The Trump administration is systematically locking up immigrants while they contest the government’s attempts to deport them, even if they’ve lived in the United States for decades and have no criminal record.
This indiscriminate mass detention — a dramatic shift in immigration enforcement policy that began on July 8 — has been declared illegal by dozens of federal judges, who have described it as a flagrant perversion of long-standing law, policy and common sense.
But the administration says its reinterpretation of the law is both legal and a key prong of President Donald Trump’s mass deportation strategy. They say no matter how long someone has resided illegally in the country — “for 25 minutes or 25 years” — the law doesn’t just allow, it requires, their detention while awaiting deportation. And they hope this interpretation encourages many to depart the country voluntarily.
The result has been hundreds of frantic lawsuits by immigrants who have been arrested without warning at work, at routine check-ins with immigration authorities or after immigration court proceedings. Immigration lawyers and advocates contend they’re being sent to overcrowded and unsanitary detention facilities.
This mass detention led to the Baltimore-area arrest of a Mexican man, in the United States for 30 yearswith no criminal record, who has a son on active duty in the Air Force; the arrest of a Brazilian man residing near Burlington, Massachusetts, who had a 1-week old baby at the time he was detained; and a Salvadoran woman, residing in Lake Elmo, Minnesota, who arrived in the United States as a minor in 2016 and has two U.S. citizen children, including one who was nursing at the time of her arrest.
Immigrant advocates say the goal is clear: make the process so excruciating that people give up and accept deportation — even if they have meritorious asylum claims or pathways to legal status.
“They’re making a legal argument that judges are consistently rejecting on the substance, but they’re also using the procedure to get what they want,” said Michael Kagan, director of the University of Nevada, Las Vegas’ Immigration Clinic.
Immigrants are increasingly turning to federal district courts — which historically have not handled immigration matters — as a last resort, citing violations of their legal and constitutional rights. Their lawsuitshave led to dozens of recent rulings from gobsmacked judges who say the administration has violated the law and due process rights and is threatening to do so for millions more. The pileup of decisions is growing daily.
One judge called the administration’s reinterpretation of the law to prioritize detention “radical.” Another said it had resulted in “arbitrary” arrests and turned routine immigration proceedings into an unsustainable “game of detention roulette” in service of Trump’s mass deportation agenda. Another called the administration “willfully blind” to the plain meaning of long-standing immigration laws. Another said the administration’s position “defies logic.”
“The Government’s discretion in matters of immigration is deep and wide, but surely its chop does not overcome the banks of due process enshrined in the Constitution,” said U.S. District Judge Julie Rubin, a Maryland-based appointee of Joe Biden.
In many cases, judges are ordering detainees immediately released from custody, so long as they vow to continue attending immigration court proceedings and remain in contact with immigration officials. They are still likely to be deported, but the judges say they may not be held indefinitely in detention facilities while they await the outcome of their proceedings.
In other cases, judges are requiring the administration to at least give immigrants a chance to seek bond from immigration judges — a fighting chance to win release from ICE custody that the administration has tried to deny.
Department of Homeland Security officials say they are confident the rulings from district courts will eventually be overturned by the Supreme Court and validate their strategy.
“Judicial activists … have been repeatedly overruled by the Supreme Court on these questions,” said DHS Assistant Secretary Tricia McLaughlin. “ICE has the law and the facts on its side, and it adheres to all court decisions until it ultimately gets them shot down by the highest court in the land.”
Trump’s new view of the law
At the heart of the recent conflict are two related provisions of immigration law that have vexed courts for decades.
One pertains to “arriving” immigrants who are “applicants for admission” and are also “seeking admission” to the United States. This has long been interpreted by immigration officials and courts to apply to people apprehended near the border right after they entered. Under this provision of law, detention is mandatory, with few exceptions, and those detained have virtually no ability to challenge their confinement while deportation proceedings are underway.
The second provision permits — but does not require — immigration authorities to detain deportable immigrants who are already residing in the United States. It has long been applied to the millions of undocumented immigrants who have lived in the nation’s interior for years, often paroled into the country after encountering immigration officials at the border. Many have established deep roots, with U.S. citizen spouses, children and family members, as well as employment authorization and pending efforts to seek asylum or other pathways to remain in the country legally.
Under this provision of the law, long-standing regulations permit those targeted for detention to challenge the move in immigration court — a distinct, executive branch-run network of courts meant to handle deportation matters.
In these cases, immigration judges, who are employees of the executive branch, can determine whether detention is necessary to protect the public or ensure people attend future immigration proceedings. And judges may also order their release, finding that they are likely to comply with court orders even if they are not detained. This second provision of law was recently amendedwhen Trump signed the Laken Riley Act, which requires the mandatory detention of undocumented immigrants in the United States who are charged with serious crimes.
But everything changed on July 8, when Todd Lyons, the acting director of Immigration and Customs Enforcement, issued a memo declaring the Trump administration had reinterpreted these provisions of law. From that point on, Lyons concluded, anyone in the United States illegally — no matter how long — would be deemed “applicants for admission” who are subject to mandatory detention.
