With Chevron Gone: Timeline of Mandatory Detention and Rising Judicial Review in U.S. Immigration

The concept of mandatory immigration detention in the U.S. began as a border-control tool. The Immigration Act of 1893 authorized detention for those physically stopped at the border, building on the “entry fiction” from the 1891 statute, which allowed noncitizens to be detained without being considered legally present. Early laws permitted bond hearings for those arrested inside the country and did not make detention mandatory for deportation. In 1896, the Supreme Court (Wong Wing v. U.S.) upheld detention as a means for deportation, but required due process when detention became punishment. Over time, the system shifted from purely border-based detention to more expansive, post-entry approaches—especially during the War on Crime and War on Drugs eras.

Mandatory detention now covers both status-based and crime-based categories. Status-based detention was extended to people stopped within 100 miles of the border or under two years in the U.S., while crime-based detention originated in the Anti-Drug Abuse Act (1988) with the “aggravated felony” category, and was expanded by IIRIRA (1996) and most recently the Lakin Riley Act (2025), which allows mandatory detention even without a conviction for certain crimes.

As of July 2025, more than 56,900 people are detained in ICE or related custody. Policies under recent administrations have maximized the use of detention, limited due process, and instructed judges to rapidly process and terminate removal proceedings, to minimize bond hearings. ICE’s leadership has interpreted detention statutes ever more broadly, making most noncitizens arrested without inspection ineligible for bond and expanding expedited removal to anyone unable to prove two years’ continuous residence.

Status-based mandatory detention mainly rests on 8 U.S.C. §1225(b), set up in 1996. IIRIRA created expedited removal procedures, which bypass immigration judges for certain noncitizens. The intertwined nature of expedited removal and mandatory detention has enabled agencies to interpret detention authority expansively in practice, covering nearly all undocumented entrants.

Congress expanded mandatory detention with new laws, but recent court decisions (such as Vazquez v. Bostock) have begun reversing overly broad interpretations, reaffirming bond eligibility and the importance of statutory language. The Lakin Riley Act (2025) states explicitly that entrants without inspection are subject to detention under §1226 (bond possible), not automatic detention under §1225. The Supreme Court’s Jennings v. Rodriguez (2018) confirmed that most mandatory detention was meant for border-based contexts, not for those living in the U.S. interior.

Expanding status-based detention without individualized review raises serious constitutional concerns, especially under the Due Process Clause. The Supreme Court’s Demore v. Kim supports mandatory detention only when backed by criminal convictions. Detaining interior residents without a warrant raises Fourth Amendment challenges. With the end of Chevron deference (Loper Bright, 2024), courts now independently interpret statutes—giving new life to the immigration rule of lenity, which requires ambiguous laws to be read in favor of noncitizens. Agency actions now face more scrutiny, and abrupt departures from past law (such as the Matter of M-S- and Matter of Q. Li) are less likely to receive deference.

The scale and harshness of detention continue to rise. As courts regain authority to review statutory meaning and due process after the end of Chevron deference, agencies must justify broader uses of detention. Ongoing litigation now targets both statutory and constitutional weaknesses in status-based mandatory detention, shaping a new era of immigration law and rights.