On Feb. 6, a divided panel of the United States Court of Appeals for the Fifth Circuit upheld the Trump Administration’s policy to detain a large class of individuals targeted for deportation without the opportunity for bond, regardless of their criminal record or length of residence in the United States. This marks a significant departure from the practices of every administration over the past 30 years.
Traditionally, mandatory detention pending immigration proceedings was reserved only for certain convicted criminals or individuals who had recently entered the country unlawfully. The dispute before the Fifth Circuit centers on a 30-year-old immigration statute requiring the mandatory detention of all “applicants for admission” while they are seeking entry into the United States. Those living in the interior—especially long-term residents—were previously permitted to seek bond hearings while being detained.
However, in a significant policy shift, Immigration and Customs Enforcement (ICE) Director Todd Lyons, backed by the Board of Immigration Appeals, reclassified all individuals that have unlawfully entered the country as “applicants for admission,” subjecting them to mandatory detention regardless of how long they have lived in the United States or their criminal history.
Under the Trump Administration’s approach, anyone who entered the United States without authorization at any time can now be detained pending deportation, with only limited discretionary exceptions for humanitarian or public interest reasons. As a result, immigrants who have lived in the country for years or even decades are being detained without bond, even in cases where they have no criminal records. ICE adopted this new interpretation last July, leading to a surge of arrests and detentions and prompting numerous lawsuits from detainees who argue that they are being held without due process.
The majority opinion, authored by Judge Edith Jones and joined by Judge Kyle Duncan, found that the federal government possesses broad authority to detain individuals pending deportation. The judges argued that previous administrations’ choice to exercise less than their full enforcement authority did not mean they lacked the power to do more.
In dissent, Judge Dana Douglas warned that the ruling could require detention of up to 2 million immigrants, including long-term residents with deep family ties in the United States. Judge Douglas criticized the majority’s interpretation, stating, “The government’s proposed reading of the statute would mean that, for purposes of immigration detention, the border is now everywhere.”
The U.S. Court of Appeals for the Seventh Circuit has signaled opposition to the Trump Administration’s approach, and challenges to the policy are pending in nearly every appellate circuit. The matter is likely to head to the U.S. Supreme Court for further review. The Supreme Court may ultimately decide whether the Trump Administration’s sweeping detention policy stands. Organizations and individuals affected by these developments should monitor further appellate decisions and prepare for potential changes in enforcement and detention practices.
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