of entry (not dangerousness) determines detention
  3. Due Process: Indefinite detention without individualized hearings violates constitutional norms, especially for non-criminal cases

Bottom Line: The Laken Riley Act was designed to detain dangerous individuals who committed crimes. YAJURE HURTADO sweeps far broader, eliminating bond hearings for everyone who entered without inspection—including those who pose no danger and have deep community ties. This distinction will be crucial in federal court challenges.

The Government’s Own Contradiction

Remarkably, the BIA acknowledges that “for years Immigration Judges have conducted bond hearings for aliens who entered the United States without inspection.” They even admit that in 1997, the INS officially stated that such individuals “will be eligible for bond and bond redetermination.”

If the BIA is correct that § 235(b)(2)(A) eliminates bond hearings entirely, this raises uncomfortable questions:

  • Why did the government conduct thousands of illegal hearings for 28 years?
  • Why did Congress need to pass the Laken Riley Act to expand detention if everyone was already detained?
  • How can decades of established practice suddenly become unauthorized?

Three Fatal Legal Errors

1. Violation of Clear Congressional Delegation

The Statutory Framework:

  • INA § 236(a) authorizes Immigration Judges to release individuals arrested on warrants “on bond…or conditional parole”
  • 8 C.F.R. § 1236.1(d) explicitly delegates authority to Immigration Judges to “release the alien, and determine the amount of bond, if any“

The BIA’s Error:

Despite acknowledging that Yajure Hurtado was arrested on a warrant (triggering § 236(a)), the BIA ruled that § 235(b)(2)(A) completely nullifies this congressionally-delegated authority. This direct contradiction violates basic principles of statutory interpretation.

2. Failure to Apply Constitutional Avoidance

When a statute can be interpreted multiple ways, courts must choose the interpretation that avoids serious constitutional problems. In Zadvydas v. Davis, the Supreme Court applied this principle to avoid indefinite detention by reading implicit time limits into detention statutes.

YAJURE HURTADO’s Violation:

The BIA chose the most extreme interpretation possible—indefinite detention without any judicial review based solely on manner of entry. They had several constitutional alternatives:

  • Allow bond hearings after reasonable periods (like the Ninth Circuit’s six-month rule)
  • Preserve § 236(a) authority for warrant-based arrests
  • Read implicit time limits into § 235(b)(2)(A) detention

Instead, they embraced the interpretation that creates the most serious constitutional problems.

3. Creation of Indefinite Detention Without Due Process

YAJURE HURTADO authorizes permanent detention without hearings for individuals who may have:

  • Lived in the U.S. peacefully for decades
  • U.S. citizen children and spouses
  • No criminal history or flight risk
  • Strong community ties and employment

This creates exactly the due process violation the Supreme Court warned against in Zadvydas—indefinite detention based on status rather than individual dangerousness or flight risk.

The Absurd Result:

  • Visa overstay (admitted then stayed): Gets bond hearing under § 236(a)
  • 30-year resident who crossed as a child: No hearing, ever

⚖️ The End of Chevron Deference: Why YAJURE HURTADO Signals a Seismic Shift

For nearly 40 years, the doctrine of Chevron deference allowed federal agencies like the Department of Homeland Security and the Board of Immigration Appeals to interpret ambiguous immigration statutes—and courts had to accept those interpretations as long as they were “reasonable.” That all changed on June 28, 2024.

Loper Bright Enterprises v. Raimondo (2024)

In Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Supreme Court overruled Chevron deference in a landmark 6-3 decision written by Chief Justice John Roberts. The Court held that the Administrative Procedure Act (APA) requires courts to “exercise their independent judgment” when deciding whether an agency has acted within its statutory authority—not defer to the agency’s interpretation simply because a statute is ambiguous.

“Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority… agencies have no special competence in resolving statutory ambiguities. Courts do.”

— Chief Justice John Roberts, Loper Bright, 603 U.S. at 384-85

Read the Full Decision:

Supreme Court Opinion: Loper Bright Enterprises v. Raimondo (PDF)

What Changed: Before vs. After Loper Bright

Under Chevron (1984-2024) After Loper Bright (2024-Present)
Courts deferred to agency interpretations of ambiguous statutes if the interpretation was “reasonable” Courts must use independent judgment to interpret statutes—no automatic deference to agencies
Agencies like DHS/BIA had wide discretion to fill statutory gaps Judges decide statutory meaning using traditional tools of interpretation
Immigration Judges followed BIA precedent interpreting ambiguous INA provisions Federal courts can reject agency interpretations and adopt their own readings

⚡ How Loper Bright Applies to YAJURE HURTADO

YAJURE HURTADO was decided in the post-Loper Bright world, and the BIA’s analysis reflects this seismic shift. The Board explicitly rejected the respondent’s argument that decades of agency practice (allowing bond hearings for EWI cases) should control statutory interpretation. Under Chevron, that longstanding practice might have carried significant weight. Not anymore.