By classifying virtually all deportation targets as “applicants for admission,” the administration has attempted to eliminate their opportunity to seek bond. ICE recently got some backupfrom judges on the Board of Immigration Appeals, an executive branch court that sets policy for immigration courts across the country.
“Aliens … who surreptitiously cross into the United States remain applicants for admission until and unless they are lawfully inspected and admitted by an immigration officer,” the BIA panel ruled.
The ruling is binding on all immigration judges who, in some cases, had been rejecting the administration’s view of mandatory detention. The Justice Department has begun alerting federal judges, case by case, to the BIA’s ruling as it attempts to stave off further defeats.
But the federal judiciary is not bound by the decisions of the executive branch immigration courts. And so far, judges across the country have decisively rejected the BIA’s interpretation of the law.
One judge in Iowa recently took the BIA ruling head-on, saying she found the decision neither compelling nor persuasive and would not factor it into her consideration. Case law and history do not support “mandatory detention for all noncitizens present in the United States,” U.S. District Judge Rebecca Goodgame Ebinger, an Obama appointee in Iowa, wrote earlier this month.
And on Sept. 12, U.S. District Judge Edward Chen, an Obama appointee from California, echoed Ebinger, finding that the BIA ruling “lacks persuasive power” because it improperly characterizes people who have resided in the United States for years as “seeking admission.”
Many judges who have ruled against the administration in recent weeks have pointed to this discrepancy. And they’ve also noted that the legal interpretation by ICE and the BIA has another perverse effect: The Laken Riley Act’s changes to mandatory detention become superfluous, since there is no need for a mandatory detention scheme for those charged with crimes if anyone facing deportation could be detained anyway.
“There would have been no need for the [Laken Riley Act] to create these additional categories because all noncitizens who are present in the United States and have not been admitted would have already been ineligible for bond,” U.S. District Judge Jeffrey Bryan, a Biden appointee in Minnesota, wrote in a recent ruling.
So far, nearly all judges who have weighed challenges to the administration’s detention efforts have ruled the same way. And although most of the judges ruling against the administration have been appointed by Democrats, one Trump-appointed judge — Eric Tostrud —joined their ranks last month.
At least one judge has sided with the administration: Nathaniel Gorton, a Massachusetts-based jurist appointed by George. H.W. Bush, agreed with the administration that anyone unlawfully present in the United States can be considered an “applicant for admission” subject to mandatory detention. But Gorton’s decision appears to be an outlier among dozens of rulings rejecting the administration’s interpretation.
There is one pending case that could lead to a nationwide block of the administration’s policy. U.S. District Judge Sunshine Sykes, a Biden appointee, is weighing a California-based lawsuit brought by the ACLU and has called an Oct. 17 hearing to decide whether to approve a class action and vacate the July 8 memo.
Advocates say one reason it’s taken awhile to mount a broad-based legal challenge to the policy is partly because of the Supreme Court’s recent decision emphasizing that detention cases — also known as petitions for a writ of habeas corpus — must be filed in the district where a person is detained. In addition, the hundreds of cases brought since the policy rollout are nearly all filed on an emergency basis — following an abrupt arrest in an immigration court hallway or in an ICE facility during a routine check-in — without the benefit of time to assemble a class action or nationwide case.
“These cases are all a little bit different, so it’s not easy to come up with a class action,” said Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a group that works to restrict immigration.
Administration’s trump card
The Trump administration’s mass detention strategy doesn’t end with its new interpretation of the law. Federal judges are also increasingly alarmed by a maneuver the administration has used when it doesn’t get its way in court.
In a spate of recent cases, some immigrants whom the Department of Homeland Security claims are subject to mandatory detention have convinced immigration judges that the administration’s new interpretation of the law is wrong. And in many of those cases, the immigration judges have granted their release, saying they pose no risk of flight or danger to the public.
That’s when DHS has played a trump card: the automatic stay. It’s a regulation that allows the department to unilaterally stop an immigration judge’s release order for at least 90 days while DHS appeals. And there are options to extend it even further.
The automatic stay was adopted in 2001 and finalized in 2006, intended to be deployed only in “limited” circumstances — invoked by the secretary of Homeland Security after certifying that “factual and legal bases” warranted continued detention in some cases. But the administration has deployed it routinely in cases where immigration judges have sided against them, ensuring that even those immigrants who prevail against long odds to win their release remain locked up for months.
Increasingly, federal judges have ruled the administration’s deployment of the automatic stay is unconstitutional, depriving people of basic due process rights. They’ve ordered immigrants detained as a result of the stay to be immediately released.
“The automatic stay is a violent distortion of proper, legitimate process whereby the Government, as though by talisman, renders itself at once prosecutor and adjudicator,” Rubin wrote in a recent opinion.
