A sign identifies the Torrance County Detention Facility in Estancia, N.M., where many immigrants are held. A new court ruling and proposed federal rule are making it harder for detained immigrants to appeal for relief in court. (Photo by Patrick Lohmann/Source NM)
Despite immigration detention numbers receding from recent highs and even as conservative judges are opting to release more detainees by rejecting President Donald Trump’s mass detention policy, tools for detainees to seek release or appeal cases are disappearing.
A proposed federal rule will make it harder to appeal immigration cases nationally. And a federal appeals court ruling stops immigrants from requesting release on legal grounds in three Southern states if they entered the country illegally, no matter how long they’ve been here.
As of late January, there were 70,766 people in immigration detention, up from about 40,000 at the start of the second Trump administration, with about 74% having no criminal convictions.. (The number of detainees declined to 68,289 as of Feb. 7 amid increasing releases of immigration prisoners by federal judges, even many appointed by the Trump administration.)
This month’s court ruling in the U.S. 5th Circuit Court of Appeals, which affects immigrants held in Louisiana, Mississippi and Texas, is a victory for a new Immigration Customs and Enforcement policy set last July. It requires detention without bond for many immigrants who arrived at the border without permission, even if they had been paroled with a court date.
It comes as habeas petitions from people claiming illegal detention skyrocket — from a few dozen a week in early 2025 to thousands a week recently, according to a ProPublica report. The largest numbers of cases are in Texas, California, Minnesota, Florida and Georgia.
Rekha Sharma-Crawford, an immigration attorney in Missouri and second vice president of the American Immigration Lawyers Association, said she believes hundreds of other federal judges disagree with the Feb. 6 appeals court order.
‘Mandatory detention’
The ruling found that a landmark Clinton-era immigration law, called The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), “unambiguously provides for mandatory detention” for people who crossed the border illegally.
A dissenting judge, Dana Douglas, wrote that drafters of that law ”would be surprised to learn it had also required the detention without bond of two million people. For almost thirty years there was no sign anyone thought it had done so.”
Sharma-Crawford said the ruling would likely be challenged, but that it may be too late for people who may give up under the stress of detention, and agree to deportation.
“I have a client in detention who’s been here [in the United States] 30 years, no criminal history, and has a family,” Sharma-Crawford said in an interview. “In the past the individual would be eligible for a bond hearing and be able to fight their immigration case in due course. These people are not accustomed to being in jail.”
Homeland Security Secretary Kristi Noem praised the court decision on social media, saying “activist judges have ordered the release of alien after alien based on the false claim that DHS was breaking the law” and said the ruling proved the administration “was right all along.”
Another obstacle for detainees
Similarly, a new rule on the federal Board of Immigration Appeals makes it harder for immigrants to appeal cases like denial of asylum in immigration court.
Open for comment until it takes effect March 9, the rule shrinks the deadline to appeal a decision to 10 days from 30 days, and the board will automatically deny a case unless a majority of the board votes to hear it.
Immigration attorney Raul Natera of Fort Worth, Texas, who posted a comment critical of the proposed rule, told Stateline it would be a “flat-out assault on due process,” because the Department of Justice could appoint board members who will not vote to hear appeals. Last year the Trump administration fired board members who had been appointed during the Biden administration.
“Judges can make wrong decisions. If we do not ensure that those decisions can be reviewed, then there is no point to the judicial system in this country,” Natera said.
The Department of Justice argues in its proposed rule that denying appeals in most cases will speed up the process and clear a backlog of immigration cases.
Others disagree. The new rule will increase strain on courts if immigrants can no longer appeal to the Board of Immigration Appeals and instead must file more lawsuits with appeals courts, said Kathleen Bush-Joseph, a lawyer and policy analyst at the non-partisan Migration Policy Institute.
“The federal courts are already buckling under the weight of all these habeas petitions [alleging illegal detention],” Bush-Joseph said. “It’s a huge lift to be litigating all this.”
Sharma-Crawford called both measures a “numbers game” to get deportation numbers up before court challenges can make a difference.
“All these things don’t happen quickly, and people will suffer while litigation is ongoing,” she said. “How much travesty and injustice is going to occur while the courts grapple with the legality of what the administration is doing?”
Stateline reporter Tim Henderson can be reached at thenderson@stateline.org.
This story was originally produced by Stateline, which is part of States Newsroom, a nonprofit news network which includes Georgia Recorder, and is supported by grants and a coalition of donors as a 501c(3) public charity.
