The Trump administration scored a significant win in the courts after a panel of the U.S. Court of Appeals for the 5th Circuit upheld a controversial immigration detention policy that largely eliminates bond eligibility for certain immigrants held by Immigration and Customs Enforcement (ICE).
ICE issued the policy on July 8, instructing agents to deny bond to people who entered the United States without “inspection.” The directive has triggered extensive litigation, with detained individuals filing habeas corpus petitions to challenge their confinement.
Under the policy, immigrants covered by the directive are to be detained “for the duration of their removal proceedings” unless they receive parole, a less common form of release. In practice, critics argue the policy enables detention that can stretch on for an open-ended period while cases work their way through immigration court.
On Friday, a divided 5th Circuit panel sided with the administration, concluding “the government’s position is correct.”
The legal fight: §1225(b) vs. §1226(a)
At the center of the dispute is how to interpret the Immigration and Nationality Act (INA) and which detention statute applies.
The government argues ICE can impose mandatory detention under 8 U.S.C. §1225(b), which applies to “aliens seeking entry into the United States.” Immigrant advocates—and many district judges who have addressed the issue—have instead pointed to 8 U.S.C. §1226(a), which applies to “aliens already present in the United States” and generally allows for bond hearings.
The administration has acknowledged it is taking a new approach compared to prior practice. A memo from acting ICE Director Todd M. Lyons states the government “revisited its legal position on detention and release authorities” and concluded that certain immigrants “may not be released from ICE custody.”
The 5th Circuit’s reasoning: “Seeking admission” like applying to college
The majority framed the detainees’ argument this way:
[T]he petitioners contend that “admission” means “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” According to the petitioners, then, “seeking admission” refers only to those aliens who are actively pursuing lawful entry and submitting themselves to inspection by an immigration officer. When ICE apprehended the petitioners, neither was actively engaged in admissions procedures. Thus, they argue, they were not seeking admission and §1225(b)…does not apply to them.
In other words, challengers argued that because they were arrested in the interior—and were not actively presenting themselves for inspection—they should not be treated as “seeking admission” under §1225(b). Under that view, §1226(a) would apply, and bond would remain available.
The majority rejected that reading, using a college-admissions analogy:
“Just as an applicant to a college seeks admission, an applicant for admission to the United States is ‘seeking admission’ to the same, regardless whether the person actively engages in further affirmative acts to gain admission,” the opinion reads.
The court expanded on that point, arguing it would be illogical to say someone stops “seeking admission” immediately after submitting an application. Likewise, the panel reasoned, immigrants treated by statute as “applicants for admission” remain “presently seeking admission” while their removal proceedings are pending.
The dissent: a break from decades of practice with massive consequences
The majority opinion was written by Circuit Judge Edith Jones and joined by Circuit Judge Kyle Duncan. Judge Dana M. Douglas dissented, warning the ruling effectively rewrites how the law has been understood and applied for decades.
The dissent emphasized history and scale—arguing that if Congress truly intended mandatory no-bond detention for people apprehended in the interior, it would have been recognized and enforced long ago. Douglas also stressed the practical implications: if adopted broadly, the government’s interpretation could authorize detention without bond for millions of noncitizens, including some who have lived in the U.S. for many years.
In sharp terms, the dissent accused the majority of wrenching statutory language out of context, disregarding how the Supreme Court has described the broader detention framework, and minimizing the significance of the government’s past practice.
