Immigration and Customs Enforcement has ushered in a policy that will render undocumented migrants ineligible for bail hearings, meaning they could be detained for months or years as their case plays out, according to a memo.
The Trump administration’s policy seeks to “supercharge” the administration’s already sweeping campaign of arrests and deportations, immigration attorneys say, as ICE has received billions of dollars to increase the number of migrants in detention.
Previously, migrants were typically allowed to request a bond hearing before an immigration judge. But the Department of Homeland Security has “revisited its legal position on detention and release authorities,” acting ICE director Todd M. Lyons announced in a memo dated July 8, the Washington Post first reported.
Migrants who entered the U.S. illegally should be detained “for the duration of their removal proceedings,” Lyons said in the memo.
The policy will apply to millions who have lived in the U.S. for decades and many of them will have children who are American citizens, immigration attorneys said.
Migrants “may not be released from ICE custody” except in rare instances where an immigration officer releases them on parole. That decision will not be made by a judge, Lyons wrote.
ICE expects to face legal challenges to the move, Lyons added in the memo.
“The recent guidance closes a loophole to our nation's security based on an inaccurate interpretation of the statute,” an ICE spokesman said in a statement to The Independent. “It is aligned with the nation’s long-standing immigration law. All aliens seeking to enter our country in an unlawful manner or for illicit purposes shall be treated equally under the law, while still receiving due process.”
The policy change comes as President Donald Trump’s spending package has significantly increased ICE’s detention capacity, handing the agency $45 billion to detain migrants over the next four years.
Federal officials plan to use the ICE windfall to roughly double the nation’s immigration detention capacity, bringing the total to between 80,000 and 100,000 detention beds.
Tom Jawetz, a former DHS official in the Biden administration, told Reuters that the policy change was a “radical departure that could explode the detention population.”
Immigration attorney Aaron Korthuis said the policy “is looking to supercharge detention beyond what it already is.”
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Other immigration attorneys and advocates said that denying migrants a bond hearing will make it more challenging to fight their case as they wait in detention facilities where communicating with clients is a problem, such as Florida’s “Alligator Alcatraz.”
“I think some courts are going to find that this doesn’t give noncitizens sufficient due process,” immigration attorney Paul Hunker, a former ICE chief counsel in the Dallas area, told The Post. “They could be held indefinitely until they’re deported.”
In a statement, the Department of Homeland Security justified the move by blaming the Biden administration for “unleashing millions of unvetted illegal aliens” into the U.S.
“President Trump and Secretary Noem are now enforcing this law as it was actually written to keep America safe,” said assistant secretary Tricia McLaughlin. “Politicians and activists can cry wolf all they want, but it won’t deter this administration from keeping these criminals and lawbreakers off American streets—and now thanks to the Big Beautiful Bill, we will have plenty of bed space to do so.”
Immigrants were being denied bail hearings in more than a dozen courts across the U.S. since the memos were issued last week, the American Immigration Lawyers Association told the outlet.
“This is their way of putting in place nationwide a method of detaining even more people,” Greg Chen, senior director of government relations for the American Immigration Lawyers Association, told the outlet. “It’s requiring the detention of far more people without any real review of their individual circumstances.”
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