A divided Fifth U.S. Circuit Court of Appeals handed the Trump administration a significant legal setback Thursday, ruling 2-1 that Immigration and Customs Enforcement cannot detain immigrants for more than 90 days without giving them an opportunity to seek release on bond. The decision, grounded in the Fifth Amendment's due process clause, could affect thousands of ICE detainees across Texas and Louisiana, two states at the center of the federal government's immigration enforcement campaign.
The ruling strikes at a core pillar of the administration's detention strategy. And it arrives at a moment when ICE operations have been surging to record levels, making the legal constraint especially consequential.
Judge Leslie Southwick wrote for the majority. Judge Cory Wilson dissented, arguing the decision undercuts Congress's constitutional authority over immigration. The Department of Homeland Security said it disagrees with the ruling and remains confident in its legal position on mandatory detention. The case now adds pressure on the U.S. Supreme Court, which has already been asked to weigh in on a similar ruling from a different appeals court.
At issue is a federal immigration statute that subjects "applicants for admission" to mandatory detention while their cases move through immigration courts. Under that framework, detainees are ineligible for bond hearings, they simply wait, sometimes for months, behind bars.
DHS last year expanded its interpretation of that statute, claiming that non-citizens already living inside the United States qualify as "applicants for admission" subject to mandatory detention, not just people arriving at the border. The Board of Immigration Appeals, which operates under the Department of Justice, announced in September that it had adopted DHS's interpretation.
Immigration judges across the country then began ordering mandatory detention in line with that reading. The policy swept broadly, pulling in people who had been living in the U.S. for years and holding them without any opportunity to argue for release before a judge.
The three migrants at the center of Thursday's ruling, two Mexican citizens and one Honduran, challenged their indefinite detention on constitutional grounds. Their lawyer, Rebecca Cassler of the American Immigration Council, told Reuters the group was "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 majority opinion turned on the Fifth Amendment. Judge Southwick, writing for the panel, invoked the Constitution's founding principles:
"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 cited a 2001 U.S. Supreme Court ruling that found the due process clause protects all persons within U.S. boundaries, including non-citizens. That precedent, the panel held, requires the government to offer detained immigrants a chance to argue for bond before an immigration judge, at least after 90 days.
This is a distinction worth understanding. A different panel of the same Fifth Circuit had ruled in February that the administration's statutory interpretation of mandatory detention was permissible. That earlier decision was the first in the country to side with the government's reading of the immigration statute. But it never reached the constitutional question, whether the Fifth Amendment independently requires bond hearings regardless of what the statute says.
Thursday's ruling filled that gap. Even if Congress authorized mandatory detention through statute, the majority held, the Constitution imposes its own limits on how long the government can hold someone without a hearing.
Judge Wilson's dissent cut to the heart of the separation-of-powers debate that has defined recent judicial battles over immigration enforcement. He argued the majority "marginalizes the Constitution's express grant of plenary authority over immigration matters to Congress."
That argument carries real weight in conservative legal circles. The plenary power doctrine holds that Congress, not the courts, has broad, largely unreviewable authority to set the terms of immigration law. When federal judges impose their own limits on detention, Wilson suggested, they substitute judicial preferences for legislative choices.
It is a tension that runs through nearly every major immigration case reaching the federal courts. The executive branch sets enforcement priorities. Congress writes the statutes. And the judiciary increasingly steps in to draw constitutional boundaries around both, sometimes in ways that slow enforcement to a crawl.
Thursday's Fifth Circuit decision does not exist in isolation. As Newsmax reported, DHS has already asked the Supreme Court to review a similar ruling from a different appeals court. The administration clearly anticipated that lower courts would fracture on this issue and is positioning for a definitive resolution at the highest level.
That fracture is real. Other federal appeals courts have issued their own rulings on the bond-hearing question, and the results have not been uniform. The Second Circuit recently ordered bond hearings for detained illegal immigrants in New York, deepening the split among circuits and increasing the pressure on the Supreme Court to intervene.
Breitbart reported that the Supreme Court has agreed to examine the broader bond-hearing issue in 2027. The administration has also separately asked the Court to bar judges from releasing migrants before deportation proceedings are complete, a request that, if granted, could blunt the practical effect of rulings like Thursday's.
DHS's statement to Reuters was blunt in its brevity. The department "disagrees with the ruling" and is "confident in its legal position regarding mandatory detention." Fox News Digital reached out to DHS for additional comment, but no response was reported.
For the thousands of immigrants detained by ICE in Texas and Louisiana, the ruling could mean bond hearings, and potential release, that the administration's policy was designed to prevent. That is not a minor procedural adjustment. Bond hearings give detainees a chance to argue they are not flight risks and not dangers to the community. Judges who grant bond release people back into the country while their deportation cases proceed, sometimes for years.
Critics of the administration's mandatory detention policy argue that holding people indefinitely without any hearing violates basic constitutional norms. Supporters counter that bond hearings create an off-ramp from enforcement, that once released, many immigrants fail to appear for their court dates, effectively defeating the system.
The tension is not abstract. It plays out in courtrooms, detention centers, and communities across the country. And it raises a question that the Supreme Court will eventually have to answer: how much latitude does the Constitution give the political branches to detain non-citizens, and at what point does judicial review become not just appropriate but required?
The administration's path forward is clear. It will almost certainly seek further review, either en banc before the full Fifth Circuit or directly at the Supreme Court. The fact that DHS has already petitioned the Court on a related ruling from another circuit suggests the government views this as a fight worth taking all the way up.
For now, the Fifth Circuit's ruling stands within its jurisdiction. ICE cannot hold immigrants in Texas and Louisiana beyond 90 days without offering them a bond hearing. Whether that limit survives Supreme Court review is an open question, but one the justices appear ready to take up.
The pattern is familiar by now. The administration moves to enforce immigration law more aggressively. The courts intervene. The legal fight escalates. And the people who bear the cost of the uncertainty, border communities, ICE officers, and taxpayers funding a detention system caught between competing mandates, wait for someone in Washington to settle the question for good.
