Inset: President Donald Trump walks from Marine One after arriving on the South Lawn of the White House, Tuesday, July 15, 2025, in Washington (AP Photo/Alex Brandon, File). Background: Demonstrators gather in south Minneapolis, Minnesota, on January 24, 2026, after a man is shot and killed by U.S. Immigration and Customs Enforcement agents earlier that morning, according to officials. (Christian Zander/NurPhoto via AP).
The Trump administration must offer immigrants who are indefinitely detained the opportunity to argue for their release, a federal appellate court panel ruled on Thursday in something of a retreat from a previous decision issued by a different panel on the same court.
In July 2025, Immigration and Customs Enforcement (ICE) issued the policy — breaking with decades of precedent — in a memo instructing agents to deny bond to anyone who entered the country without "inspection" and triggering a wave of litigation as thousands of detainees have filed petitions for a writ of habeas corpus.
Under the policy, such immigrants are to be detained "for the duration of their removal proceedings" unless granted parole, a rarer form of release. In real terms, however, the Trump administration had made clear such detentions are intended to be indefinite.
In February, a divided panel on the U.S. Court of Appeals for the 5th Circuit determined "the government's position is correct."
Now, a different divided 5th Circuit panel has limited that earlier ruling without formally revoking it by distinguishing the government's statutory authority from individuals' constitutional rights.
The disputed policy is sourced from a section of the Immigration and Nationality Act (INA) that says certain immigrants "shall be detained for a proceeding." Historically, this section of the INA has only applied to immigrants who are stopped at the border.
Since last year, the Trump administration has drastically altered long-standing federal practice. The memo, penned by acting ICE Director Todd M. Lyons, says the federal government has "revisited its legal position on detention and release authorities" and determined such immigrants "may not be released from ICE custody."
Over the intervening months, in thousands of disputes before district courts, judges have considered the interplay and applicability of two distinct statutes outlining the government's detention authority, using language drawn from a 2018 U.S. Supreme Court ruling.
The government claims ICE has the authority to subject immigrants to mandatory detention under 8 U.S.C. §1225(b), which applies to "aliens seeking entry into the United States."
Advocates for immigrants — as well as most judges who have ruled on the matter — have instead turned to 8 U.S.C. §1226(a), which applies to "aliens already present in the United States."
Notably, district court judges have issued rulings in more than 15,000 such cases since the administration's detention surge. In the majority of such cases — more than 13,000 — judges have rejected the position put forward by ICE about its detention authority, according to a Politico rolling analysis of court rulings.
In its new consideration of the policy, the 5th Circuit says immigrants must be granted a bond hearing within a maximum of 90 days of being detained. Such a hearing must consider their flight risk or dangerousness, according to the decision penned by U.S. Circuit Judge Leslie Southwick, a George W. Bush appointee.
"[E]ven though the [government] reinterpreted the meaning of statutory language, the Constitution has not changed," the opinion reads. "[S]tatutory admission status does not decide when aliens gain due process rights. The Constitution, after all, is supreme, with statutes' needing to conform to its dictates, not the Constitution to statutes."
The panel seeks to maintain the "dichotomy" between "due process rights of aliens at the border and aliens within the country" as a device to explain decades' worth of case law. Ultimately, however, the court says this distinction is not really an issue here.
"Entry and residence, not legal admission, dictate the extent of the Constitution's application," the opinion goes on. "These aliens have each lived on United States soil for over a decade, had children in the United States, owed obedience to the laws of this country, and are, as a result, entitled to the protections of the Due Process Clause."
At the district court level, each of the three immigrants was granted release via the writ of habeas corpus; the panel affirmed those rulings and applied the rationale to "thousands" of others "such as the three before this court, who acknowledge they are properly being considered for removal."
The panel also makes clear that the opinion does not take a position — or have an effect — on deportation proceedings at all.
"The three aliens before us go beyond statutory text to present a constitutional claim," the opinion continues. "They do not contest their removal in this appeal. Instead, they contend that those detained under Section 1225(b)(A) are entitled by the Constitution to a hearing at some point to determine the justification for their detention."
There is a pronounced circuit split at the appellate level on the policy.
The 5th Circuit has now muddied its own guidance; the 8th Circuit has ruled in the government's favor, and the 7th Circuit has not issued a majority opinion. Meanwhile, the 2nd Circuit, 6th Circuit, 10th Circuit, and 11th Circuit have ruled against the Trump administration.
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