Appeals court finds ICE’s mandatory detention policy illegal

A federal appeals court ruled Tuesday that Immigration and Customs Enforcement can’t indefinitely detain noncitizens awaiting immigration proceedings or removal without regard for their criminal history or date and point of entry.

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The 2nd U.S. Circuit Court of Appeals’ decision contradicted two other appeals courts that have reviewed ICE’s policy, likely setting up the issue for scrutiny by the Supreme Court.

The case centers around Ricardo Aparecido Barbosa da Cunha, a noncitizen from Brazil who worked in construction and has lived in the United States since around 2005. He applied for asylum in 2016, was granted work authorization pending his application’s review and has never been c onvicted of a crime.

Immigration officers arrested him in September last year on his drive to work. Da Cunha asked to be released on bond to go home to his family in Massachusetts while awaiting proceedings, but he was denied based on ICE’s mandatory detention policy.