Understanding DHS’s Mandatory Detention Policy for EWI Aliens: Legal Framework, Challenges, and Implications
The Department of Homeland Security (DHS) implemented a significant policy shift on July 8, 2025, mandating detention without bond eligibility for aliens who entered the United States without inspection (EWI) under Section 235(b) of the Immigration and Nationality Act (INA). This policy, formalized in an ICE memorandum, reclassifies all EWI individuals as “applicants for admission,” subject to mandatory detention during removal proceedings, reversing prior practices that allowed bond hearings under INA § 236(a). This blog post explores the legal basis for this policy, its impact on various groups (including long-term residents and CBP One app users), the applicability of equitable defenses like laches and estoppel, and the duration of detention permissible under recent Supreme Court precedent, particularly Jennings v. Rodriguez (2018).
Legal Basis and Evolution of the Policy
Prior Practice and Authority for Release
Historically, EWI aliens in full removal proceedings under INA § 240 could be released on bond or conditional parole under INA § 236(a), which grants DHS discretionary authority to detain or release aliens pending a final removal decision. Immigration Judges (IJs) had jurisdiction to conduct bond hearings, as outlined in 8 C.F.R. § 1003.19, assessing whether the individual posed a flight risk or danger to the community. The Board of Immigration Appeals (BIA) in Matter of X-K-, 23 I&N Dec. 663 (2005), supported this practice, treating EWIs transferred from expedited removal as bond-eligible under § 236(a).
The 2025 Policy Shift
The July 2025 policy reinterprets EWI aliens as subject to mandatory detention under INA § 235(b), which applies to “applicants for admission” (INA § 235(a)(1)), including those apprehended near the border or present without admission. This shift, supported by the BIA’s Matter of Q. Li, 29 I&N Dec. 66 (2025), and the Attorney General’s Matter of M-S-, 27 I&N Dec. 509 (2019), overrules Matter of X-K-, holding that EWIs remain under § 235(b)’s mandatory detention even in full proceedings. The Supreme Court’s Jennings v. Rodriguez, 583 U.S. 281 (2018), and DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020), reinforce this by affirming no statutory right to bond hearings for § 235(b) detainees. The policy aligns with a January 20, 2025, executive order, “Protecting the American People Against Invasion,” and is backed by $45 billion in funding for detention centers under H.R.1, reflecting the Trump administration’s enforcement priorities.
Impact on Specific Groups
CBP One App Users
Unlike traditional EWI aliens who cross unlawfully between ports of entry, individuals using the CBP One app scheduled appointments at official ports of entry (POEs) and were typically granted humanitarian parole under INA § 212(d)(5)(A). From January 2023, over 936,000 migrants used this pathway, receiving temporary work authorization and release to pursue asylum. However, since April 2025, DHS has revoked parole for over 900,000 entrants, notifying them via the rebranded CBP Home app to self-deport or face detention and removal. Revoked parolees revert to “applicant for admission” status, subject to the July 2025 policy’s mandatory detention without bond if detained. Advocacy groups like Al Otro Lado criticize this as a bait-and-switch, arguing that DHS enticed legal entry only to reverse protections, causing significant harm (e.g., job loss, family separation).
Long-Term Residents and Previously Closed Cases
Long-term EWI residents, even those with administratively closed or dismissed immigration cases, are not exempt. Administrative closure pauses proceedings without final resolution, allowing DHS to reopen cases at will. In 2025, ICE’s Office of the Principal Legal Advisor (OPLA) began reintroducing such cases, prioritizing those with criminal histories but extending to non-criminals. Over 300,000 arrests have occurred, supported by policies like the Laken Riley Act (2025), mandating detention for undocumented immigrants with convictions. If detained, these individuals face mandatory detention under § 235(b), with no bond eligibility unless alternative relief (e.g., TPS) applies.
Aliens with Prior Criminal Charges
DHS prioritizes “criminal aliens,” broadly defined to include those with convictions or pending charges. Even if DHS previously declined to detain such individuals, the 2025 policy allows arrests without a warrant under INA § 287, especially via data-sharing programs like 287(g). Notably, 71.5% of ICE detainees as of July 2025 lack convictions, indicating broad enforcement. Prior non-action by DHS does not bar current enforcement, as discretion allows revisiting old charges.
Equitable Defenses: Laches and Estoppel
Doctrine of Laches
The doctrine of laches, which bars claims due to unreasonable delay causing prejudice, is unlikely to apply. Courts rarely apply laches against government enforcement of public rights like immigration laws (Heckler v. Chaney, 470 U.S. 821 (1985)). The policy shift aligns with recent precedents (Matter of M-S-, Matter of Q. Li), showing no undue delay. Long-term residents or CBP One users might argue prejudice from relying on prior lenient practices, but courts view illegal entry or revocable parole as inherently risky, offering no protected interest (Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993)).
Equitable Estoppel
Estoppel against DHS requires affirmative misconduct and reasonable detrimental reliance (Heckler v. Community Health Services, 467 U.S. 51 (1984)). CBP One users have a stronger case, as DHS actively promoted the app as a legal pathway, inducing entry with parole promises. Revocations and mandatory detention could be argued as arbitrary, especially for integrated families. However, parole’s revocable nature and judicial deference to agency discretion (FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)) weaken claims. Traditional EWI aliens or long-term residents face steeper hurdles, as illegal entry or prior non-enforcement creates no entitlement (INS v. Miranda, 459 U.S. 14 (1982)). Prior case closures or ignored charges don’t constitute waiver, as enforcement is discretionary.
Duration of Detention Under Jennings
Jennings v. Rodriguez holds that INA § 235(b) mandates detention without bond hearings for applicants for admission until proceedings conclude, with no statutory time limit. Detention can thus last months to years, given immigration court backlogs (over 3 million pending cases, with 2–5-year wait times). Constitutional challenges may arise if detention becomes “unreasonably prolonged,” but no bright-line rule exists post-Jennings. Lower courts (e.g., Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018)) have granted bond hearings for detentions exceeding 12–18 months, but outcomes vary. Detainees can:
- File habeas corpus petitions (28 U.S.C. § 2241) alleging due process violations for excessive detention.
- Challenge policy application as arbitrary under the Administrative Procedure Act (5 U.S.C. § 706).
- Request discretionary parole under INA § 212(d)(5), though approvals are rare under the 2025 policy.
Practical Implications and Defenses
The policy has strained detention facilities, with over 300,000 arrests in 2025, and may lead to releases on supervision if capacity is exceeded. CBP One users may argue reliance-based defenses or seek re-parole, while long-term residents could pursue habeas relief or alternative statuses (e.g., TPS, adjustment). Those with criminal charges face heightened scrutiny but may challenge detention if charges were minor or dismissed. Ongoing litigation by groups like the ACLU and NILC targets due process and APA violations, offering hope for class actions.
Conclusion
DHS’s mandatory detention policy marks a seismic shift, affecting EWI aliens across contexts. While Jennings permits lengthy detention, legal challenges and parole requests remain critical tools. Affected individuals should consult immigration attorneys to explore defenses, as outcomes depend on specific circumstances. The policy’s broad reach underscores the need for vigilant legal advocacy in navigating this evolving landscape.
