Supreme Court May Consider Trump Administration Detention Policy

Why it matters locally: While Vermont does not have a high volume of immigration detention, a Supreme Court ruling affirming the Trump administration's detention policy could impact individuals encountered by federal agencies within the state who lack documentation, potentially limiting their ability to seek release on bond from an immigration judge.

---

WASHINGTON – The U.S. Supreme Court is poised to consider a Trump administration policy regarding the detention of migrants who have resided in the United States without government permission for an extended period. Both the Department of Justice (DOJ) and attorneys representing migrants have asked the justices to determine if Immigration and Customs Enforcement (ICE) can detain these individuals and deny them the opportunity to seek release from an immigration judge. Since President Trump's return to office in January 2025, ICE's detention operations have expanded. In January 2025, ICE held an average of approximately 40,000 people daily. By July 2026, the agency's data indicated it held 65,634 individuals each day. Of this total, Customs and Border Protection arrested one in ten. ICE arrested the remaining almost 59,000. Federal law grants Customs and Border Protection (CBP) and ICE authority to detain individuals believed to be in the United States in violation of immigration law. One section of the Immigration and Nationality Act (INA) mandates detention for migrants present in the U.S. who have not been admitted, classifying them as "applicants for admission." This applies to individuals arriving at ports of entry or encountered by Border Patrol between official crossings. Another section of the INA permits detention of other migrants, but allows them to request release on bond from either the Department of Homeland Security (DHS) or an immigration judge. For decades, immigration officials applied the first provision to individuals encountered at or near the border. They applied the second provision, which allows for bond requests, to individuals apprehended in interior U.S. cities and towns. This allowed individuals apprehended in the interior to seek release from an immigration judge if they could demonstrate they posed no flight risk or public danger. In July, ICE altered this practice. The agency announced it would detain every migrant found nationwide who agents believed lacked permission to enter the country. The new policy stipulated that none of these migrants could request release on bond from an immigration judge. Two months later, the DOJ's Board of Immigration Appeals, the executive branch's highest immigration appellate body, upheld this policy, making it binding on immigration judges. Federal circuit courts have since issued rulings on the legality of ICE's new mandatory detention policy. Most, including the 1st, 2nd, 6th, 7th, 9th, 10th, and 11th Circuits, have found the administration's policy illegal. These courts generally hold that the mandatory detention provision applies to individuals at or near the border, while individuals within the United States can request release from an immigration judge. The U.S. Court of Appeals for the 6th Circuit also concluded that the government's broad application of detention without bond possibility violates the Fifth Amendment's due process clause. Conversely, the 5th and 8th Circuits have supported the Trump administration's position, stating that federal immigration law requires mandatory detention for anyone present in the U.S. without admission, regardless of location or duration of stay. Two of these cases await Supreme Court action. In *Raycraft v. Lopez-Campos*, the Solicitor General asked the justices to overturn the 6th Circuit’s decision. The government argues that allowing migrants without permission to live in the U.S. to request bond release is "perverse." Separately, advocates for migrants, led by the American Civil Liberties Union (ACLU), asked the justices to add the 5th Circuit’s decision in *Buenrostro-Mendez v. Bondi* to its calendar. They argue the Trump administration's position represents a "radical, new, and countertextual interpretation" of immigration law. Legal observers anticipate the court will consider one or both cases due to the existing disagreement among circuit courts. This disagreement has intensified since the Solicitor General and ACLU filed their petitions. The 7th and 9th Circuits have since issued decisions opposing the government's view. Additionally, a three-judge panel of the 5th Circuit determined ICE's policy violated the due process clause in a separate case, though the full 5th Circuit subsequently vacated that decision and announced a rehearing. The justices' decision on which case to hear may depend on whether they prioritize statutory interpretation or constitutional law. The 5th Circuit's *Buenrostro-Mendez* decision did not address the constitutionality of ICE's policy, while the 6th Circuit did in *Raycraft*. The Solicitor General contends *Raycraft* is the "best vehicle" to resolve the circuit split because its due-process holding "effectively invalidated a federal statute." The ACLU argues *Buenrostro-Mendez* is a "superior vehicle" because only one circuit has ruled on the constitutional question, meaning no circuit split exists on that issue. Two other circuits, the 2nd and 7th, have indicated that mandatory detention for individuals apprehended in the interior could raise due process concerns, though neither the Solicitor General nor the ACLU emphasize these discussions as central to their arguments. The path forward for ICE's mandatory detention policy appears to lead to the Supreme Court, which will again consider the extent of the executive branch's power in enforcing immigration law.