Inset: President Donald Trump walks away from Marine One after landing on the South Lawn of the White House on Tuesday, July 15, 2025, in Washington (AP Photo/Alex Brandon, File). Background: Protesters assemble in south Minneapolis, Minnesota, on January 24, 2026, after officials said a man was shot and killed by U.S. Immigration and Customs Enforcement agents earlier that morning. (Christian Zander/NurPhoto via AP).
A federal appeals court panel ruled Thursday that the Trump administration must give immigrants held in open-ended detention a chance to make the case for release, marking a partial pullback from an earlier decision by another panel of the same court.
ICE adopted the policy in July 2025, departing from decades of established practice through a memo directing agents to deny bond to people who entered the United States without “inspection.” The move quickly sparked a wave of lawsuits, with thousands of detained immigrants seeking habeas corpus relief.
The directive calls for those immigrants to remain in custody “for the duration of their removal proceedings” unless they receive parole, a less common avenue for release. In practice, though, the Trump administration signaled that the detentions were meant to continue indefinitely.
In February, a divided panel on the U.S. Court of Appeals for the 5th Circuit sided with the administration, concluding that “the government’s position is correct.”
But a separate divided 5th Circuit panel has now narrowed the reach of that earlier decision without overturning it outright, drawing a line between the government’s statutory detention powers and the constitutional rights of individual detainees.
The policy rests on a provision of the Immigration and Nationality Act (INA) stating that certain immigrants “shall be detained for a proceeding.” Traditionally, that portion of the INA has been applied to people intercepted at the border.
Since last year, however, the Trump administration has sharply shifted federal immigration detention practices. In the memo, acting ICE Director Todd M. Lyons wrote that the government had “revisited its legal position on detention and release authorities” and concluded that 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.
