January 2026: Detention-first policy hardens
As of January 3, 2026, DHS and USCIS are pushing longer immigration detention and fewer releases while deportation cases move through the system. The change is tied to a stated zero-release approach and to broader use of mandatory detention for people the agency now treats as applicants for admission.
For families, employers, and lawyers, that shift means many more people are held for the full length of their court case, not just until an initial hearing. It also raises the stakes of the legal clock known as the removal period, because detention often continues while travel documents, flights, and court motions play out.
DHS has pointed to record enforcement results in its year-end review in the DHS Newsroom, while USCIS has posted related announcements in USCIS News & Alerts. ICE’s current detention reporting, including daily population counts, appears on its official Detention Management page.
The statutory 90-day removal period
Federal law sets a baseline rule after a final order of removal, and it sits in 8 U.S.C. § 1231. That statute creates a 90-day removal period when the government is expected to carry out deportation.
During that window, detention is generally authorized while ICE arranges travel, confirms identity, and secures permission from the destination country. In practice, the 90 days can start later than people think, because it runs after a final order rather than after arrest.
A case can reach that stage only after an immigration judge orders removal and appeals are resolved or waived. This is why people in removal proceedings often face detention that outlasts the statutory removal period, especially when courts or consulates slow down the exit process.
Supreme Court limits on indefinite detention
The main constitutional check comes from the 2001 Supreme Court decision in Zadvydas v. Davis. The Court said the government cannot hold someone forever when removal is not reasonably foreseeable.
Instead, the justices created a practical rule: detention for up to six months after a final order is presumptively reasonable. After six months, the burden can shift if the person shows there is no real likelihood of removal in the foreseeable future.
When that showing is made, the government generally must release the person under supervision rather than keep them locked up. Release under supervision does not end the case, and it can include strict reporting rules and limits on travel.
Even with Zadvydas, the practical fight is often about what counts as foreseeable when a country stalls, refuses documents, or has no working flight routes.
Bond hearings are not automatic
A common public belief is that everyone gets a bond hearing after six months, but the Supreme Court has rejected that idea for some detention statutes. In Johnson v. Arteaga-Martinez, the Court confirmed that immigration law does not require automatic bond hearings for certain people held after a final order.
That leaves many detainees with a hard path: they must ask for release through Zadvydas arguments or other legal routes, not through a routine hearing date. Under late-2025 and early-2026 enforcement choices, this legal backdrop matters more, because agencies are aiming for fewer discretionary releases during pending proceedings.
DHS leadership embraces a zero-release message
DHS Secretary Kristi Noem framed the approach in a Dec. 19, 2025 statement celebrating enforcement results. She said: “In record-time we have secured the border, taken the fight to cartels, and arrested thousands upon thousands of criminal illegal aliens.”
“From May to November, seven consecutive months, the United States Border Patrol (USBP) released ZERO illegal aliens into the country.”
That language has shaped how many immigrant advocates read the current detention posture, because it signals an intent to limit parole or other discretionary release tools.
USCIS memo expands case holds and reviews
USCIS Director Joseph Edlow has tied benefit adjudication more tightly to enforcement through a new policy memorandum, PM-602-0194, dated Jan. 1, 2026. The memo orders an immediate “adjudicative hold” on benefit applications for nationals from 39 designated “high-risk” countries, including Nigeria, Venezuela, and Afghanistan.
It also calls for a “comprehensive re-review” of approvals dating back to 2021, a step that can place people back into enforcement pipelines even after prior approvals. In day-to-day terms, that re-review can trigger detention if officers decide a person should be re-screened while removal proceedings restart or continue.
The memorandum is published as USCIS Policy Memorandum PM-602-0194.
July 2025 reinterpretation widens mandatory detention
A July 2025 DHS internal memo reclassified nearly all undocumented immigrants as “applicants for admission,” a label that triggers mandatory detention without bond for many people. This approach treats more arrests as if they are happening at the border, even when the person has lived for years inside the country.
The policy is being litigated in federal court, including a case named Sykes v. Noem, and judges have reached differing views on its legality. In late 2025, Judge Kaplan ruled that some aspects of the mandatory detention policy were unconstitutional, adding more uneven practice across courts and detention sites.
That unevenness shows up quickly for detainees, because eligibility for bond and release can change by location, judge, and the legal theory DHS is using in that case.
Detention numbers reach record levels
ICE held 68,440 people as of Dec. 14, 2025, a record high for the agency. DHS reported 622,000+ deportations and 1.9 million self-deportations in 2025, reflecting a system under heavy pressure to move cases fast.
TRAC data dated Nov. 30, 2025 said 73.6% of people in ICE detention had no criminal conviction, underscoring how often detention is now used for status violations. Earlier in 2025, the average length of stay in detention was roughly 46 days, but specialized “high-risk” units have reported average stays exceeding 250 days in places such as Sherburne County Jail.
The gap between 46 days and 250-plus days matters, because longer detention makes it harder to keep a job, pay rent, and gather evidence for court.
