Detained Without a Hearing, Released by Federal Courts, and Heading to the Supreme Court: America's Immigration Detention Crisis Explained

Three intersecting legal stories have collided in American immigration law this week to produce the most consequential snapshot yet of where the battle over indefinite detention stands — and where it is heading. Immigration judges, instructed by the Trump administration's executive immigration court, are systematically denying bond to detainees who courts have repeatedly found are legally entitled to it. Federal district judges, increasingly exasperated by what they describe variously as open defiance, preordained outcomes, and illegal detention, are stepping in with habeas corpus orders releasing those detainees or mandating bond hearings over the objection of the executive branch. The Supreme Court has agreed to decide whether noncitizens detained for months without any hearing have a constitutional right to one. And the justices may also take up a companion question — decided differently in different parts of the country — about whether lawyers who win those habeas cases can recover their fees from the government. Together, these three legal frontlines constitute the most significant constitutional confrontation over immigration detention since the War on Terror era cases of the early 2000s.

The Policy That Started It All: Yajure Hurtado and the July 2025 ICE Memo

To understand what is happening in courtrooms across the country right now, you have to understand the policy architecture that provoked it. In July 2025, Acting ICE Director Todd Lyons issued a memo that was brief in its prose but vast in its consequences. The memo announced that the Department of Homeland Security had revisited its legal position on detention and release authorities and concluded that every noncitizen not formally admitted to the United States in a recognised immigration classification — tourist, student, green card holder, or otherwise — is subject to mandatory detention under Section 235 of the Immigration and Nationality Act, rather than the discretionary detention framework of Section 236.

The implications of that single classification shift were seismic. Section 235 was originally enacted as part of the expedited removal process designed for people arriving at international borders without documents. Section 236, by contrast, is the standard framework that governs most interior immigration enforcement and explicitly permits immigration judges to conduct bond hearings. By reclassifying the universe of undocumented immigrants as 235 applicants for admission rather than 236 interior detainees, the ICE memo effectively stripped immigration judges of authority to release anyone who entered the country without formal inspection — regardless of how long they had been in the United States, how deep their community ties were, or what their family circumstances looked like. In other words, a person who entered the United States without inspection twenty years ago, raised children who are American citizens, paid taxes, held a job, and had no criminal record was now subject to mandatory indefinite detention the moment ICE arrested them, with no path to a bond hearing.

The Board of Immigration Appeals — the quasi-judicial administrative body that issues binding precedent for immigration judges — reinforced this policy weeks later in Matter of Yajure Hurtado, a case involving a Venezuelan man whose Temporary Protected Status had expired. The BIA held that an immigration judge lacks authority to consider a bond request from any noncitizen who entered the United States without inspection and admission, regardless of the length of time they have been present in the country. In doing so, the BIA reversed decades of its own precedent and the longstanding operational practice of ICE itself, which had acknowledged as recently as 1997 that such individuals were eligible for bond and bond redetermination.

The BIA's own decision acknowledged that for years immigration judges had conducted bond hearings for people who entered without inspection. Critics immediately noted the obvious self-refutation buried in that acknowledgment: if these hearings had been unlawfully conducted for 28 years, why had Congress needed to pass the Laken Riley Act in January 2025 to expand mandatory detention categories? If everyone had already been mandatorily detained without bond under Section 235, the Laken Riley Act would have been superfluous. The administration's legal theory, in other words, contained within itself the seeds of its own implausibility.

As of early 2026, the detained population had swelled to approximately 68,000 people, with more than 50,000 of them carrying no prior criminal record. ICE's annual budget had been tripled to $28.7 billion through 2029 by the administration's signature domestic legislation, and $45 billion had been appropriated for expanding the detention centre network. The largest federal law enforcement agency in American history now had the money to cage more people, and the policy framework — Yajure Hurtado — to ensure there would be people to fill the cages regardless of their individual danger or flight risk.

1,600 Cases, 300 Judges, and the Habeas Corps

The legal response arrived with a speed and scale that no single institution, organisation, or advocate planned in advance. The writ of habeas corpus — derived from the Latin for produce the body, and enshrined in the United States Constitution's Suspension Clause as one of the few rights that Congress may not suspend except in cases of rebellion or invasion — became the instrument of a mass legal mobilisation unlike anything seen in American courts in recent memory.

