The Trump administration has asked the U.S. Supreme Court to let it detain people arrested in its immigration crackdown without a chance to seek bond, even if they have lived in the country for years. The administration made that request in a filing made public on Friday, asking the Supreme Court to overturn a May decision by a federal appeals court, which had rejected its reinterpretation of a decades-old immigration law that now underlies its mass detention policy. This petition comes as federal appeals courts have split sharply on whether the government can hold long-term US residents under mandatory detention without bond hearings.
What changed
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 for admission” subject to mandatory detention. The Board of Immigration Appeals, which is part of the Justice Department, issued a decision in September that adopted that interpretation. As a result, immigration judges, who are employed by the department, across the country began ordering mandatory detention.
The administration is asking the Supreme Court to review a ruling by a 2-1 panel of the Cincinnati-based 6th U.S. Circuit Court of Appeals, one of three appeals courts that have joined with hundreds of lower-court judges in rejecting its detention practice. The legal question turns on whether the administration misinterpreted a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and whether the migrants were denied bond hearings in violation of their due process rights under the U.S. Constitution’s Fifth Amendment.
The Eleventh Circuit joined the Second in rejecting the policy on May 6, and the Sixth Circuit followed on May 11, bringing the total to three circuits against the administration’s position and two in favor. Two other appeals courts have endorsed the administration’s policy, a fact U.S. Solicitor General D. John Sauer noted as he urged the justices to intervene and resolve a “critically important question of immigration law” that is fueling thousands of lawsuits by people challenging their detention.
Why it matters
The policy directly affects how you advise detained non-citizen clients on their eligibility for bond hearings. Under the government’s interpretation, non-citizens already living in the interior of the US are treated as “applicants for admission” and held under INA § 1225(b)(2)(A), which mandates detention without bond. Under the circuit majority interpretation, they fall under INA § 1226(a), which permits discretionary release and requires bond hearings before immigration judges.
The population of those in immigration detention has grown substantially under these policies. By January 2026, ICE was holding approximately 73,000 individuals in custody, a record high and nearly double the average daily detained population in prior years. As of early February 2026, more than 50,000 of the roughly 68,000 people currently detained lacked a prior criminal record. This represents a marked departure from historical enforcement priorities that focused detention resources on individuals with serious criminal backgrounds or recent border crossers.
If the Supreme Court upholds the government’s interpretation, bond hearings will be off the table for millions of people arrested in the interior who have lived in the US for months or years. If the Court reverses and agrees with the circuit majority, your detained clients regain access to bond hearings and individualized custody review.
Way forward
- Track Supreme Court docket now: Monitor whether SCOTUS accepts the petition for review. A grant would signal imminent resolution of the circuit split.
- Preserve your bond arguments in pending cases: Continue arguing that your clients fall under § 1226(a), not § 1225(b)(2)(A). Document the date of arrest and the client’s years of US residence; these facts may matter if the law shifts.
- Prepare for both outcomes: Draft alternative briefing on bond eligibility under both statutes so you can pivot quickly if SCOTUS rules.
- Check your circuit’s current rule: Confirm whether your circuit is among the three rejecting the government’s position (Second, Sixth, Eleventh) or the two endorsing it (Fifth, Eighth). This determines your immediate filing strategy.
Disclaimer
This article is for educational purposes only and is not legal advice. Fola, Inc. is not a law firm. Immigration policy can change without notice, and court decisions are subject to appeal or reversal. Verify all citations against the official Supreme Court petition, the underlying appeals court opinions, and the INA itself. Consult a licensed immigration attorney before making any filing or custody decisions.