The BIA’s Loper Bright Analysis

In footnote 6, the BIA acknowledged that for years, Immigration Judges conducted bond hearings for EWI aliens, and the INS’s 1997 rule stated these individuals “will be eligible for bond.” But the Board held this practice cannot override explicit statutory text:

“The Supreme Court in Loper Bright made that statement specifically with respect to judicial interpretation of a ‘doubtful and ambiguous law.’ As explained above, the statutory text of the INA is not ‘doubtful and ambiguous’ but is instead clear and explicit in requiring mandatory detention.”

⚠️ Translation: The BIA used Loper Bright to say that INA § 235(b)(2)(A)’s mandatory detention language is so clear that no deference to agency practice matters. The plain text controls—period.

⚖️ The Double-Edged Sword: Why Loper Bright Cuts Both Ways

While Loper Bright allowed the BIA to eliminate bond hearings by reading the statute literally, it also creates powerful opportunities for constitutional challenges:

✅ Opportunities for Advocates

  • No more BIA deference: Federal courts can reject harsh BIA interpretations without automatically deferring
  • Constitutional avoidance: Courts must interpret statutes to avoid constitutional problems—YAJURE HURTADO creates massive due process issues
  • Independent review: Seventh Circuit and other appellate courts can apply their own readings of INA § 235(b)(2)(A) and § 236(a)
  • Equal protection arguments: Courts can scrutinize the arbitrary distinction between EWI and visa overstays without deferring to agency justifications

⚠️ The Risks

  • Conservative circuits emboldened: Anti-immigrant judges in circuits like the Fifth can impose even harsher interpretations
  • Loss of favorable precedent: Past BIA decisions that helped immigrants may be more vulnerable to challenge
  • Litigation uncertainty: Different circuits may reach wildly different conclusions on the same statutory language

️ The Path Forward: Constitutional Challenges in a Post-Loper Bright World

Loper Bright fundamentally changes how federal courts will review YAJURE HURTADO. Rather than deferring to the BIA’s interpretation, courts must independently decide whether § 235(b)(2)(A) truly eliminates all bond authority—and whether such an interpretation violates the Constitution.

Key Arguments for Litigation:

  1. Statutory Construction: § 236(a) and § 235(b)(2)(A) must be read together—courts can harmonize rather than eliminate bond authority
  2. Constitutional Avoidance Canon: When two interpretations exist, courts must choose the one that avoids serious constitutional problems (indefinite detention without review)
  3. Due Process: Zadvydas v. Davis requires implicit time limits on detention to avoid constitutional violations
  4. Equal Protection: Treating 20-year residents with families identically to recent border crossers is constitutionally suspect

Bottom Line: Loper Bright empowers federal courts to reject YAJURE HURTADO’s extreme interpretation on both statutory and constitutional grounds—without giving any deference to the BIA’s reading. This is the litigation battleground for 2025 and beyond.

Strategic Litigation Opportunities

Federal Habeas Corpus (28 U.S.C. § 2241)

Federal district courts retain jurisdiction over constitutional challenges to immigration detention. Key arguments:

  1. Procedural Due Process: Mathews v. Eldridge requires individualized hearings when fundamental liberty is at stake
  2. Substantive Due Process: Indefinite detention based solely on manner of entry lacks rational basis
  3. Constitutional Avoidance: Courts must interpret § 235(b)(2)(A) to preserve some form of judicial review

Target Cases:

  • Anyone detained over six months without a bond hearing
  • Long-term residents with strong community ties
  • Individuals with U.S. citizen family members
  • Those who previously held legal status

Circuit Court Appeals

The Seventh Circuit presents particularly fertile ground for challenge:

  • Strong history of applying constitutional avoidance principles
  • Emphasis on procedural due process
  • No binding precedent supporting YAJURE HURTADO’s extreme position

Practical Guidance for Practitioners

Immediate Actions

  1. File Habeas Petitions: Any client detained over six months should file 28 U.S.C. § 2241 petitions in federal court
  2. Preserve Arguments: Continue requesting bond hearings to preserve appellate rights
  3. Document Constitutional Violations: Build records showing individual hardship, family separation, and lack of dangerousness

Constitutional Arguments

Focus on constitutional violations rather than statutory interpretation:

  1. Due Process: Emphasize that detention without individualized hearings violates fundamental fairness
  2. Equal Protection: Highlight the arbitrary distinction between visa overstays and border crossers
  3. Separation of Powers: Argue that complete elimination of judicial review exceeds executive authority

Why This Decision Won’t Survive Federal Court Review

The BIA’s position represents the most restrictive interpretation among all federal courts. The Ninth Circuit has applied constitutional avoidance to require bond hearings after six months, while other circuits have recognized constitutional limits on prolonged detention.

In Jennings v. Rodriguez, the Supreme Court specifically left open the constitutional question of whether indefinite detention violates due process. More importantly, Zadvydas established that when statutory language could authorize indefinite detention, courts must read implicit limitations to preserve constitutional rights.

