Last July, the Trump administration quietly rewrote the rules on who could be held in immigration detention. A memo from ICE Acting Director Todd Lyons declared that immigrants who had entered the country without authorization were ineligible for bond hearings, full stop. No consideration of criminal history. No consideration of how long someone had lived here, worked here, or raised a family here. They would stay in detention until their immigration case concluded, a process that can take years.
The administration used a legal sleight of hand to make it work. Immigrants arrested in the interior of the country were reclassified as “applicants for admission,” a category normally reserved for people stopped at the border. That reclassification triggered mandatory detention rules that had never been intended to apply to people who had been living in the United States for months or years. Before the memo, immigration judges were granting more than 100 bond hearings per day. By late summer, the number had dropped to 22.
Now the federal courts are dividing over whether that policy is legal. And the split is deep enough that the Supreme Court will almost certainly have to settle it.
The Courts Saying No
The Second Circuit Court of Appeals ruled unanimously on April 28 that the administration’s policy violates the law. The panel found that the government cannot treat a person arrested in Chicago or Dallas the same as someone apprehended crossing the border. The mandatory detention statute, the court ruled, does not allow for that kind of blanket application. Every individual is entitled to a hearing where a judge can weigh the facts.
The Eleventh Circuit ruled against the policy on Tuesday, becoming the second appellate court to reject it. Both courts have pointed to the same core problem: the administration invented a legal theory to eliminate a protection that immigration law has long required.
Those two courts are not alone in their skepticism. More than 220 immigration judges, in hundreds of individual cases across the country, have declared the policy contrary to both immigration law and the Constitution.
The Courts Saying Yes
The Fifth Circuit, which covers Texas, Louisiana, and Mississippi, ruled in February that the administration’s approach is lawful. It found that ICE has the authority to reclassify interior-arrested immigrants as applicants for admission, and that doing so triggers mandatory detention regardless of how long someone has lived in the country.
The Eighth Circuit reached the same conclusion in March. Both courts deferred heavily to the administration’s interpretation of the immigration statute, taking the position that the executive branch has broad discretion to define who falls under which detention category.
What the Policy Means in Practice
The people caught in this policy are not primarily recent border crossers. The reclassification was designed specifically to sweep in immigrants who had been living in the United States for years. Many have jobs, children, and deep roots in their communities. Under the pre-July rules, an immigration judge could look at those circumstances, weigh the facts, and decide whether the person posed a flight risk or a danger. That review is what the administration eliminated.
The result is indefinite detention with no individual assessment. People who might have been released on bond while their cases proceeded are instead held in facilities that are already overcrowded, for timelines measured not in weeks but in months or years.
The Supreme Court Is Watching
The Third Circuit is scheduled to hear arguments on the policy on May 11. More circuits are likely to follow. With two circuits on each side and more in the queue, the legal question is not going to resolve itself in the lower courts.
The Supreme Court will have to take it up. When it does, the justices will be deciding something more fundamental than a technical dispute over immigration law. They will be deciding whether the executive branch can redesignate millions of people as a legal maneuver to remove their right to a hearing before a judge.
Courts have been saying no to that question since July. Two appeals courts have now said it in writing. Four more are paying close attention.