Another federal appeals court rejects ICE’s mandatory detention policy
https://www.politico.com/news/2026/05/06/appeals-court-mandatory-detention-ice-ruling-00909352
Another federal appeals court rejects ICE’s mandatory detention policy
A panel of the Atlanta-based 11th Circuit deepens an appeals court split and suggests a likely trip to the Supreme Court.
Law enforcement officers look out from an ICE facility in Portland, Oregon, on Oct. 21, 2025. | Jenny Kane/AP
An Atlanta-based federal appeals court became the latest to reject ICE’s efforts to lock up — without an opportunity for bond — the vast majority of people the Trump administration is seeking to deport.
A divided three-judge panel of the 11th Circuit Court of Appeals said ICE’s push violated decades-old immigration laws intended to require the detention of recent border-crossers. But last year, ICE reinterpreted that law to apply to virtually anyone without lawful status, even if they have lived in the country for decades without incident.
“Simply put, the language that Congress has chosen to use does not grant to the Executive unfettered authority to detain, without the possibility of bond, every unadmitted alien present in the country,” wrote Judge Stanley Marcus, a Clinton appointee, who was joined by Judge Robin Rosenbaum, an Obama appointee. “Nowhere in the text, structure, or history of [federal immigration law] does that reading find steady footing.”
The administration’s interpretation, they note, would subject millions of people — many with jobs, U.S. citizen children and spouses, no criminal records and unbroken attendance at immigration proceedings — to mandatory mass detention without bond. No prior administration believed it had this authority, they noted.
Judge Barbara Lagoa, a Trump appointee, dissented from the panel’s decision.
ICE’s expanded push, which began last July, has led to a deluge of emergency lawsuits by detained immigrants, and a corresponding deluge of rejections by more than 420 district courts across the country. In contrast, fewer than 50 judges have endorsed the administration approach.
Yet the issue has divided the five federal appeals courts that have ruled on the matter. The Louisiana-based 5th and Missouri-based 8th circuits issued divided rulings supporting the Trump administration’s interpretation of the law. The New York-based 2nd Circuit became the first to reject the Trump administration’s approach last week. The Chicago-based 7th Circuit deadlocked on the issue in an opinion delivered Tuesday.
The split among the circuits underscores the likelihood that the matter will ultimately fall to the Supreme Court to resolve. Several other appeals courts are likely to rule in the ensuing weeks.
Watch: The Conversation
Congress passed the 1996 immigration law in part to streamline the deportation process and set up an expedited system to deport people who recently crossed the border. That law requires immigration authorities to detain — without bond — anyone who crosses the border and is “seeking admission” to the U.S. without authorization.
For decades, administrations of both parties applied this mandate to people who had newly arrived in the country, perhaps by crossing the southern border. Those residing in the country’s interior, often for years, were categorized under a different statute that allowed them to seek a bond hearing before an immigration judge before ICE could lock them up.
But in July, ICE adopted a new interpretation of the law, declaring that anyone targeted for deportation by ICE would be treated as an “applicant for admission,” subjecting them to mandatory detention. That decision was endorsed in September by the Board of Immigration Appeals, a panel of executive branch immigration officials who set national policy for Justice Department-run immigration courts.
Lagoa endorsed that view in her dissent, saying the fact that the administration’s approach would apply to millions of people was a reflection of previous administration’s enforcement failures.
“The Executive’s failure to enforce a statute cannot retroactively narrow its meaning,” Lagoa wrote. “If anything, the population’s growth underscores the consequences of non-enforcement rather than the statute’s intended scope.”
A DHS spokesperson said the department is confident in its legal position: “Opinions from the Board of Immigration Appeals, two other federal courts of appeals, and Judge Lagoa’s well reasoned dissenting opinion in this case reflect that.”
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