Immigration lawyers, public defenders, pro bono legal organisations, community groups, and in many cases detained individuals filing for themselves without lawyers flooded federal district courts with habeas petitions challenging the legality of detention under the Yajure Hurtado framework. By January 2026 — just six months after the ICE memo was issued — federal judges in over 1,600 habeas cases had deemed the administration's expanded mandatory detention policy illegal, ordering release or bond hearings. More than 300 federal judges across the ideological spectrum, including many appointed by Republican presidents, had ruled against the government. In some districts, Assistant U.S. Attorneys stopped mounting substantive defenses and began simply scheduling status conferences, effectively conceding the cases. In others, judges commented directly on the legal absurdity of the government's position.

The practical and systemic nature of the resistance was notable. The National Institute for Habeas Instruction ran training programmes for lawyers who had never filed a habeas petition before. State-level habeas projects developed template petitions. Courts began issuing guides for pro se habeas filers — people without lawyers navigating federal court procedures on their own behalf while detained. The scale of the mobilisation produced a grassroots legal infrastructure that no administration policy memo had anticipated.

But the confrontation did not end with individual habeas victories. A federal district judge in Washington State, presiding over a class action called Maldonado Bautista v. U.S. Department of Homeland Security, issued a decision on November 20, 2025, certifying a class and declaring the Yajure Hurtado framework illegal for all noncitizens who entered without inspection but were detained in the interior of the country rather than at a border crossing. After immigration judges continued citing Yajure Hurtado as controlling precedent despite the court's ruling, the judge was forced to issue a second order on December 18, 2025, explicitly certifying the judgment as final and reiterating that Yajure Hurtado is no longer controlling. That second order was also, in substantial part, ignored.

Immigration Judges Defy Federal Courts: The EOIR Memo

The most constitutionally alarming dimension of this crisis is not the policy itself — extreme as it is — but what happened when courts ruled against it. On January 13, 2026, Chief Immigration Judge Teresa Riley issued an internal memo to all immigration judges across the country. The memo instructed them that Yajure Hurtado remains binding precedent, and they should continue denying bond under the Yajure Hurtado framework, notwithstanding the federal court's December 18 order expressly stating that Yajure Hurtado is no longer controlling. This was not agency non-acquiescence — a practice in which an agency declines to follow an adverse precedent in future cases while awaiting appellate review. This was an instruction to administrative judges to apply a rule that a federal court had already vacated, in direct defiance of that court's authority.

The LPE Project, a legal scholarship platform run through Yale Law School, described the EOIR's actions in unsparing terms: far beyond agency non-acquiescence, EOIR's actions can only be described as open defiance. The conclusion was unavoidable. The immigration court system — housed within the executive branch and composed of judges who are employees of the Justice Department rather than independent Article III judges — was being used as an instrument of executive branch defiance of Article III federal court orders. The result, as the LPE Project noted, was that anyone facing removal proceedings who cannot secure habeas counsel or file pro se is subject to illegal detention, because the immigration court system will continue applying a rule that federal law has already prohibited.

A federal judge in Colorado captured the dynamic with particular force. In April 2026, U.S. District Judge Nina Wang released an asylum seeker who had been detained despite a federal court order requiring bond hearings, flagging what she described as bond hearings with preordained outcomes — immigration court proceedings whose results were determined not by the individual facts of the case but by the mandatory policy the executive branch had instructed its judges to apply regardless of what federal law required. The court also advised the released detainee of his right to seek attorneys' fees from the government under the Equal Access to Justice Act — a provision that has itself now become the subject of a circuit split and a potential Supreme Court case.

The Appellate Courts Weigh In: A Four-Way Split

As the district court habeas cases multiplied, the circuit courts of appeals began issuing their own judgments — and those judgments produced a geographic patchwork of rights that is itself constitutionally troubling. Whether a detained noncitizen has the right to a bond hearing in 2026 depends, in practice, primarily on which state they are being held in.

