Immigration Article of the Day: "Relying on Border-Based Mandatory Detention" by Mary Holper
Relying on Border-Based Mandatory Detention by Mary Holper
Abstract
In July 2025, Immigration and Customs Enforcement (“ICE”) revisited its legal position on detention law in order to argue for ubiquitous status-based mandatory detention. In ICE’s view, the millions of noncitizens who entered without inspection and reside in the United States are no longer eligible for an individualized bond determination by an immigration judge. Although numerous federal district courts rejected this novel interpretation as inconsistent with the statute, the Board of Immigration Appeals (“Board”) sided with ICE in a September 2025 published opinion, Matter of Yajure Hurtado. This change of law pulled the rug out from under noncitizens who entered without inspection, who had reasonably relied on longstanding interpretations that mandatory detention applied only to those caught at the border.
Scholars have analyzed mandatory detention, examining the purposes, growth, and whether such categorical detention can withstand a Due Process Clause challenge. Most of this scholarship has centered on the mandatory detention of those convicted of certain crimes. A newer area of study is the recent growth of status-based mandatory detention. Other scholarship has focused on the presumption against retroactive legislation and agency policymaking and how courts and agencies must consider noncitizens’ reliance interests when laws and policies change. This article combines these areas of study. In particular, this article is the first to consider whether the new status-based mandatory detention policy should retroactively apply to noncitizens who entered without inspection prior to the change.
Part I explains the change of policy through a brief overview of the shift that has occurred in immigration law from border-based mandatory detention to status-based mandatory detention. Part II discusses the presumption against retroactive laws and policies and the theories underlying this presumption. Part III considers a key foundational question—whether the Due Process Clause applies, because the foundation of this new status-based mandatory detention is border-based mandatory detention, where the application of constitutional protections is not clear. Part IV argues that courts, when considering noncitizens’ due process challenges to ICE’s new interpretation of the mandatory detention laws, should find this change in law impermissibly retroactive, using the multi-factor test that courts utilize to determine whether an agency decision should apply retroactively. This part argues that the Board abruptly changed the law, noncitizens who entered without inspection reasonably relied on bond eligibility, the burden on noncitizens is severe, and the government has no statutory interest in applying the new interpretation.
