A divided panel of the Fifth U.S. Circuit Court of Appeals ruled Thursday that the Trump administration cannot hold illegal immigrants in mandatory detention for more than 90 days without giving them a bond hearing before an immigration judge. The 2-1 decision, grounded in the Fifth Amendment's due process clause, could affect thousands of detainees held by Immigration and Customs Enforcement across Texas and Louisiana.
The ruling lands squarely in the middle of a growing legal battle over the administration's aggressive detention policies, and it arrives from a circuit long regarded as one of the most conservative in the country. That a Fifth Circuit panel broke with the administration on this question signals just how far the legal fight over mandatory detention has traveled.
U.S. Circuit Judge Leslie Southwick wrote the majority opinion. Judge Cory Wilson dissented, arguing that the majority had overstepped by second-guessing Congress's clear authority over immigration. The third panel member was not identified in the initial reporting on the ruling.
The case traces back to a policy shift that began last year. The Department of Homeland Security adopted the position that illegal immigrants already living inside the United States qualify as "applicants for admission" under federal immigration law, a classification that subjects them to mandatory detention with no opportunity for release on bond.
Last September, the Board of Immigration Appeals, an arm of the Department of Justice, formally adopted DHS's interpretation. That decision triggered a nationwide cascade: immigration judges across the country began ordering mandatory detention under the new framework.
The result was a dramatic expansion of who could be locked up and for how long. Under the administration's reading, noncitizens who had been living in the U.S. for years, not just those caught at the border, could be detained indefinitely without any hearing on whether they posed a flight risk or a danger to the community.
Three petitioners, two Mexican citizens and one Honduran national, challenged the policy. Their lawyer, Rebecca Cassler of the American Immigration Council, argued that indefinite detention without a hearing violates the Constitution. The Fifth Circuit majority agreed, at least in part, by imposing the 90-day cap.
Judge Southwick anchored the ruling in a 2001 Supreme Court precedent holding that the due process clause of the Fifth Amendment protects everyone within U.S. boundaries, citizens and noncitizens alike. His language was pointed, as Fox News 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."
The majority did not strike down mandatory detention outright. It drew a line at 90 days. After that point, the government must bring a detainee before an immigration judge for a bond hearing. The burden, structure, and practical consequences of those hearings remain subjects of further litigation.
The ruling is notable for what it did not do. A different Fifth Circuit panel in February became the first federal appeals court in the nation to endorse the administration's interpretation of the underlying immigration statute, the one that treats longtime residents as "applicants for admission." That earlier panel, however, never addressed whether the Fifth Amendment requires a hearing. Thursday's ruling filled that gap.
The administration has faced a pattern of appellate pushback on immigration enforcement, but a loss inside the Fifth Circuit carries particular weight. This is the circuit that covers Texas, the epicenter of border enforcement operations.
Judge Wilson's dissent cut to the core disagreement. He argued that the Constitution grants Congress broad, near-exclusive control over immigration, and that the majority was substituting its own judgment for the legislature's.
"The majority marginalizes the Constitution's express grant of plenary authority over immigration matters to Congress."
Wilson's position reflects a longstanding conservative principle: that immigration policy belongs to the political branches, not the courts. The dissent suggests the majority grafted individual-rights doctrine onto a domain where Congress has historically operated with wide discretion.
That argument will almost certainly resurface at the Supreme Court. The administration has already asked the justices to review a similar ruling from another appeals court. The Fifth Circuit's Thursday decision adds pressure, and a new wrinkle, since this circuit had previously been friendlier to the government's position.
The Supreme Court has shown willingness to engage with the administration's immigration agenda on multiple fronts. The justices recently backed the administration's green card enforcement approach in a 6-3 ruling, and separately upheld the president's authority to end Temporary Protected Status designations.
Thursday's ruling deepens an already sharp divide among the federal circuits. The Second U.S. Circuit Court of Appeals unanimously rejected the administration's no-bond detention policy in a separate case, with Judge Joseph F. Bianco writing that the government's interpretation "defies their plain text," as Breitbart reported. Bianco noted that the court was joining "the overwhelming majority of federal judges across the Nation" who have reached the same conclusion.
That majority is large. Over 370 federal judges, roughly 90 percent of those who have considered habeas corpus petitions on the policy, have rejected the government's mandatory detention approach. The Eighth Circuit and the earlier Fifth Circuit panel stand as outliers endorsing it.
A circuit split of this magnitude all but guarantees Supreme Court review. The administration signaled as much last week when it asked the justices to take up the Second Circuit case. Thursday's ruling from within the Fifth Circuit, a court that had previously sided with the government, makes the legal landscape even harder for the administration to navigate without a definitive ruling from the high court.
DHS responded to Thursday's decision with a brief statement: the department disagrees with the ruling "and is confident in its legal position regarding mandatory detention." The statement offered no indication of whether the government would seek emergency relief or wait for the Supreme Court to consolidate the issue.
Cassler, the lawyer for the three petitioners, framed the outcome in constitutional terms, saying her clients "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."
The practical impact could be significant. Thousands of illegal immigrants detained by ICE in Texas and Louisiana may now be entitled to bond hearings if they have been held for more than 90 days. Whether the ruling applies retroactively to those already past that threshold, or only prospectively, remains unclear.
The ruling does not say the government cannot detain illegal immigrants. It does not say bond must be granted. It says only that after 90 days, a detainee gets to make the case for release before a judge. That is a procedural guardrail, not a get-out-of-jail card.
Still, the distinction matters for enforcement. Bond hearings require judges, courtrooms, lawyers, and time, resources already stretched thin in the immigration court system. If hundreds or thousands of hearings must now be scheduled, the administrative burden on an already backlogged system will grow. Critics of the ruling will argue that this is precisely the kind of judicial micromanagement that slows enforcement and encourages illegal entry.
Supporters counter that the Constitution does not bend to administrative convenience. That tension, between enforcement efficiency and individual liberty, sits at the heart of every immigration detention case now moving through the courts.
The broader legal picture remains unsettled. Federal judges have blocked other Trump immigration policies on statutory and constitutional grounds, while the Supreme Court has backed the administration on several key enforcement questions. The justices will likely have the final word on mandatory detention as well, possibly within the next term.
The administration's legal theory is ambitious: that people who entered the country illegally and have lived here for years can be reclassified as "applicants for admission" and detained without limit. If the Supreme Court endorses that reading, it hands the executive branch an enormous enforcement tool. If the Court sides with the lower-court majority, the administration will need to build a detention system that includes regular judicial review, a slower, costlier, but constitutionally grounded process.
Either way, the case raises a question conservatives should take seriously. The plenary power doctrine gives Congress wide latitude over immigration. But "wide latitude" has never meant the political branches can ignore the Bill of Rights entirely. Even Judge Wilson's dissent does not claim that detained noncitizens have zero constitutional protections, only that the majority drew the line in the wrong place.
Where that line falls will shape immigration enforcement for years. The Supreme Court has already shown it will engage with these questions rather than punt. The administration should welcome that. If the legal position is as strong as DHS says, it will survive review. If it isn't, better to find out now than after building an entire enforcement apparatus on a theory that nine justices won't sustain.
A government confident in its authority should never fear a hearing. That principle applies to the people it detains, and to the policies it defends.