The unprecedented military-style occupation of U.S. cities under the banner of “immigration enforcement” has made obvious what organizers have long known: ICE and CBP regularly skirt the law. They abuse and coerce people into giving up rights, target dissent, weaponize existing legal powers to erode due process, and insulate rights violations from review through jurisdiction-stripping provisions or post-hoc approval of illegal practices. We might describe these tactics as lawlessness in the shadow of law—that is, while the conduct violates the letter and spirit of the law, the agencies either seek legal approval or endeavor to keep the legality of their conduct from being reviewed at all, knowing that review will force them to change course.

In recent months, however, there has been a significant evolution in the immigration agencies’ lawlessness: they are increasingly stepping into direct confrontation with the institutions exercising legal oversight. Certain conflicts have gained significant attention, such as illegally refusing Congressional representatives access to ICE facilities and repeatedly lying and obstructing in court. Yet likely the most widespread such confrontation is happening over the practice of mandatory detention, a statutory authority for ICE to incarcerate someone without bond until the end of immigration proceedings.

As I explain in this post, DHS and EOIR (which houses immigration courts) have purported to re-interpret longstanding laws to subject the vast majority of people in removal proceedings to mandatory detention. These efforts have been overwhelmingly rebuffed by federal courts. In more than 1,600 habeas cases, over 300 federal judges have deemed the administration’s gambit illegal, ordering release or a bond hearing, while only 14 have sided with the administration.

Yet given the tens of thousands of people that ICE continues to arrest and detain each month—and the practical and resource constraints preventing individual habeas actions from keeping pace—ICE is effectively circumventing the federal judiciary. As this episode illustrates, agencies committed to lawlessness and bestowed with ever-expanding budgets simply cannot be meaningfully constrained by courts. Efforts to combat DHS’s harmful and illegal practices must go after the agencies’ budgets, shrinking and ultimately eliminating their headcounts and capacity.

Agencies Discover Nearly Everyone is Subject to Mandatory Detention

On July 8, 2025, ICE circulated an internal memo to “all ICE employees”—never released to the public—that radically changed immigration proceedings and detention policy. By purporting to reinterpret longstanding legal provisions in unprecedented ways, ICE made millions of people newly subject to mandatory detention.

Specifically, ICE said that everyone not “admitted” to the United States in a particular classification (tourist, student, etc.) was subject to mandatory detention under 8 U.S.C. § 1225(b). Originally enacted as part of the “expedited removal” process meant to apply to people arriving at an international border without documents, this provision would now mean mandatory detention for all new asylum-seekers, anyone who entered without authorization in the past even if they had been here for decades, and people who were paroled from border detention into the United States. Around the same time, the Board of Immigration Appeals (BIA) reinforced ICE’s new policy with precedential decisions in Matter of Q. Li and Matter of Yajure Hurtado.

The magnitude of the transformation brought about by these changes is difficult to overstate. Almost everyone who crossed the US-Mexico border under Biden (a primary target for many Trump II policies) would now be subject to detention without bond at any moment (including at green card or asylum interviews, notwithstanding eligibility). So too would the vast majority of the estimated 12 million undocumented immigrants living in the United States, many for decades.

Critically, ICE implemented this new policy a mere four days after Trump signed into law his signature domestic legislation, which provided $45 billion for expanding ICE’s network of detention centers and more than tripled ICE’s annual budget to $28.7 billion per year through 2029, making it the largest federal law enforcement agency by a longshot. In other words, Trump secured endless money for human caging, while ICE and the BIA enacted new policies to ensure there would be endless humans to cage.

The Habeas Response: Emptying the Ocean with a Spoon?

Then came the lawsuits. As mentioned above, as of January 2026, federal judges in over 1,600 habeas cases had deemed the administration’s gambit to nearly-universalize mandatory detention illegal, ordering release or a bond hearing. The capacity to mount this scale of habeas response is the product of massive mobilizations by organizers and lawyers, from formal efforts like the National Institute for Habeas Instruction and habeas projects in multiple states, to a groundswell of pro se habeas filings driven by community groups. Courts have been generally receptive—even going so far as to support people without lawyers by releasing guides for pro se immigration habeas petitions. ICE lost so overwhelmingly that in some districts, AUSAs stopped mounting defenses, instead seeking to schedule status conferences for the sake of essentially conceding the case, while in others judges commented directly on the absurdity of the government’s insistence on defending this position.

Massive though it is, this effort is woefully insufficient. DHS is routinely arresting and detaining 30­–40,000 people per month. Even as the pace of habeas filings has increased—one report put it at 3,000 petitions in December, “up from just a couple of dozen cases a month in 2024”—it remains a drop in the bucket of ICE detentions. That ICE is refusing to accede to judicial consensus is a notable sign of its firm commitment to this illegal policy. By contrast, after several dozen federal judges ruled that DHS’s policy of mass student “SEVIS record” cancellations was illegal, ICE formally reversed the new policy within a month. Here, however, ICE is only escalating: the last three months of 2025 marked ICE’s three highest months of arrests to date.

