Last July, government officials embraced a brazen new interpretation of immigration law. Under this new interpretation, a statute designed to govern detention at the border would also mandate the detention of any noncitizen inside the country who entered without inspection without any possibility of bond, regardless of how long they have lived in the United States and for indefinite periods of time. The administration swiftly implemented the new policy by summarily detaining thousands of immigrants with no criminal history, holding them in federal custody with no opportunity to go before immigration judges and argue for their release.
This policy is illegal, and the overwhelming majority of federal courts have said so. But last Friday, a divided Fifth Circuit panel blessed the government’s position. The decision deepens what is already a crisis in the federal courts that has spread terror throughout immigrant communities and created a breakdown in the rule of law.
Below, we place the government’s mass detention policy in historical context, explain why it is contrary to existing law, and then describe the simplest solution: for Congress to reiterate that it never authorized this draconian policy.
The Lawlessness of ICE’s New Mass Detention Policy
The administration’s new reading of the detention statutes is not just radical because it overturns decades of practice—it is contrary to law. Across thousands of cases, hundreds of district court judges have rejected this new mass detention policy. These judges have often relied on the plain text of the relevant statutes, which, to be sure, provide ample reason to rule against the government. But as we have argued in friend-of-the-court briefs on behalf of immigration detention experts, the history and structure of immigration law show beyond the shadow of any doubt that the government’s reinterpretation is nonsensical, and that its mass detention policy is illegal. Unfortunately, none of this stopped two judges of the Fifth Circuit, which—in a rushed, divided decision —embraced the government’s policy, risking lasting damage to human rights and the rule of law.
An understanding of the history of these detention statutes underscores why the Fifth Circuit’s decision is so deeply misguided.
Immigration Detention: At the Border vs. In the Interior
The federal government began inspecting and excluding immigrants arriving at the nation’s borders in the late 1800s. Federal immigration detention started at the border too, in the form of brief detentions while immigrants waited to be inspected. In 1875, Congress authorized an early version of such detention aboard arriving passenger ships. By 1893, Congress had provided that “it shall be the duty of every inspector of arriving alien immigrants to detain for a special inquiry . . . every person who may not appear to him to be clearly and beyond doubt entitled to admission.” There is a direct lineage between these authorities and the 1996 statute at the center of the government’s new policy, 8 U.S.C. § 1225(b)(2)(A), which directs that “an alien seeking admission” who “is not clearly and beyond a doubt entitled to be admitted . . . shall be detained for” a removal proceeding.
In parallel, Congress authorized detention of people apprehended in the interior of the country during their immigration proceedings. But for these individuals, Congress authorized pretrial release on bond. Today, the interior-detention authority is codified at 8 U.S.C. § 1226. Noncitizens subject to it “may be arrested and detained,” but also “may [be] release[d]” on bond. Under governing regulations, they are entitled to immigration-court hearings to evaluate whether detention is necessary (i.e., whether they pose a risk of flight or a danger to the community).
Congress’ decision to create one set of detention rules for people subject to inspection at the border and a different one for people found within the United States makes sense in light of similar rules that exist throughout the immigration enforcement system. As the Supreme Court explained in 2001, “[t]he distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.” Among other things, the distinction has significant consequences under the Constitution. Courts have held that noncitizens standing at the threshold of entry into the country, with no ties to the United States, are entitled to fewer due process protections in their immigration proceedings. In contrast, the Supreme Court has long held (and recently reaffirmed) that noncitizens who have effected entry into the United States—lawfully or not—are entitled to due process of law.
Depriving a person who has entered the country of their constitutionally protected liberty without any opportunity to ask a judge for release on bond, regardless of their community ties or lack of criminal history, is an affront to due process. The statutory scheme reflects this longstanding constitutional distinction.
