DHS is rewriting its detention rules to ignore the law—and entrap millions.
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A man detained by ICE after attending an immigration hearing in New York City.Carol Guzy/ZUMA
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The United States has welcomed refugees fleeing persecution under the same law for 45 years, following a tradition dating back to World War II. Through an orderly process, applicants for refugee status undergo extensive federal vetting before arriving. A year after entering the US, they can apply for a green card, and barring any issues, receive one. But late last year, the administration quietly changed the rules.
People protected by the laws are suddenly subject to arrest and detainment.
On January 9, the Department of Homeland Security and U.S. Citizenship and Immigration Services began putting its changes to work, seeking out and detaining lawful refugees who have broken no laws and followed DHS’ processes to the letter. One moment they were law-abiding refugees, the next many were arrested, shackled, and interrogated. DHS calls it Operation Post-Admission Refugee Reverification and Integrity Strengthening (PARRIS), and its first targets are some 5,600 lawful refugees in Minnesota. Nationwide, the new rule means some 100,000 refugees could be locked up—and alongside another, even broader, change initiated by the Trump administration, it suggests that the government’s plan to fill the warehouses it is buying and converting to detention centers rest on ignoring the laws that control its operations.
On January 28, John Tunheim, a federal district judge in Minneapolis, ordered DHS to stop detaining refugees under the new policy in Minnesota as the case proceeds, finding it is likely illegal. It is also a particular brand of authoritarian. The idea of the dual state, developed by Jewish-German labor lawyer Ernst Fraenkel in the 1930s to explain the legal system of the Third Reich, describes an authoritarian state divided into two realms: the normative state and the prerogative state. In the former, the rules are followed and the laws upheld. In the latter, the state simply imposes its will, and no law or right or freedom can protect its victims. Frankel described how most Germans in the 1930s lived in the normative state where life and commerce continued to feel normal, while Jews, political dissidents, and other disfavored groups were in the prerogative state, subject to the violent recriminations of the regime. The regime is able to accomplish the goals of the prerogative state because most people lived in the normal of the normative state.
The Trump administration’s treatment of refugees and other immigrants echoes the dual-state model. People who were protected by the laws are suddenly subject to arrest and detainment, possibly for a long time. The scaffolding of their rights is collapsing, and they are now subject to the dark underbelly of Trump’s lawless detention regime.
“ICE is the face of a prerogative state, emerging or actual,” Evan Bernick, a constitutional law professor at Northern Illinois University College of Law, explained to me last year. “It swoops in, it ignores safeguards, you can’t escape it.”
Courts in a burgeoning dual state are left to either push back or validate an unlawful policy. To justify the PARRIS detentions, DHS lawyers point to a section of the 1980 Refugee Act which allows them to take refugees into custody in order to assess their eligibility for a green card. In a new memo released this month to bolster its case, DHS claims that that is an open-ended authority to detain refugees for days, months, or even years as they are vetted again. In his initial order, Tunheim disagreed: “On the plain reading of these statutes, the Court concludes that none of these provisions authorize the prolonged detention” of the plaintiffs. The authority the government cites, Tunheim found, simply isn’t there.
Tunheim also found the government’s argument would lead to absurd results. Because the law “makes refugees ineligible for adjustment [to lawful permanent resident status] until one year after entry, Defendants’ interpretation would subject every refugee to detention, unless USCIS conducted the inspection and examination precisely at the one-year mark,” he wrote. “That outcome is nonsensical and would cause many unadjusted refugees to celebrate their one-year anniversary in this country in a jail cell.” This is obviously not what the law requires. But the administration is asking the courts to apply the judicial stamp of approval to its cruel and absurd policy anyway.
