When a Border Patrol agent arrested a 24-year-old Venezuelan man in Brunswick last month, the officer said he had to detain him under a law that immigration lawyers say has traditionally been used for people right after they cross the border. However, the man had been living in Maine for two years and was allowed to work while seeking asylum, according to court records.
Federal agents have increasingly used this law to arrest immigrants they say are in the country illegally and seeking admission. According to the Department of Justice, people detained under this law are not entitled to a bond hearing or conditional release.
In several recent cases considered by a federal judge in Maine, immigrants who have been detained stated they have lived and worked in the United States for several years. Many have applied for asylum, and some have children who are U.S. citizens. Their lawyers argue that the federal government is ignoring decades of precedent, where immigration authorities typically use a different law to arrest people who have been in the country for years. That law allows detainees to request bond hearings, provided they’re not found to be a community danger or flight risk.
The man arrested in Brunswick is among many immigrants challenging their arrests in the U.S. District Court of Maine. The American Civil Liberties Union (ACLU), including several of its New England chapters, has filed a lawsuit seeking to have the practice of “systematically misclassifying” immigrant detainees declared unconstitutional.
Max Brooks, an ACLU of Maine lawyer, emphasized that the core issue is bond hearings. Brooks, who represents asylum seekers, has filed several petitions advocating for the release of individuals detained under the wrong law.
“It’s extremely difficult to prove your asylum case, to prove the persecution that you suffered, when you’re locked up in a detention facility with very minimal access to the outside world,” Brooks said in a Wednesday interview.
Department of Justice attorneys counter that the law allows them to detain and deny bond to anyone in the country illegally, regardless of whether individuals have “successfully evaded U.S. Border Patrol and effected an unlawful entry into the interior of the United States,” as stated in their response to the ACLU case in Boston.
“The crux of this dispute is one of statutory interpretation,” federal attorneys wrote. “And, under the plain text, the resolution of this case is neither close nor difficult.”
The Board of Immigration Appeals (BIA), overseen by the Department of Justice, upheld this detention practice in a decision last month. However, ACLU lawyers maintain their argument is supported by “decades of settled immigration practice,” as well as recent rulings by federal judges in Maine and Massachusetts.
Last month, Maine U.S. District Judge Stacey Neumann ordered the release of three Ecuadorian men, agreeing they had been detained under the wrong law. During a hearing Tuesday regarding the Brunswick man’s case, Judge Neumann expressed frustration toward two assistant U.S. attorneys for repeating the same defense despite her prior rulings.
“The government agency continues to act in a way that the court has said is illegal,” Neumann said during the Zoom hearing. She ordered on Thursday that the federal government provide the man with a bond hearing.
### ‘Creates a Legal Conundrum’
The BIA recently reviewed the case of a Venezuelan man arrested in Washington by immigration officials as someone “seeking admission” and thus not entitled to bond. The man admitted to crossing the southern border in 2022 without encountering Border Patrol but claimed he had been living in the United States for nearly three years. He was granted temporary protected status (TPS) in 2024, which expired a year later.
The board described this as “creating a legal conundrum,” pointing out that the man “provides no legal authority” to support why individuals accused of being in the country illegally should become eligible for bond hearings after an undefined period residing inside the U.S.
“If he is not admitted to the United States (as he admits) but he is not ‘seeking admission’ (as he contends), then what is his legal status?” the board questioned.
In its Sept. 5 decision, the BIA concluded that people arrested under the law in question are not entitled to bond hearings.
### Challenges Faced by Detainees
Brooks described the hardships faced by immigrants while detained. He noted that detention facilities can record calls to friends and family and often charge detainees for these communications.
In Maine, where Border Patrol agents are conducting many of these arrests, the agency has been holding people in small stations. Immigration lawyers have reported that some clients were sleeping on cots on the floor, crowded alongside other detainees.
“It’s inherently harder to prepare for your case if you’re locked up, can’t see people in person, are stressed out,” Brooks said.
Because of a 2019 decision from the 1st U.S. Circuit Court of Appeals, immigrant detainees in New England find it easier to be approved for bond. However, since President Donald Trump took office, immigration advocates say the administration has transferred more ICE detainees to facilities in southern states, particularly prisons in Texas and Louisiana, far from their communities, making bond requests more difficult.
### Class Action Lawsuit
The ACLU lawyers in Boston have requested class action status for their lawsuit so that anyone detained under the supposedly incorrect law could be released or granted a bond hearing.
The federal government has argued that such a class action process would be illegal and that federal judges can only consider each case on an individual basis.
U.S. District Judge Patti B. Saris in Massachusetts was still reviewing the ACLU’s class action request as of Thursday, according to court records.
The ACLU attorneys have presented nearly 30 petitions filed this year in Massachusetts, Maine, and New Hampshire. These cases involve immigrants arrested by Border Patrol and ICE who claim they are being held under the wrong law and should be eligible for bond.
One case includes a 37-year-old Ecuadorian man arrested by Border Patrol in Maine on Sept. 10 after being involved in a car accident in Waterville. A police officer had called Border Patrol because the man lacked identification and was not fluent in English. Judge Neumann ordered the federal government on Sept. 30 to release him and grant a bond hearing “for the same reasons as I have enumerated in detail in previous cases.”
If the ACLU is granted class action status, Brooks noted, it could prevent Maine’s federal court from becoming overwhelmed by individual petitions. Although each case has unique circumstances, they all revolve around legal misclassification and denial of bond hearings.
“That’s why it makes so much sense to do this as a class action,” Brooks said. “Basically, all of this stuff is flowing from… this broad policy decision to require illegal misclassification, and a court can address that in one fell swoop.”
https://www.sunjournal.com/2025/10/16/aclu-asks-judge-to-find-that-immigrants-who-are-arrested-have-right-to-bond/