A federal appeals court just handed the Trump administration a temporary setback on immigration detention — but DHS isn’t backing down.
The Fifth Circuit ruled Thursday that Immigration and Customs Enforcement cannot hold illegal immigrants for more than 90 days without offering them a bond hearing. The 2-1 decision applies to thousands of detainees in Texas and Louisiana.
Judge Leslie Southwick, writing for the majority, sided with the migrants on Fifth Amendment grounds.
“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.”
The ruling came from the same circuit that first backed Trump’s interpretation of mandatory detention authority in February — but that earlier panel didn’t address the constitutional due-process angle.
Judge Cory Wilson dissented, arguing the majority “marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress.”
At issue: whether immigrants already living in the U.S. count as “applicants for admission” subject to indefinite mandatory detention — or whether they’re entitled to bond hearings after 90 days like the Fifth Amendment guarantees.
The Department of Homeland Security announced last year that non-citizens already inside the country qualify as “applicants for admission” under federal law — a novel interpretation that flipped decades of immigration practice.
The Board of Immigration Appeals adopted DHS’s position in September. Immigration judges nationwide began ordering mandatory detention without bond across the board.
Rebecca Cassler, an attorney for the migrants at the American Immigration Council, told Reuters her 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.”
DHS fired back immediately. The agency told Reuters it “disagrees with the ruling” and remains “confident in its legal position regarding mandatory detention.”
The administration already asked the Supreme Court last week to review a similar ruling from another appeals court. The Fifth Circuit decision adds fuel to what’s shaping up as a major immigration showdown at the nation’s highest court.
Federal immigration law states that “applicants for admission” are subject to mandatory detention while their cases proceed — making them ineligible for bond. The fight now centers on who counts as an “applicant for admission.”
Under the Trump administration’s reading, that category includes non-citizens arrested inside the U.S. — not just those stopped at the border. Civil-liberties groups argue that interpretation violates due process by allowing indefinite detention without judicial review.
The ruling could force ICE to conduct thousands of bond hearings in the Fifth Circuit’s jurisdiction. But with DHS confident in its legal ground and the Supreme Court likely to weigh in soon, the administration clearly sees this as a fight worth taking all the way.
