The 10th Circuit Court of Appeals in Denver became the fourth federal appeals court to reject ICE’s policy subjecting millions of people—most of whom have lived in the U.S. for years with no criminal records—to detention without bond. A unanimous three-judge panel concluded that the Trump administration’s expansion of mass detention relies on an inaccurate reading of decades-old laws. The ruling signals a Supreme Court showdown that will likely determine the fate of this enforcement approach nationwide.
What changed
At issue is a 30-year-old immigration statute requiring detention without bond of all “applicants for admission” to the U.S. while “seeking admission.” For decades, both administrations applied this to people who newly crossed the southern border, while those living inside the country could be detained under a different section of law that afforded them a chance for a bond hearing.
Nearly a year ago, ICE adopted a new interpretation of the law, declaring that anyone targeted for deportation by ICE would be treated as an “applicant for admission,” stripping them of bond hearing eligibility. The 10th Circuit unanimously rejected this reading as inaccurate.
The ruling, authored by Biden appointee Richard Federico, repeatedly emphasized that the case is likely headed for the Supreme Court. Last week, the Justice Department petitioned the Supreme Court to take up the issue.
Why it matters
The 10th Circuit’s decision creates a 4-2 split among appeals courts nationwide. More than 460 federal judges have rejected the administration’s approach in more than 9,500 cases, compared to 54 judges who have endorsed the policy in about 1,000 cases.
If you represent an immigration client arrested by ICE in the 10th Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), this ruling is binding: immigration judges and DHS must now offer your client a bond hearing where they can argue they are not a flight risk or public safety threat, regardless of their manner of entry.
For clients in the 5th and 8th Circuits—where appeals courts have sided with the administration—the law still favors mandatory detention. This circuit split creates urgency: the Supreme Court will likely grant the government’s petition within months. Until then, the lower courts in your circuit control the outcome.
Way forward
- If your client is detained in the 10th Circuit: file a habeas petition or bond motion immediately citing the 10th Circuit ruling. The court is now bound to grant a hearing.
- If your client is in the 2nd, 6th, or 11th Circuits: cite those circuits’ anti-detention rulings (which align with the 10th) in motions and arguments, even if your judge has not yet ruled.
- If your client is in the 5th or 8th Circuit: prepare for potential Supreme Court reversal or settlement of the circuit split. Consider appellate options and monitor the Supreme Court docket.
- For all circuits: preserve the record now. Document your client’s community ties, employment, family, and lawful status at time of arrest. The Supreme Court’s decision will turn on statutory text, but lower courts may revisit individual equity factors.
Disclaimer
This article is published by Fola Form, a software company, not a law firm. It is not legal advice. Always consult a licensed immigration attorney to discuss your specific situation and case strategy. Policy and court precedent can change without notice. Verify the information in this article against the primary court decision and agency guidance linked above.