Immigration and Customs Enforcement (ICE) officers stand guard outside Delaney Hall, an Immigration and Customs Enforcement (ICE) detention center, on May 29, 2026, in Newark, New Jersey. Protesters and U.S. law enforcement clashed outside an immigration detention center in New Jersey, a senior U.S. government official said Friday, after inmates inside went on a hunger strike over conditions. Days of unrest have continued outside ICE detention centers, leading to several arrests as the administration of President Donald Trump faces a strong backlash. (Photo by Brian R. Smith/AFP via Getty Images)
Brian R. Smith | AFP | Getty Images
Under the Trump administration’s mass detention policy, U.S. Immigration and Customs Enforcement cannot detain people for more than 90 days without an opportunity to be released on bail, a divided U.S. appeals court ruled Thursday.
The ruling by a 2-1 panel of the New Orleans-based 5th Circuit Court of Appeals could affect thousands of people detained in states in its jurisdiction, including Texas and Louisiana, as part of President Donald Trump’s immigration crackdown.
Another panel of the court was the first in the nation to uphold the Trump administration’s novel interpretation of federal immigration law, which allows for the mandatory detention of noncitizens residing in the United States.
However, the February ruling did not address whether the Fifth Amendment’s due process protections require those same immigrants to appear before an immigration judge for a bail hearing and have the opportunity to seek release.
U.S. Circuit Judge Leslie Southwick, writing for the majority in Thursday’s opinion, said the U.S. Supreme Court made clear in 2001 that the Due Process Clause protects everyone, including the two Mexicans and one Honduran whose lawsuits were filed in the Fifth Circuit.
Southwick, an appointee of Republican President George W. Bush, wrote that “it is part of the historic majesty of this long-gone Founding Charter that it provides without exception fundamental rights to those within its borders, including the right to be heard in cases of deprivation of personal liberty.”
U.S. Circuit Judge Corey Wilson, a Trump appointee, dissented, saying, “The majority disregards the Constitution’s express grant of plenary authority to Congress on immigration matters.”
“We are pleased that the committee recognized the core constitutional principle that the Due Process Clause does not allow the government to isolate people indefinitely,” Rebecca Casler, an immigration attorney with the American Immigration Council, said in a statement.
The U.S. Department of Homeland Security, which oversees ICE, did not respond to a request for comment.
Under federal immigration law, “applicants for admission” to the United States are subject to mandatory detention and are not eligible for bail hearings while their cases proceed in immigration court.
Last year, the Department of Homeland Security pushed back against a longstanding interpretation of immigration law, holding that not only people arriving at the border, but also noncitizens already living in the United States, qualify as “admission applicants” subject to detainment.
The Board of Immigration Appeals, part of the Department of Justice, issued a decision in September adopting that interpretation. As a result, immigration inspectors employed by the Immigration Bureau began ordering forced detentions across the country.
Federal appeals courts are divided on the correct interpretation of the law, and the Trump administration asked the Supreme Court last week to resolve the issue.
