Millions of migrants who entered the United States illegally will be forced to remain behind bars while their deportation proceedings continue for months or even years under a new Trump administration policy.
Acting Director for Immigration and Customs Enforcement Todd M. Lyons told agents in a July 8 memo obtained by the Washington Post that such migrants will no longer be eligible for a bond hearing and should be detained 'for the duration of their removal proceedings.'
He revealed the Department of Homeland Security and Justice Department 'revisited its legal position on detention and release authorities', and determined that migrants 'may not be released from ICE custody.'
This new policy reverses legal standards governing migrant detention that have been held for decades, said Tom Jawetz, a former homeland security official in the Biden administration, who called it 'a radical departure that could explode the detention population.'
In the past, those who were marked for deportation have been able to request a bond hearing before a judge. If the judge were then to grant the migrant a bond, he or she could be released into society as their deportation proceedings continued in the courts.
As of last year, the majority of the 7.6 million migrants on ICE's docket were released, the agency's annual report revealed.
But under the new guidance, those migrants will be forced to remain in detention centers, where the agency is currently holding about 56,000 migrants each day.
The capacity, though, is expected to nearly double under the recently-passed Big Beautiful Bill, which allocates $45 billion over the next four years to lock up migrants for civil deportation proceedings.
The new policy will apply to any migrant who illegally crossed into the country at the southern border over the past few decades, including those who came in record numbers during the Biden administration.
In rare circumstances, migrants may still be released on parole - but that decision must be made by immigration officers and not judges, according to the memo.
The Trump administration is justifying the reversal of its policy by citing a provision of immigration law that states that migrants 'shall be detained' after their arrest, which the memo says should be taken as a 'prohibition on release.'
But the provision has long been interpreted as to apply only to those who had recently crossed the border - and in the memo Lyons even notes that the shift in policy is 'likely to be litigated.'
In the meantime, he encouraged ICE prosecutors 'to make alternative arguments in support of continued detention' as immigration lawyers say they have already seen migrants being denied bond hearings in more than a dozen immigration courts across the US.
Those migrants now find themselves being deported to a 'third country' with as little as six hours notice if they have been given an opportunity to speak with an attorney.
'This is their way of putting in place nationwide a method of detaining even more people,' said Greg Chen, the senior director of government relations for the American Immigration Lawyers Association.
'It's requiring the detention of far more people without any real review of their individual circumstances.'
Immigrant rights groups also argue that the new guidance deprives migrants of their due process rights, with immigration lawyer and former ICE chief counsel for the Dallas, Texas area noting that migrants 'could be held indefinitely until they're deported.'
Other attorneys have likened the new policy to a position taken by several immigration judges in Tacoma, Washington, who have denied hearings to anyone who crossed the border illegally.
The Northwest Immigrant Rights Project in Seattle filed a suit in March challenging the judges' actions, arguing that their refusal to hold a bond hearing violated the migrants' rights, according to the Washington Post.
Its original plaintiff Ramon Rodriguez Vazquez has lived in the state since 2009 and works as a farmer. He argued that his entire family are US citizens and he even owns the home where ICE officers arrested him in February for living in the country illegally.
By April, a federal judge in Washington state found that he had 'no criminal history in the United States or anywhere else in the world' and ordered immigration officers to give him a proper bond hearing before a judge.
The judge, though, denied him bond and he has since been deported back to Mexico.
An attorney representing Rodriguez Vasquez now says the Trump administration's decision to deny migrants bond hearings is 'flagrantly unlawful' and argued that the policy 'is looking to supercharge detention beyond what it already is.'
Many migrants now find themselves being deported to a 'third country' with as little as six hours notice.
Those in favor of the policy change, however, have argued that it might discourage migrants from filing frivolous claims in hopes of being released into the community while their cases proceed through the backlogged immigration courts.
'Detention is absolutely the best way to approach this if you can do it. It costs a lot of money obviously,' said Mark Krikorian executive director for Center for Immigration Studies.
'You're pretty much guaranteed to be able to remove person if there's negative finding if he's detention.'
Migrants who have been convicted of murder or other serious crimes were already subject to mandatory detention without bond, and this year, the Republican-led Congress added theft-related crimes to the list of those that are not bond-eligible.
Government officials have also reopened family detention centers that the Biden administration shuttered due to security concerns, and have reinforced other facilities like the controversial 'Alligator Alcatraz' detention center in the Florida Everglades.
Democrat lawmakers who were granted access to tour the hastily-constructed facility have lamented the tough conditions migrants housed there will face.
Florida Democrat Rep. Debbie Wasserman Schultz compared the facility to an internment camp and insisted ‘there are really disturbing, vile conditions,’ demanding the ‘place be shut the hell down.’
The lawmakers said more than 30 migrants were packed into cage-style cells with just three combination sink-toilets. Temperatures hovered in the mid-80s inside medical intake tents.
Detainees have reported worms in the food, overflowing toilets, and 24-hour lockdowns in cages teeming with mosquitoes.
But Kevin Guthrie, from the Florida division of Emergency Management, has since claimed the Democrats’ were lying about the conditions of the facility to make it seem worse than it is.