The U.S. Immigration and Customs Enforcement (ICE) has issued a new directive that fundamentally alters the agency's legal stance on the detention of individuals present in the United States without lawful admission. If widely adopted, this policy could drastically expand mandatory detention and eliminate access to individualized bond hearings for millions of noncitizens, including long-term residents with no criminal record.

What Changed?

ICE is now arguing that nearly all individuals who have entered the U.S. without inspection—regardless of how long they've lived here—are subject to mandatory detention under Section 235 of the Immigration and Nationality Act (INA). This interpretation diverges from the long-standing practice by both the Department of Homeland Security (DHS) and immigration courts, which historically treated such cases under INA § 236, allowing for bond and judicial review.

By reclassifying these individuals as subject to INA § 235 detention, ICE contends that immigration judges no longer have jurisdiction to determine whether such individuals may be released from custody—even if they pose no flight risk or danger to the community.

Who Will Be Affected?

This change could affect millions of individuals who entered without inspection but have lived in the U.S. for years—often decades. These are community members, employees, and family members with no criminal history who contribute to our society and economy.

ICE has already applied this policy to individuals who have lived in the U.S. for over 25 years and have never had legal trouble. The directive explicitly excludes visa overstays and certain parolees, but its broad application could still engulf a significant portion of the undocumented population.

With the expansion of detention funding through the recently passed “One Big Beautiful Bill,” ICE now has the resources to double its detention capacity to 100,000 beds—a move that signals the agency's intent to detain on a mass scale.

Legal Challenges and Contradictions

ICE's new legal position has not gone unchallenged. A federal court in Washington State recently rejected this interpretation in Ramon Rodriguez Vazquez v. Drew Bostock. The court reaffirmed that INA § 236—not § 235—governs detention and bond procedures for individuals who are present in the U.S. but have not been admitted. The court emphasized that interpreting § 235 to apply to such individuals would render portions of § 236 superfluous, violating basic principles of statutory interpretation.

The ruling affirmed that people who entered without inspection but have no criminal history are entitled to bond hearings before an immigration judge, consistent with decades of practice and legislative intent.

ICE's End-Run Around the Courts

Despite this federal ruling, ICE attorneys have begun advancing the new legal theory in at least 22 immigration courts across the country. While some judges have rejected the argument and ordered individuals released on bond, ICE has appealed those decisions and refused to release detainees during the appeals process.

In effect, ICE is attempting to strip immigration courts of their statutory authority to assess whether detention is necessary—an extraordinary move that upends foundational due process protections.

Oversight Is Urgently Needed

This sweeping policy shift has come without a national directive from the Department of Justice or the Executive Office for Immigration Review (EOIR). Its impact is already being felt in courtrooms and detention centers nationwide.

Saluja Law urges Congress and oversight bodies to:

• Immediately review ICE's interpretation of detention statutes;

• Reinforce the role of immigration courts in determining custody status;

• Ensure transparency around internal guidance being issued to ICE attorneys and immigration judges;

• Protect the statutory right of noncitizens to a fair hearing before being deprived of liberty.

Conclusion

The United States has long prided itself on a legal system that guarantees due process. ICE's new policy threatens to undo decades of legal precedent and subject millions to indefinite detention without the opportunity to be heard. Saluja Law remains committed to defending the rights of immigrants and upholding the rule of law in the face of unlawful government overreach.

If you or a loved one has been affected by recent detention actions or changes in immigration enforcement, contact Saluja Law for a consultation.