By: Richard Hanus, Esq.
April 2, 2026
According to recent estimates, there are approximately 12 million foreign nationals living in the U.S. without immigration status, and with at least a third of this population having entered the U.S. without documentation or having been inspected. This population has gradually reached this level over the past 4 decades, and since a wide reaching “amnesty” program was last enacted into law (1986). Per current Administration policy, millions of undocumented individuals present in the U.S. without inspection are subject to arrest and deportation, and without the chance of release on bond while fighting deportation and regardless of spotless criminal records and other positive equities. In the meantime, tens of thousands of habeas corpus lawsuits to challenge this policy have been flooding federal courts across the nation, and with most being successful and leading to detainee bond hearings and eventual release. But with our nation’s courts issuing inconsistent rulings and legal interpretations, it appears more than likely the legal challenges to the Trump detention policy are headed to the U.S. Supreme Court for review.
Per Trump Administration policy, foreign nationals who are in the U.S. without having been previously inspected should be classified as “applicants for admission“ and thus subject to mandatory detention per federal statute. However, this approach is in stark contrast to decades of immigration policy where such individuals have been entitled to be considered for release on bond, taking into account their otherwise law abiding history, positive equities and risk of flight from court jurisdiction. To be clear, release on bond does not equate into a legal status, just that the undocumented foreign national will be able to defend against deportation without being confined to a detention facility, sometimes very far from their homes and loved ones.
The types of deportation defenses that might be available for undocumented foreign nationals vary, with the most common being “cancellation of removal” and “asylum” – both of which can lead to approval of lawful resident (“Green Card”) status in the U.S. There is certainly no guarantee any particular deportation defense will be successful, but we know the option to present a defense is established by way of federal law and the U.S. Constitution.
As far as requirements for these two popular defenses are concerned – in sum, cancellation of removal relief may be granted for those who a) have been continuously present in the U.S. for 10 year or more, b) are of “good moral character” and c) have U.S. citizen or permanent resident spouses, parents and/or children who will experience “extreme and exceptionally unusual” hardship in the event of their deportation. Asylum or related relief can be granted to foreign nationals who fear return to their home country due to threats to their freedom, life or health on account of their race, religion, political beliefs or “social group”.
Under the new mandatory detention policy, an undocumented individual’s capacity to defend against deportation is severely compromised, calling into question the type of “due process” being afforded, not to mention the legality of abruptly reversing course on a decades old statutory interpretation. Further, our society must ask important questions of itself. For individuals whose only infraction has been to illegally cross the border, do we really want to keep them detained for deportation and without the possibility of release, regardless of a long history of residence in the U.S., family ties, community and societal contributions and otherwise law-abiding behavior? Do we really want to invest billions of dollars for an infrastructure to detain and deport this significant segment of our otherwise law abiding population, regardless of the human impact on the deportee and their family members?
As far as the bigger picture is concerned, one cannot argue that any particular segment of the undocumented population has a right to remain in the U.S. As a matter of fairness and equity though, we must factor in our sense of what is humane and fair and who is actually benefitting from mandatory detention (including administration-connected, private for-profit detention facilities), given the exceedingly positive factors at play in the vast majority of cases. Perhaps once the U.S. Supreme Court chimes in on this “mandatory detention” question, the pivotal issues will be further crystallized for our society to arrive at a practical, fair fix to our nation’s highly imperfect immigration picture.
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