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Acting U.S. Attorney Charles Neil Floyd quietly told the federal court in the Western District of Washington that his office simply cannot keep showing up to defend the flood of immigration habeas corpus petitions. The written notice lays down a seven‑court‑day rule for entering appearances, and judges have already begun treating petitions as “unopposed” when no government lawyer appears — producing quick release orders for some detained migrants. This is not a technicality. It is a real change with real consequences for border security and the rule of law.
What the Justice Department admitted
The Western District’s U.S. Attorney’s Office filed a letter saying it lacks resources to enter appearances in the dozens of § 2241 immigration petitions coming in each week. Acting U.S. Attorney Charles Neil Floyd told Chief U.S. District Judge David Estudillo the office will not automatically defend every case and suggested courts may treat a petition as unopposed if no AUSA appears within seven court days. The letter even suggested courts could email release orders directly to the ICE processing center when the USAO declines to fight the case.
How judges already responded
Federal judges didn’t wait to see how this would play out. U.S. District Judge Tiffany M. Cartwright treated one petition as “intentionally unopposed” and ordered the detained asylum seeker released on the papers alone. U.S. District Judge Kymberly K. Evanson issued a similar ruling in another matter after the government declined to appear. In short: when prosecutors bow out, judges can and will decide on the record — and some detainees go free faster.
Legal and practical fallout
This is more than paperwork. When the government does not show up, courts often rule on the written record. That speeds outcomes and shifts the burden onto petitioners to make their case on paper — but it also increases the chance that meritorious claims win simply because no one opposed them. The USAO says the spike in filings traces back to a policy change by ICE that turned many long‑ago border crossers into “new arrivals” for detention rules. Nationwide habeas filings have exploded, straining U.S. Attorney offices and clogging court dockets.
Who pays the price
Border communities, ICE officers, and taxpayers all pay when federal prosecutors concede the field. If the Justice Department cannot or will not defend detention decisions, the result will be inconsistent outcomes and a patchwork of releases handled by judges who never heard the government’s side. And because the USAO reserves the right to appear in particular cases, defense will be uneven — depending on staffing, politics, or who yells loudest in a particular courthouse.
What should happen next
The Justice Department and Acting U.S. Attorney Charles Neil Floyd owe the public two things: clarity and accountability. If this is a short‑term triage plan while staffing is fixed, say so and fix it. If it is a policy choice to cede many detention fights to the courts, Congress and DOJ leadership should explain how that squares with enforcement priorities. The alternative — leaving judges to pick up the pieces while ICE scrambles to process release orders — is no way to manage immigration or protect the rule of law. Lawmakers should demand answers, and the administration should either do its job or admit it won’t and let someone who will take over.