Conclusion: A Decision Destined to Fall

Matter of YAJURE HURTADO represents the BIA at its worst—ignoring clear congressional delegation, violating constitutional avoidance principles, and creating the exact type of indefinite detention the Supreme Court has repeatedly warned against.

The decision’s fundamental flaws make it exceptionally vulnerable to constitutional challenge. Federal courts that have spent decades limiting immigration detention authority are unlikely to accept the BIA’s claim that Congress intended to authorize permanent detention without review based solely on decades-old border crossings.

For Illinois practitioners and immigration attorneys nationwide, this decision presents both a crisis and an opportunity. While YAJURE HURTADO threatens to strip away basic due process rights for millions, its legal vulnerability creates multiple avenues for successful federal court challenges.

The key is to frame these challenges not as immigration law disputes, but as fundamental constitutional questions about the limits of government detention power—an area where federal courts are most protective of individual rights.

The fight against YAJURE HURTADO starts now. Armed with strong constitutional arguments and decades of contrary precedent, practitioners have every reason to expect federal courts will reject this extreme interpretation and restore the bond hearings that have been a cornerstone of immigration due process for nearly three decades.

This analysis is for educational purposes and does not constitute legal advice. Practitioners should consult current case law and local practice before filing habeas petitions or other challenges to immigration detention.

Download the Decision

Read the complete BIA decision for yourself:

Download Matter of YAJURE HURTADO (PDF)

⚖️

UPDATE: Federal Courts Overwhelmingly Reject YAJURE HURTADO’s Mandatory Detention Interpretation

Posted: November 1, 2025

The federal judiciary is speaking—and they’re saying exactly what we predicted when YAJURE HURTADO was decided. In a stunning legal rebuke documented by POLITICO, more than 100 federal judges have now ruled at least 200 times that the Trump administration’s mandatory detention policy—based on the same statutory interpretation adopted in YAJURE HURTADO—appears to violate immigrants’ constitutional rights or is simply illegal.

The Numbers Tell the Story

  • 200+ rulings against the mandatory detention policy since July 2025
  • 100+ federal judges have rejected the administration’s interpretation
  • Judges appointed by every president since Ronald Reagan—including 12 Trump-appointed judges
  • Only 2 judges (one Obama appointee, one Trump appointee) have sided with the government

Federal judges across ideological lines have explicitly stated what legal scholars and advocates warned from day one: treating longtime U.S. residents as “applicants for admission” subject to mandatory detention without bond hearings is a dangerous misreading of immigration law that violates due process. As U.S. District Judge Richard Boulware (an Obama appointee) ruled, “The overwhelming majority of district courts across the country… have found [this] statutory interpretation incorrect and unlawful.”

⚠️ What This Means: Even Trump-appointed judges like Kyle Dudek (Florida), Terry Doughty (Louisiana), and Jason Pulliam (Texas) have rejected this interpretation, finding it strips individuals of basic constitutional protections. Judge Pulliam specifically ruled that detaining someone without an “individualized assessment” of dangerousness violates due process—the exact concern we raised in our original analysis.

This judicial consensus vindicates the constitutional arguments we outlined when YAJURE HURTADO was first issued. The Board of Immigration Appeals may have adopted this extreme reading, but federal courts with life tenure and constitutional authority aren’t buying it. The administration has begun appealing these decisions to circuit courts, but the sheer volume and bipartisan nature of these rejections suggests appellate judges will face overwhelming pressure to side with constitutional principles over administrative overreach.

The Bottom Line: YAJURE HURTADO’s mandatory detention interpretation is collapsing under judicial scrutiny nationwide. For Illinois practitioners and advocates, this means habeas corpus petitions under 28 U.S.C. § 2241 challenging detention are winning—and winning big. The statutory interpretation battle is far from over, but the constitutional battle is being decisively won in courtrooms from coast to coast.

Posted in BIA, Bond | Leave a comment

Matter of O-Y-A-E- (BIA 2025): BIA Clarifies Convention Against Torture Standard—Old Threats Alone Are Not Enough

Posted on August 23, 2025 by Mike Baker

BIA Tightens CAT Protection: Matter of O-Y-A-E-

Read the official opinion:

Matter of O-Y-A-E-, 29 I&N Dec. 190 (BIA 2025)

Quick Overview

  • New Precedent: General threats and countrywide danger no longer qualify for protection under the Convention Against Torture (CAT) unless the risk is recent, individualized and ongoing.
  • Background: The respondent, a former Venezuelan military counterintelligence officer, refused to falsify documents for her commander and faced threats in July 2021. She retired in December 2021. After no contact for years, she left Venezuela in February 2024.
  • BIA Ruling: The Board reversed a grant of CAT deferral, holding that the risk was too attenuated and not supported by current, particularized evidence.

How Did the Standard Change?

