Commentary: a reflection on proportionality, immigration detention, and the Laken Riley Act. The family account and policy opinions below are the author's perspective, not findings by a court.
According to the family story recounted in this article, Thomas Tustin was living in England in 1835 when he stole bacon to feed himself and his family. He was transported to Australia, never saw his family again, and remained there until his death. His grave remains in Tasmania. His son Thomas Jr. was born in 1833. Contigo Law's founding attorney, Gage Herbst, is his descendant.
That story, like Jean Valjean's punishment for stealing bread in Les Misérables, raises a question that remains important: how should a society respond to wrongdoing without imposing consequences out of proportion to it? The family story is not a claim that today's immigration detention is legally identical to historical criminal transportation. It explains why this issue feels personal.
The Laken Riley Act became law on January 29, 2025. Its detention provision added 8 U.S.C. § 1226(c)(1)(E). It applies when two conditions are met. First, the person must be inadmissible under 8 U.S.C. § 1182(a)(6)(A), (6)(C), or (7). Those provisions address presence without admission or parole and certain arrivals at an undesignated place; fraud or misrepresentation, including specified false citizenship claims; and specified admission-document requirements. They do not describe every noncitizen or every person with a pending immigration application. Whether a particular ground applies requires an individual legal analysis. Laken Riley Act, Public Law 119-1
Second, the person must be charged with, arrested for, convicted of, or make the specified admission concerning burglary, theft, larceny, shoplifting, assault of a law enforcement officer, or a crime resulting in death or serious bodily injury to another person. The statute uses the relevant jurisdiction's definitions for the listed terms. An arrest or charge can trigger the provision without a conviction, but a private accusation alone is not one of the listed triggers. Both the immigration ground and the qualifying trigger matter. Laken Riley Act, Public Law 119-1
It is inaccurate to say that every theft offense is a crime involving moral turpitude or that theft automatically requires detention in every immigration case. The moral-turpitude analysis considers the offense's statutory elements, applicable precedent, and sometimes the legally permitted record of conviction. In Matter of Diaz-Lizarraga, the Board of Immigration Appeals addressed theft involving an intent to deprive an owner permanently or substantially erode the owner's property rights. The label 'theft' alone is not a substitute for legal analysis. Other detention provisions can also apply, independently of the Laken Riley Act. Board of Immigration Appeals: Matter of Diaz-Lizarraga
The petty-offense exception in 8 U.S.C. § 1182(a)(2)(A)(ii)(II) is a separate inadmissibility rule. For a person who committed only one crime, the maximum possible penalty must not exceed one year of imprisonment. If convicted, the sentence imposed must not exceed six months, regardless of how much of that sentence was actually served. Exactly one year as the maximum possible penalty and exactly six months as the imposed sentence meet those thresholds; 'less than' is not the statutory test. Other requirements and immigration grounds still need review. 8 U.S.C. § 1182: inadmissibility and the petty-offense exception
That exception does not create a general right to release from immigration detention. The Laken Riley Act's new ground refers to the immigration categories in paragraphs (6)(A), (6)(C), and (7), not the moral-turpitude ground in paragraph (2). Its detention text contains no general petty-offense exception. A person who qualifies for the petty-offense inadmissibility exception may therefore still fall within this separate detention provision. Laken Riley Act, Public Law 119-1
Civil immigration detention and criminal punishment are distinct. Detention under immigration law is not a criminal conviction or a sentence of nineteen years for stealing bread. It can nevertheless separate families, interrupt work, and cause serious hardship. Mandatory detention generally limits ordinary immigration-court bond relief, but the legal basis for custody, available challenges, and constitutional limits require case-specific analysis. It is not accurate to say that every person must remain detained indefinitely or that no judicial challenge is possible.
The author's concern is that custody triggered without a criminal conviction can burden liberty before criminal guilt has been established. That is a policy criticism and a basis for legal arguments, not a settled holding that the Laken Riley Act violates the Fifth, Sixth, or Eighth Amendment. Criminal-trial protections do not automatically apply in the same way to civil immigration proceedings. In Demore v. Kim, the Supreme Court upheld the mandatory detention challenged in that case under an earlier version of § 1226(c). That decision did not resolve every question about prolonged detention or the later Laken Riley Act. Supreme Court: Demore v. Kim, 538 U.S. 510 (2003)
Public safety and the tragedy behind this law deserve serious attention. So do proportionality and individual responsibility. A single person's conduct does not establish the crime rate of an entire population. Detention also has human and public-resource costs. In the author's view, those burdens deserve consideration alongside the government's public-safety objectives.
The ability to work lawfully is another part of the human impact. Pending asylum applicants, not people already granted asylum, generally face the asylum employment-authorization clock: eligible applicants may apply after 150 qualifying days, and authorization cannot be granted before 180 qualifying days. Applicant-caused delays can affect the clock. A pending application does not itself authorize employment. These rules should not be described as a six-month waiting period for 'asylees.' USCIS Form I-765 instructions
In the author's view, enforcement should protect public safety while respecting due process, considering individual circumstances, and avoiding unnecessary family separation. The Tustin and Valjean stories remain a reminder of why proportionality matters. That is the perspective offered here, not a promise about a court's decision or a prediction of any client's outcome.
This commentary provides general information, not legal advice for your particular situation. If you or a family member faces an arrest, detention, or an immigration deadline, speak with an attorney promptly. The applicable law and available options depend on the specific facts.