This is not the first instance in which the administration has announced new interpretations of decades-old statutes in order to fill its new detention facilities. In a tortured reinterpretation of a 1996 immigration law, the Trump administration announced in July that anyone who entered the country without permission, no matter how long ago, must be detained without bond for as long as it takes for the government to get their removal order—a process that can take years. As with the new refugee policy, the detention policy makes a hash of the statute. It dares the courts—which have almost uniformly ruled that a bond hearing is required—to interpret a law in a nonsensical and gratuitously cruel fashion. As of early January, some 300 federal judges had found the policy illegal; only around 30 have agreed with the government.
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This month, the Fifth Circuit Court of Appeals upheld the administration’s July policy. Suddenly, people who at any point entered the country without permission are subject to months or years of detention if they are in the three states within the circuit: Texas, Louisiana, and Mississippi. In these states, the grounds for release in federal court have now shrunk considerably. Moreover, engaging a lawyer to file a case is a tall order for the millions of people who could be locked up under the policy.
The Fifth Circuit decision came from a three-judge panel in the nation’s most reactionary appeals court, which Trump appointees have turned into a proving ground for far-right and MAGA-aligned priorities. “Congress did not secretly require two million noncitizens to be detained without bond,” Judge Dana Douglas, a Biden appointee on the circuit, wrote in dissent, “when nothing like this had ever been done before, and the whole history of American immigration law suggested it would not be.” Indeed, her colleagues’ ruling didn’t just change the law but, for millions of people now at risk of detainment without bond, effectively nullified it.
To attain detention numbers, the administration must suddenly claim that their own rules no longer apply.
Douglas also hinted at the slippery authoritarian slope of the government’s policy, the way in which it will pull more and more people, and eventually citizens, into its lawless vortex: “With only a little imagination, the government’s and the majority’s reading means that anyone present in this country at any time must carry the precise kinds of identification they would otherwise have only carried to the border for international travel, lest they be mistaken for an inadmissible noncitizen,” she wrote. “The majority seems to be unable to imagine what it might mean to be detained within the United States without the appropriate proof of admissibility, and, without a bond hearing, to require the services of a federal habeas corpus lawyer to show that one is entitled to release and deserves to see the outside of a detention center again.”
A key facet of a dual state is that the normative state is not truly safe. At any moment, one can fall from its protections into the prerogative zone. Racial minorities are certainly more likely to lose their rights in a system that will slowly suck more people into its lawless operations.
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In the short term, the decision will incentivize the government to whisk people to the 5th Circuit as soon as they are apprehended, beyond the reach of all the district court judges around the country who have found the policy illegal. But at some point—and it may be soon—the Supreme Court will have to decide whether to help the administration push millions into its growing network of concentration camps, or whether it will call out a blatantly illegal policy. As Bernick warned, “A Supreme Court that gets out of the way” of ICE, “where the state is at its most brutal, and tries to manage everything else as normal, is a dual state Supreme Court.”
Trump campaigned for president on deporting violent wrong-doers. But as both of these new detention programs demonstrate, the administration’s ambition to fill warehouses with millions of humans can only be achieved by locking up people without criminal records. As of November, just five percent of ICE detainees had committed a violent crime. To attain their numbers, the administration must suddenly claim that their own rules no longer apply.
The effect of the mandatory detention policy now sanctioned by the 5th Circuit is to detain people who could otherwise be allowed freedom while removal proceedings take place. According to a brief submitted in the case by the American Immigration Council, a legal and advocacy group, tens of thousands have likely already been the victims of this new policy in recent months. These include people without any criminal history and adults who have been in the US a long time and have deep ties to their community, including children whom they care for and support.
DHS is detaining people who are coming in for immigration appointments, meaning they are specifically targeting people who are already following government orders. This also includes Dreamers, people brought here as children who gave their information to the government in exchange for lawful presence in the country. The government is likewise locking up young people who had assurances against deportation because they crossed the border alone or were abused or abandoned by their parents. Suddenly, all these groups who entered into an agreement of protection from deportation with the government—what is called “deferred action”—are being locked up despite the government’s own rules to the contrary.