Previous Law: Until now, courts often considered a combination of credible past threats, general evidence of country conditions, and the government’s capacity to identify an applicant as sufficient for CAT protection.

Matter of O-Y-A-E-: The Board firmly requires “recent, particularized threat of torture.” Evidence of prior threats or countrywide human rights abuses, alone, is inadequate if the applicant was not harmed, contacted, or pursued in the years before departure.

Legal authorities cited:

  • Dhital v. Mukasey: Applicants must face a “particularized threat of torture.”
  • Tzompantzi-Salazar v. Garland: General crime, violence and police corruption are insufficient—evidence must show ongoing individual risk.
  • Matter of R-A-F-: Board reviews “predictive factual findings” for clear error, but new emphasis is on contemporaneous evidence.

Timeline of Case Events

July 2021 Threats from military commander. Visits to respondent’s home.
December 2021 Respondent retires from Venezuelan military. No further contact.
Feb 2024 Leaves Venezuela. No threats or pursuit for 2.5 years prior.
July 2025 BIA reverses CAT protection, citing absence of ongoing individualized risk.

Summary Table: What Counts Now?

Evidence Before Now (O-Y-A-E-)
Old threats Often enough Insufficient
General country conditions Often enough Insufficient
Recent, ongoing risk Not always required Absolutely required
Government pursuit Helpful, not essential Essential

Practical Impact and Next Steps

  • This ruling will lead to far more denials for Venezuelan and other applicants whose last threat is “stale.”
  • Attorneys must develop recent, documentary proof of pursuit or threats right up to the time of departure.
  • CAT protection is now nearly impossible if you only have old threats or rely on general reports of abuse.

In sum: The BIA in Matter of O-Y-A-E- demands real-time, individualized risk for CAT protection. Old stories and broad country evidence no longer suffice.
Always read and cite the full case:
Matter of O-Y-A-E-, 29 I&N Dec. 190 (BIA 2025)

BIA vs. ALL CIRCUITS: This Decision Is Dead on Arrival

THE FUNDAMENTAL SPLIT: Aggregate vs. Individual Analysis

EVERY FEDERAL CIRCUIT SAYS:

“Consider ALL risk factors CUMULATIVELY”

Past threats + Country conditions + Personal factors = ANALYZED TOGETHER

BIA O-Y-A-E- SAYS:

“Each factor must stand ALONE”

Old threats = worthless
Country conditions = insufficient

THE CIRCUITS REQUIRING AGGREGATE APPROACH

️ Third Circuit – Pennsylvania, New Jersey, Delaware

Case: Kamara v. Attorney General, 420 F.3d 202, 213-14 (3d Cir. 2005)

Standard: “Cumulative probability of torture by [multiple sources] exceeds 50%”

️ Fourth Circuit – Maryland, Virginia, North Carolina, South Carolina, West Virginia

Case: Rodriguez-Arias v. Whitaker, 915 F.3d 968, 972-73 (4th Cir. 2019)

Standard: “Consider the aggregated risk caused by all three entities in unison”

️ Sixth Circuit – Michigan, Ohio, Kentucky, Tennessee

Case: Marqus v. Barr, 968 F.3d 583, 589 (6th Cir. 2020)

Standard: “Cumulative probability of torture by [all] entities, or for all reasons”

️ Seventh Circuit – Illinois, Indiana, Wisconsin (CHICAGO AREA)

Case: Nyandwi v. Garland, 15 F.4th 836, 839 (7th Cir. 2021)

“The agency may address risk factors individually SO LONG AS it considers all sources of and reasons for risk cumulatively”

⚠️ O-Y-A-E- DIRECTLY VIOLATES this binding precedent

️ Eighth Circuit – Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota

Case: Abdi Omar v. Barr, 962 F.3d 1061, 1065 (8th Cir. 2020)

Standard: Must follow aggregate risk approach for CAT determinations

️ Ninth Circuit – California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington

Case: Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015)

Standard: Risk factors must be considered “in the aggregate”

CIRCUITS SUPPORTING BIA INDIVIDUAL APPROACH

ZERO

No federal circuit has endorsed O-Y-A-E-‘s restrictive standard

THE INEVITABLE RESULT

Circuit Geographic Area Key Case Result
3rd Circuit PA, NJ, DE Kamara v. Attorney General Will Reject O-Y-A-E-
4th Circuit MD, VA, NC, SC, WV Rodriguez-Arias v. Whitaker Will Reject O-Y-A-E-
6th Circuit MI, OH, KY, TN Marqus v. Barr Will Reject O-Y-A-E-
7th Circuit IL, IN, WI (Chicago) Nyandwi v. Garland WILL REJECT O-Y-A-E-
8th Circuit AR, IA, MN, MO, NE, ND, SD Abdi Omar v. Barr Will Reject O-Y-A-E-
9th Circuit CA, AK, AZ, HI, ID, MT, NV, OR, WA Quijada-Aguilar v. Lynch Will Reject O-Y-A-E-

️ ARIZONA SPECIFIC: O-Y-A-E- Violates Binding Ninth Circuit Law

THE ARIZONA IRONY

O-Y-A-E- originated in Tucson, Arizona (attorney: Brent Johnson, Esquire)

But it violates the binding law of Arizona’s own federal circuit!

