Immigration detention is a form of taking into custody of individuals who are not citizens of the United States, suspected or charged with immigration violations. In essence, it is the only form of liberty restriction in the USA imposed by an inherently civil branch of the U.S. jurisprudence, or so immigration law is identified by Congress. According to the AACLU” Immigration Detention in the United States has reached crisis proportions.” In 2011 alone, the Department of Homeland Security (DHS) detained and or held detained 429,000 noncitizens in over 250 facilities nationwide. Many were held for long detention terms and in violation of the U.S. Constitution. AACLU reports that today’s daily capacity of ICE detention facilities nationwide stands at 33,400 beds, “even though, in the overwhelming majority of cases, detention is not necessary to effect deportations and does not make us any safer.”
AACLUE further reports that there are survivors of torture and degrading treatment among those unnecessarily locked up as well as “asylum seekers, victims of trafficking, families with small children, the elderly, individuals with serious medical and mental health conditions, and lawful permanent residents with longstanding family and community ties who are facing deportation because of old or minor crimes.” According to the NGO, contemporary ICE detention operation represents a “massive waste of taxpayer dollars, costing $122 to $164 to hold a detainee each day, or $2 billion a year” and exposes detainees to manifold abuses in this Federal detention.
On March 25, 2026, the United States Court of Appeals for the Eighth Circuit issued its decision in Herrera Avila v. Bondi, No. 25-3248 (8th Cir. Mar. 25, 2026), a ruling that significantly expands the federal government’s authority to detain undocumented immigrants without bond.
In mid-2025, DHS began implementing a “new interpretation” of INA § 235(b) that treated large numbers of long-present noncitizens apprehended in the interior as “applicants for admission” subject to mandatory detention without bond.
Over the last year, immigration detention litigation has shifted from a niche procedural dispute to a central battleground in removal defense. The flashpoint is DHS’s effort to reclassify broad categories of detained noncitizens.
This article addresses a detention posture in which a noncitizen is processed as an applicant for admission, is inspected and released into the United States on parole under Immigration and Nationality Act (“INA”) § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A), and is later arrested by ICE in the interior—often many months after release—then placed (or returned) into detention while removal proceedings remain pending.
