The Supreme Court will soon weigh whether ICE detainees with serious criminal records can be held indefinitely while their deportation proceedings play out.
Federal law mandates the detention of immigrants facing deportation who have been convicted of or arrested for serious crimes. The list of qualifying crimes was expanded early in President Donald Trump’s tenure with the passage of the Laken Riley Act.
The justices agreed Monday to consider whether detainees locked up for “prolonged” periods eventually earn the right to a bond hearing in which an immigration judge must consider whether they present an ongoing threat to public safety or a flight risk. Courts across the country have been grappling with similar questions in recent months, dividing sharply on whether these due process rights exist at all — and if so, at what point detention becomes unconstitutionally “prolonged.”
The issue reached the Supreme Court 25 years after the justices decided a similar question: how long the government can hold immigration detainees who have final deportation orders. In that case, Zadvydas v. Davis, the justices concluded that detention is “presumptively reasonable” for about six months while immigration authorities attempt to facilitate their deportation, but that detainees can seek release if they can show that there is no “reasonable likelihood” of their imminent removal from the country.
But that benchmark has never been applied to ICE detainees with pending deportation proceedings.
It’s the justices’ most significant move yet to delve into the Trump administration’s sweeping assertion of detention authority and efforts to constrain due process rights for the hundreds of thousands of people ICE is seeking to deport. But it’s unlikely to be the last.
Courts across the country have also been grappling with ICE’s dramatic expansion of mandatory detention to people who have resided in the country for years — sometimes decades — without incident. Though this detention authority has long been applied to people apprehended crossing the border, the Trump administration has reinterpreted the law to treat immigrants detained anywhere in the country as though they had just crossed the border, subjecting them to mandatory detention.
That unprecedented policy shift has flooded the courts with emergency lawsuits by ICE detainees, leading to an overwhelming rejection by federal judges appointed by all presidents since Ronald Reagan. But a split among federal appeals courts has the issue likely destined for Supreme Court review.
Whether the justices ultimately resolve the question about prolonged detention for those with criminal records is murky. The two detainees at the heart of the case have argued that the matter is moot because one left the country in 2023 and the other has been released from detention for several years. The justices indicated they are weighing the “mootness” issue in addition to the due process question at the heart of the case.
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