Can the government detain immigrants indefinitely, without offering them a chance to see a judge?
The question has divided 11 different federal appeals courts and left immigrants languishing in detention. Now, it’s the Supreme Court’s turn to weigh in.
Tens of thousands of detained immigrants, most of whom have no prior criminal record, have challenged the government’s decision to hold them in custody without access to a bond hearing.
In the coming days, the Supreme Court will decide whether to consider the administration’s interpretation of a 30-year-old law, which Immigration and Customs Enforcement argues allows it to detain any immigrant indefinitely if they crossed the border illegally — even if it was years ago.
The policy, also known as “mandatory detention,” underpins President Donald Trump’s sweeping efforts to deport millions of people, experts say. But it’s also “really shocking in our legal system,” said Suchita Mathur, senior litigation attorney for the American Immigration Council, an immigrant advocacy and legal services provider.
“There is no other context in which the government can detain people inside the country endlessly, for no reason,” said Mathur, who serves as co-counsel on a case challenging the policy that is still pending in the Fifth Circuit Court of Appeals. “That is what the government is asking to do here.”
More than 500 federal judges have ruled against the Trump administration in some 20,000 mandatory detention cases over the past year, according to court records. Nine of the 11 federal appeals courts have issued rulings that found ICE’s interpretation of the law was overly broad, inconsistent with Congress’s intent and possibly unconstitutional. Two of the appellate courts sided with Trump, including the Fifth Circuit, which covers Texas, Louisiana and Mississippi, where thousands of immigrants remain locked up.
In a bond hearing, an immigration judge determines whether a noncitizen should be detained, or released after paying a fee akin to bail. Unlike in the criminal justice system, however, immigration courts aren’t independent; the judges are employees of the Department of Justice and can be hired and fired by the executive branch.
Previously, a Department of Homeland Security spokesperson told The Marshall Project that “being in detention is a choice” and urged “all illegal aliens to take control of their departure” by self-deporting. In a July email, the spokesperson said the agency is offering $2,600 and a free flight. The department didn’t respond to questions about the cases awaiting the Supreme Court’s consideration.
For the past 30 years, only migrants who had recently arrived at the border and immigrants arrested inside the country with certain criminal convictions could be held without a bond hearing. Everyone else was allowed to see an immigration judge, who would decide if they presented a danger to the community or weren’t likely to show up for their hearings; if they cleared that bar, the judge could order their release on bond. That’s how it has worked since 1996, when Congress last modified the nation’s immigration law.
In past administrations, including Trump’s first term, most detained immigrants without criminal records were eligible to be released on bond while they awaited the outcome of their petitions to stay in the country.
My Khanh Ngo, a senior litigation attorney for the ACLU, said that mandatory detention is now being applied to “a really diverse group of people,” including people married to U.S. citizens, and those who have applied for asylum or who were covered by Temporary Protected Status.
About 70% of immigrants in ICE detention in July had no criminal record, according to data released by the Deportation Data Project at UC Berkeley and UCLA. Immigrant advocates say the administration’s interpretation of the law has dramatically expanded the groups of people for whom it believes Fifth Amendment constitutional protections do not apply.
“De facto criminal policies that are extremely punitive are being applied to a whole range of immigrants,” said Nancy Morawetz, director of the Crimmigration Clinic at New York University School of Law. “You are putting them in jail. There is no date by which you expect to get out.”
In the summer of 2025, as ICE began ramping up arrests to fulfill Trump’s promise to deport millions of people, then-acting ICE Director Todd Lyons prepared a memo to his staff.
Lyons asserted that the Department of Homeland Security’s detention authority under immigration law is “extraordinarily broad and equally complex.” He ordered that ICE “may not release” an immigrant from detention, deeming them ineligible for a bond hearing, if the person had ever entered the country illegally.
Jessica Vaughan, director of policy studies at the pro-enforcement Center for Immigration Studies, said her contacts at ICE told her that “officers in the field were frustrated” by judges releasing immigrants from detention. In ICE’s view, she said, keeping people detained makes it easier to deport them.
“They were being asked to boost enforcement, make more arrests and put more people into removal proceedings,” she said. Still, in the officers’ views, “it was pointless because so many of the people were walking out of detention because an immigration judge released someone on bond.”
Before Lyons’ memo, whether an immigrant was arrested at the border or deep inside the United States mattered. Someone just arriving at the border had somewhat fewer rights than if the same person were apprehended inside the country, where the Constitution and its Fifth Amendment protections apply to everyone — including people here without lawful immigration status. Lyons’ memo essentially said: Not anymore.
