Status as of November 9, 2026. An investigation by Bloomberg Law found that the Department of Homeland Security has repeatedly used an automatic-stay procedure to prevent the release of immigrants after immigration judges authorized bond. Federal district judges have often found the practice unconstitutional in individual cases. The underlying regulation remains on the books, and the legal outcomes are not uniform.
An immigration judge decides that a detained person can be released on bond. The government disagrees. Instead of immediately obtaining a new judicial ruling, it files a notice that automatically suspends the release decision. The person stays in immigration detention, sometimes for months, while an administrative appeal proceeds. A November 9 investigation by Bloomberg Law documents how this little-used procedure became a recurring feature of immigration enforcement during President Donald Trump's second administration.
Bloomberg Law identified more than 900 uses of the procedure since January 2025, compared with only a handful during the preceding six years. Its review of federal litigation found that judges ordered detainees released in 128 of 147 cases that reached a final judicial opinion concerning automatic stays. Only five decisions upheld the challenged practice; another 14 did not decide its legality on the merits. Those figures describe the cases reviewed by the reporters, not every detention or every government appeal nationwide.
The mechanism behind the detention
The procedure is called an automatic stay of a custody order pending a government appeal. Its principal authority appears in 8 CFR 1003.19(i)(2). In specified circumstances, when DHS previously decided that a person should not be released or set bond at $10,000 or more, an immigration judge's subsequent order permitting release can be suspended automatically. DHS triggers the mechanism by submitting Form EOIR-43, a notice of intent to appeal the custody determination, within one business day.
Ordinarily, an immigration judge's bond ruling assesses whether continued detention is justified and, when release is permitted, under what conditions. The automatic stay is different from a new finding by an independent judge that the person presents a danger or flight risk. It operates through a government filing that interrupts the immigration judge's decision. The appeal itself goes to the Board of Immigration Appeals (BIA), an administrative appellate body within the Department of Justice.
Under 8 CFR 1003.6(c), DHS must follow the notice with a formal appeal within ten business days, supported by certification from a senior legal official. The ordinary automatic-stay period is subject to a 90-day limit and specified tolling or extension mechanisms. Further discretionary stays and referral procedures can prolong custody. Thus, the original one-day notice can have consequences lasting substantially longer than one day.
A rule created after September 11
The Justice Department introduced the automatic-stay provision on October 31, 2001, in the aftermath of the September 11 terrorist attacks. The government wanted a way to preserve detention while it appealed immigration judges' release decisions, without the delay of first obtaining a separate stay. The rule was introduced on an emergency basis without the ordinary public-comment process, according to the history reconstructed by Bloomberg Law.
The provision faced constitutional objections soon after its adoption. Federal judges questioned whether an executive agency could unilaterally override an immigration judge's custody determination without an adequate independent review. Amendments in the following years, including requirements for senior-level approval, attempted to introduce additional controls. Yet the underlying mechanism survived in federal regulations.
Former DHS deputy general counsel Kerry Doyle told Bloomberg Law that officials in the Biden administration viewed the procedure as a legally questionable last resort. Its infrequent use before 2025 contrasts with the scale documented during Trump's second term. That contrast is a finding about enforcement practice, not evidence that the regulation itself was repealed and later reinstated. The authority existed throughout the period.
What federal judges have found
The central constitutional issue is procedural due process under the Fifth Amendment. When an immigration judge has already examined the custody question and authorized release, plaintiffs argue that a unilateral government notice cannot nullify that adjudication while keeping a person jailed without sufficient procedural safeguards.
Federal district courts have repeatedly agreed in individual habeas corpus cases. Bloomberg Law identified 128 release orders among 147 final opinions in the cases it analyzed, and reported that judges sometimes awarded attorney's fees because the government's position lacked adequate legal support. The awards included amounts reaching $40,000. The courts' reasoning has emphasized that continued custody requires more than the executive branch's disagreement with the judge who heard the bond issue.
In a Virginia case, District Judge Leonie Brinkema reasoned that automatic suspension could make the immigration judge's bond determination effectively meaningless. In an Indiana case, Senior District Judge Sarah Evans Barker criticized the government's failure to articulate an adequate legal basis for the regulation's constitutionality and awarded $8,400 in fees. The decisions cited in Bloomberg Law's reporting are individual federal district court rulings, not a single nationwide Supreme Court judgment invalidating the rule.
Not all courts have agreed with the challengers. Bloomberg Law found five opinions that upheld the practice. Some judges stressed the executive branch's statutory responsibility for immigration enforcement; others concluded that the duration of detention in the particular case did not amount to a constitutional violation. The disagreement matters because it limits what can be said about the law's settled status.
