A divided Fifth U.S. Circuit Court of Appeals ruled Thursday that Immigration and Customs Enforcement cannot detain immigrants for more than 90 days without offering them a chance to seek release on bond before an immigration judge. The 2-1 decision lands another judicial obstacle in the path of the Trump administration’s effort to enforce mandatory detention of illegal immigrants already living in the United States, and it sets up a collision course with the Supreme Court.
The ruling could affect thousands of ICE detainees held in Texas and Louisiana, the two states named within the Fifth Circuit’s jurisdiction. The Department of Homeland Security wasted no time pushing back. DHS told Reuters it “disagrees with the ruling” and is “confident in its legal position regarding mandatory detention.”
That confidence will be tested. The administration had already asked the Supreme Court last week to review a similar ruling from a different appeals court. And the high court has agreed to examine the bond hearing issue in its 2027 term, meaning this fight is far from over.
The case centers on a federal immigration statute that subjects “applicants for admission” to mandatory detention while their cases move through immigration courts. Under that framework, those classified as applicants for admission are ineligible for bond hearings, they stay locked up until a judge rules on their deportation.
DHS claimed last year that the statute applies not only to people arriving at the border but also to non-citizens already living inside the country. The Board of Immigration Appeals, housed within the Department of Justice, adopted that interpretation in September. Immigration judges across the country then began ordering mandatory detention under the new reading.
A different Fifth Circuit panel had already sided with the administration on that statutory question back in February, issuing what Fox News described as the first ruling in the country to endorse the government’s novel interpretation. But that earlier panel never addressed a separate and fundamental question: Does the Fifth Amendment’s due process clause require the government to give these detainees a hearing before an immigration judge?
Thursday’s ruling answered that question with a firm yes.
Judge Leslie Southwick, writing for the two-judge majority, grounded the decision in the Supreme Court’s 2001 finding that the due process clause protects everyone within U.S. boundaries, citizens and non-citizens alike. His language carried a tone of constitutional conviction, as Breitbart reported:
“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.”
That language sounds stirring. But conservatives should note what it does, and what it doesn’t, settle. The majority did not strike down the administration’s interpretation of who qualifies as an “applicant for admission.” It said that even if the government can classify these individuals under mandatory detention, it still must provide a bond hearing within 90 days.
Judge Cory Wilson dissented, arguing the majority overstepped. In his view, the ruling “marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress.” That is not a minor point. The plenary power doctrine has long held that Congress, not the courts, sets the terms of who enters and who stays. Wilson’s dissent echoes what many legal conservatives have argued for decades: that the judiciary should defer to the political branches on immigration enforcement, not impose its own procedural requirements on a system Congress designed.
The tension between due process and plenary power is real and unresolved. It now heads toward the Supreme Court, where the answer will shape immigration enforcement for years to come.
Thursday’s ruling fits a broader pattern of federal courts blocking or limiting the Trump administration’s immigration enforcement actions. A Biden-appointed judge recently struck down ICE’s courthouse arrest policy, calling it “devoid of rational explanation.” The administration has faced resistance from benches across the country as it tries to expand enforcement tools.
Rebecca Cassler, a lawyer with the American Immigration Council who represented the migrants in Thursday’s case, two Mexican citizens and one Honduran, celebrated the outcome. She told Reuters the group is “delighted that the panel recognized the core constitutional principle that the due process clause does not allow the government to lock them away indefinitely.”
“Indefinitely” is doing heavy lifting in that sentence. The administration’s position is not that it can hold people forever without review. It is that the statute Congress passed authorizes mandatory detention for a defined class of individuals while their deportation cases proceed. The question is whether 90 days is the constitutional ceiling before a judge must intervene.
For the thousands of ICE detainees in Texas and Louisiana who may be affected, the practical impact is significant. Under the ruling, those held beyond 90 days would gain access to bond hearings, and some would walk out of detention while their cases drag through an already overwhelmed immigration court system. That is exactly the outcome the administration’s mandatory detention policy was designed to prevent.
In a separate case in New York, a federal judge forced ICE back to Biden-era limits on courthouse arrests, another example of the judiciary pulling enforcement back toward the prior administration’s more permissive posture.
The administration has already signaled it will not accept Thursday’s ruling as the final word. DHS’s statement to Reuters made that clear. And the fact that the Supreme Court has agreed to take up the bond hearing question, as Newsmax reported, the justices plan to examine the issue in 2027, means the legal landscape could shift dramatically.
The split between circuits adds urgency. One Fifth Circuit panel endorsed the administration’s statutory interpretation in February. Now a different Fifth Circuit panel has imposed a 90-day due process limit on that same detention authority. Other appeals courts have issued their own rulings on similar questions. The Supreme Court will eventually have to sort out the mess.
For conservatives, the stakes are straightforward. If the courts require bond hearings for every detained illegal immigrant after 90 days, a significant number will be released into the interior of the country while their cases pend. Immigration courts already face massive backlogs. Adding mandatory bond hearings at the 90-day mark will strain the system further, and create more opportunities for individuals to disappear before their cases are resolved.
The administration’s position rests on a simple premise: Congress authorized mandatory detention for a reason. Releasing detainees on bond during proceedings undermines the enforcement mechanism Congress built. Whether the Fifth Amendment requires a different result is a legitimate constitutional question, but it is one that should be answered by the Supreme Court, not settled piecemeal by divided appellate panels issuing conflicting rulings.
The dynamics on the current Supreme Court will matter enormously when the justices finally take up this issue. The composition of the bench and the willingness of the conservative majority to defer to congressional authority on immigration could determine whether the 90-day bond hearing requirement survives or falls.
Strip away the legal jargon and the core question is practical: Can the federal government hold illegal immigrants in custody while their deportation cases proceed, or must it release them into American communities after three months?
The answer matters to every community that has absorbed the consequences of a revolving-door immigration system. It matters to the ICE agents who arrest someone only to watch them walk out on bond and never show up for their hearing. And it matters to the legal framework Congress established to ensure that immigration enforcement has teeth.
Judge Wilson’s dissent deserves more attention than it will get. The Constitution grants Congress plenary authority over immigration. When courts override that authority by layering on procedural requirements Congress did not include in the statute, they are not defending the Constitution. They are rewriting it, from the bench, one ruling at a time.
Not every federal court has gone along with this approach. The February Fifth Circuit panel upheld the administration’s reading. Other federal judges have let Trump executive actions stand against legal challenge. The judiciary is not monolithic. But the pattern of resistance from certain judges and certain circuits is unmistakable, and it consistently runs in one direction.
The Supreme Court will have the last word. Until then, the administration is right to press its case. Congress wrote the mandatory detention statute. The executive branch is enforcing it. And the American public, the people who actually live with the consequences of a porous system, deserves to know that their elected representatives’ laws will not be quietly rewritten by a two-judge majority on an appellate panel.
Due process is a bedrock American principle. So is the rule of law. The question before the Supreme Court is whether those two principles can coexist in immigration enforcement, or whether one will be used to hollow out the other.
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