How zero-release goals reshape the timeline
Detention length before deportation now depends less on the textbook 90-day removal period and more on the route DHS uses to keep a person in custody. When agencies pursue a zero-release posture, they tend to contest bond aggressively and to resist parole, even for people with family ties and long residence.
That strategy also changes plea decisions in criminal court, because an immigration hold can follow a minor case and lead to mandatory detention on the immigration side. The legal label “applicant for admission” is central, since it often blocks bond and keeps detention in place until an immigration judge reaches a final decision.
For many detainees, the real wait is the time it takes to finish the immigration court case, not the time it takes ICE to book a flight. Once a final order is entered, the six-month Zadvydas presumption and the 90-day removal period start to matter far more.
Groups now facing longer detention
Nationals of the 39 “high-risk” countries listed in PM-602-0194 face a higher chance of being held while USCIS and DHS re-check past approvals and pending filings. People with old removal orders, or with cases that were dormant for years, can be swept back into custody when the agency treats the file as active again.
TPS holders from Venezuela, Haiti, and Ethiopia face new exposure after terminations, because work permits and protection from removal can end and leave them subject to arrest. When a formerly protected person is detained, the case often turns into a fast track to a final order, followed by the statutory removal period.
If travel documents are slow, detention can stretch toward the six-month mark where Zadvydas arguments become the main path to release.
Why removal sometimes is not foreseeable
Even in a detention-first system, deportation requires cooperation from the receiving country, and that is often the hidden bottleneck. A person may have a passport problem, a disputed nationality claim, or a consulate that refuses to issue a travel document on the U.S. schedule.
Those delays can push detention well beyond the 90-day removal period, which is why the Supreme Court built a constitutional backstop in Zadvydas. In today’s climate, the backstop does not always deliver quick freedom, because the government can argue removal will happen soon even after months of waiting.
Courts then weigh evidence like consular communications, flight availability, and the person’s own cooperation with document requests.
Confusion in courtrooms and detention centers
After Judge Kaplan’s ruling and other challenges, immigration courts have been operating in what many lawyers describe as a patchwork. One courtroom may treat the July 2025 “applicant for admission” memo as controlling and deny bond, while another court may allow bond hearings under older interpretations.
That split creates uneven detention time, since a bond decision early in the case can mean release in weeks, while a denial can mean months behind bars. Detention itself also makes it harder to fight a case, because access to counsel, phone calls, and documents is limited by facility rules and distance.
VisaVerge.com reports that these conditions, combined with expanded mandatory detention, are changing how quickly people accept removal rather than stay detained while litigating.
What the statistics say about who is detained
The TRAC figure that 73.6% of ICE detainees had no criminal conviction highlights a policy choice, not just a public safety program. Status violations include overstaying a visa, entering without inspection, or losing a lawful status after a job ends or a family relationship breaks.
Under a zero-release lens, those civil violations are treated as enough to justify detention, even when the person poses no danger and has deep community ties. The record detained population of 68,440 also puts strain on local jails and private facilities that contract with ICE, and it increases transfers far from home.
How benefit reviews can intersect with detention
The USCIS “adjudicative hold” policy shows how benefits and enforcement can blend, since a pending or past benefit filing can become a trigger for custody decisions. Someone who thought they were moving toward stability through an approved petition can suddenly face re-review, delays, and renewed exposure to arrest.
If detention follows, the person may have to defend both the benefit issue and the removal case at the same time, often from a jail phone. The result is longer time in custody for people who once expected a paperwork review, not a detention bed.
What mandatory detention means
Mandatory detention means ICE argues the law requires custody, so the person cannot pay a bond to leave detention while the case is pending. That differs from discretionary detention, where a judge can weigh flight risk and danger and set a bond amount.
The July 2025 reinterpretation expands the pool of people placed in the first category, which is why advocates have focused on the “applicant for admission” label. If the courts ultimately block that label, more detainees would regain a path to bond, but the current operating reality is wider mandatory detention.
Detention length patterns to watch in 2026
The 46-day average stay remains a useful snapshot, but it hides the long tail created by high-risk units, document delays, and hardline release decisions. People can move from a short stay to a long stay quickly if ICE transfers them to a facility that handles complex removals or if a court date is pushed back.
Specialized facilities reporting stays above 250 days show what happens when the government insists on custody and the case involves extra screening or diplomatic friction. For detained people with final orders, the key question becomes whether removal is moving in a real way, because that is what courts test under Zadvydas.
In a zero-release climate, the government’s position is often that removal remains achievable, even if the schedule is slow.
Practical ripple effects outside detention walls
Long detention splits families and forces hard choices about childcare, mortgages, and health care, especially when the main earner is in custody. The pressure grows when detention lasts past the 90-day removal period, because families often assume release is automatic at that point and plan finances around that belief.
Starting January 2026, U.S. immigration agencies have adopted a ‘zero-release’ posture, significantly increasing the use of mandatory detention. By labeling more individuals as ‘applicants for admission’ and targeting specific nationalities for re-review, the government aims to keep detainees in custody until deportation. This policy has led to record detention levels, with over 73% of detainees having no criminal record, raising significant legal and humanitarian concerns.
