Trump Administration’s Detention of Undocumented Residents Without a Hearing Is Unlawful

NEWS & RESEARCH

The Trump administration’s policy of detaining long-term undocumented residents without bond hearings is unlawful, A unanimous panel of the Second Circuit Court of Appeals struck down the administration’s policy that millions of immigrants who entered the country illegally years ago are perpetually "seeking admission" and thus subject to indefinite detention. This decision creates a significant circuit split with the Fifth and Eighth Circuits, which previously upheld the policy. The issue is likely heading to the Supreme Court.

SOURCES: New York Times | Politico | The Hill | Second Circuit panel decision

ANALYSIS & OPINION

The circuit court affirmed a lower court's ruling in the case of Ricardo Barbosa da Cunha, a long-term U.S. resident who was detained despite having no history of being a flight risk or danger to the community. In its decision, the court found that the administration's sudden 2025 reinterpretation of immigration laws violated existing statutes and raised serious constitutional concerns regarding due process. This ruling effectively restores the right for many noncitizens in removal proceedings to seek release through individual bond hearings. However, given the split in the circuits, the Supreme Court is expected to rule on the matter in its next term.

SOURCES: ACLU | US Immigration F1 News

HOW TO FIX IT

Federal action: Congress should make express that resident immigrants may not be detained without a bond hearing unless they had been convicted of a criminal offense.

Litigation: Immigrant Defense Project Resources for conducting detention litigation