A two-page memo has produced one of the largest waves of immigration litigation federal district courts have ever absorbed. It is also the reason tens of thousands of people are being held without any chance at a bond hearing, and the reason judges keep ordering them released.
What the Memo Did
In July 2025, ICE issued interim guidance reinterpreting which part of the Immigration and Nationality Act governs detention for people who entered the country without inspection. Instead of Section 236, which lets an immigration judge consider release on bond, the agency began applying Section 235, which provides for mandatory detention of applicants for admission who are not clearly entitled to enter.
Under that reading, someone who has lived in the United States for years but was never formally admitted or paroled is still an applicant for admission. The framework sweeps in people with steady jobs, U.S. citizen family members and no criminal record, and it removes the bond hearing that used to be their first realistic chance at release.
What Courts Have Said
According to an August 10 analysis by Politico, roughly 469 judges have concluded the memo is unlawful while 54 have sided with the administration. Over the past year, federal judges have ruled against the detention policy more than 16,000 times, in roughly 90 percent of the cases where the issue was raised.
The volume has swamped district courts. In the Eastern District of California, four habeas corpus petitions were filed in 2021. In May 2026 alone that court handled more than 675, and judges were brought in from Hawaii and elsewhere to keep up. Chief Judge Troy Nunley said the court has to “get to the cases right away.”
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U.S. District Judge Fred Biery said his courthouse normally sees about 1,500 cases a year and had already reached roughly 4,000 by May.
Where This Is Headed
The Justice Department has contested the rulings in essentially every case and taken the issue up on appeal, saying it remains determined to carry out the administration’s immigration priorities. The circuit courts have split, which makes Supreme Court review in the coming term a real possibility.
Meanwhile the machinery keeps moving. A Homeland Security spokesperson said the department had deported nearly one million people as of July 12. Immigration courts, which sit inside the executive branch rather than the judiciary, continue issuing removal orders at speed while habeas petitions wait in district court queues.
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Who Is Affected
Anyone taken into ICE custody who entered without inspection, regardless of how long they have lived here, whether they have a pending green card or asylum case, or whether they have any criminal history. Their families absorb the cost directly, since a person held without bond cannot work, cannot pay rent and cannot help prepare their own case.
What This Means for You
If a family member is detained, the first question to ask is which statute ICE is invoking. Whether the agency is proceeding under Section 235 or Section 236 determines whether an immigration judge can even consider bond, and it shapes every step that follows.
A no-bond determination in immigration court is not necessarily the end of the road. In a large majority of districts, habeas corpus petitions filed in federal district court have succeeded in challenging mandatory detention under this memo. Outcomes and timelines still vary sharply by district, from days in some courts to months in others.
Gather documentation now rather than after an arrest: proof of continuous residence, tax filings, employment records, evidence of U.S. citizen family members, and receipt notices for any pending USCIS applications. These are the materials a habeas petition and a bond request both rely on.
Do not miss an immigration court hearing while a federal case is pending. The two tracks run independently, and a missed hearing can produce a removal order in absentia regardless of what a district judge later decides.
This article is for general information only and is not legal advice.
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