As immigration arrests rise across the U.S., federal judges in San Francisco are increasingly challenging U.S. Immigration and Customs Enforcement (ICE) over concerns about constitutional violations. In recent months, judges have ordered the temporary release of dozens of immigrants held in ICE detention centers across California and beyond, citing failures to provide fair legal process.

These court orders stem from a surge of legal challenges filed by attorneys on behalf of detained immigrants—known as habeas corpus petitions—arguing that their clients were being held unlawfully and indefinitely, without first receiving a hearing before an immigration judge.

An NBC Bay Area review of 24 such cases in Northern California federal courts found that judges granted temporary restraining orders or preliminary injunctions in every case, allowing 37 detained individuals to be released while their petitions are considered. A few additional cases are still awaiting decisions.

Jordan Weiner, who leads the immigration defense program at San Francisco-based nonprofit La Raza Centro Legal, called the detentions unconstitutional. “They’re arresting people who haven’t missed court and haven’t committed crimes,” she said.

Weiner noted that, until recently, her work focused on helping immigrants through the asylum process—not filing federal lawsuits to free them from detention. But now, ICE agents are arresting individuals at immigration court hearings or routine check-ins, including many asylum seekers.

Because immigration proceedings are civil, not criminal, advocates argue that detaining individuals without a criminal charge—and without giving them a chance to plead their case before a judge—violates their civil rights.

One habeas case described the arrest of a Peruvian asylum seeker who had been in the U.S. for nearly three years and had attended all of his court dates. He was arrested by ICE this past July while at immigration court. A day after his legal team filed the habeas petition, Judge Trina Thompson ordered his immediate release, later granting a preliminary injunction to keep him free during the case.

“The public has an interest in preventing constitutional violations,” Judge Thompson wrote, noting the individual could face family separation and inadequate medical care in detention.

Historically, immigration judges could grant bond to nonviolent immigrants who complied with court orders. But a July 2024 policy memo from the Department of Homeland Security (DHS) reclassified all unauthorized border crossers as “applicants for admission,” making them subject to mandatory detention. Under this interpretation, immigration judges—who work under the Department of Justice—cannot hold bond hearings.

In September, the Board of Immigration Appeals backed this policy. Government lawyers now cite that ruling to argue that these immigrants must remain in custody throughout their legal proceedings.

Attorneys like Weiner say this shift contradicts long-standing legal norms and amounts to a civil rights violation. “The Constitution protects against arbitrary detention,” she said.

Federal judges seem to agree. During a September court hearing, U.S. District Judge James Donato criticized the government for not providing hearings before detaining individuals. “This argument has failed in every court it’s been argued in,” he said, urging the government to simply “give them a hearing.”

ICE did not respond to requests for comment on the cases or the judge’s remarks.

Weiner said nearly every federal judge in the Bay Area now has at least one ICE-related habeas case on their docket. Judge Donato has even questioned what the government’s long-term plan is, given the repetitive legal battles.

Weiner’s organization has filed close to a dozen habeas petitions in recent months, securing the release of 28 detained immigrants. Among them is Jorge Valera, an asylum seeker from Peru with no criminal history, who was arrested at immigration court and transported to a detention facility in Arizona. He spent a week in custody before being released by court order.

“Never in my country was I treated like this,” Valera said. “They shackled my feet. I am not a criminal.”

Weiner hopes that by highlighting these cases, the public and policymakers will recognize how resources are being used and how immigrants are being treated. “The government is wasting time and overworking its own attorneys to defend losing cases,” she said. “We’re just trying to shine a light on it.”