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Suddenly deprived of the protection of the law, the immigrants and refugees whose detention has been ushered in by these new DHS policies do not enter a civilized detention program, but one that operates with life-threatening cruelty. Accounts from inside detention centers detail conditions of torture. People are fed little, and what they do receive is often moldy, or seems, as a detainee in New Jersey described it in a lawsuit, “identical to cat food.” People with serious health conditions are denied medications. At a detention center in Dilley, Texas, children enter healthy, then soon fall ill, and then are denied care. In Illinois, a woman was detained two weeks after giving birth via cesarean section; while her newborn daughter was away in a hospital NICU, she slept on a bench without access to a breast pump or pain medication. A Cuban man detained at a tent camp in El Paso died in what ICE claimed was “medical distress” but the county medical examiner determined was homicide.
These conditions are so dangerous that people give up and agree to leave the country rather than waste away, making the torture a form of coercion forcing people to give up their legal rights. “People are being deprived of due process already because detention is so coercive,” says Rebecca Cassler, an attorney at the American Immigration Council. “You don’t have access to a lawyer. In many cases, your family might not know where you are for a couple weeks. You’re not getting enough food, you’re not getting medical attention.”
Dual states are characterized by “systematically a domain of lawlessness and systematically a domain of lawfulness,” explains Aziz Huq, a University of Chicago constitutional law professor writing a book about the theory. “You only get that when you have a multiplicity of measures that move people across the line from the world of legality to the world of lawlessness.”
“People are being deprived of due process already.”
It seems clear that, whether or not Trump will fully achieve this, his administration is trying to create a domain of lawlessness around immigration enforcement. ICE ignores constitutional constraints as a matter of policy, operating as a thuggish paramilitary force. The Trump administration wants to trap more and more people in its immigration enforcement apparatus—and keep them there. A Supreme Court that has allowed this legal black hole to expand is aiding in such a state’s creation. And almost certainly, the nation’s highest court will be asked to decide the fate of Trump’s new mandatory detention policy, and likely its novel refugee policy as well.
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The Supreme Court has already stepped in to essentially pause constitutional protections that have gotten in the way of the administration’s immigration crackdown. Last June, it allowed the government to proceed with deporting immigrants with final removal orders to so-called “third countries”—a country that is not their home country or another designated in the removal order—even though the law requires a different outcome and the Constitution requires due process, allowing the immigrants to object that they might be tortured in the new country. On Wednesday, a district court judge in Massachusetts issued a ruling against the policy, which means it will wind its way back to the Supreme Court in the coming months. But he stayed the ruling pending appeal, meaning people can still be sent to third countries without an opportunity to object, and where they are likely to be imprisoned, tortured, killed, or returned to their home country for a similar fate.
And last September, the Supreme Court allowed ICE to continue a policy of racial profiling in its detention sweeps and stops, even though the court has repeatedly ruled against the use of race in government policy. Notably, the decision expanded ICE’s terror to US citizens and others people lawfully present, based solely on how they look or talk.
These policies, alongside the new mandatory detention policies, track Trump’s attempts to carve certain disfavored groups out of the protection of the law since his first day back in office. On January 20, 2025, he issued an executive order denying citizenship to certain people born on US soil, despite the clear language of the Constitution’s birthright citizenship clause. In the face of more than a century of near-unanimous consensus, the administration simply declared that the law wasn’t what it said.
On April 1, the highest court will hear arguments over that executive order, which attempts to revoke birthright citizenship for thousands by fiat; to take a class of people clearly entitled to all the protections of citizenship and turn them into a stateless underclass. As Trump attempts to ethnically cleanse the nation through a lawless detention and deportation regime, the birthright citizenship case is one especially high profile test, among many more to come, of what the administration will be allowed to get away with. The contours of a dual state are coming into view, one in which anyone targeted by Trump’s deportation and detention program have no rights that can save them.
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