The news is filled with troubling immigration stories since President Trump ascended the throne. There was the crazy/illegal stuff (though the Supreme Court refuses to take a stand to stop them) like deporting non-citizens as enemy combatants, declaring birth-right citizenship over, deporting people to third countries without warning. Then there is the legal but unique stuff – placing people into expedited removal years after entry, large-scale raids, elimination of discretion to pursue removal or execute removal orders, cancelling protections for citizens of countries in distress, ignoring practices of not arresting people in courthouses, schools, hospitals, and churches.
Another set of stories, less discussed in the media, revolve around re-interpretation of the laws. Board of Immigration Appeals decisions have attempted to end asylum eligibility for battered women and members of persecuted families. It has limited the availability to gain protection from being sent to a country where you would be tortured. It has made being released from detention by an immigration judge more difficult. It has made a primary form of relief, Cancellation of Removal, more difficult to obtain. A list of decisions can be found here.
Other Trump-administration actions in the news are also unprecedented but mainly legal, like marshalling federal law-enforcement for immigration enforcement or tripling immigration detention capacity.
While these changes are significant in the immigration-practice world, it is the widespread fear of widespread enforcement in general that is making the biggest impact on people rather than the relatively limited impact of the changes made so far. One wondered how the government would fill all the detention space it was building even with the re-detention of people already released by Customs and Border Protection or Immigration and Customs Enforcement as part of expedited removal for those already released into the United States.
In a decision this week, the Board of Immigration Appeals fundamentally issued a major decision changed the rules of the game in Matter of Hurtado. It eliminated uncertainty as to how immigration authorities would fill all the detention capacity it was building out. It declared that anyone who is in the United States who entered without inspection cannot be released by an immigration judge no matter when they entered; no matter how long they have been in the country; no matter what relief from removal they may be eligible for.
The decision impacts more than half of the undocumented population in the United States. The other half of the undocumented are people who overstayed their periods of stay after admission in lawful status (who still can request release from an immigration judge) or people who entered under humanitarian actions or programs that have since been canceled (who never could request release from an immigration judge). This is on order of 5 to 7 million people. While ICE still has the authority to release these people, as detention space increases, such releases are less and less likely and it is already highly unlikely.
The Supreme Court has already determined that mandatory detention is legal and punted on constitutionality and remanded the case for initial decision to lower courts. There will certainly be challenges to the decision, but as we have seen in all kinds of immigration litigation – the constitutionality of mandatory detention, Deferred Action for Childhood Arrivals, and President Biden’s Circumvention of Lawful Pathways challenges, these cases seem to never conclude but the adverse consequences continue while litigation grinds on.
Under the new decision, all the people captured in encounters with ICE, raids, traffic stops, court hearings or ICE check-in dates, are subject to detention, in fact, detention is mandatory. This takes being encountered by federal authorities and being placed in removal proceedings, the beginning of a lengthy process of seeking relief in immigration court, to being arrested, detained, and shipped to wherever detention space is available, often far from family and legal representation. As these new facilities are far from Club Feds, oppressive detention environments and long waits for final adjudication by an immigration judge and USCIS, will prompt widespread requests for removal rather than enduring harsh conditions with little chance of success based on reduced avenues of relief, a more-hostile litigation environment (a nice way to say, hanging judges), and access to support to make a case. It means people who have been pursuing relief for years can be taken from their homes and detained. This is a nightmare beyond anything so far and beyond the nightmares of the past, AEDPA, IIRAIRA, NSEERS, and anything that happened in President Trump’s first term. It changes nearly everything. It should be first page news. Posted September 7,2025.