The unprecedented military-style occupation of U.S. cities under the banner of “immigration enforcement” has made obvious what organizers have long known: ICE and CBP regularly skirt the law. They abuse and coerce people into giving up rights, target dissent, weaponize existing legal powers to erode due process, and insulate rights violations from review through jurisdiction-stripping provisions or post-hoc approval of illegal practices. We might describe these tactics as lawlessness in the shadow of law—that is, while the conduct violates the letter and spirit of the law, the agencies either seek legal approval or endeavor to keep the legality of their conduct from being reviewed at all, knowing that review will force them to change course.
In recent months, however, there has been a significant evolution in the immigration agencies’ lawlessness: they are increasingly stepping into direct confrontation with the institutions exercising legal oversight. Certain conflicts have gained significant attention, such as illegally refusing Congressional representatives access to ICE facilities and repeatedly lying and obstructing in court. Yet likely the most widespread such confrontation is happening over the practice of mandatory detention, a statutory authority for ICE to incarcerate someone without bond until the end of immigration proceedings.
As I explain in this post, DHS and EOIR (which houses immigration courts) have purported to re-interpret longstanding laws to subject the vast majority of people in removal proceedings to mandatory detention. These efforts have been overwhelmingly rebuffed by federal courts. In more than 1,600 habeas cases, over 300 federal judges have deemed the administration’s gambit illegal, ordering release or a bond hearing, while only 14 have sided with the administration.
Yet given the tens of thousands of people that ICE continues to arrest and detain each month—and the practical and resource constraints preventing individual habeas actions from keeping pace—ICE is effectively circumventing the federal judiciary. As this episode illustrates, agencies committed to lawlessness and bestowed with ever-expanding budgets simply cannot be meaningfully constrained by courts. Efforts to combat DHS’s harmful and illegal practices must go after the agencies’ budgets, shrinking and ultimately eliminating their headcounts and capacity.
Agencies Discover Nearly Everyone is Subject to Mandatory Detention
On July 8, 2025, ICE circulated an internal memo to “all ICE employees”—never released to the public—that radically changed immigration proceedings and detention policy. By purporting to reinterpret longstanding legal provisions in unprecedented ways, ICE made millions of people newly subject to mandatory detention.
Specifically, ICE said that everyone not “admitted” to the United States in a particular classification (tourist, student, etc.) was subject to mandatory detention under 8 U.S.C. § 1225(b). Originally enacted as part of the “expedited removal” process meant to apply to people arriving at an international border without documents, this provision would now mean mandatory detention for all new asylum-seekers, anyone who entered without authorization in the past even if they had been here for decades, and people who were paroled from border detention into the United States. Around the same time, the Board of Immigration Appeals (BIA) reinforced ICE’s new policy with precedential decisions in Matter of Q. Li and Matter of Yajure Hurtado.
The magnitude of the transformation brought about by these changes is difficult to overstate. Almost everyone who crossed the US-Mexico border under Biden (a primary target for many Trump II policies) would now be subject to detention without bond at any moment (including at green card or asylum interviews, notwithstanding eligibility). So too would the vast majority of the estimated 12 million undocumented immigrants living in the United States, many for decades.
Critically, ICE implemented this new policy a mere four days after Trump signed into law his signature domestic legislation, which provided $45 billion for expanding ICE’s network of detention centers and more than tripled ICE’s annual budget to $28.7 billion per year through 2029, making it the largest federal law enforcement agency by a longshot. In other words, Trump secured endless money for human caging, while ICE and the BIA enacted new policies to ensure there would be endless humans to cage.
The Habeas Response: Emptying the Ocean with a Spoon?
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