The last major overhaul of American immigration law took place decades ago and there’s been no will from Congress to revamp it since then. Instead, a string of presidents has sought to interpret the law to fit their preferred policies. What we’re seeing under President Donald Trump, though, is a federal bureaucracy abandoning the law as it exists, rewriting the rules that would constrain it from exercising maximum cruelty and dehumanization toward immigrants.
His determination marks a major shift in the way ICE functions and threatens to transform the immigration system more broadly overnight.
Over the last six months, Immigrations and Customs Enforcement has served as the tip of the spear in the Trump administration’s mass deportation push. According to The Washington Post, acting ICE director Todd Lyons issued a memo last week that instructs officers to hold immigrants in their custody “for the duration of their removal proceedings” — however long that takes. He asserted that immigrants who’d previously been allowed to request bond hearings may not be released from ICE custody” with release on parole relegated to being a rarity.
Lyons’ decision is based on “a section of immigration law that says unauthorized immigrants ‘shall be detained’ after their arrest,” according to the Post, “but that has historically applied to those who recently crossed the border and not longtime residents.” A spokesperson for ICE told NBC News on Tuesday that the decision to prevent detainees from receiving bond hearings “closes a loophole” in current law, arguing that people arrested in the country’s interior should be treated the same as those apprehended at the border.
His determination marks a major shift in the way ICE functions and threatens to transform the immigration system more broadly overnight. There was already massive backlog of immigrations proceedings even before this recent escalation. According to ICE’s annual report for fiscal year 2024, there are “more than 7.6 million noncitizens in removal proceedings or subject to final orders of removal on the agency’s non-detained docket.” If all of them were to have been held for the entirety of their proceedings, the number would wildly dwarf the 155,655 inmates currently held in the entire federal prison system.
Moreover, the detainees held in ICE facilities last year were only in custody for “an average of 46.9 days.” The report further noted that “detention is not punitive, and the agency detains noncitizens only when required by law or based on the unique circumstances of the case.”
Lyons’ orders entirely overturns that general guidance to instead make detention the norm rather than the exception.
This policy change will only place further strain on a system that has been tasked with widening its dragnet and ramping up its arrest numbers. NBC News reported last week that while detentions are surging under Trump, deportations are lagging: “According to ICE data, its agents arrested roughly 30,000 immigrants last month, the most since monthly data was made publicly available in November 2020. But the number of immigrants deported in June — more than 18,000 — amounted to roughly half the number of arrests, according to internal figures obtained by NBC News.”
The imbalance has led to a lack of space in ICE’s current facilities, where NBC News also recently reported that overcrowding has prompted complaints from detention centers across at least seven states of “complaining of hunger, food shortages and spoiled food.” A tsunami of funding from Congress for immigration enforcement is meant to vastly expand ICE’s available detention space. The new policy from Lyons helps ensure all those new beds will be filled — and then some.
These moves notably aren’t exclusive to ICE but taking place across the administration.
But turning over some of those beds will be easier — thanks to another new policy rewrite from Lyons. In a memo issued last week, the acting director took advantage of a recent Supreme Court ruling to speed up the process for deporting immigrants to an “alternative” country than the one they left behind. In some cases, these people may be sent to a country where they know nobody, don’t speak the language, and have no support with less than 24 hours’ notice to challenge the order.
These moves notably aren’t exclusive to ICE but taking place across the administration. The Justice Department last month circulated a memo outlining its Civil Division’s new priorities. Rather than focusing on voting rights or violations of the Civil Rights Act, the few remaining lawyers at the storied branch must now prioritize denaturalization among other new focal points. The memo from Assistant Attorney General Brett Shumate provides 10 potential categories for the latter cases, including any referred to the division that it “determines to be sufficiently important to pursue.”
The overbroad scope of that last catch-all category is worrisome — but the one that most concerns me targets “individuals who acquired naturalization through government corruption, fraud, or material misrepresentations.” While that language sounds relatively benign, it dovetails well with right wing rhetoric that falsely claims that the Biden administration “illegally” allowed millions of immigrants into the country. Any migrant who came in during those years and gained citizenship could potentially see their naturalization threatened because of this new focus. Disturbingly, ICE has also taken upon itself to rewrite the oversight laws that Congress has passed, limiting the window in which legislators can turn up unannounced for inspections. Members of Congress are explicitly allowed to visit facilities that “detain or otherwise house aliens” without providing notice, but they must now provide ICE with a 72-hour advancing warning before visiting an ICE field office. While the memo draws a distinction between offices and detention centers, the law doesn’t, and migrants have been reportedly held at field offices for days on end due to overcrowding. Taken together, these revisions provide a window into how Trump’s deportation machine will operate when it is finally fully up to speed. The steady inflow of migrants to detention centers and their speedy exfiltration to random countries is poised to escalate into a near automated process, with no oversight or chance for the banished to appeal their fate. In stripping these supposed undesirables of their rights to due process, their freedom while awaiting a hearing, and the protections the law should provide them, the administration is robbing them of their very humanity. How much longer then will it take for even this streamlined process, devoid of any chance of appeal or semblance of mercy to be considered too time-consuming or expensive? What then will be the fate of the people stuffed into these camps with no hope of release? The answer may be one that we swore as a civilization never to allow happen again.
Hayes Brown is a writer and editor for MS NOW. He focuses on politics and policymaking at the federal level, including Congress and the White House. 
