Dem
47
GOP
53
When the government detains a non-citizen under immigration law, it is a civil detention. In other words, the person has not committed a crime, and instead is detained under civil immigration statutes. Typically, a non-citizen who is apprehended at the border is subject to mandatory detention without bond unless they can show they are entitled to be admitted. And up until the current presidential administration, non-citizens present in the country's interior could be detained at DHS' discretion under a different provision of immigration law, but were entitled to a bond hearing to secure their release. Mandatory detention was only for those who had committed a crime.
However, starting in 2025, Stephen Miller Donald Trump decided that when Congress
amended the immigration statutes in 1996, it eliminated the government's discretion and made detention mandatory without
bond for all non-citizens not previously admitted, no matter where they are found, and shifted the burden to them to
prove they're entitled to stay. And apparently, Congress did this without telling a soul and allowed every subsequent
administration to carry on with its detention policy as if nothing had changed.
The Seventh and Ninth Circuit Courts of Appeal are the latest appellate courts to be asked to weigh in, and are the latest to tell Trump and DHS that their new interpretation of the law is wrong. Or more pointedly, "We add but a few more drops of ink to the gallons already spilled," Judge Joshua Kolar, a Joe Biden appointee, wrote in the Seventh Circuit opinion. Judge Daniel Bress, a Trump appointee, wrote the Ninth Circuit opinion. They join four other appeals courts and more than 460 district court judges who have rejected Trump's policy. Only two appeals courts have upheld the mass detentions.
Bress was, if anything, even firmer in his ruling than Kolar. He wrote: "The implication of the government's position is that Congress in 1996 made a major change to the immigration laws by subjecting millions of unadmitted aliens present in the United States to mandatory detention, but that this change then went unnoticed and unheeded, with the Executive Branch for the next three decades..."
The Judge also pointed out that Congress has since added to the list of qualifying events for which "aliens" present in the interior without admission can be subject to mandatory detention. If, as the White House claims, all non-citizens present in the interior without admission are subject to mandatory detention, then what's the point of creating exceptions and expanding the list of crimes for which these same non-citizens may be detained? There is none. In fact, the latest expansion of the list of crimes was in the Laken Riley Act, passed in 2025. If Congress believed that the law was being misinterpreted and agreed with Trump's reading, they could have streamlined the law and had one provision mandating detention without bond for every non-citizen present who had not been admitted. But they did not.
The Ninth Circuit covers nine western states, including the very sunny states of California, Arizona, and Nevada, where many non-citizens are being held, often in deplorable conditions with much heat and not enough water. People held in detention in any of these states who were arrested under the mass detention policy are now entitled to a bond hearing. This could also relieve some of the pressure on district courts that have been inundated with habeas corpus petitions, which is the only recourse to secure release without the availability of a bond hearing.
The big question, of course, is "What will the Supreme Court do?" We've already seen the so-called "Kavanaugh stops," after the Republican majority on the Court blessed stopping and detaining people based on their accents, skin color and place of employment. Mass detentions don't seem to trouble them, civil rights be damned. But when it comes to ascertaining Congressional intent in a particular statutory provision, that could be seen as more of an intellectual exercise as opposed to a humanitarian one (which they seem to view with distaste). They haven't taken up the issue yet, but petitions for certiorari are pending from the Sixth Circuit's decision (striking down the policy) and the 5th Circuit's decision (agreeing with Trump). So, stay tuned. (L)