The American Immigration Council is a non-profit, non-partisan organization. Grandmothers, legal permanent residents, community members with old, nonviolent convictions who have lived in the United States for decades, and even individuals with no criminal record at all — these are the people currently trapped in horrific conditions inside immigrant detention centers across the country.
Today, tens of thousands of people are held in civil immigration detention without the right to make a case for their release before an immigration judge. In other words, these noncitizens remain incarcerated with no access to a fair day in court for a bond hearing, subject to mandatory detention. The only way they can fight for release is to file a habeas petition in federal court, which forces the government to prove it has the legal authority to keep someone locked up. The Trump administration’s relentless enforcement agenda — which spiked the number of people in immigration custody to more than 60,000 as of July 2026 — has resulted in over 70,000 habeas petitions filed in federal courts. And the lack of a bond hearing has resulted in untold numbers of people being unlawfully detained and even wrongfully deported.
Recent expansion of mandatory detention
For the last 30 years, immigration law has made detention the default for two groups of noncitizens: those who recently entered and are seeking admission to the United States, and those with certain criminal convictions. The Trump administration has exponentially increased the use and reach of immigrant detention by weaponizing two statutory provisions: §§ 235(b) and 236(c) of the Immigration and Nationality Act (INA).
Section 235(b) mandates detention without a bond hearing for noncitizens who have not been admitted to the country and who are “seeking admission” into the United States. The Trump administration recently re-interpreted this provision to cover not only those apprehended while arriving in the U.S., but also anyone who has ever entered the U.S. without inspection — even when they have lived in the U.S. for decades. This means that for the first time, the government is imposing mandatory detention on hundreds of thousands of noncitizens who pose no public safety threat and have deep ties to the country, thereby depriving them of basic due process — merely because they have not been “admitted” under our immigration laws.
Section 236(c), which Congress expanded last year, subjects immigrants with past criminal convictions ranging from minor, nonviolent offenses to crimes like murder, to detention without the opportunity for a bond hearing.
History of mandatory detention
Detention has not always played such a central role in our immigration system, however. The use of detention in the civil immigration system expanded markedly only in recent decades. In the late 1970s, when Haitians were fleeing the Duvalier regime, the U.S. government refused to release Haitian asylum seekers, vastly increasing the number of people in the immigration detention system. By the early 1980s, hundreds of thousands of individuals fleeing Cuba faced a similar fate upon reaching the United States.
Then, Congress in 1988 passed the Anti-Drug Abuse Act, imposing mandatory detention for immigrants convicted of certain aggravated felonies: murder, drug trafficking, and the illegal trafficking of specified firearms and destructive devices.
As mass incarceration exploded in the United States in the criminal legal context, so too did mandatory immigrant detention. The Antiterrorism and Effective Death Penalty Act of 1996 continued expanding the grounds for detention without the possibility of bond, requiring mandatory detention for any noncitizen convicted of most drug offenses and certain firearms offenses. Soon after, the Illegal Immigration Reform and Immigrant Responsibility Act widened the definition of aggravated felony and further expanded the basis for mandatory detention to include even minor misdemeanors. This meant that low-level convictions like shoplifting or receipt of a stolen check could subject a noncitizen to immigration detention with no right to a bond hearing — even when those convictions were from decades prior.
Most recently, the Laken Riley Act increased the reach of mandatory detention even further by condemning individuals not only convicted of but charged with or arrested for crimes such as shoplifting to detention without a bond hearing. This latest statutory expansion is the culmination of decades of expanding immigrant detention.
Federal courts push back on expanding mandatory detention
As the Trump administration continues to expand the use of mandatory detention, most federal courts across the country have pushed back. Federal district courts have issued close to 13,000 rulings rejecting the government’s interpretation that § 235(b) applies to immigrants who have been in the U.S. for years, and the majority of courts of appeals echo those rulings. Most recently, the Fourth Circuit Court of Appeals joined the growing chorus of circuit courts rejecting the government’s argument that § 235(b) mandates the detention — without opportunity for a bond hearing — of any noncitizen who entered the United States without inspection at any time. A total of nine federal courts of appeal have held the same. Only the Fifth and Eighth circuits have ruled otherwise. This circuit split on § 235(b) is likely to be decided by the Supreme Court.
Meanwhile, the question of whether and when prolonged detention without a bond hearing under § 236(c) violates due process was at the Supreme Court until this month when both parties agreed that the case should be dismissed as moot.
Enforcing immigration laws with due process
Decades of expansion of mandatory detention and the administration’s recent efforts to take this to the extreme has resulted in a system of consequences that treats all immigration violators as dangerous or serious criminals — even when they pose no public safety threat and have deep ties to the United States. The fact that the same punishment is wrought upon a long-time resident with no criminal history and a newly arrived immigrant recently convicted of a violent crime exposes the highly disproportionate nature of the current immigration enforcement system.
Far better frameworks for proportionate responses to violations of the law exist and must be enacted to break the continued expansion of immigrant detention as a one-size-fits-all enforcement tactic. Enforcement responses to violations of the law must be measured, appropriate, and provide any person subject to detention the right to a day in court to make a case for their release.
The explosion of immigrant detention has resulted in a growing number of preventable deaths, documented medical and psychological neglect, and immeasurable suffering. A different, more humane reality for our country is possible, one in which grandmothers are home with their families, children are not afraid of their parents being arrested, and long-term residents can travel to and from work without the threat of being subjected to the horrors of detention with little ability to fight for release.