U.S. District Judge Joseph Bataillon, a Clinton appointee based in Nebraska, wrote in another recent ruling: “Despite a neutral decision-maker finding a bond was warranted, the automatic stay provision allowed DHS, the party who lost its bond argument, to unliterally deprive Petitioner of her liberty.”
Administration and its allies defend mass detention
In court, Trump administration lawyers say their reinterpretation of the law is simply a better reading of complicated immigration statutes that courts have labored over in recent years.
“It does not matter whether an alien was apprehended ‘25 yards into U.S. territory’ or 25 miles, nor does it matter if he was here unlawfully and evades detection for 25 minutes or 25 years,” Justice Department attorneys argued in the ACLU case. “When an alien has never been admitted to the country by immigration officers, his detention is no different from an alien stopped at the border.”
But the administration’s primary argument is a policy one. By expanding detention to those who were released in those earlier eras, the administration is hoping to discourage new arrivals of undocumented immigrants and encourage those who are here to leave voluntarily.
Immigration officials are sitting on an extraordinary infusion of funding from the recently passed megabill and are working furiously to expand detention space to keep pace with the influx of detainees.
The Trump administration views the mass detention of immigrants facing deportation as a corrective to prior administrations’ “catch-and-release” policies, when immigration authorities would apprehend border-crossers and quickly parole them into the country.
“From a policy perspective, it’s essential to release as few people as possible who are caught — not just who are caught crossing the border, but even illegal immigrants inside the country — because the goal of an illegal alien is to get into the United States and be able to live and work,” said Mark Krikorian, executive director of the Center for Immigration Studies, an administration ally.
“If you’re spending all that money paying a smuggler and airfare and all the rest of it, and taking the risks that are involved in coming here illegally, if you’re just going to be locked up and then sent home, why bother? I mean, the cost benefit analysis is pretty clear,” he said.
By targeting those inside the United States for detention, the administration is also hoping that many will choose to voluntarily leave, rather than face the prospect of indefinite detention. While advocates say this drive to force self-deportations is pernicious, administration allies say it’s precisely the point.
“Do you really want to be locked up? No,” Krikorian said. “And so if the odds of your being locked up are pretty high, you’re going to think hard about whether you want to pack up the kids and go back.”
The administration’s targets
The flood of litigation has also shed light on the deeply human impacts of the administration’s mass detentions.
On Aug. 24, Rubin, the Maryland-based judge, ordered the release of Fidel Leal-Hernandez, a Mexican citizen who was arrested in the Baltimore area on July 24 on his way to work after 20 years in the country. Before Rubin’s ruling, an immigration judge had ordered Leal-Hernandez’s release on bond more than two weeks earlier, but the administration invoked the automatic stay to keep him detained, despite acknowledging he had “no relevant criminal record.”
In another case, U.S. District Judge Richard Boulware, a Nevada-based appointee of Barack Obama, on Sept. 5 ordered the release of three immigrants residing in Utah who were detained under the automatic stay. One of them, Heriberto Herrera Torralba, a 51-year-old citizen of Mexico, has four U.S. citizen children, including a 20-year-old son on active duty in the Air Force. Herrera, who has been in the country since 1995, had applied for a form of legal status linked to his son’s military service just days before ICE arrested him.
In a third case decided on Sept. 9, U.S. District Judge Julia Kobick, a Biden appointee in Massachusetts, ordered the releaseof Elizaldo Sampiao, a Brazilian man with a 1-week-old child and no criminal record, who crossed the border in 2021 and was released pending further proceedings. He was arrested by ICE on July 11 at a routine check-in.
And a Biden-appointed judge in New York, Dale Ho, sided against the administration last month in the case of Carlos Lopez Benitez, who fled Paraguay in 2023 and has “no criminal history in any country.” He resides in Queens, New York, with his U.S. citizen sisters, who have attended court proceedings with him. He was arrested by ICE agents after a July 16 hearing in his case.
In another case, a mother of two U.S. citizen children — one of whom was still nursing at the time of her arrest on July 17 — was ordered releasedon Aug. 15 by U.S. District Judge Susan Nelson, a Minnesota-based Obama appointee. When the woman, Antonia Aguilar Maldonado, pressed the administration about a long-standing policy against detaining pregnant or nursing mothers facing only an “administrative violation,” the Justice Department indicated that it considered the policy “revoked” as a result of a Trump executive order cracking down on illegal immigration. But Nelson was skeptical.
“The Executive Order contains no references to nursing mothers, let alone nursing mothers who lack any criminal history whatsoever,” she wrote in her ruling.
‘They’re trying to get people to give up’
To Kagan, of the UNLV’s Immigration Clinic, and other immigration advocates, the administration’s ramp-up of mandatory detention is a way to wrest new advantages out of a system already stacked in the government’s favor. By making conditions unbearable, even for people with no criminal history and plausible cases for asylum or pathways to lawful residency, it may cause many to simply accept deportation, they say.
“They’re trying to get people to give up before they even get that far,” Kagan said. “Without a judge ever really ruling.”