Departing from decades of consistent practice across presidential administrations, the Trump administration instituted a new policy regarding immigrants who live in the United States but who entered the country without legal inspection. Under this new policy, the government is incarcerating all such people while deportation proceedings are brought against them, instead of providing bail hearings in which a neutral judge decides whether a particular individual is a flight risk or threat to the public. As a result, countless people have been detained by the government without any opportunity for a hearing or any showing that their detention is necessary.

One of these individuals is Jorfrank Alexander Lugo-Solet. Mr. Lugo-Solet fled political persecution in Venezuela in 2022, at which point he was paroled into the United States. In the years since, Mr. Lugo-Solet has worked as an electrician and had two U.S. citizen children. He has no criminal history, and his request for asylum is pending. But at a routine ICE check-in, he was arrested and detained, and he has spent the last six months in a county jail with no opportunity to seek bail. He challenged the constitutionality of his detention in the U.S. District Court for the Eastern District of Missouri, which denied relief, and that decision is on appeal at the U.S. Court of Appeals for the Eighth Circuit. In August 2026, the Constitutional Accountability Center filed an amicus brief explaining why the Trump administration policy that led to Mr. Solet’s detention, even if it were authorized by the nation’s immigration laws, violates the Due Process Clause of the Fifth Amendment.

First, noncitizens residing in the United States have the same constitutional protection against arbitrary imprisonment that citizens do. Unlike constitutional provisions that refer to “citizens,” the Fifth Amendment declares that no “person” shall be deprived of liberty without due process of law. The Supreme Court has long held that this sweeping safeguard covers noncitizens who are within the United States, regardless of their legal status or whether they entered the country without permission. This principle is faithful to the Amendment’s deliberately worded text and to the Framers’ original understanding, both of which reflected a legal tradition in which noncitizens had the right to protect their personal liberty just like citizens did, and were detained only under the same circumstances as citizens.

Second, Supreme Court precedent does not allow categorical detention of every person who entered the country without legal inspection. Outside of a narrow set of circumstances inapplicable to the policy at hand, the Court has never permitted mandatory detention without bond hearings during deportation proceedings.

Finally, denying bail hearings to every person who entered the country without inspection violates the Due Process Clause. As the Supreme Court has explained, freedom from imprisonment “lies at the heart” of the liberty that the Clause protects, and detention without trial is a “carefully limited exception” to that freedom, which must be accompanied by strong procedural protections to guard against mistaken or unjustified detention. Accordingly, the government typically may imprison people without a criminal trial only by persuading an impartial decisionmaker of the need for detention after a fair hearing. This rule protects all people in the United States, regardless of their legal status. The government therefore cannot indiscriminately imprison noncitizens without showing the need for detention in a fair hearing.