ARIZONA’S BINDING NINTH CIRCUIT PRECEDENT

Case: Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015)

“CAT claims must be considered in terms of the aggregate risk of torture from all sources, and not as separate, divisible CAT claims.”

Requirement: BIA must consider “all evidence relevant to the possibility of future torture” in aggregate

HOW O-Y-A-E- VIOLATES NINTH CIRCUIT LAW

NINTH CIRCUIT REQUIRES:

Aggregate analysis of all risk factors together

O-Y-A-E- DID:

Analyzed each factor individually, stopped

IMMEDIATE IMPLICATIONS FOR ARIZONA PRACTITIONERS
  • O-Y-A-E- violates binding Ninth Circuit law
  • Quijada-Aguilar precedent trumps BIA in Arizona federal courts
  • Any O-Y-A-E–based denial should be immediately appealed
  • Ninth Circuit will reverse BIA decisions following O-Y-A-E-
ARIZONA CASE LAW SUPPORTING AGGREGATE ANALYSIS
  • Xochihua-Jaimes v. Barr (9th Cir. 2020) – Applied aggregate analysis
  • Guerra v. Barr (9th Cir. 2020) – Required proper CAT review
  • Multiple Arizona immigration cases citing Quijada-Aguilar

Bottom Line: Arizona practitioners have the strongest possible precedent to challenge O-Y-A-E-

IMMEDIATE STRATEGY FOR PRACTITIONERS

The BIA just declared war on six federal circuits. Here’s how to respond:

  • Argue Circuit Precedent Controls: Federal circuit law trumps BIA precedent in that circuit
  • Preserve the Issue: Make aggregate approach arguments in every case
  • File Cert Petitions: This 6-0 circuit split is Supreme Court material
  • Chicago Area: Nyandwi is binding law that directly contradicts O-Y-A-E-

Binding Chicago-Area Precedent:

Nyandwi v. Garland, 15 F.4th 836 (7th Cir. 2021)

️ Supreme Court Certainty: When the BIA creates an unprecedented circuit split by rejecting unanimous federal court precedent, Supreme Court review becomes highly likely, though not inevitable. Historical evidence shows the Court frequently sides with circuit courts over restrictive BIA interpretations in cases involving judicial review and due process.

“`

CIRCUIT SPLIT ANALYSIS: O-Y-A-E- vs. Federal Courts

THE FUNDAMENTAL CONFLICT

WHAT ALL 6 CIRCUITS REQUIRE:

“Individual Analysis + Cumulative Analysis = Complete”

Must consider all factors both separately AND together

WHAT O-Y-A-E- ACTUALLY DID:

“Individual Analysis + Stop = Complete”

Skipped mandatory cumulative analysis

EVIDENCE O-Y-A-E- DISMISSED INDIVIDUALLY

  1. Past threats to torture/kill respondent + family (July 2021)
  2. Commander under EU sanctions for human rights violations
  3. Country conditions showing systematic torture by Venezuelan military
  4. Military background – easily identifiable as former counterintelligence officer
  5. Whistleblower status – refused to falsify terrorist attack document
THE MISSING ANALYSIS (Required by ALL Circuits):

QUESTION NEVER ASKED: Do these 5 factors TOGETHER create a more-likely-than-not (>50%) risk of torture upon return?

CIRCUIT PRECEDENT VIOLATED

️ Seventh Circuit – Illinois, Indiana, Wisconsin (CHICAGO AREA)

Case: Nyandwi v. Garland, 15 F.4th 836 (7th Cir. 2021)

“The agency may address risk factors individually SO LONG AS it considers all sources of and reasons for risk CUMULATIVELY”

️ Third Circuit – Pennsylvania, New Jersey, Delaware

Kamara v. Attorney General: “Cumulative probability of torture by [multiple sources] exceeds 50%”

️ Fourth Circuit – Maryland, Virginia, North Carolina, South Carolina, West Virginia

Rodriguez-Arias v. Whitaker: “Consider the aggregated risk caused by all three entities in unison”

️ Sixth Circuit – Michigan, Ohio, Kentucky, Tennessee

Marqus v. Barr: “Cumulative probability of torture by [all] entities, or for all reasons”

️ Eighth Circuit – Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota

Abdi Omar v. Barr: Must follow aggregate risk approach for CAT determinations

️ Ninth Circuit – California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington

Quijada-Aguilar v. Lynch: Risk factors must be considered “in the aggregate”

PROOF OF DIRECT VIOLATION

  • O-Y-A-E- treats aggregate as: “Sum of insufficient parts = Insufficient whole”
  • Circuits require: “Ask whether insufficient parts create sufficient whole”
  • BIA conclusion came ONLY from individual analysis
  • Never performed mandatory cumulative analysis
MATHEMATICAL INCOMPATIBILITY

Circuit Standard: Individual Analysis + Cumulative Analysis = Complete

O-Y-A-E- Standard: Individual Analysis + Stop = Complete

RESULT: Direct violation of binding federal court precedent

INEVITABLE OUTCOME

Every circuit court reviewing O-Y-A-E- cases will find they violate binding precedent requiring aggregate analysis of CAT claims.

