1. Historical Context of Catch and Release

The “catch and release” policy has been a cornerstone of U.S. immigration enforcement for decades, serving as a mechanism to balance border security with humanitarian considerations.[1] While there is no universally agreed-upon definition of the phrase, it broadly refers to a "collection of policies, court precedents, executive actions and federal statutes spanning more than 20 years, cobbled together throughout Democratic and Republican administrations."[2] Under this policy, immigrants are released from Department of Homeland Security (DHS) custody while awaiting immigration court hearings.[3] This approach has been used to manage limited detention capacity and ensure that immigrants have access to due process under the law.[4] As of January 2025, the Trump Administration sought to end this practice by implementing stricter enforcement measures that prioritize detention over due process.[5] These changes were a part of a broader effort to deter “illegal” immigration and strengthen border security, with the Trump administration arguing that the policy encouraged individuals without legal status to remain in the U.S. while their cases were pending.[6]

2. Legal Framework

The “catch and release” policy in American immigration enforcement is rooted in the Immigration and Nationality Act (INA), which grants the federal government the authority to parole individuals into the country under certain conditions.[7] Under INA § 212(d)(5)(A), the Secretary of Homeland Security has discretionary authority to temporarily parole individuals into the U.S. on a case-by-case basis. Individuals may be paroled into the country for urgent humanitarian reasons or when releasing someone best suits the public interest.[8] For example, parole may be granted to individuals who have credible fears of persecution in their home countries or who have urgent medical needs.[9] The Flores Settlement Agreement plays a critical role in shaping this policy. Established in 1997, the Flores Settlement Agreement significantly influences American immigration policy concerning the detention of minors.[10] This agreement mandates that children in immigration custody be held in the "least restrictive setting" appropriate to their age and needs.[11] It also requires that children be released from custody without unnecessary delay, with a preference for release to a parent.[12] These legal frameworks have guided how the federal government detains families and children, ensuring that due process and humanitarian considerations are upheld.

3. Trump’s 2025 Immigration Directives & DHS Policy Changes

Recently the Trump administration began implementing significant changes to the "catch and release" policy to severely limit its application. One of the most notable actions was an executive order calling for a dramatic increase in detention capacity and the enlistment of state and local law enforcement to assist in deportation efforts.[13] The administration has also expanded the use of expedited removal, a process that allows for rapid deportation without a hearing before an immigration judge.[14] This move aims to fast-track deportations and reduce reliance on the "catch and release" policy.[15] These changes marked a significant departure from previous practices, which often relied on parole and release to manage detention capacity and respect due process. For example, the Obama administration employed prosecutorial discretion and parole programs to prioritize the removal of individuals who posed threats to public safety or national security, thereby managing detention resources and addressing humanitarian concerns.[16] In addition to the Trump administration's renewed efforts to end the catch and release policy, the  passage of the Laken Riley Act in January 2025 represents a significant statutory development in immigration enforcement. This law mandates the detention of undocumented immigrants accused of specific offenses and allows states to sue the federal government for failure to enforce immigration laws.[17] The Act’s passage raises significant legal questions under the Flores Settlement Agreement.  

4. Judicial Review & Future Legal Battles
5. The INA, Parole, & Expedited Removal

Under INA § 212(d)(5)(A), the Department of Homeland Security (DHS) has discretionary authority to parole migrants into the U.S. on a case-by-case basis for “urgent humanitarian reasons” or a “significant public benefit.”[18] The Trump administration has curtailed parole usage as of January 2025, requiring nearly all noncitizens to remain in detention rather than be released.[19] Unfortunately, this policy complies with INA because the statute provides a discretionary authority—not a mandatory requirement—to use parole.[20] Moreover, courts have historically deferred to executive authority regarding parole determinations, as seen in cases like Jean v. Nelson (1985), where the Supreme Court ruled that parole decisions are an executive discretionary function.[21]

