Multiple U.S. courts of appeals are considering the government’s sudden about-face on the meaning of two detention statutes, resulting in a radical expansion of mandatory immigration detention. Rejecting three decades of agency and judicial interpretation, the government now maintains that 8 U.S.C. §1225(b)(2) requires the no-bond detention of each of the millions of noncitizens present in the United States without admission.
The amicus brief filed in each case discusses how the government is using its new policy: not to hold those who present a danger or are likely to flee—the only permissible purposes of civil detention—but to arbitrarily detain as many people as possible, regardless of the costs. To date, the government has likely subjected tens of thousands of people to its new mandatory detention policy—many of whom have deep ties to this country, special vulnerabilities, viable pathways to immigration status, and a history of compliance with previously-imposed conditions of release. This has allowed this administration to achieve its mass deportation goals in particularly cruel ways. Noncitizens newly subject to this policy face a painful choice: remain imprisoned in increasingly inhumane conditions with no individualized review whatsoever, or relinquish any chance to vindicate their statutory rights to seek relief from removal. The brief argues that this is not what Congress intended.
