How DHS Uses Detention as a Weapon Against Family Asylum Cases

Most people think of immigration detention as something that happens after a case is lost — a consequence of removal. What is happening right now is fundamentally different. Detention is being deployed as a procedural weapon before a case is decided, and it is being used in ways that systematically dismantle a family’s ability to pursue asylum as a unit. Understanding how this works requires a close look at three moving parts that are rarely discussed together: the current legal chaos over mandatory detention, DHS’s exclusive control over who gets detained, and an obscure procedural rule called severance that turns one arrest into two trials.

 

Part I: The Mandatory Detention Battlefield

For roughly three decades, the rule was relatively clear. A person who entered the United States without inspection — crossing the border without presenting to an officer, commonly called an “EWI” — and who was later arrested well inside the country was treated as subject to detention under INA § 236(a). That provision allows an immigration judge to set bond, meaning the person could potentially be released while their case proceeded. It was not a perfect system, but it preserved a judicial check on executive detention.

That changed in the summer of 2025. On July 8, 2025, DHS issued an interim guidance memo declaring that any person who entered without inspection was an “applicant for admission” subject to mandatory detention under INA § 235(b)(2)(A) — a statute that had previously been understood to apply to people stopped at the border or ports of entry. Under the new DHS position, no bond hearing was available, and immigration judges had no authority even to consider the question. People who had lived in the United States for years, raised families, and built lives here were suddenly told they had no right to ask a judge whether they should be detained, often in a county jail and at taxpayer expense, while their case proceeded.

The Board of Immigration Appeals followed DHS’s lead in September 2025, issuing Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), which adopted the same position as binding authority on all immigration courts.

 

The Court Pushback — and the EOIR Workaround

Federal courts pushed back quickly. On November 20, 2025, U.S. District Judge Sunshine Suzanne Sykes of the Central District of California issued a major ruling in Maldonado Bautista v. Santacruz, holding that DHS’s mandatory detention policy was unlawful and that people arrested in the interior of the country — people who had not just arrived at the border — were entitled to bond hearings under § 236(a). On November 25, she certified a nationwide class of detained EWI individuals and extended that relief to all of them.

The government did not seek a stay. The ruling remained in effect. But what happened next is telling. Rather than comply, EOIR issued internal guidance on January 13, 2026, instructing all immigration judges nationwide to continue following Yajure Hurtado — not the federal court’s binding declaration of law. The result was direct institutional defiance of a federal court order, playing out in immigration courtrooms across the country, including here in Ohio. Cleveland immigration judges were still denying bond hearings as recently as February 26, 2026, issuing orders stating they lacked “authority to redetermine bond” — citing the BIA’s decision that the federal district court had already declared unlawful.

On February 18, 2026, Judge Sykes issued a formal enforcement order, vacating Yajure Hurtado directly and making clear the government’s continued reliance on it was irreconcilable with her ruling. The government appealed to the Ninth Circuit on February 23, 2026.

 

The Circuit Split — The Law Now Depends on Where You Are

While the Ninth Circuit fight continues, two other circuit courts have weighed in — and they have come down hard on the government’s side.

On February 6, 2026, the Fifth Circuit ruled in Buenrostro-Mendez v. Bondi, No. 25-20496, holding that noncitizens who entered without inspection and were not admitted are subject to mandatory detention under § 1225(b)(2)(A), without any eligibility for bond hearings. The court adopted the government’s broad interpretation: that “seeking admission” and “applicant for admission” are effectively synonymous, meaning the statute applies to anyone who was never lawfully admitted — regardless of how long ago they entered or how far from the border they were arrested.

The Fifth Circuit’s decision reversed decades of prior practice. As the dissent noted, the ruling’s interpretation “eluded the courts and five previous presidential administrations.” The dissenting judge pointed out that the majority was not relying on any new congressional action or regulatory change — it was simply adopting a new reading of existing text that no court had previously embraced.

Then, just yesterday, on March 25, 2026, the Eighth Circuit followed suit. In Herrera Avila v. Bondi, No. 25-03248, a 2-1 panel ruled the same way, holding that Joaquin Herrera Avila — who had lived in the United States since 2006 and was stopped during a traffic stop in Minneapolis in August 2025 — was subject to mandatory detention without a bond hearing. The dissenting judge, a Trump appointee himself, wrote that the ruling subjects potentially millions of long-resident people to mandatory detention based on a “novel interpretation” unsupported by the plain meaning of the statute, its context, or the history of the IIRIRA.

The Seventh Circuit has gone the other direction, preliminarily concluding that DHS was not likely to prevail on its § 1225(b)(2)(A) argument. Most federal district courts outside the Fifth and Eighth Circuits have continued ruling for detainees. The law now depends entirely on geography. The same person — same entry, same length of residence, same family — faces mandatory no-bond detention in Texas or Minnesota, but may obtain a bond hearing in California or New Jersey. This is heading to the Supreme Court.

