ICE is jailing Ricardo Aparecido Barbosa da Cunha indefinitely, without a bond hearing or a trial.
Twenty years a Massachusetts homeowner. Twenty years a small-business owner. Twenty years a husband and the father of two American-born children. Twenty years a man with no criminal record — never charged with a crime in the whole of his life here. ICE arrested him on his drive to work last year. The agency moved him to a detention facility in Buffalo, New York. He asked for a bond hearing. He was refused one. He is held.
This is not a thought experiment. It happened. And on Thursday the Supreme Court agreed to decide whether the Constitution permits the Trump administration to keep doing it. The Court will hear arguments next term.
The question the justices took is narrow on paper. It turns on one word in a 1996 immigration statute — Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c), the mandatory-detention provision Congress enacted in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The section provides: “The Attorney General shall take into custody any alien who— … when such alien is apprehended.” The operative word is “apprehended.”
And the strongest version of the administration’s position deserves stating, because it is not frivolous. On that reading, § 236(c) covers every alien whose unlawful entry is the basis of the removal proceeding against him — whether he was caught at the border two decades ago or found living in a Massachusetts suburb two decades later. Read that way, the text commands custody, and no bond hearing is owed. The administration says Congress wrote § 236(c) precisely to keep people like Barbosa da Cunha off American streets while their cases crawl through a backlogged immigration court, and that the lower courts are dismantling a rule Congress enacted. On that account the lower courts are running “catch-and-release” out of a statute that exists to end it — a coordinated judiciary substituting its own enforcement preferences for the text Congress passed into law. The textual argument cuts in both directions. The circuit split is real.
But the courts that have rejected that reading keep rejecting it for the same reason: the statute keeps saying “apprehended.” Courts that have read the word to reach only those physically caught at a port of entry or shortly after crossing the border are not committing the same error in the same place — they are reading the same sentence. Courts do not independently commit the same reading error. A statute does not mean two things at once. And the administration’s own account of how it got here is not neutral: it spent months asking the justices to bless the opposite reading before the docket opened to it, and the case finally arrives on the heels of yet another loss below. The department is now asking the justices to overturn those rulings and confirm what it says the text has always said.
What is in dispute is not whether the statute is obscure. It is whether the administration can simply edit out of the law a phrase Congress plainly wrote. For decades, undocumented immigrants already living in the United States — not those caught at the border, but those settled here — have been entitled to a bond hearing before a judge, who weighs whether they pose a danger or a flight risk. The bond hearing is not a formality the courts invented. It exists to test the government’s case before a neutral arbiter, and to send a person home to his family and his business when the government has nothing to show against him. Strip that hearing away and you do not have a security policy. You have a punishment system operating without a sentence, a warrant, or a trial. Barbosa da Cunha has been held on the say-so of an ICE officer, and the administration has offered no reason for holding him except that it can. Under the reading the administration advances, the same would happen to anyone in this country whose removal case is pending.
Barbosa da Cunha is the rare plaintiff whose case cannot be filed away. Authorities say he entered the country unlawfully around 2005 — the man has been in this country since George W. Bush was president. He owns a home. He runs a small construction company. His children are citizens. By any ordinary measure he is a member of a community. And the administration has now placed two extraordinary immigration cases on the docket this term — this bond case and the “third-country” deportation case — each one asking the Court to ratify a power the executive branch has asserted without statutory authority. Repetition is not merit. The justices do not need to invent a new rule to stop this. They need only read the words Congress wrote, and the words Congress did not.
ICE is jailing Ricardo Aparecido Barbosa da Cunha indefinitely, without a bond hearing or a trial — and the administration intends to keep doing it to others like him. The case arrives at the Supreme Court on the strength of a word Congress wrote to mean exactly what it says. “Apprehended” means apprehended.