The BIA just declared that 20 years of unanimous circuit precedent is WRONG.

Supreme Court review is now possible with this 6-0 circuit split.

BIA Reversal Patterns in Federal Courts:

  • Supreme Court consistently sides with circuits over restrictive BIA interpretations in due process cases
  • Recent decisions like Santos-Zacaria and Guerrero-Lasprilla show Court’s willingness to constrain BIA overreach
  • Circuit court reversal rates of BIA decisions average 8-12% annually

Binding Chicago-Area Precedent:

Nyandwi v. Garland, 15 F.4th 836 (7th Cir. 2021)

Posted in Asylum, Board of Immigration Appeals, Convention Against Torture, matter-of-o-y-a-e-bia-2025-cat-standard-old-threats-not-enough | Leave a comment

Soft Secession vs. Soft Fascism: How States Quietly Resist Federal Overreach

Posted on August 22, 2025 by Mike Baker

A historical look at how states—from abolitionist days to modern sanctuary cities—use non-cooperation to shape the balance of power in America.

Conservative Supreme Court decisions on federalism have unintentionally provided Democratic-led states with the legal framework now being used to resist federal authority.

In his recent analysis, Chris Armitage introduces Americans to a concept that could fundamentally reshape our federal system: “soft secession.” Unlike the violent rupture of 1861, this represents states quietly walking away from each other through strategic non-cooperation rather than direct confrontation.

The foundation for this resistance was built by the very conservative justices who never imagined blue states would use it.

The Legal Foundation: A Conservative Gift to Blue States

The anti-commandeering doctrine, crystallized in two landmark Supreme Court cases, provides the constitutional roadmap for state resistance:

  • Printz v. United States (1997): Justice Antonin Scalia ruled that the federal government cannot “issue directives requiring the States to address particular problems, nor command the States’ officers… to administer or enforce a federal regulatory program.” This struck down provisions requiring local sheriffs to perform federal background checks.
  • Murphy v. NCAA (2018): Justice Samuel Alito expanded this principle, ruling that federal law cannot put state legislatures under the “direct control of Congress,” whether through commands or prohibitions.

These decisions established that states cannot be forced to actively participate in federal enforcement, even when federal law remains supreme. The federal government can pass laws, but without willing state cooperation, much of its agenda becomes practically unenforceable.

Yale’s Framework: “Uncooperative Federalism”

Yale Law Professor Heather Gerken coined the term “uncooperative federalism” to describe this strategy. Rather than viewing states as either sovereign or servant, Gerken argues that states derive significant power from their role as servants in the federal system.

Her framework identifies three key mechanisms:

  • Regulatory resistance: Using federally-conferred power to resist federal policy
  • Information control: Withholding cooperation in data sharing and enforcement
  • Resource denial: Refusing to provide state resources for federal programs

As Gerken notes, in an integrated federal system, “sovereignty is rarely, if ever, to be had,” making the “power of the servant” more realistic and effective.

Historical Proof: From Personal Liberty Laws to Sanctuary Cities

Northern Personal Liberty Laws (1780-1859): The Original Sanctuary Movement

The most powerful precedent involved Northern states systematically undermining the Fugitive Slave Acts through “personal liberty laws” legislation that sounds remarkably similar to today’s sanctuary city ordinances.

Massachusetts’ 1855 Personal Liberty Act declared that “The writ of habeas corpus may be issued by the supreme judicial court… and it may be issued by any justice of the peace.” Vermont’s 1850 Habeas Corpus Law required state judicial and law enforcement officials to assist captured fugitive slaves rather than federal agents. Michigan’s 1855 law prohibited “county jails from being used to detain recaptured slaves” and directed “county prosecutors to defend recaptured slaves.”

The language was deliberate and defiant. These laws guaranteed jury trials for alleged fugitive slaves, forbade state officials from cooperating in captures, and penalized state officers for “voluntarily engaging in slavecatching.” Wisconsin’s 1857 law went further, forbidding state judges from issuing certificates of removal under federal law.

The result? Despite federal law requiring the return of fugitive slaves, only 330 slaves were returned over nearly 80 years due to state non-cooperation. The federal Fugitive Slave Act became what Ralph Waldo Emerson called “a dead letter” in Massachusetts and other resistant states.