 

DHS Has Always Retained Discretion to Release

There is a critical point that often gets lost in the litigation noise: even under the government’s own mandatory detention theory, DHS retains authority to release individuals on parole. Nothing in § 1225(b)(2)(A) strips DHS of its independent discretion to make custody decisions. Under 8 C.F.R. § 212.5(b), ICE may parole a detained individual for humanitarian reasons or significant public benefit, including circumstances involving serious medical conditions, pregnancy, or where continued detention is “not in the continued public interest.”

In practice, that discretion has been nearly eliminated. DHS has made clear that humanitarian parole requests are rarely granted in 2025-2026. The agency that created the detention crisis holds the key to ending it for individual families — and has chosen not to use it.

This matters enormously because DHS’s custody decision is entirely unreviewable by an immigration judge. The IJ cannot order DHS to release someone. The IJ cannot second-guess the detention decision. The only tools available are a bond hearing (which, in the Fifth and Eighth Circuits and under EOIR’s nationwide guidance, DHS is successfully blocking) or a federal habeas petition.

 

Part II: Parole Termination — How Protected Families Became EWI Again

One of the most underreported dynamics driving the current detention surge is what happened to families who entered the country through lawful parole programs and were subsequently stripped of that status.

During the Biden administration, several parole programs allowed families to enter legally, including the CHNV program (Cuba, Haiti, Nicaragua, Venezuela) and Family Reunification Parole programs for nationals from Colombia, Cuba, Ecuador, El Salvador, Guatemala, Haiti, and Honduras. People who entered these programs were paroled — meaning they were treated as having made a lawful entry — and were placed in removal proceedings or authorized to pursue adjustment of status.

Beginning in early 2025, the Trump administration began terminating these programs and revoking the individual grants of parole that had been issued under them. On December 15, 2025, DHS published a Federal Register notice terminating the Family Reunification Parole programs, with parole of affected individuals to terminate on January 14, 2026 for those without a pending I-485.

The immigration consequences of parole termination are severe and immediate. A person whose parole is revoked reverts to EWI status — they are treated as if they had never had the lawful entry that parole provided. Under the government’s current § 1225 theory, they are now “applicants for admission” subject to mandatory detention. A father who entered legally through a parole program, had his parole revoked, and is then arrested by ICE is — under the Fifth and Eighth Circuit rulings issued this week and last month — potentially subject to mandatory detention with no bond hearing available, while his wife and children, who have the same legal status and entered the same way, may remain free due to DHS-ICE internal detention policies.

The Venezuelan father whose story was reported by CNN in March 2026 illustrates the dynamic precisely. He had held Temporary Protected Status, which was later rescinded by the Trump administration. His children crossed the border separately and were placed in federal shelters. When he came forward in connection with his children’s cases, he was arrested under “Operation Guardian Trace” — an ICE initiative that, according to his attorneys at the Galveston-Houston Immigrant Representation Project, “requires immigration officers to detain potential caregivers if they are in the country without legal authorization.” He was detained. His children remained in government custody. Their cases proceeded on entirely separate tracks.

The five-year-old boy photographed being taken from his driveway in Minneapolis in a Spider-Man backpack in January 2026 — Liam Conejo Ramos — and his father were both initially detained and sent to a facility in Texas. A federal judge ordered their release, calling the detention “ill-conceived and incompetently-implemented.” But Liam’s mother and any other family members not present at the time of the arrest faced their own proceedings separately.

 

Part III: The Severance Cascade — One Arrest, Two Trials

This is the piece that immigration attorneys and family members are confronting in courtrooms right now, and it is almost completely absent from public discussion.

When a family enters the United States without inspection and files for asylum, the practice is to file a single family asylum application — a lead applicant (typically the father) with derivative beneficiaries (spouse and children). The entire family is consolidated in one removal proceeding before one immigration judge. That is efficient, it is humane, and it reflects the legal reality that the family’s asylum claim is usually a single story: the same persecution, the same persecutors, the same feared harm.

When DHS detains the father but releases the rest of the family, it creates an immediate procedural crisis. Detained cases are placed on the detained docket, which moves on a timeline measured in weeks or months. Non-detained cases are on the non-detained docket, which in many courts takes years. These are functionally separate court systems with separate judges, separate courtrooms, and incompatible scheduling.

DHS then moves for severance. And immigration courts, citing the docket incompatibility that DHS’s own detention decision created, grant it.

 

What Severance Actually Means

Once a family’s case is severed, the consequences cascade:

The family members who were never detained — the mother and children — may be removed as derivatives on the father’s asylum application. In that case they must now file their own independent Form I-589 asylum applications. They must develop their own factual record. They must appear at their own separate merits hearing, often years away.

The father’s case races ahead on the detained docket and may be decided — granted, denied, or ordered removed — long before the family’s case is ever heard. If he is ordered removed, there is no longer a lead respondent anchoring the family’s case. If adverse credibility or country conditions findings are made against him, those findings may shadow the family’s later proceedings, even though the family had no ability to participate in or appeal his case.

It becomes extremely difficult for the family to corroborate each other’s testimony at their respective hearings. In asylum cases, corroboration is often decisive. The Ninth Circuit held in Morgan v. Mukasey, 529 F.3d 1202, that an IJ violated due process by refusing to allow an applicant’s children to testify because their testimony could have corroborated the mother’s credibility. Severance makes that kind of corroboration structurally, extremely difficult.

