SEATTLE — As a federal judge last month ordered a Kenyan UW Medical Center staffer released from the federal government’s immigrant detention facility in Tacoma, she pointed to his constitutional right to due process.

The government had known about Robert Sidhe for years, Judge Tiffany Cartwright noted. After overstaying his visa, he applied for asylum in 2023. He had a work permit, allowing him a position assisting nurses at UW’s hospital. Nine days before his arrest, Sidhe, a doctor by training with no criminal history, went to a U.S. Citizenship and Immigration Services appointment to submit fingerprints and other biometrics needed to process his asylum application.

Officials gave no indication then that he would be arrested, according to legal papers. A U.S. Immigration and Customs Enforcement stop on Aug. 26 as he drove to his Lynnwood home took him by surprise. He had no chance to argue before a judge or anyone else that he should not be detained. In legal terms cited by Cartwright, the arrest took away Sidhe’s liberty “without prior notice and opportunity to be heard.”

Those are two of the most basic principles behind due process, along with the idea that the government should not act in an arbitrary manner, according to Elizabeth Porter, who teaches constitutional law at the University of Washington.

Yet, ICE arrests immigrants all the time without advance warning — in traffic stops like Sidhe’s, in parking lots outside big-box stores and at purportedly routine check-ins with the agency. To some extent, federal agents have always done so, but President Donald Trump’s immigration crackdown has significantly ratcheted up such arrests, especially since a summer surge.

Are all these arrests and subsequent detentions violating due process rights?

The Sidhe case raises the question, as do many other federal court rulings nationwide. “Literally thousands” have found due process violations in immigration cases, said Andrea Sáenz, a former member of the federal government’s Board of Immigration Appeals and current senior attorney for the New York immigrant advocacy group Co-Counsel NYC.

The Trump administration denies infringing on immigrants’ rights. A U.S. Department of Homeland Security spokesperson, in a statement, said rulings to the contrary have come from “activist judges.”

“No lawbreakers in the history of civilization have been treated better than illegal aliens in the United States,” the spokesperson added.

Despite the many U.S. District Court rulings on the subject, the matter continues to be hotly debated, according to Sáenz. That’s in part because higher court judges — including at the U.S. Supreme Court — have not yet issued judgments on appeals. “They’re all pending right now,” she said.

One thing that does not appear to be in doubt is that the Fifth Amendment, which lays out due process rights, applies to non-U.S. citizens, including those who came to this country unlawfully. A 2001 Supreme Court case, Zadvydas v. Davis, makes that clear, according to UW’s Porter.

However, she said, justices in that decision noted the level of protection may vary depending on “status and circumstance.”

Take Sidhe‘ s case.

During a hearing, the judge stressed the government made no effort to detain Sidhe in all the years it was aware of his presence in the country. This gets at due process’s prohibition on arbitrariness.

Cases in which judges have found due process violations often concern people like Sidhe who have long been on the government’s radar. There has been some determination — often when someone was initially detained and then released pending removal proceedings — that an individual could safely live in the community, according to Sáenz.

“And then years later, just because we’re in this administration, they get picked up,” she said.

The government said in the Sidhe case that the Kenyan immigrant would have a chance to argue for his release at a bond hearing. But Sidhe’s lawyers said that was not good enough.

“Scooping up law abiding asylum applicants without any individualized determination about their dangerousness or flight risk (or their medical conditions or other humanitarian considerations) is not a harmless act that can be remedied by a subsequent hearing,” the lawyers wrote in a habeas corpus, or unjust imprisonment, petition. Sidhe, who founded a nonprofit devoted to expanding healthcare access, exhibited extremely high blood pressure and strokelike symptoms while detained at the Northwest ICE Processing Center in Tacoma.

The attorneys called for a prearrest process, “for instance, a hearing before a neutral adjudicator.”

“Officers cannot convene a neutral adjudicator at a vehicle stop,” the government wrote in its response.

Unpersuaded, the judge ordered a temporary restraining order to release Sidhe that day. He remains in removal proceedings and has a preliminary hearing scheduled in immigration court early next year.

The judge could well have ruled differently if Sidhe was undocumented, without any previous government encounter. In that situation, the notice required by due process might take place on the spot, with ICE officers announcing who they are and that they’re placing someone in deportation proceedings, Sáenz said.

Even so, officers are supposed to get a warrant before they make an arrest, except when they encounter someone likely to flee, Sáenz said. They don’t necessarily need to produce the warrant right when they arrest someone but should do so at some point, she added.

A common misunderstanding: While warrants signed by a judge are required for ICE to enter private property without consent, officers making an arrest in other places need only an “administrative” warrant, created and approved by ICE.

ICE doesn’t always get these warrants beforehand, however. A coalition of 22 attorneys general, including Washington’s Nick Brown, this month filed a friend of the court brief in a lawsuit challenging warrantless arrests that is before the Court of Appeals for the D.C. Circuit.

Some judges are ordering people released if arrested without warrants, Sáenz said. “In other cases, judges kind of shrug and go, ‘Oh well, you kind of did the paperwork afterward,'” she said.

That’s when the question of bond becomes crucial, giving detained immigrants their only chance of release from jail-like ICE detention centers while their cases are pending.

For about a year, though, the Trump administration declared bond off the table for most immigrants who came to the U.S. unlawfully.

It’s a complicated issue, dealing with the intricacies of immigration law and whether immigrants who have lived in the U.S. for decades can be considered to be “seeking admission” because they were never officially admitted. The government argues they can.

Many appeals courts around the country have said otherwise. The 9th Circuit Court of Appeals, covering Washington and eight other Western states, did so in July.

Yet the issue lives on, according to Matt Adams, legal director of the Northwest Immigrant Rights Project.

In cases filed with Western Washington’s district court, detained immigrants say they have gotten hearings. They claim, however, their pleas for bond have been rebuffed without genuine consideration by immigration judges who answer to the Trump administration’s Department of Justice rather than the independent judicial branch. In other words, these immigrants were arguably deprived of a real chance to be heard.

Western Washington’s chief district court judge, David Estudillo, concluded as much in one case involving a 40-year-old construction business owner who has lived in the U.S. since he was 3.

The man was once in removal proceedings, but an immigration judge terminated them in 2012, which sometimes happens in cases the government does not see as a priority. For 16 years, the government allowed him a work permit. Then he was arrested while picking up supplies at a Home Depot and taken to the Tacoma detention facility.

In denying bond, Immigration Judge Tammy Fitting “failed to provide any meaningful rationale for her decision,” Estudillo wrote in his September ruling ordering the man’s release. Nor, the judge wrote, did Fitting consider the more than 140 pages of evidence the man submitted, including birth certificates of his four children, all U.S. citizens.

Instead, Fitting noted the man’s removal proceedings could drag on for years, making him a flight risk — a rationale the judge found “comical if it were not for the seriousness of the issues involved.”

A spokesperson for the Executive Office for Immigration Review, which oversees immigration courts, said it does not comment on the decision-making of its judges.

Meanwhile, the government has taken to the U.S. Supreme Court its quest to do away with bond altogether for immigrants who came to the U.S. illegally. The nation’s highest court is expected to hear a related case out of New York early next year. And the Northwest Immigrant Rights Project, one of the first to sue over restrictive bond practices, has joined the fight against the government in this case.

It will, Adams said, settle the issue once and for all.

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