The Perversity of the Mass Detention Policy
Against this backdrop, the administration’s new mass detention policy is as absurd as it is cruel. Many courts have rejected it based on the clear statutory text alone. The government now treats § 1225(b)(2)(A) as applying to noncitizens who entered without inspection because a different provision “deem[s]” such individuals, as a sort of legal fiction, “applicant[s] for admission.” But § 1225(b)(2)(A) doesn’t apply to every “applicant for admission”—it applies only to applicants for admission who are also “seeking admission.” And Congress defined “admission,” under statute, as “lawful entry . . . into the United States.” People who have already entered the United States are not “seeking admission.” As one judge explained, “someone who enters a movie theater without purchasing a ticket and then proceeds to sit through the first few minutes of a film would not ordinarily then be described as ‘seeking admission’ to the theater.”
But focusing narrowly on text misses a broader point. The mass detention policy isn’t just atextual—it’s ahistorical, implausible, and makes a mess of immigration law writ large. Congress crafted an entirely different statute to cover the detention of immigrants in the interior—one which expressly affords them the opportunity to seek release. No surprise, then, that no one previously read these statutes in this way and that so many courts have refused to go along. As the Supreme Court has observed, Congress does not “hide elephants in mouseholes.”
The administration’s new reading also conflicts with other provisions of the immigration laws that actually do mandate detention without bond. The Congress that enacted the current version of § 1225(b)(2)(A) in 1996 also expanded mandatory immigration detention in the same law. The 1996 statute required the detention without bond of many noncitizens—but only if they had one of a long list of criminal convictions or presented a specific national security threat. As we explain in our amicus briefs, Congress took pains to make sure federal authorities could implement this new crime-based detention mandate. Specifically, the 1996 legislation authorized the government to delay implementation of expanded crime-based detention for up to two years—an option the government immediately invoked.
In contrast, the 1996 legislation said nothing about how to implement the mass detention policy the government now claims it enacted. That’s telling. Congress in 1996 estimated that federal authorities had the capacity to detain about 100,000 noncitizens a year. It also estimated that 45,000 noncitizens with criminal convictions were placed in deportation proceedings each year. So it knew that the new crime-based detention mandate would stretch capacity to the breaking point, and accordingly provided for delayed implementation. Of course, Congress also knew that over two million people in the United States had entered the country without inspection as of 1996. All of them are subject to mandatory detention under the administration’s new policy. It makes no sense that Congress crafted a special implementation framework for crime-based mandatory detention—the concern being that the government couldn’t feasibly detain 45,000 people with criminal convictions each year—while, at the same time, shrugging off implementation of a two-million-plus-person mandate.
If that example weren’t clear enough, Congress reaffirmed their position on the matter just last year, when it enacted the Laken Riley Act. This legislation expanded crime-based immigration detention to encompass not just people convicted of crimes, but also many who entered without inspection and were merely arrested for or charged with certain crimes. But if Congress had already mandated the detention of all people who entered without inspection, as the administration now claims, there would have been no need to also mandate detention for a subset of them charged with crimes. Phrased differently, the new policy is so broad that the 1996 statutes would already require the detention without bond of virtually every person subject to last year’s Laken Riley Act, and many millions more. The new policy would thus render the centerpiece of the Laken Riley Act—a hotly contested, controversial, and significant congressional change to federal law—fruitless.
The Fifth Circuit’s Flawed Decision
The federal courts had almost uniformly rejected the administration’s brazen expansion of its mandatory detention authority until last week, when two judges of the Fifth Circuit adopted it. What did these judges have to say about the arguments against their view? Not much.
The Fifth Circuit’s majority opinion, which the court raced to publish just three days after hearing oral argument, rests heavily on the claim that every “applicant for admission” is necessarily “seeking admission” because, for instance, one who is applying to college is also seeking admission to college. As noted above, however, that is not always how the term “seeking” is used. In any event, “admission” is a technical term under the immigration laws. As Judge Dana Douglas explained in dissent, the majority’s approach ignores that while noncitizens present in the country without authorization are “deemed” “applicants for admission” for certain purposes, they are not actively seeking “admission” as Congress defined that term. And the majority opinion had virtually nothing to say about the long history of these provisions, nor how to square its interpretation with the mandatory detention statutes Congress actually has enacted.
