This article is part of Cafe, TPM’s home for opinion and news analysis.
Donald Trump’s ability to jail millions of people without even a bond hearing depends on what the Supreme Court thinks about one man’s case.
His name is Ricardo Aparecido Barbosa da Cunha, he’s a Brazilian citizen, and he crossed the United States’ southern border without inspection over 20 years ago. Since then, he’s lived a model American life, becoming the owner-operator of a small construction business, a married father of two U.S. citizen children, and an asylum seeker with a work authorization and no criminal record.
Last September, he was arrested by immigration agents while driving to work in Norwood, Massachusetts.
For decades, if someone like Barbosa da Cunha wound up in ICE custody, he would have been afforded a bond hearing and been evaluated by an immigration judge on whether he was likely to attend future court dates, and whether his release would pose a risk to his community.
That changed in July 2025, when the Trump administration dramatically reinterpreted the law governing immigrant detention. ICE issued a memo saying that anyone who entered the country without inspection would be considered to be “seeking admission” to the U.S., and thus required to be jailed without bond for the duration of their immigration proceedings, even if they’d lived here without incident for years.
The administration’s brand-new interpretation of a 30-year-old law lumped people like Barbosa da Cunha in with recent arrivals at the border — and with suspected terrorists and people charged or convicted of certain crimes, who also face mandatory detention.
It also threw the federal court system into chaos. Without the option for a bond hearing in immigration court, people detained in ICE jails under the new policy have instead gone to federal civil court, filing habeas corpus petitions challenging their detentions by the tens of thousands; this year, those cases have so far amounted to a quarter of all civil suits filed in federal court, Reuters recently reported.
And judges have overwhelmingly ruled against the administration. Out of at least 24,100 federal court rulings concerning immigration detention, judges across the ideological spectrum have ruled against the Trump administration over 85% of the time, according to a running Politico tally. Two-thirds of those decisions against the administration concerned the new mandatory detention rule.
One of those cases was Barbosa da Cunha’s. After a district judge in Western New York ordered a bond hearing, Barbosa da Cunha was released last October.
The government appealed, and the case became one piece of one of the most epic “circuit splits” in American history. Every single appeals court in the country has weighed in on the administration’s mandatory detention rule this year except that of the District of Columbia, which doesn’t have an immigration jail of its own. Of the 11 numbered circuits, judges in nine have ruled against the Trump administration. Only the Fifth and Eighth circuits have ruled in Trump’s favor.
The Second Circuit affirmed the district court’s finding that the relevant mandatory-detention portion of the law did not apply to people “who were not apprehended at or near the border at the time of entry,” even if they had crossed the border illegally at one point. Instead, they were eligible for bond as they had been for decades, the court found.
Writing for the majority, Trump appointee Joseph F. Bianco called the mandatory detention policy the “broadest mass-detention-without-bond mandate in our nation’s history for millions of noncitizens.” Others have since written in even more dramatic terms, including by comparing the policy to Japanese internment during World War II and the 19th-century law requiring hard labor from Chinese immigrants found to be in the country illegally.
“Those shameful and abhorrent past detentions were limited in scope in comparison to the mandatory detention that the Government urges us today to find that Congress established thirty years ago in an ambiguously worded statutory provision,” Judge Nicole Berner, a Biden appointee, wrote for the majority in the Fourth Circuit Court of Appeals last month. “We decline to do so.”
The Trump administration asked the Supreme Court to examine the Second Circuit’s ruling in July, saying that after 30 years, it had “revisited the issue” of who was required to be detained under the Immigration and Nationality Act “and determined that its prior approach was inconsistent with the INA’s text.”
On Oct. 1, the court agreed to take up the case.
“This case is about an unprecedented detention policy that we’ve never seen in the American immigration system — a policy that would literally amount to the largest detention scheme in American history,” Michael Tan, deputy director of the ACLU’s immigrants’ rights project and counsel of record in Rhoney v. Barbosa da Cunha, told TPM. “The stakes are enormously high — from a historical perspective, from a legal perspective, from a human perspective.”
6 Million Could Be Detained Without Bond
When Bill Clinton signed an overhaul of the INA into law in 1996, around 2 million people were believed to be living in the United States after having crossed the border without inspection. These days, that number is closer to 6 million, according to one estimate cited by attorneys challenging the administration policy.
And while it’s true that Trump has nowhere near the ICE detention space to jail millions of people all at once — at its peak in January, ICE was jailing about 73,000 people on any given day — the day-to-day detention numbers belie just how many people can churn through the detention system across several years, particularly with a motivated president.
Over 610,000 people were booked into ICE detention from the beginning of Trump’s second term through Aug. 6 of this year, according to a Marshall Project analysis of Deportation Data Project figures. And that number has likely increased significantly: August marked yet another ICE arrest record, with over 50,000 people cuffed in 31 days.
The administration has at times been explicit that it is using the miserable reality of ICE detention to encourage people to “self-deport.” Some data indicates this has been effective. “Among people who were detained at the start of their removal case, more than 10 times as many cases concluded with a voluntary departure decision in recent months than at the end of Biden’s term,” the Vera Institute of Justice found in May.
Rebecca Cassler, a senior litigation attorney with the American Immigration Council who recently argued against the administration’s mandatory detention policy before an en banc hearing held by the Fifth Circuit, said the pressure to self-deport in detention was “by design.”
“Putting someone in prison is inherently harmful to them — so people are giving up their cases,” she told TPM. “Civil detention is not supposed to be coercive. It’s not supposed to be a tool to get people not to assert their statutory and constitutional rights … but that’s certainly how it’s been used.”
Observers have expected the Supreme Court to weigh in for months. As things stand, a given ICE detainee’s right to a bond hearing depends on where they are jailed. The Fifth Circuit includes Texas and Louisiana, which together hold over a third of the nation’s ICE detainees, according to July data from the Transactional Records Access Clearinghouse, which collects and analyses government data. Immigration attorneys have complained for months that ICE has transferred detainees to those states to avoid releasing them.
“At a minimum, the transfers are faster,” Cassler said. “They are transferring people so they can’t file a habeas petition in the good jurisdiction.”
The Supreme Court’s move to take up this specific case provided some tangible good news for the respondents. Unlike another case concerning mandatory detention that the Trump administration had submitted to the Supreme Court, Barbosa da Cunha concerns only statutory interpretation — the letter of the law — and avoids constitutional due process questions, which so far haven’t produced a circuit split on their own.
Still, the Roberts Court has sided with the administration on immigration questions before, and there’s no sign it will stop now. And even an anti-Trump ruling on this question would leave other obstacles. Trump has politicized the immigration bench like never before in its history, and even before this administration, bond was regularly denied to detained migrants who were able to schedule hearings.
But advocates see the case as a key potential shift in the anti-immigrant tide.
“The Supreme Court rejecting the government’s argument here is just one step of many that would be needed to bring actual justice to this system,” Cassler said.