 

The Timeliness Fork

The strength of the legal challenge to severance depends on a threshold question that practitioners must analyze immediately: is the family’s asylum timely filed?

Under INA § 208(a)(2)(B), asylum must be filed within one year of the applicant’s arrival. If the family entered without inspection and a year has passed with an asylum application being filed, the asylum application is time-barred unless an exception applies. And here is the critical consequence: withholding of removal and Convention Against Torture protection are not derivative claims. The BIA made this explicit in Matter of A-K-, 24 I&N Dec. 275 (BIA 2007). A spouse or child cannot ride as a derivative on the father’s withholding or CAT claim. If the underlying asylum is untimely, the family members needed their own independent applications as a matter of law regardless of whether the cases were severed.

This distinction matters because:

If the asylum is timely filed, counsel has a powerful argument against severance under Matter of Taerghodsi, 16 I&N Dec. 260 (BIA 1977): the family’s cases share substantially similar evidence and material issues — the exact standard under which consolidation is proper and severance is inappropriate. The IJ must independently weigh whether severance serves the interests of justice, not simply defer to DHS’s motion. Under Matter of H.N. Ferreira (BIA), the IJ cannot rubber-stamp DHS’s procedural motions without considering the family’s significant interests.

If the asylum is untimely, the legal argument against severance is substantially weaker. The IJ can note, accurately, that the family was going to need independent filings regardless. The procedural separation is less a consequence of the detention decision and more a reflection of what the law already required.

 

The Procedural Circularity — and the Unanswered Due Process Question

Step back and look at the full structure of what is happening. DHS makes the detention decision — unreviewable by the IJ. DHS then moves to sever based on the docket incompatibility that its own detention decision created. The IJ, citing practical necessity, grants the severance. The family is now prosecuted in two separate proceedings, at two separate costs, over two separate timelines, with no ability to present a unified case.

The IJ cannot undo the detention. The IJ can only rule on the severance motion. If the IJ simply defers to DHS on that motion, DHS has successfully used its unreviewable custody authority to dictate the entire structure of the family’s litigation without any judicial check whatsoever.

This is precisely the argument that H.N. Ferreira supports: the IJ’s independent obligation to weigh the family’s interests means the IJ cannot allow DHS to launder its unilateral custody decision through a motion for severance and expect judicial deference to the downstream consequences. DHS cannot manufacture the procedural conditions that justify its own motion and then ask the court to treat that motion as routine.

There is no published BIA precedent or circuit court decision that squarely addresses this argument. That is not because the argument is weak — it is because the issue is almost never preserved on the record and properly appealed. Families accept the severance, or move, or cases resolve on other grounds. The absence of adverse precedent is actually an opportunity.

 

Part IV: The Gendered Impact — Who Gets Detained, and Who Gets Left Behind

There is a dimension of this problem that rarely surfaces in legal briefing but is visible in every immigration court that handles EWI family cases.

DHS detains men at dramatically higher rates than women with children. This is partly by design — family detention is legally and politically contested, and DHS has generally avoided detaining intact families — and partly by enforcement priority. The practical result in EWI family asylum cases is predictable: when ICE shows up, the father is detained. The mother and children are released. The case is severed. The mother — often with limited English, no income, no independent work authorization yet, and children to care for — must now navigate a multi-year non-detained docket, file her own asylum application, and prove the family’s persecution claim without her husband, without income, and often without counsel.

The family entered together. They fled together. They faced the same threat together. They arrived together and filed one asylum claim together. DHS’s selective detention decision has now turned that single case into two separate legal proceedings at two separate costs — one of which is moving at emergency speed, and one of which may not conclude for years.

This is not a side effect of the detention policy. It is a predictable and foreseeable consequence of selective family detention, mandatory detention expansion, and the severance practice operating together. No single decision-maker owns the outcome. DHS owns the detention decision. The IJ owns the severance ruling. EOIR owns the docket disparity. No one is responsible for the family.

 

Conclusion

Mandatory detention has become a tool for something beyond incapacitation. When deployed selectively against one member of a family asylum unit, it triggers a cascade of procedural consequences — severance, parallel proceedings, docket disparity, derivative claim exposure — that individually appear to be routine immigration court administration and collectively amount to the structural dismantling of a family’s asylum case.

The circuits are now split on whether EWI individuals have any right to a bond hearing at all. The Fifth and Eighth Circuits say no. The Ninth Circuit’s district court says yes, but EOIR is telling its judges to ignore that ruling outside California. In Ohio and throughout the Sixth Circuit, the fight is being waged one habeas petition at a time.

None of that legal fight has yet addressed the deeper question: whether DHS’s ability to select which family member to detain — thereby manufacturing the procedural conditions for severance — constitutes an unconstitutional use of unreviewable executive authority to deprive a family of its right to fully litigate a consolidated asylum claim.

That question has never been squarely answered by the BIA or any circuit court. It needs to be.