A federal appeals court ruled Tuesday that the Trump administration cannot jail immigrants without bond, citing serious constitutional questions. The unanimous ruling from the 2nd U.S. Circuit Court of Appeals in New York City stated the policy would amount to the broadest mass-detention-without-bond mandate in the nation’s history for millions of noncitizens.
This decision sets the stage for a possible U.S. Supreme Court appeal, as panels on the 8th and 5th circuit courts have already upheld the policy. The Trump administration’s Department of Homeland Security (DHS) has been denying bond hearings to immigrants arrested across the country since last July, including those who have been in the U.S. for years without any criminal history.
Expanding State Control Over Labor
This approach departs from previous administrations, which generally allowed noncitizens with no criminal record arrested away from the border to request a bond hearing. Under prior policies, bond was often granted to those deemed not to be flight risks, with mandatory detention limited to new arrivals. The new policy, however, treats all immigrants targeted for deportation the same way as new arrivals, according to Todd Lyons, acting director of the U.S. Immigration and Customs Enforcement (ICE).
Attorneys for the Trump administration assert the mandatory detention policy is legal under the Illegal Immigration Reform and Immigrant Responsibility Act passed 30 years ago. While that 1996 law streamlined deportation for newly arriving individuals without permission, immigrants already in the country were previously allowed to seek bond from an immigration judge under a different statute. The current administration’s interpretation expands the state's power to control and discipline a significant portion of the labor force.
The Human Cost of Enforcement
The policy has strained federal courts, with judges across the country facing more than 30,000 lawsuits from immigrants locked up under the Trump administration’s mass deportation campaign. Immigrants, left with no way to request bond in immigration court, have turned to federal courts through habeas corpus petitions.
The 2nd Circuit case specifically involved Ricardo Aparecido Barbosa da Cunha, a man from Brazil who entered the U.S. around 2005. He applied for asylum 10 years ago and was granted work authorization while his application was under review. Barbosa da Cunha, who has never been arrested or charged with a crime, owns his own home in Massachusetts where he lives with his wife and two U.S. citizen children, and runs a small construction business. He was arrested on an administrative warrant 7 months ago and placed in removal proceedings, subsequently filing a habeas petition after an immigration judge found him subject to mandatory detention.
Judge Joseph F. Bianco, a Trump nominee, wrote for the panel that the mandatory detention of noncitizens like Barbosa da Cunha for a substantial period raises serious constitutional questions. He noted the government failed to explain how such detention would bear a reasonable relation to any legitimate, non-punitive purpose. The panel, which included Judges Alison J. Nathan and Jose A. Cabranes, found the government’s interpretation of the 1996 immigration statute defies its plain text, purpose, and history, pointing out that Congress had established a tiered system for immigration cases.
Legal Challenges and Systemic Limits
Amy Belsher, director of Immigrants’ Rights Litigation at the New York Civil Liberties Union, stated the ruling “rightly affirms that the Trump administration’s policy of detaining immigrants without any process is unlawful and cannot stand.” She added that the government cannot mandatorily detain millions of noncitizens, many of whom have lived in the country for decades, without an opportunity to seek release, asserting it defies the Constitution, the Immigration and Nationality Act, and basic human decency. While framing the issue as a matter of legality and decency, such statements do not address the underlying economic drivers of policies designed to control and exploit immigrant labor.
The Department of Homeland Security, in an emailed statement, pointed to a Board of Immigration Appeals ruling upholding the mandatory detention policy. DHS asserted that Trump and DHS Secretary Markwayne Mullin “are now enforcing this law as it was actually written to keep America safe,” and claimed that “judicial activists have been repeatedly overruled by the Supreme Court on these questions. ICE has the law and the facts on its side and will be vindicated by higher courts.” This response underscores the state’s commitment to maintaining and expanding its power over immigrant populations, regardless of the human cost or legal challenges to its methods of control.