DOJ Board Says Millions of Immigrants Can Be Jailed During Removal Proceedings

Last week, the Department of Justice’s Board of Immigration Appeals ruled that people who enter the country without authorization must be detained throughout their removal proceedings, a process that can take years.

The decision stems from the case of Jonathan Javier Yajure Hurtado, a Venezuelan citizen who entered the United States in 2022. In 2024, he was granted Temporary Protected Status, which expired in April; he was subsequently arrested. At his bond hearing, the immigration judge ruled he did not have the authority to set bond, which meant Hurtado would stay in detention.

The Board of Immigration Appeals (BIA) agreed with the judge’s ruling. In its September 5 decision, the three-judge panel ruled that “[a]liens who are present in the United States without admission …. must be detained for the duration of their removal proceedings.”

Two of the judges were appointed during Trump’s first presidential term by then-Attorney General William Barr and one was appointed during his second term by Attorney General Pam Bondi.

Previously, people were generally eligible for bond hearings if they had been in the United States for at least two years.

“[J]ust as Immigration Judges have no authority to redetermine the custody of arriving aliens who present themselves at a port of entry, they likewise have no authority to redetermine the custody conditions of an alien who crossed the border unlawfully without inspection, even if that alien has avoided apprehension for more than 2 years,” the board wrote.

According to the board’s website, its “decisions are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a federal court.”

“Most BIA decisions are subject to judicial review in the federal courts,” the website states.

The Trump administration applauded the decision.

“Big win for our ICE attorneys securing our ability to detain illegal aliens until they are deported,” the Department of Homeland Security (DHS) posted on social media. “The One Big Beautiful Bill includes significant funding for new ICE lawyers.”

Advocates warn that the board’s decision will coerce people to “self-deport” even if they could ultimately win their case and stay in the United States. The Trump administration has waged an aggressive campaign to encourage people, including DACA recipients, to leave the United States. In social media posts and public statements, they have warned immigrants that if they stay, they may be detained in inhumane facilities like Alligator Alcatraz or Louisiana Lockup, a unit at the Louisiana State Penitentiary, better known as Angola.

Dana Leigh Marks, a former immigration judge and former head of the judges’ union, told Politico the board’s ruling was “horrific.”

“No self-respecting lawyer could look themselves in the mirror and take these positions,” she said. “It’s a total cynical move to try to force people to litigate their cases while they’re detained.”

The decision affirms a July 8 memo from the the acting director of Immigration and Customs Enforcement (ICE), that states, effective immediately, those who entered the country without prior authorization are “ineligible for a custody redetermination hearing (‘bond hearing’) before an immigration judge and may not be released for the duration of their removal proceedings absent a parole by DHS.”

The American Immigration Lawyers Association wrote that the new policy “would be facilitated by the $45 billion in new detention funding Congress enacted in the One Big Beautiful Bill, which will enable ICE to double detention capacity to 100,000 beds.”

“If fully implemented, the new ICE policy would apply to millions of people who entered the country without inspection and, as a result, would mandate their detention,” the group continued. “ICE’s new policy is an unlawful attempt to strip noncitizens of their statutory right to a bond hearing and will subject millions of people to mandatory detention and possible fast-track deportation under expedited removal.”

Silky Shah, executive director of Detention Watch Network, told Truthout in a statement that the Board’s decision is “yet another example of how Trump is using immigration detention as a testing ground for authoritarianism.”

“Let’s be clear about what this decision means: millions of undocumented immigrants in the U.S. could be denied due process rights and can be detained indefinitely,” she said. “Detention facilitates deportation, and expanding detention is key to Trump carrying out his cruel, multi-layered, mass detention and deportation agenda.”

However, Shah noted, the “expansion of detention is not a done deal.”

“Advocates across the country have fought to shut down facilities in their communities and block the opening of new ones, and we can do it again,” she said. “Nationwide protests have once again illuminated that people do not want ICE agents and detention centers in their communities.”