U.S. Immigration and Customs Enforcement has moved to detain far more people than before by tapping a legal authority to jail anyone who entered the country illegally without allowing them a bond hearing.
Todd Lyons, ICE's acting director, wrote employees on July 8 that the agency was revisiting its “extraordinarily broad and equally complex” authority to detain people and that, effective immediately, people would be ineligible for a bond hearing before an immigration judge. Instead, they cannot be released unless the Homeland Security Department makes an exception.
The directive, first reported by The Washington Post, signals wider use of a 1996 law to detain people who had previously been allowed to remain free while their cases wind through immigration court.
Asked Tuesday to comment on the memo, a copy of which was obtained by The Associated Press, Homeland Security spokesperson Tricia McLaughlin said, “The Biden administration dangerously unleashed millions of unvetted illegal aliens into the country — and they used many loopholes to do so. President (Donald) Trump and Secretary (Kristi) Noem are now enforcing this law as it was actually written to keep America safe.”
McLaughlin said ICE will have “plenty of bed space” after Trump signed a law that spends about $170 billion on border and immigration enforcement. It puts ICE on the cusp of staggering growth, infusing it with $76.5 billion over five years, or nearly 10 times its current annual budget. That includes $45 billion for detention.
Greg Chen, senior director of government relations at the American Immigration Lawyers Association, began hearing from lawyers across the country last week that clients were being taken into custody in immigration court under the new directive. One person who was detained lived in the United States for 25 years.
While it won't affect people who came legally and overstayed their visas, the initiative would apply to anyone who crossed the border illegally, Chen said.
The Trump administration “has acted with lightning speed to ramp up massive detention policy to detain as many people as possible now without any individualized review done by a judge. This is going to turn the United States into a nation that imprisons people as a matter of course,” Chen said.
Matt Adams, legal director of the Northwest Immigrant Rights Project, said the administration is “adopting a draconian interpretation of the statute” to jail people who may have lived in the U.S. for decades, have no criminal history and have U.S. citizen spouses, children and grandchildren. His organization sued the administration in March over what it said was a growing practice among immigration judges in Tacoma, Washington, to jail people for prolonged, mandatory periods.
Lyons wrote in his memo that detention was entirely within ICE's discretion, but he acknowledged a legal challenge was likely. For that reason, he told ICE attorneys to continue gathering evidence to argue for detention before an immigration judge, including potential danger to the community and flight risk.
ICE held about 56,000 people at the end of June, near an all-time high and above its budgeted capacity of about 41,000. Homeland Security said new funding will allow for an average daily population of 100,000 people.
In January, Trump signed the Laken Riley Act, named for a slain Georgia nursing student, which required detention for people in the country illegally who are arrested or charged with relatively minor crimes, including burglary, theft and shoplifting, in addition to violent crimes.
