The question of whether the U.S. government can jail millions of people without bond hearings simply for crossing the border without authorization has created a deep split among federal appeals courts. The Trump administration argues that a 30-year-old immigration law, the Illegal Immigration Reform and Immigration Responsibility Act (IIRAIRA), allows it to detain anyone who initially entered without authorization, even if they have lived in the country for years without incident and are following legal procedures. This interpretation has led to thousands being jailed without bond, including those with no criminal history and valid work permits.
Multiple federal appeals courts have weighed in on the issue, with conflicting rulings. The Second Circuit ruled against the policy, calling it the broadest mass-detention-without-bond mandate in U.S. history, while the Fifth and Eighth Circuits sided with the administration. The Seventh Circuit was divided three ways. This circuit split makes it highly likely that the Supreme Court will have to resolve the matter. Michael Tan, deputy director of the ACLU Immigrants' Rights Project, stated, "I think it's likely this issue will be resolved by the [Supreme] Court."
The administration's policy, enacted last summer, represents a radical reinterpretation of IIRAIRA. Previously, even the first Trump administration interpreted the law to allow bond hearings for most immigrants arrested in the interior. Now, the administration treats long-term residents as if they just crossed the border, making them eligible for mandatory detention without bond. A DHS spokesperson said, "We are confident in our position, which a majority of courts of appeals have endorsed." However, hundreds of district courts, including many Trump appointees, have ruled against the administration.
The Second Circuit's decision highlighted the potential for millions to be detained, warning of "grave constitutional concerns" and violations of the Fifth Amendment. Judge Joseph Bianco, a Trump appointee, wrote that the policy "would send a seismic shock through our immigration detention system and society." The administration has used detention as a tool to coerce self-deportation, with officials openly acknowledging the horrific conditions in detention centers as leverage. The recent shutdown of the Office of the Immigration Detention Ombudsman has further raised concerns about accountability.
Even if the Supreme Court upholds the policy, practical limitations exist. The number of people in immigration detention peaked at 73,000 earlier this year, far below the millions the administration claims are eligible. Still, thousands remain jailed, including those without criminal records, and arrests continue weekly. The ACLU is considering petitioning the Supreme Court, especially given the circuit split. Tan summarized the government's message to detainees: "We're locking you up, there's no way you're getting out... But you have the keys to your own cell, so why don't you make your own decision and give up and self-deport."