Even those whose habeas petitions succeed face agency resistance. As I’ve experienced firsthand, ICE and EOIR have both undertaken to sabotage habeas victories. Some immigration judges are routinely conducting court-ordered bond hearings that can only be described as bad faith, denying bond for dangerousness or flight risk over past paperwork errors or because ICE says it intends to deport them to a third-country anyway without giving them an asylum hearing. Meanwhile, ICE is massively expanding use of something called the “auto-stay,” a (plainly ultra vires) regulation that purports to give it the authority to unilaterally override an immigration judge’s decision to grant bond if they appeal within 24 hours. And when it does release people, it often drags its feet, or, upon release, unilaterally imposes GPS ankle shackles and onerous reporting requirements despite receiving an order to grant unconditional release. More often than not, habeas litigators have to return to federal court with a motion to enforce in order to address such now-routine acts of defiance.

Most perniciously, ICE and EOIR are engaged in widespread defiance of a recent decision, Maldonado Bautista v. Santacruz, granting declaratory relief to a nationwide class comprising a significant portion of those targeted by the new mandatory detention policy—people who entered without inspection. ICE continues to subject people who entered without inspection to mandatory detention as though the judgment never happened. Meanwhile, immigration judges confronted with the judgment have devised a variety of facially implausible arguments to resist its holding.

After the initial November 20, 2025 orders certifying a class and granting declaratory relief, immigration judges widely took the position that the order was not binding because it did not certify that the judgment was final under Rule 54(b). Class counsel had to return to court just weeks later, and by December 18, 2025 obtained a second order certifying the decision as a final in relevant part. Notwithstanding this second order, many immigration judges continued to simply assert that Yajure Hurtado controlled, despite the fact that the district court expressly repudiated this immigration judge recalcitrance in its December 18 order.

On January 13, 2026, EOIR tripled down on mandatory detention’s near-universal applicability despite a declaratory judgment in a nationwide class action making this unlawful. In an internal memo to immigration judges, Chief Judge Teresa Riley said “Yajure Hurtado remains binding,” notwithstanding the federal court’s December 18 order expressly stating Yajure Hurtado is “no longer controlling.” Far beyond agency non-acquiescence, EOIR’s actions can only be described as open defiance. The upshot is that anyone facing removal proceedings who cannot secure habeas counsel (or file pro se) is apt to be subject to illegal detention.

What is to be done?

To be clear, despite widespread sabotage by ICE and EOIR, a large majority of the people who have won individual immigration habeas actions have been released. Yet the dogged defiance of judicial supervision is striking and consequential. And even if the agencies complied with every individual habeas order in good faith, it would remain a drop in the bucket compared to ICE’s capacity to abduct and cage people. Finally, even for those who are released, the trauma of this ordeal cannot be discounted: weeks or months in detention before release translate to lost jobs, lost housing, extreme instability for dependents, and enduring the brutalities of increasingly deadly detention conditions.

Given the scale of the deportation agencies, there is simply no way for legal responses to keep pace with the lawless mass lockup. Unlike ICE, the habeas bar did not receive a multi-billion dollar investment to underwrite limitless expansion. Moreover, law’s traditional tools for situations like this, such as classwide injunctive relief, are unavailable thanks to jurisdiction-stripping provisions (see 8 U.S.C. § 1252(f)), which the Supreme Court underscored in Garland v. Aleman Gonzalez when it rejected classwide injunctions against illegal ICE detention.

Any meaningful response must confront ICE’s power directly. As others have explained, the bipartisan multi-decade provision of an “unconditional flow of money, equipment, and resources to DHS … allowed [it] to operate with minimal accountability.” The answer, then, must be to take away ICE and CBP’s money, headcount, and guns. In my view, the only politically sensible way to mount this direct challenge is by dismantling the agencies, rather than accept the premise that we need to streamline them and limit their focus to going after the truly “bad guys.” That “rightsizing” alternative embraces the logics that have underwritten the metastatic growth of the prison-industrial complex—and ensures those logics will continue to prevail. Indeed, it is little more than the material manifestation of the “felons not families” approach that prefigured the current political juncture. The institution itself must be dismantled. I do not mean to discount the habeas response. As is the case for many immigration attorneys, habeas is a growing part of my practice. But we must keep our eyes firmly fixed on the correct horizon. If we look only through the lens of litigation, we’ll miss that it is ICE and CBP’s scale, and, ultimately, their very existence, that pose the real threat.