Happy 4th of July
On July 2, 2026, in a 2-1 ruling, the 5th Circuit Court of Appeals concluded that noncitizens being detained by ICE during their removal proceedings must be afforded a bond hearing within 90 days and the Trump administration's dramatic expansion of mandatory detention denying them such a hearing violates their constitutional rights.
In July 2025 the Trump administration announced a new ICE policy, which reinterpreted 30-year-old laws requiring the detention without bond of noncitizens apprehended crossing the border or soon after. The new policy, which did not align with that of any prior administration, applied mandatory detention to people apprehended in the interior of the country as well, even if they had been living here for decades, working, raising a family, and deeply involved in the community.
The result was a flood of emergency lawsuits all over the country for people subjected to mandatory detention under ICE’s new approach. Judges nationwide have overwhelmingly rebuked the policy as illegal and unconstitutional, with the fight likely to reach the Supreme Court in the very near future. Courts ruling against the Trump administration’s detention policy have fueled the majority of more than 14,300 rulings against ICE detentions that POLITICO tracked over the last year.
The 5th Circuit’s decision carries outsized influence because it governs immigration lawsuits in Texas, where a disproportionate number of ICE detainees are held. The 5th Circuit is also widely considered the most conservative Circuit Court (the 5th Circuit previously upheld the administration's new policy in a prior decision). The 6th Circuit had also found the administration's policy to be unconstitutional in an earlier decision as well joining the 11th and 2nd Circuit Courts, and the 7th Circuit deadlocked on the issue.
“It is part of the historic majesty of this long-ago founding charter that it makes no exceptions in providing basic rights to those within our boundaries, including a right to be heard when personal liberty is taken”
Judge Leslie Southwick joined by Judge James Graves
Ignacio Sosnava Rodriguez v. Sylvester M. Ortega, Case 26-50183 (5th Cir. 2026).
The dissenting vote came from a Trump-appointed Judge. In his dissenting opinion he argues that the Petitioners—non-citizens who are being detained pending the outcome of their removal proceedings—were never lawfully admitted to the country and therefore are not entitled to additional due process beyond what Congress provides for them. Further, he argues that Section 1225(b)(2)(A) Mandatory Detention presents no constitutional defect given the "relatively brief duration of their detention."
The majority was made-up of a George W. Bush-appointed Judge and an Obama-appointed Judge. They emphasized that the vast majority of the noncitizens being detained under the new policy had no criminal record, posed no danger to their communities, and established lives in the United States, making them unlikely to abscond from their immigration proceedings.