Immigration and Customs Enforcement (ICE) agents stand guard outside Delaney Hall, which is being used as an Immigration and Customs Enforcement (ICE) detention center, in Newark, New Jersey, on May 29, 2026. Protesters clashed with US law enforcement outside an immigration detention center in New Jersey, a top US official said Friday, after inmates inside staged a hunger strike over conditions. Days of unrest outside the ICE detention center have led to several arrests as a tough stance by US President Donald Trump’s administration draws stiff opposition. (Photo by Bryan R. SMITH / AFP via Getty Images)
Bryan R. Smith | Afp | Getty Images
U.S. Immigration and Customs Enforcementย cannotย detain people for more thanย 90ย daysย under theย Trumpย administration’s mass detention policyย withoutย providing them a chance to be released onย bond, a divided U.S. appealsย courtย ruled on Thursday.
The rulingย by a 2-1 panel of the New Orleans-based 5th U.S. Circuitย Courtย of Appeals could affect thousands of individuals who have been detained in states within its jurisdiction, including Texas and Louisiana, as part of President Donaldย Trump’s immigration crackdown.
A different panel of the sameย courtย had been the first in the nationย to endorse theย Trumpย administration’s novel interpretation of a federal immigration statute as allowing mandatory detention of non-citizens living in the United States.
But the February ruling did not address whether the due process protections of the U.S. Constitution’s Fifth Amendment require those sameย migrantsย being given a chance to seek release by appearing before an immigration judge for aย bondย hearing.
U.S. Circuit Judge Leslie Southwick, writing for the majority in Thursday’s opinion, said the U.S. Supremeย Courtย made clear in 2001 that the due process clause protects everyone, including the two Mexican citizens and one Honduran whose cases were before the 5th Circuit.
“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,” wrote Southwick, who was appointed by Republican President George W. Bush.
U.S. Circuit Judge Cory Wilson, aย Trumpย appointee, dissented, saying “the majority marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress.”
Rebecca Cassler, a lawyer for theย migrantsย at the American Immigration Council, in a statement said 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.”
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” โto the United States are โsubject to mandatory detention โ while their cases proceed in immigrationย courts and are ineligible forย bondย hearings.
Bucking a long-standing interpretation of immigration law, the U.S. Department of Homeland Security last year took the position that non-citizens already residing in the United States, and not just people arriving at the border, qualify as “applicants โfor admission” subject to mandatory detention.
The Board of Immigration Appeals, which is part of the Justice Department, issued a decision in September โthat adopted that interpretation. As a result, immigration judges, who are employed by the โdepartment, across the โ country began ordering mandatory detention.
The federal appealsย courts are divided on whether that interpretation of the law is correct, leading theย Trumpย administrationย last week to ask the Supreme Courtย to resolve the issue.