Chicago: From Harold Washington to J.B. Pritzker

The direct line from 19th-century personal liberty laws to modern sanctuary cities runs through Chicago. Mayor Harold Washington’s 1985 Executive Order establishing Chicago as a sanctuary city used language that deliberately echoed earlier resistance: the order “prohibited police and city employees from questioning residents about their immigration status and terminated cooperation with federal immigration authorities.”

Washington’s executive order was written to “assure that all residents of the City of Chicago, regardless of nationality or citizenship, shall have fair and equal access to municipal benefits, opportunities and service” language that directly parallels the personal liberty laws’ guarantee that state courts would protect all persons within state boundaries.

By 2006, Chicago’s sanctuary protections became the Welcoming City ordinance, which “prohibited the use of city funds and resources to assist federal immigration enforcement,” the defining characteristic of a sanctuary city. The ordinance banned officers from ” arresting anyone just because they were suspected of being undocumented” and directed police to ignore federal requests to detain people beyond their release date.

Governor Pritzker’s Modern Resistance

Illinois Governor J.B. Pritzker has scaled this resistance to the state level through the Illinois TRUST Act, which “generally prohibits local law enforcement in Illinois from participating in immigration enforcement.” The Act’s language mirrors 19th-century personal liberty laws: it limits officials from “complying with immigration detainer requests” and forbids “stopping, arresting, searching or detaining an individual solely based on immigration status.”

When testifying before Congress in 2025, Pritzker’s language was defiant: “We will not participate in abuses of power. We will not violate court orders. We will not ignore the Constitution.” This echoes Wisconsin’s 1857 declaration that the state would not assist in enforcing federal fugitive slave laws that violated state constitutional protections.

Pritzker’s recent signing of legislation extending student financial aid to undocumented immigrants represents the modern equivalent of personal liberty laws that provided legal protections and state resources to those threatened by federal enforcement.

Modern Examples Beyond Immigration

  • Cannabis: 40 states have legalized medical cannabis and 24 have legalized recreational use, despite federal prohibition. The federal government has essentially abandoned enforcement.
  • REAL ID: When 25 states refused to implement requirements starting in 2007, they delayed enforcement by nearly two decades from 2008 to 2025.

The Infrastructure of Resistance

Legal Warfare

During Trump’s first term, Democratic attorneys general filed over 130 multistate lawsuits against the administration with an 83% success rate. They maintain “brief banks” with pre-drafted lawsuits ready for immediate filing, the modern equivalent of the coordinated legal resistance Northern states mounted against fugitive slave laws.

Economic Leverage

  • Massachusetts sends $4,846 more per capita to the federal government than it receives
  • New York contributed $142.6 billion more than it received over five years
  • California has accumulated $76 billion in reserves
  • Illinois sends more to Washington than it receives back, giving Pritzker economic leverage in federal disputes

Red States Wrote the Playbook

Texas demonstrates that soft secession works regardless of party. Operation Lone Star achieved an 87% reduction in border crossings through state action alone, independent of federal immigration policy. This $11 billion operation employs the Texas National Guard and state troopers, effectively governing in areas traditionally considered federal domain.

Meanwhile, 46% of U.S. counties have declared themselves Second Amendment sanctuaries, with eleven states officially designating themselves as such. These declarations use language similar to personal liberty laws, stating that no governmental resources will be used to enforce federal laws that “unconstitutionally” infringe upon rights.

The Infrastructure Already Exists

Blue states aren’t building resistance from scratch, they’re scaling existing systems:

  • Voting Rights: Eight states have enacted State Voting Rights Acts exceeding federal protections
  • Election Security: Colorado has created the “gold standard” through risk-limiting audits with paper ballot requirements
  • Automatic Registration: Twenty-two states have implemented automatic voter registration

The Washington State Test Case

The Adams County Sheriff case in Washington State illustrates how far this resistance extends. The state Attorney General is seeking an injunction against the sheriff for cooperating with federal immigration enforcement, arguing he’s violating the Keep Washington Working Act. This creates a direct conflict where local officials must choose between federal directives and state law, the same dilemma faced by Northern officials during the fugitive slave era.

What This Means for America

Soft secession represents a fundamental realignment toward a confederation of semi-autonomous regions rather than a unified nation-state. States are building parallel systems for abortion rights, labor protection, civil rights, immigration policy, and election security.

The federal government increasingly resembles what Armitage calls a “hollow” structure that states have a “moral imperative to ignore” when democracy fails or federal funds are withheld as political punishment.

The Ultimate Irony

Conservative legal theory has provided the tools for progressive state resistance. The anti-commandeering doctrine, designed to protect conservative state sovereignty, now empowers the very blue state opposition its creators likely never intended to enable.

This represents one of the most significant constitutional ironies in recent American history: Justice Scalia’s jurisprudence becoming the foundation for Democratic resistance.

The Historical Echo

The progression from personal liberty laws to sanctuary cities to comprehensive state resistance reveals a consistent pattern: when federal law conflicts with state values, states find ways to nullify federal authority through non-cooperation quietly. The language may evolve, but the strategy remains the same.