The Trump administration has also sought to expand expedited removal and increase the number of migrants subject to mandatory detention.[22] INA § 235(b)(1)(B)(iii) mandates that certain noncitizens, such as those subject to expedited removal, must be detained pending their removal proceedings.[23] Under INA § 235(b)(1)(B)(iii)(IV), asylum seekers who arrive at the border without valid documents are subject to expedited removal, meaning must be detained until they have undergone a “credible fear” interview conducted by an asylum officer.[24] If they fail the credible fear interview, they are subject to immediate removal (deportation).[25] If they pass the interview, they begin asylum proceedings under INA § 240.[26] Moreover, INA § 236(a) allows the Attorney General to detain any noncitizen pending a removal decision.[27]

Historically, asylum seekers who passed credible fear interviews were often paroled and released while awaiting their full asylum hearings.[28] However, recent DHS actions indicate the administration is ending this discretionary release, even for asylum seekers who pass their credible fear interview.[29] While recent DHS directives do not explicitly state that all asylum seekers who pass credible fear interviews must remain in detention, the emphasis on strict enforcement and the limitation of parole suggest a policy shift towards increased detention.[30]  As there is no requirement under the INA that mandates release after a certain time period for adults, these policies appear to fit within DHS’s statutory authority.[31] The INA requires detention until the credible fear interview is completed.[32] However, once they pass the interview, the law does not require immediate release.[33] For example, in Jennings v. Rodriguez (2018), the Supreme Court ruled that asylum seekers do not have an automatic right to release while awaiting their asylum hearing and that the government can detain them indefinitely, provided due process is followed.[34]

2. The Laken Riley Act

The Laken Riley Act further reinforces the Trump administration’s policy and attitude shift by creating additional statutory grounds for mandatory detention.[35] While INA § 212(d)(5)(A) allows the discretionary use of parole, this new law narrows the circumstances under which certain noncitizens—particularly those charged with specific offenses—may be released.[36] Unlike previous parole policies, which allowed for broad executive discretion, the Laken Riley Act mandates detention in certain cases, limiting the ability of DHS officials to grant release while immigration proceedings are pending.[37] This legislative development strengthens the legal argument that Trump’s policies remain compliant with the INA, as detention expansions now have direct statutory backing.

V. Judicial Review & Future Legal Battles

While the Laken Riley Act aligns with the INA by reinforcing the authority to detain noncitizens, its broad detention mandate raises potential conflicts with the Flores Settlement Agreement.[38] The Act does not contain explicit provisions exempting minors from its detention requirements.[39] As a result, children who would otherwise be eligible for release under Flores could now face extended or indefinite detention under this new statutory framework. This creates a direct legal tension, as Flores requires that minors be released within 20 days unless held in licensed child welfare facilities—facilities that the Laken Riley Act does not explicitly require.[40]

The courts have historically upheld the Flores protections against attempts to expand detention. In Flores v. Sessions (2017) and Flores v. Barr (2019), the Ninth Circuit reaffirmed that minors be released from detention without unnecessary delay, with a general preference for release within approximately twenty days unless Congress enacts a law that explicitly modifies Flores.[41] However, the Laken Riley Act does not provide such a modification and lacks explicit safeguards for minors.[42] Given past legal precedent, any attempt to use the Laken Riley Act to justify extended detention of minors may be in violation of Flores.[43]

Ultimately, while the INA permits the expanded detention of noncitizens and the Laken Riley Act reinforces that authority by imposing mandatory detention in specific cases, Flores may remain a legal obstacle to the Act’s full implementation. The courts have consistently blocked policies that result in prolonged detention of minors, and without explicit legislative repeal or modification of Flores, the Laken Riley Act may face similar legal challenges.[44] This ongoing conflict between executive enforcement discretion, statutory detention expansions, and judicially mandated protections for minors highlights the continued legal uncertainty surrounding efforts to end ‘catch and release’ while maintaining compliance with existing federal court rulings.