A federal appeals court ruled that the Trump administration’s policy of holding immigrants without a chance for release on bond is illegal. The 4th U.S. Circuit Court of Appeals became the ninth federal appeals court to reject the administration’s mandatory detention policy, while two other appeals courts have upheld it, creating a split that greatly increases the odds that the U.S. Supreme Court will take up the issue.
What changed
Last July, immigration officials issued guidance expanding mandatory detention to immigrants in the U.S. interior. The Trump administration has argued that Congress changed immigration law in 1996 to allow mandatory detention beyond the border, but previous administrations didn’t enforce that provision.
Judge Nicole Berner, a Biden appointee, wrote for the majority, joined by Senior Judge Barbara Milano Keenan, an Obama appointee. The court held that Section 1226(a) — the law that lets an immigration judge weigh release on bond — governs people who have lived inside the country for years. Section 1225(b)(2)(A), the mandatory-detention provision, is for people arriving at the border. For nearly three decades, the court noted, all three branches of the federal government read the law that way.
The Fourth Circuit concluded that immigrants in their position must be detained under a section of law that permits bond hearings rather than one requiring mandatory detention. The court therefore upheld lower-court rulings ordering that they be given the opportunity to seek release.
Why it matters
The outcome depends on geography. With nine appeals courts rejecting the detention policy and two upholding it, the split means immigrants in some parts of the country may get bond hearings while those elsewhere face different standards.
For practitioners, this is critical: Federal trial courts have sided with detainees in more than 20,000 individual cases. However, the government conceded that its theory would have made roughly 2 million people subject to mandatory detention when the law passed in 1996 — underscoring both the policy’s scope and the judicial pushback.
The split also signals that the Supreme Court will likely grant certiorari, meaning the law on mandatory detention for people detained in the U.S. interior after entering without inspection remains unsettled. Until then, which circuit a client’s case falls within determines whether they have any immediate path to a bond hearing.
Way forward
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Check your circuit: If your client is detained in the 4th Circuit (Virginia, West Virginia, North Carolina, South Carolina, Maryland), you now have explicit appellate authority for a bond hearing under 8 U.S.C. § 1226(a), not § 1225(b)(2).
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File a habeas petition in the interim: For clients in circuits that have upheld the policy (5th and 6th), habeas corpus remains the primary vehicle for challenging detention and seeking bond review.
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Document the entry: Ensure your client’s record reflects whether they were originally apprehended “at the border” versus “in the interior” — the court’s distinction turns on this factual premise.
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Anticipate Supreme Court briefing: Given the circuit split, prepare clients and co-counsel for potential reversal or clarification at the national level within the next 12–18 months.
Disclaimer
This article is not legal advice and does not constitute a substitute for advice from a licensed immigration attorney. Fola is a software company, not a law firm. Immigration policy and judicial interpretation change frequently without notice. Always verify current law and applicable circuit precedent against the authoritative sources linked above and consult a licensed attorney before advising a client on detention, bond, or removal matters.