End mandatory ICE detention.
Make immigration detention exceptional and affirmative.
Why it matters
Current ICE policy effectively mandates detention by default for undocumented immigrants, regardless of their criminal record, deportability, or pursuit of humanitarian relief. Mandatory detention for the duration of removal proceedings is central to the Trump administration’s mass deportation strategy: order removal, hold indefinitely in the hellish conditions of immigration detention, coerce into signing a stipulated order of removal, and deport immediately. ICE is counting on isolation and the horrific conditions of detention to break the resolve of its detainees and pressure them into abandoning their immigration cases so it can shed the burden of due process. This kind of mandatory detention policy is unnecessary, expensive, unjust, and, most of all, shamefully cruel.
Our recommendations
To curtail the rampant misuse of the immigration detention system, we propose legislation based on the following framework:
Immigration detention should only be permitted AFTER ICE has proven that an individual has satisfied narrow criteria for detention eligibility AND an immigration court has approved their detention. To be eligible for detention, the individual must have entered the United States without inspection and been convicted of serious crimes that might reasonably warrant detention, such as those for which mandatory detention is prescribed under INA 236(c)(1)(A) – (D). If only violent criminal convictions were grounds for detention, roughly 95% of the current immigration detainee population would be ineligible. Before someone can be placed in immigration detention, ICE must request permission to detain them from an immigration judge, prove in immigration court that the detention eligibility criteria are satisfied, and the presiding immigration judge must provide authorization by issuing an order of detention. ICE may hold a person in its custody for a limited period following their initial arrest as it awaits an order of detention from an immigration judge. ICE must file a request for detention in immigration court during this initial custody period. If ICE does not make a request or receive approval in that time, it must release the individual from its custody and may only detain them again after the request is approved. The court has ultimate discretion to order an individual’s detention. Detainees may appeal their detention order immediately or within a certain period (e.g., 60 days), and ICE should be required to inform them of their right to appeal and provide them with instructions for doing so upon request. Appeals will be reviewed by the Board of Immigration Appeals (BIA) without delay. The detainee may also petition a federal circuit court of appeals for judicial review of rulings from the BIA or any other lower court. The individual shall not be detained in federal immigration custody at any time during the appeals process, except possibly for the remainder of their initial custody period. Detention could only proceed once all appeals have been exhausted or the individual declines to pursue further review.
These procedures are intended to protect individuals arrested by ICE from arbitrary detention while preserving the agency’s ability to detain immigrants who might pose a genuine threat to public safety.