Why DHS continues to use the procedure
DHS defended its reliance on automatic stays in a statement to Bloomberg Law, describing them as a lawful enforcement tool. The department did not make an official available for an interview or answer the reporters' detailed questions. Its position is that federal regulations authorize the government to appeal custody determinations and preserve detention during that review.
Government lawyers have also argued in litigation that an immigration judge's bond order is not the final administrative determination while a BIA appeal remains pending. That theory places weight on the executive branch's authority over immigration detention and the structure of administrative appeals. Opponents counter that an appeal does not, by itself, justify prolonged deprivation of liberty after a judge has ordered release.
The clash involves two different institutions. Immigration judges and the BIA belong to the Department of Justice's Executive Office for Immigration Review, whereas ICE and the lawyers invoking the stay act for DHS. Federal district judges, part of the independent judicial branch, can hear certain habeas corpus challenges to the legality of detention. A decision to grant bond in immigration court is therefore not the same procedural event as a federal court order resolving a habeas petition.
Maria Teresa Alfaro's nine months in custody
Bloomberg Law's investigation describes the case of Maria Teresa Alfaro, who entered the United States from Mexico with her parents when she was nine. Over more than three decades, she graduated from school, operated a painting business, paid taxes and raised three children who are U.S. citizens. ICE arrested her in Colorado on July 29, 2025.
Immigration Judge Alison Kane later canceled Alfaro's removal order and authorized her release on $1,500 bond. In a November 8, 2025 ruling described by Bloomberg Law, the judge emphasized Alfaro's character, work and family responsibilities, including the serious consequences of separation for her children. Alfaro's earlier DACA protection had lapsed after a technical mistake in an online renewal form, according to the case records reviewed by the reporters.
Government lawyers appealed and invoked the automatic stay, leaving Alfaro detained despite the immigration judge's favorable custody decision. On April 7, 2026, U.S. District Judge Philip Brimmer ordered her immediate release. Her family nevertheless encountered further obstacles: according to Bloomberg Law, ICE refused to accept the bond on three occasions. She was finally released eight days after the federal judge's order, approximately nine months after her arrest.
The case illustrates how separate decisions about removal, bond eligibility and actual physical release can produce different outcomes at different stages. Cancellation of a removal order is not identical to execution of a custody order, and the government may contest the latter through its administrative procedures. In Alfaro's case, the federal court ultimately intervened to end the continued detention.
What the investigation's numbers mean
Bloomberg Law examined approximately 750 federal district court opinions identified through searches for immigration habeas litigation involving automatic stays through October 31, 2026. Reporters used a language model to categorize the records and manually reviewed a random sample of the results. Multiple opinions in the same case were grouped by the date of the most recent ruling. The method provides a documented view of litigation outcomes but does not constitute a complete national register of every Form EOIR-43 filing.
A separate Freedom of Information Act response, obtained by journalist Paul Moses and shared with Bloomberg Law, showed 889 EOIR-43 notices in the first eight months of the second Trump administration. Bloomberg Law's later examination raised the count above 900. The article also identified more than 270 federal court orders prospectively blocking use of automatic stays in specific cases should immigration judges subsequently authorize bond.
The reporters found signs that use of the mechanism had slowed in some jurisdictions, including Colorado and Nevada, where judges repeatedly ruled against it. They could not establish whether that reflected the adverse court decisions or fewer immigration-court bond grants. The uncertainty prevents treating the apparent decline as proof that DHS abandoned the practice.
A broader dispute over immigration detention
The automatic-stay controversy is part of a larger conflict over detention during removal proceedings. Section 8 USC 1226 governs important categories of pre-removal custody, while regulations distinguish people eligible for bond consideration from those subject to mandatory detention. The EOIR-43 dispute arises specifically when an immigration judge has authorized release and DHS uses the prescribed mechanism to suspend that result.
The distinction is consequential. A federal judge finding that a particular automatic stay violated due process has not necessarily determined that the detainee has lawful immigration status, that removal proceedings must end or that every detention under immigration law is unlawful. Conversely, the existence of removal proceedings does not eliminate constitutional scrutiny of continued custody.
As of November 9, 2026, the regulation remained in force, DHS continued to defend it, and federal judges were frequently rejecting its application in habeas litigation. The unresolved institutional question is how much power the government may exercise to keep someone detained after an immigration judge has already authorized release. The Bloomberg Law investigation shows that the answer has been contested repeatedly in federal courts, with substantial consequences for people whose bond orders have not translated into freedom.