The Second Circuit became the first federal appellate court to formally reject the administration's expanded mandatory detention policy, ruling on April 28, 2026 in Barbosa da Cunha v. Freden that noncitizens who entered without inspection but were not apprehended at the border are detained under Section 236 and are therefore entitled to bond hearings. The Sixth Circuit followed on May 11, 2026 in Lopez-Campos v. Raycraft, and the Eleventh Circuit reached the same conclusion on May 6, 2026 in Hernandez Alvarez v. Warden. Three circuits — covering New York, New England, the Midwest from Michigan to Ohio to Tennessee, and the Southeast including Florida — have now rejected the Yajure Hurtado framework as applied to interior detainees.

The Fifth Circuit and the Eighth Circuit went the other way. The Fifth Circuit upheld the mandatory detention theory in Buenrostro-Mendez v. Bondi, covering Texas, Louisiana, and Mississippi — the three states that together house a disproportionate share of the nation's immigration detention capacity. The Eighth Circuit upheld it in Herrera Avila v. Bondi on March 25, 2026, covering the states of the plains and upper Midwest. In those circuits, immigration judges continue denying bond to interior detainees under Yajure Hurtado, and habeas litigation remains the only practical avenue for release.

The National Immigration Law Center has described the result in plain terms: whether you have the right to ask an immigration judge for a bond hearing depends, in 2026, on which circuit you happen to be detained in. The same Venezuelan man who spent years in the United States — someone exactly like Mr. Yajure Hurtado himself — has a right to a bond hearing if ICE detains him in New York, no right to one if ICE detains him in Texas, and a right that is being litigated in dozens of individual cases if he is held in California, where the Ninth Circuit's partial stay of the Maldonado Bautista class judgment has created its own complex geography of rights.

Supreme Court Case One: Bond Hearings for Prolonged Detention

On June 15, 2026, the United States Supreme Court agreed to hear a case that could resolve at least part of the circuit conflict — and in doing so, produce the most significant immigration detention ruling since the court last addressed the question a decade ago.

The case involves two men. The first is a green card holder who was convicted of an aggravated felony in the United States and detained for approximately seven months without a bond hearing while ICE sought to deport him to the Dominican Republic. The second is a green card holder convicted of an aggravated felony sought for deportation to Jamaica, who was detained for nearly two years without a hearing. Both men were represented by the American Civil Liberties Union, which had argued the Supreme Court should decline to take the case — partly because one of the men had already been deported and the other had been released, making the case potentially moot.

The justices granted certiorari anyway, signalling that they view the underlying constitutional question as urgent enough to resolve regardless of the specific fate of the two petitioners. The question presented is whether the Constitution — specifically the Due Process Clause of the Fifth Amendment — requires that noncitizens subject to mandatory detention under the INA receive a bond hearing when their detention becomes prolonged.

This is not the first time the Supreme Court has confronted a version of this question. In 2016, in Jennings v. Rodriguez, the court agreed to address the same issue and produced a deeply divided result. The majority, in an opinion by Justice Samuel Alito, concluded that the relevant immigration statutes did not require bond hearings for detained noncitizens. But the court's divided posture meant it declined to resolve the constitutional question — whether the Due Process Clause would require such hearings even if Congress had not provided for them. That unanswered constitutional question is precisely what the new case now brings before the court.

The Trump administration's expanded mandatory detention policy has given the question new and acute practical stakes. In 2016, the population affected by mandatory detention was significantly smaller and more focused on people with serious criminal histories. Today, more than 50,000 of the 68,000 people in immigration detention have no prior criminal record. The same constitutional question that the court ducked in 2016 now arrives surrounded by a factual record of mass indefinite detention of people with no criminal history, months or years without any individualised assessment of their danger or flight risk, and an executive immigration court that has openly defied federal court orders requiring those assessments to occur.

The court's current composition — significantly more conservative than its 2016 incarnation — makes the outcome difficult to predict with confidence. Justices Thomas, Alito, and Barrett have been the most consistent voices in favour of broad executive authority over immigration matters. Chief Justice Roberts and Justice Kavanaugh have at times been more receptive to procedural due process claims even in immigration cases. The three liberal justices — Sotomayor, Kagan, and Jackson — are expected to vote in favour of constitutionally required bond hearings. The case will likely be argued in the term beginning October 2026, with a decision expected by June 2027.