More than 660,000 immigrants have been detained since Trump returned to office last year.
Ricardo Barbosa da Cunha was among them. The Brazilian native crossed the U.S.-Mexico border in the mid-2000s without permission, one of the millions who chased their American dream in that era. He moved to Massachusetts, bought a house, got married and had two children. To get right with the law, he sought asylum, was granted a work permit and started a small construction business.
While his asylum application sat untouched by the U.S. government for a decade — the backlogs are infamously long — he lived his life and stayed out of trouble. He had no criminal record, according to the appeals court records.
A year ago, federal agents arrested him on his way to work. In detention, he was granted a bond hearing, but an immigration judge denied his request to be released, citing the new “mandatory detention” policy. With help from an attorney, he filed a petition of habeas corpus challenging his detention.
As in many of the appeals court opinions, the judges in Barbosa da Cunha’s case closely examined Congress’ intent when it established one set of rules for detaining immigrants “seeking admission” at the border and another for those deemed “applicants for admission,” who had been apprehended in the interior.
Lyons’ memo told ICE officers to treat all unauthorized immigrants as if they were “seeking admission,” even if they had been in the country for decades, as had Barbosa da Cunha.
In his opinion in Barbosa da Cunha’s case, Second Circuit Court of Appeals Judge Joseph F. Bianco reasoned that someone who has been in the country for decades can’t be “seeking admission” — they’re already here.
Bianco, a Trump appointee, explained with a sports analogy: “If someone sneaks into Yankee Stadium at the start of the game with no ticket for admission (and no intention of ever paying) and he is later found by security in a seat in the seventh inning, no one would consider that fan to be ‘seeking admission’ to the game,” he wrote as part of the unanimous decision against the government that upheld Barbosa da Cunha’s release.
Mathur, the American Immigration Council attorney, said that it may seem unfair that people at the border “seeking admission” would be treated differently than people who were apprehended after years of living in the country. But this concept has deep roots that trace back centuries to England and the Magna Carta and the founding of this country, she said.
In the United States, “there is a long line of case law that people who are physically within our borders get the protection of the Constitution,” she said. “Once people cross into the sovereign territory of the country and develop ties, the Supreme Court has told us repeatedly that their rights change and increase proportionally.”
Judge Nicole G. Berner in the Fourth Circuit Court of Appeals said the government’s interpretation of the law requires believing that, 30 years ago, “Congress intended to direct the single largest mass detention of human beings in our nation’s history” but did not appropriate funding for such an endeavor. They didn’t explicitly call for it, either, wrote Berner, a Biden appointee.
Several other appellate court judges also raised the likelihood that the government’s mandatory detention policy would violate the Fifth Amendment’s due process protections.
The two appeals courts that sided with the Trump administration, in the Eighth Circuit and the Fifth Circuit, decided that “seeking admission” at the border and being an “applicant for admission” in the interior should be read as one and the same and that both groups of unauthorized immigrants should face the same mandatory detention rules.
Judges in those two courts argued that just because five previous administrations declined to enforce this new interpretation of the statute — including Trump, during his first presidency — that doesn’t mean the law doesn’t confer the authority Trump is now seizing.
Vaughan, at the Center for Immigration Studies, said there were constraints and complications that precluded past administrations from fully enforcing the law. When hundreds of thousands of people were crossing the border illegally during past presidencies, ICE detention camps were filled with recent arrivals. The COVID-19 pandemic also upended the first Trump administration’s plans to detain more people.
“Just because something had been done one way for so many years doesn’t mean there isn’t another way,” she said.
A Homeland Security spokesperson said in a statement this summer that the Biden administration “recklessly unleashed millions of unvetted illegal aliens into American communities — and they abused many loopholes to do so.” The Trump administration is “now enforcing the law as it was actually written to keep America safe.”
There were an estimated 16 million unauthorized immigrants in the United States in 2024, according to the Migration Policy Institute, which conducts nonpartisan immigration research and analysis. Berner, in her opinion, said at least 6 million people could be subject to mandatory detention under the government’s interpretation.
The Supreme Court will hold a conference on Sept. 28 at the start of its new term. Federal district and appeals court judges may have overwhelmingly rejected the Trump administration’s arguments, but if the Supreme Court decides to take up the issue this term, the decision could either undercut the president’s mass deportation effort or clear the way for an enormous expansion of immigration detention.
“This is the classic case in which the only thing that matters is how the Supreme Court rules,” said Vaughan of the Center for Immigration Studies, which advocates for stronger enforcement of immigration laws, “and it doesn’t matter if it’s 5-to-4.”
