DOJ Defends Migrant Mandatory Detention, Citing Past ‘Inertia’

The Trump administration’s policy of mandatory detention for huge swaths of noncitizens is contrary to decades of practice, a Justice Department attorney acknowledged at a federal appeals court hearing in Denver, but said it was the result of long-running “bureaucratic inertia.”

Deputy Assistant Attorney General Drew Ensign told judges of the US Court of Appeals for the Tenth Circuit that amendments to the Immigration and Nationality Act 30 years ago were plainly meant to deny bond hearings to noncitizens arrested inside the country.

“Bizarrely, the executive practice went completely the opposite way,” he said. “Seemingly it was on autopilot for a good quarter-century.”

Under the administration’s new interpretation of the law, which it adopted last year, neither noncitizens arrested at the border nor those who illegally entered many years ago are entitled to bond hearings in immigration court.

But it defies reason to think that “Congress adopted the largest detention mandate in the history of this country and that somehow escaped the notice of five administrations, the Supreme Court and 15 congresses since,” said My Khanh Ngo of the American Civil Liberties Union Foundation.

Ngo argued on behalf of a man who’s been in custody for about six months because of the administration’s policy.

The Tenth Circuit is the latest to hear arguments in the mandatory detention matter, which is all but certain to make its way to the US Supreme Court. Judges Robert Bacharach, David Ebel, and Richard Federico sat on the panel.

The arguments from both sides are now familiar: The government claims noncitizens who illegally entered long ago are, under the law, still considered to be “seeking admission” and thus not eligible for bond hearings in immigration court. Attorneys representing noncitizens say their clients aren’t taking active steps to seek admission to the country, and thus are entitled to bond hearings.

Circuit Splits

Federal appeals courts so far have divided. The Fifth and Eighth circuits fond in favor of the administration’s stance, while the Second, Sixth, and Eleventh rejected it. The Seventh Circuit, in a decision dealing largely with separate legal questions, didn’t reach a majority opinion on the overall mandatory detention issue.

When asked whether there could soon be emergency petitions or other requests for the Supreme Court to consider, Ensign told the judges he didn’t want to “get into any internal deliberations within the government.”

“But to state the obvious, there is a clearly defined, square circuit split on an issue of enormous importance,” he said, so he wouldn’t be surprised if either side asks the high court to decide the issue.

Tuesday’s case reached the Tenth Circuit on appeal from Rigoberto Santillan Quiroz, who lived in the US for nearly 20 years before he was arrested by Immigration and Customs Enforcement in November.

A judge in the US District Court for the Western District of Oklahoma denied his habeas corpus petition, siding with the administration’s view that he isn’t entitled to a bond hearing in immigration court.

Ngo urged the panel to come to a speedy decision reversing the lower court. Santillan Quiroz is a homeowner and taxpayer who is married to a green card holder, she said.

“It makes sense why Congress preserved bond for people like our petitioner, who the government does not even argue poses any flight risk or danger,” she said.

Santillan Quiroz is also represented by ACLU of Oklahoma Foundation, American Civil Liberties Union of Colorado, and Kelli Stump of Oklahoma City, Okla.

The case is Quiroz v. Mullin, 10th Cir., No. 26-06019, oral arguments 5/12/26.