Supreme Court Case Two: Who Pays the Lawyers?

The second case now before the court involves a question that is simultaneously more technical and more practically consequential for the entire habeas immigration ecosystem. The issue is whether the Equal Access to Justice Act — a federal statute that permits individuals to recover attorneys' fees from the government when they successfully challenge unlawful government action — applies to habeas corpus challenges to immigration detention.

The EAJA provides that attorneys' fees are available to parties that successfully bring any civil action other than cases sounding in tort against the federal government, unless the government's position was substantially justified. The question is whether a habeas petition — the ancient writ that asks a federal court whether the government has the legal authority to hold a specific person — qualifies as a civil action for EAJA purposes.

The circuit split on this question maps almost identically onto the political geography one would expect. The Fourth Circuit and the Fifth Circuit have concluded that habeas proceedings are not civil actions covered by the EAJA because habeas is a hybrid criminal and civil proceeding rather than a purely civil one. Under those circuits' interpretation, attorneys who successfully win habeas immigration cases — ordering the release of a person who was illegally detained — cannot recover their fees from the government. The Second Circuit, Third Circuit, and Tenth Circuit have reached the opposite conclusion, holding that habeas challenges to immigration detention are civil actions within the EAJA's plain text and that attorneys may recover fees when they prevail.

The practical consequence of the circuit split is dramatic. In the Fourth and Fifth Circuits — including the states where much of the country's immigration detention infrastructure is concentrated — organisations and law firms that take habeas immigration cases know in advance they will not recover attorneys' fees even if they win. This removes the primary financial mechanism that allows private attorneys to cross-subsidise pro bono immigration work, and it concentrates the burden of habeas litigation on nonprofit legal organisations with limited capacity. In the Second, Third, and Tenth Circuits, a successful habeas petition produces not just the client's release but a fee award that allows the attorney to take on the next case.

The Supreme Court's private conference scheduled for June 18, 2026 — today — is expected to address a petition asking the justices to resolve this split. If the court grants certiorari, arguments would likely be heard in the October 2026 term alongside the bond hearing case, and the two decisions together would comprehensively reshape the legal and financial architecture of immigration habeas litigation for a generation.

The Broader Constitutional Crisis

What makes this moment different from ordinary policy disagreements about immigration enforcement is the institutional dimension: an executive branch that has responded to repeated adverse federal court rulings not by appealing those rulings or modifying its policy to comply with them while litigation proceeds, but by instructing its administrative judges to continue applying a rule that federal courts have declared illegal, by having U.S. Attorneys in some districts stop defending indefensible positions while ICE continues the same arrests, and by expanding the detention infrastructure in parallel with the legal challenges as if anticipating that scale alone would eventually overwhelm the court's capacity to respond.

More than 300 federal judges across the country, appointed by presidents of both parties, have looked at the administration's mandatory detention policy and found it illegal in more than 1,600 individual cases. The Ninth Circuit, the Second Circuit, the Third Circuit, the Sixth Circuit, and the Eleventh Circuit have all rejected the legal theory undergirding Yajure Hurtado in various contexts. Federal judges have explicitly flagged what they describe as a pattern of noncompliance with court orders, issued supplementary compliance monitoring requirements, and awarded attorneys' fees as a sanction for the government's unreasonable legal positions.

What none of those courts can fully resolve without the Supreme Court's intervention is the constitutional baseline question: at what point does detention without any individualised assessment of danger or flight risk become a violation of the Due Process Clause of the Fifth Amendment? The court's answer to that question — expected by June 2027 — will either provide constitutional protection for the tens of thousands of people currently held in immigration detention without hearings, or confirm the executive branch's authority to hold them indefinitely while their cases proceed at the pace of a court system that has been systematically defunded and understaffed for decades.

In the meantime, the contest between immigration judges denying bond under executive instruction and federal judges ordering release under constitutional authority continues every day across the 50 states, in individual courtrooms, on individual dockets, for individual people whose lives are suspended inside the distinction between Section 235 and Section 236 of the Immigration and Nationality Act.

Sources

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