Does the U.S. government have the right to jail millions of people, without a bond hearing, if they’re accused of crossing the border without authorization — even if they’ve lived in the United States without incident for years, and are otherwise following legal procedures?
The Trump administration thinks so, based on its re-interpretation of a 30-year-old immigration law. The administration has spent months jailing thousands of people, without bond hearings, who would otherwise be living freely in the United States, including those without criminal histories and with work permits.
Multiple federal appeals courts have weighed in — and disagreed on — the issue. That likely leaves one place to make the final call.
“I think it’s likely this issue will be resolved by the [Supreme] Court,” Michael Tan, deputy director of the ACLU Immigrants’ Rights Project, told HuffPost Wednesday.
By next week, judges in 11 of the 12 federal appeals circuits will either have ruled on the question or be considering arguments about it — an extremely unusual situation resulting from thousands of legal challenges from across the country. The only circuit not considering the mass detention policy is in Washington, D.C., because there’s no immigration detention center there.
Two appeals courts have ruled with the Trump administration, and one last week sided with immigration detainees. A three-judge appeals court panel in the Seventh Circuit, in Chicago, was divided three ways on the question as part of a larger case it decided on Tuesday. The disagreement between circuits, which is known as a “circuit split,” makes the issue ripe for the Supreme Court to step in.
“We’re very much still considering our options [to petition the Supreme Court], especially now that we have a circuit split,” Tan said, referring to the two appeals decisions the ACLU’s clients lost.
A DHS spokesperson told HuffPost last week: “We are confident in our position, which a majority of courts of appeals have endorsed.” The department didn’t respond to follow-up questions about the administration’s plans regarding the Supreme Court, but has said separately that “ICE has the law and the facts on its side and will be vindicated by higher courts.”
Thousands of jailed undocumented people have challenged their detention under the mandatory detention policy in the form of habeas corpus petitions, which challenge a person’s detention as unlawful. And the vast majority of several hundred district courts have ruled against the administration, including dozens of Trump appointees, according to a Politico tally.
The policy, which the administration enacted last summer, amounts to an extreme reading of a 30-year-old law known as the Illegal Immigration Reform and Immigration Responsibility Act, or IIRAIRA, in which immigration authorities are instructed to treat even people who have lived in the country for decades without incident as if they have just crossed the border — making them eligible for detention in U.S. Immigration and Customs Enforcement custody without a bond hearing.
In the administration’s interpretation, millions of undocumented people accused of initially crossing the border without authorization are currently “seeking admission” to the country and can be held without bond, even if they’ve lived here for years. A small number of people are considered eligible for bond out of immigration jail, such as those who entered the country on valid visas but later fell out of status.
This new reading of the law goes against decades of practice allowing most people arrested by immigration agents within the United States to have bond hearings and potentially be released from detention while their cases move through immigration court. Under that earlier reading, people arrested in the interior of the country were deemed to be “applicants for admission” and thus fell under a more lenient part of the IIRAIRA. Previous administrations, including the first Trump administration, interpreted the Clinton-era immigration law that way.
The Trump administration’s current interpretation of IIRAIRA has been bouncing around the courts for months.
In February, the Fifth Circuit Court of Appeals — which includes Texas and Louisiana, making it the nation’s hub for immigration detention — sided with the administration in a 2-to-1 decision. Judge Edith Jones, a Reagan appointee, opined for the court that just because “prior Administrations decided to use less than their full enforcement authority … does not mean they lacked the authority to do more.” The Eighth Circuit followed with another 2-to-1 decision for Trump in March.
Late last month, the Second Circuit ruled against the policy, with a Trump appointee, Judge Joseph Bianco, writing that the administration’s position created the possibility that “millions of men, women, and children” would be detained in immigration jails. He described the administration’s policy as “the broadest mass-detention-without-bond mandate in our Nation’s history for millions of noncitizens.”
Bianco and two other judges in the Second Circuit Court of Appeals found that the administration’s interpretation of the law was unlawful, and that the resulting millions of people eligible to be detained would raise “grave constitutional concerns.”
“The government claims that mandatory detention must continue regardless of how long removal proceedings take — even if the noncitizen poses no danger to the community or risk of flight,” Bianco wrote for the court. “That is not what the law says.”
“The government’s interpretation would send a seismic shock through our immigration detention system and society, straining our already overcrowded detention infrastructure, incarcerating millions, separating families, and disrupting communities,” the decision added, arguing that the notion that millions of people are eligible for civil detention without bond likely violates the Fifth Amendment and “sounds constitutional alarms that would warrant its rejection.”
On Monday, when the First Circuit Court of Appeals heard yet another case on the mandatory detention policy, one judge noted the split between the circuits meant that “the Supreme Court’s going to have to decide this.”
And on Tuesday, the Seventh Circuit splintered on the question in a decision that was part of a larger case. One judge wrote that it was “unreasonable” to think Congress intended to mandate the detention of millions of noncitizens “in the oblique, off-handed fashion that Defendants claim,” while a second said “all applicants for admission, even those encountered in the interior of the country, are subject to mandatory detention unless they are clearly entitled to admission.” A third didn’t substantively weigh in on the question.
Widespread detention has long been the Trump administration’s objective, with key advisers envisioning mass detention camps during the 2024 presidential campaign. Once in office in 2025, Homeland Security officials openly used the horrific conditions of immigration detention facilities as leverage to incentivize so-called “self deportations,” or people abandoning their legal cases to remain in the United States and instead leaving the country. The administration’s effort to massively expand detention capacity using large warehouse camps has only recently slowed due to local opposition and environmental review requirements.
As HuffPost recently reported, the administration also just shut down the Office of the Immigration Detention Ombudsman, which was tasked by law with investigating allegations of misconduct and abuse in the immigration jail system.
“What they’re really doing is using detention to coerce people into giving up their legal claims,” Tan said. He summarized the government’s message to detainees: “’We’re locking you up, there’s no way you’re getting out. We’re going to hold you in this detention center that might be hundreds of miles from your family and community, in increasingly horrifying conditions. But you have the keys to your own cell, so why don’t you make your own decision [and] give up and self-deport.”
Even if the high court upholds the Trump policy, there are limitations to the number of people the administration can jail at any one time. For example, the number of people held in immigration detention peaked earlier this year, when it hit a record high of 73,000 — far less than the number of people the administration claims are eligible to be jailed.
Still, thousands of people are currently languishing behind bars in immigration jails, including those who don’t have any sort of criminal record, and the administration is arresting thousands more every week.