Just as Northern states used personal liberty laws to make the Fugitive Slave Act “a dead letter,” modern blue states are using sanctuary laws, economic leverage, and coordinated legal resistance to make much of the federal immigration enforcement apparatus similarly ineffective.

The Path Forward

Rather than violent rupture, soft secession offers states a path to quietly walk away from each other. Blue states build progressive policy infrastructure while red states pursue different directions, all within the constitutional framework that conservative justices provided.

The question isn’t whether soft secession will continue; the legal precedents are established, the economic leverage exists, and the political will is evident. The question is whether this represents a temporary political strategy or a permanent restructuring of American federalism.

As states increasingly choose their own paths on fundamental issues, we may be witnessing the emergence of something unprecedented: a United States that’s united in name only, held together by a federal structure that states systematically choose to ignore.

The infrastructure for resistance is already built. The legal precedents are established. The only question remaining is how far states are willing to go in walking away from a federal system that no longer serves their values or their people.

The conservative justices who created this framework probably never imagined it would be used this way. That’s the beauty and the danger of constitutional law: once you establish a principle, you can’t control who uses it.

Posted in soft-secession-vs-soft-fascism | Leave a comment

Cancellation of Removal: Understanding Deportation Relief for Non-Permanent Residents

Posted on August 21, 2025 by Mike Baker

Matter of Buri Mora: Cancellation of Removal for Non-Permanent Residents

Understanding the legal barriers for relief from removal—and the challenges of proving hardship.

Case Snapshot

  • Respondent: Diego Geovanny Buri Mora, Ecuadorian national
  • Decision: July 21, 2025
  • Result: Board of Immigration Appeals reversed the Immigration Judge; cancellation of removal denied and removal ordered
  • Official Opinion PDF

Cancellation of Removal: Key Requirements

  1. Continuous Physical Presence: At least 10 years in the U.S. (with strict rules on how this time is measured—see below on the stop-time rule)
  2. Good Moral Character: Maintained throughout the relevant period
  3. No Disqualifying Convictions: Certain crimes make cancellation unavailable
  4. Hardship: Must prove “exceptional and extremely unusual hardship” to a U.S. citizen or LPR spouse, parent, or child if they are removed

The “Stop-Time” Rule

Practitioners must scrutinize whether their client satisfies the 10-year continuous physical presence requirement—the “stop-time” rule makes this much harder:

  • Under INA § 240A(d)(1), the clock stops when the noncitizen is served a Notice to Appear (NTA) or commits certain crimes.
  • Pereira v. Sessions (2018): The Supreme Court held a NTA must state the time and place of hearing to trigger the stop-time rule; a vague NTA is not enough.
    Pereira v. Sessions, 585 U.S. ___ (2018)
  • Niz-Chavez v. Garland (2021): The NTA’s info must be in a single document—no “fixing” an invalid NTA by mailing hearing details later.
    Niz-Chavez v. Garland, 593 U.S. 155 (2021)
  • BIA in Matter of Ordaz clarified: not every NTA stops time—proceedings must result from it.
Practice tip: Many old NTAs are defective—always review NTAs! The 10-year count only includes time before the first proper NTA that actually starts proceedings.

Why Relief Was Denied in Buri Mora

  • The BIA disagreed with the Immigration Judge and found the record did not show “exceptional and extremely unusual hardship” to the respondent’s U.S. citizen family.
  • Economic hardship: Loss of income and financial strain, while difficult, are common and not enough for relief.
    “Economic detriment of the nature presented in this case is a common feature of a parent departing the United States.”
  • Family separation/emotional strain: Significant but typical in removal cases.
    “Emotional hardship from family separation is a common result of deportation.”
  • Children’s developmental needs: Since the children and their mother were not being removed—and would retain access to services in New Jersey—these challenges were not enough.
    “As all three children would continue to remain… they would continue to receive medical care through state Medicaid, as well as specialized educational support in the State of New Jersey.”

For Practitioners

  • Double-check NTAs: If any technical defect exists (missing time/place or multi-part notice), pursue stop-time challenges based on Pereira and Niz-Chavez.
  • Prepare thorough evidence for every type of hardship but recognize the Board is strict—medical, emotional, and economic impacts must be far beyond the norm.
  • The stop-time rule is often the first, and most decisive, ground for ineligibility in close cases.
Summary: The BIA overturned the Immigration Judge’s decision and ordered removal, finding the high standards for cancellation were not met—and reminding practitioners that both the continuous presence clock and the hardship bar are formidable.

Full Opinion: Matter of BURI MORA, 29 I&N Dec. 186 (BIA 2025)

Posted in Cancellation of Removal for Non LPRS under INA Section 240A(b)(1), Cancellation of Removal for Non-Lawful Permanent Residents, cancellation-of-removal-deportation-relief-non-permanent-residents | Leave a comment
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