The Human Cost of Illegal Mass Detention
It’s no accident that the consistently anti-immigrant Fifth Circuit had the first word on appeal. But the Fifth Circuit is unlikely to have the last word. Litigation over the mass detention policy is pending in nearly every other court of appeals, and it is likely the Supreme Court will eventually have to resolve the issue. In the meantime, it’s worth reflecting on how this policy contributes to the many immigration-related abuses that have infuriated the public over the last several months.
Detaining long-resident immigrants without any opportunity for them to ask a judge for release on bond exacts a severe toll on immigrant families and their communities. It results in parents and spouses being shipped across state lines and held, often incommunicado, hundreds of miles away from loved ones and legal counsel. Worse, the explosion of such detention under the new, illegal policy has accelerated the government’s efforts to pack immigrants into warehouses, temporary holding facilities, and other detention centers that are ill-equipped to house so many human beings, resulting in deplorable conditions and prompting backlash from surprising corners.
The policy has also fueled mounting government defiance of federal-court orders—especially in conjunction with a 2022 Supreme Court decision that restricted the availability of classwide injunctive relief in immigration cases, and another from last year that requires many detention suits to be brought on a district-by-district basis. At the time of the earlier decision, retired federal judges warned that restricting injunctions would force noncitizen detainees “to flood district court dockets with individual habeas actions raising materially indistinguishable claims and requesting materially indistinguishable injunctive relief.” The warning has proven prescient: Faced with barriers to classwide injunctive relief, many thousands of noncitizens have resorted to filing individual habeas petitions, aided by an army of pro bono lawyers.
As a result, the mass detention policy has left courts and government lawyers overwhelmed with habeas petitions. And the scale of the government’s legal violations in places like Minnesota has made it difficult for government attorneys to effectuate the many court orders requiring bond hearings—leading one such attorney to declare last week that her job “sucks” and ask that the judge hold her in contempt of court so she could sleep. The government’s chronic noncompliance has enraged jurists like District of Minnesota Chief Judge Patrick J. Schiltz, a “low-key” judge appointed by George W. Bush who clerked for Justice Antonin Scalia and has lambasted ICE for flouting court orders.
A Simple Congressional Fix
As the Fifth Circuit’s ruling illustrates, even an egregiously illegal policy may not be easy to defeat in the courts. Months or years may remain until the en banc Fifth Circuit or the Supreme Court can correct the panel’s errors. In the meantime, the crisis now unfolding in immigrant communities and the federal courts will rage on, with irreversible consequences. To make matters worse, while the Fifth Circuit panel’s decision remains in effect, many immigrant detainees will be entitled to bond hearings in some jurisdictions but not others. As a result, until and unless the panel’s decision is overruled, the government could rush to transfer immigrant detainees from around the country to detention facilities in the Fifth Circuit—as it is already doing to many Minnesotans—in hopes of blocking their release.
Congress can stop the crisis now. Congressional leaders have recently shown interest in legislating to stop the worst excesses of the administration’s immigration crackdown. A few days ago, Senate Democrats forced the issue by refusing to fund the Department of Homeland Security beyond two weeks, thus ensuring that new legislation would be considered shortly.
Congress should immediately respond to the Fifth Circuit’s decision by reiterating that the administration’s interpretation of its detention authority is wrong. While at it, Congress should also fix the procedural rules that have led to the crisis in the courts. These moves would be broadly popular: Polls consistently show that most Americans do not favor draconian immigration enforcement tactics against undocumented people who have lived here for years without committing crimes. That is no doubt why administration officials consistently claim that they focus on immigrants convicted of crimes, even though they do not. While there are many factors driving the President’s plummeting approval rating on immigration, it is no coincidence that it has dropped just as the percentage of people with no criminal history arrested by ICE has skyrocketed—due in no small part to the new detention policy.
Both fixes would be straightforward, involving just a few short amendments to the immigration laws. Neither fix would solve all the myriad problems created by this administration’s approach to immigration enforcement, let alone those that plagued the underlying system long before Trump. But they would ensure a modicum of due process for millions of people who have contributed to their communities for decades, and go a long way towards ending the chaos that the administration’s illegal detention policy has unleashed in the federal courts and beyond.
– Amit Jain, Mary Holper and Ahilan Arulanantham, Published courtesy of Just Security.
