Congress killed due process, then Trump went even further

After President Donald Trump returned to power, the very first thing that Congress did was pass a bill making it easier for him to fulfill his signature campaign promise.

With the backing of nearly every Republican — and support from dozens of Democrats, including some of the party's most prominent rising stars — the House and Senate voted to strip due-process rights from potentially millions of undocumented immigrants, allowing them to be detained indefinitely while the government tries to deport them.

"It's a landmark law that we are doing today," Trump told reporters at a Jan. 29, 2025, signing ceremony for the Laken Riley Act, now empowered to pursue the mass deportations he had promised. "It will save countless innocent American lives."

The law was named after a 22-year-old nursing student in Georgia who, in February 2024, was murdered by a man from Venezuela who was in the country illegally. Riley's killer had been arrested several times previously, including for alleged retail theft, but not deported — a symbol, to critics, of President Joe Biden's failure to secure the country's borders. The case, fueled by the racial politics of an undocumented man of color killing a white woman, became a rallying cry for right-wing opponents of immigration and a feature of Trump's 2024 campaign rallies.

The bill passed in Riley's name amends federal law to require the detention of any undocumented immigrant arrested or otherwise accused — but not convicted — of a crime, including "burglary, theft, larceny, shoplifting or assault of a law enforcement officer."

Eliminating habeas corpus

Put more plainly: the Laken Riley Act stripped immigrants of the ability to challenge their detention by Immigration and Customs Enforcement, effectively eliminating a centuries-old right known as habeas corpus. Those accused but not convicted of crimes can now be held for as long as it takes to remove them from the country, a process that can sometimes last years.

Months after the act was signed into law, thousands of people are now detained who may not have been otherwise. Of the more than 65,000 in ICE detention, as of Nov. 16, about a quarter, or 15,800, have pending charges against them, according to data shared by the Cato Institute, a libertarian think tank (it is unclear how many were arrested for alleged offenses, but government figures show another 29,000 people in detention have never been charged with a crime).

"What the Laken Riley Act was about was increasing who was subject to mandatory detention," Kathleen Bush-Joseph, a lawyer and policy analyst with the Migration Policy Institute, said in an interview. And by that measure, alone? The law has worked, its passage followed by record-breaking numbers of immigrants behind bars.

But not every detention of a non-criminal immigrant can be attributed to the January 2025 change in law. The Laken Riley Act certainly raised the floor, in terms of who could be held without a conviction, but the federal government has since gone well beyond the dictates of the law.

After heralding its passage, Bush-Joseph explained, "the Trump administration came in and they said, 'OK, we're going to go, actually, much further than that and we're going to take a different approach than what had been the interpretation of the law and policy for decades and apply mandatory detention to a much wider swath of people.'"

An unintended consequence

The Laken Riley Act was unquestionably an effort to make life miserable for more undocumented immigrants, mandating that thousands more be detained in unsanitary, overcrowded facilities. And it has had immediate consequences that, without another change in law, may well outlast the present administration.

"The Trump administration has expanded cooperation with state and local police to a record level," Bush-Joseph said. "So when someone is arrested for something, those cops are calling ICE. And I could see the Laken Riley Act and this cooperation with local cops resulting in more people being detained for those smaller types of offenses."

That cooperation could well outlast the present administration, serving as a long-term funnel into federal detention. Even if the current White House is exceeding the letter of the law, that law — the Laken Riley Act — does provide it with broad justification for detaining foreign nationals who have never been convicted with crimes. And that's something that was accomplished with the support of many in the political opposition: 46 Democrats in the House and 12 in the Senate voted to strip undocumented immigrants of due process, among them Sens. John Fetterman of Pennsylvania Ruben Gallego of Arizona, who were consponsors of the bill; Sen. Mark Kelly of Arizona; and Sens. Jon Ossoff and Raphael Warnock of Georgia.

There is, however, an ironic byproduct of Congress dramatically expanding the federal government's ability to put foreign nationals behind bars: it served as a reminder to courts of lawmakers' intent to govern such matters. The Laken Riley Act raised the floor, recall, but it did not abolish the ceiling.

Broadly speaking, there are two sections of federal law relevant for deciding when an undocumented immigrant is supposed to be detained by ICE: one governs those who are encountered at the border (§ 1225), while the other pertains to those who are already settled and living in the country (§ 1226). The Laken Riley Act modified the latter.

But the Trump administration has been acting as if all immigrants, wherever they may be found, are subject to the same rules. In July 2025, the Department of Homeland Security announced it was revising its interpretation of federal law and had now decided that anyone in the country without documentation should be treated as an "applicant for admission" — in other words, like someone encountered at the border.

That doesn't make any sense, though, as scores of judges have since pointed out. If all immigrants in the country were subject to § 1225, "then there would be no possible set of noncitizens to which § 1226(a) would apply," U.S. District Judge Sunshine S. Sykes wrote in a Nov. 20 order. In that decision, she noted that Congress had just recently "amended portions of § 1226 through the passage of the Laken Riley Act."

If that section of federal law were irrelevant, in other words, it would be awfully strange for Congress to have just gone through the trouble of changing it — and for President Trump to have praised that change as a "landmark" deal.

Those left behind

As Reuters reported, Sykes, in her decision, granted class status to immigrants who were living in the U.S. when they were detained, recognizing their right to challenge detention in federal custody. That means, under the ruling, that the Trump administration has to provide bond hearings to all immigrants detained while residing in the country who request one.

Matt Adams, an attorney who brought the case, told the Associated Press that the decision had already led some immigration judges to inform those brought before them of their reclaimed rights. These are people, he said, "who have no criminal history, who do not present any danger or threat of a flight risk, and yet they were being locked up without any possibility of being released during these lengthy [deportation] proceedings."

To date, more than 3,000 people in immigration detention have filed habeas petitions, which immigration attorneys told KPBS were almost unheard of in years past, a product of the Trump administration's indiscriminate efforts to detain and deport.

But there are far more than just a few thousand people who could challenge their detention — and it's far from obvious that most immigration judges, who serve at the pleasure of the Department of Justice, will inform those who come before them of their contested rights. The Trump administration is also expected to appeal Sykes' decision.

What is clear is that many of those who enter the immigration detention system are unlikely to be aware of their full legal rights, much less have access to someone willing to advocate for them.

"People are struggling to find attorneys and it's that much harder to get an attorney in detention," Bush-Joseph told The Redoubt. "We know that people have worse outcomes when they don't have an attorney and, in detention, people are giving up their cases and opting to 'voluntarily depart' because the conditions in detention are so poor."

The Laken Riley Act was a major step towards mass deportations, eliminating rights without requiring convictions and exposing thousands of people to the threat of ICE detention. It's a sign of just how radical the Trump administration has been that even that law — treating every alleged shoplifter like a potential murderer — has been found insufficiently extreme.

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