A split federal appeals court has placed new limits on the Trump administration’s power to keep immigrants locked up while their deportation cases move through the courts, ruling Wednesday that migrants cannot remain in custody beyond 90 days without being given the chance to appear before an immigration judge to request release on bond.
The decision came from a 2-1 panel of the 5th U.S. Circuit Court of Appeals, based in New Orleans, and could have significant consequences for thousands of people currently held by U.S. Immigration and Customs Enforcement in states that fall under that court’s jurisdiction, including Texas and Louisiana.
The case centers on a legal interpretation the U.S. Department of Homeland Security adopted last year, which took the position that non-citizens already living inside the United States — not just those arriving at the border — qualify as “applicants for admission” under federal immigration law. That classification subjects them to mandatory detention with no opportunity for a bond hearing while their cases are pending.
The Board of Immigration Appeals, which operates under the Justice Department, issued a ruling in September endorsing that interpretation. Following that decision, immigration judges across the country began ordering mandatory detention under the new standard.
A different panel of the same 5th Circuit had previously been the first appeals court in the country to back the Trump administration’s reading of the law. However, that earlier February ruling left open the question of whether the Constitution’s Fifth Amendment due process protections still require those detained migrants to receive a bond hearing.
Thursday’s majority opinion, written by U.S. Circuit Judge Leslie Southwick, addressed that constitutional question directly. Southwick pointed to a 2001 U.S. Supreme Court decision making clear that due process protections apply to everyone within the country’s borders — including the two Mexican nationals and one Honduran citizen whose cases were before the court.
“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,” Southwick wrote. Southwick was appointed to the bench by Republican President George W. Bush.
U.S. Circuit Judge Cory Wilson, who was appointed by President Trump, wrote a dissenting opinion, arguing that “the majority marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress.”
An attorney representing the migrants through the American Immigration Council, Rebecca Cassler, said in a statement that they “are delighted that the panel recognized the core constitutional principle that the due process clause does not allow the government to lock them away indefinitely.”
A spokesperson for the Department of Homeland Security, which oversees ICE, pushed back on the ruling, stating the agency disagrees with the decision “and is confident in its legal position regarding mandatory detention.” The spokesperson also noted that the administration had asked the U.S. Supreme Court just last week to take up a similar ruling issued by another federal appeals court.
Federal appeals courts remain divided on whether the administration’s interpretation of immigration law is legally sound, setting the stage for the Supreme Court to potentially settle the dispute.
