Trump Mandatory Detention Policy Appears to Split Fifth Circuit

A Trump administration attorney told the Fifth Circuit that its novel interpretation of immigration detention—a stance that runs counter to three decades of practice—is in fact the only straightforward way to read the statute.

The law “requires the detention” of noncitizens deemed “applicants for admission” who “cannot show they are clearly and beyond a doubt entitled to be admitted,” said Benjamin Hayes of the US Department of Justice. “The statute is clear, and this court should enforce it as written.”

The conservative US Court of Appeals for the Fifth Circuit on Tuesday was the first to hear arguments squarely addressing the administration’s stance on mandatory immigrant detention, which it adopted less than a year ago. The panel appeared split, with Judge Dana Douglas skeptical of the government’s view and Judge Edith Jones more inclined to support it. Judge Stuart Kyle Duncan also sat on the panel.

For decades, the government acknowledged that noncitizens arrested in the interior of the country—as opposed to those coming in at the border—had the right to argue for their release in immigration court.

But that interpretation is “backwards,” giving greater protections to those who evade authorities and come in illegally as opposed to those who present themselves at ports of entry, Hayes said.

But US Supreme Court Justice Samuel Alito in Jennings v. Rodriguez, Douglas noted, wrote that the mandatory detention statute applied to people “seeking admission into the country,” and the statute allowing for bond hearings relates to detention of “aliens already in the country.”

Hayes said that language was dicta that doesn’t necessarily bind the appellate court.

Arguing for the noncitizens, Michael Tan, deputy director of the ACLU Immigrants’ Rights Project, noted that the government’s new interpretation flies in the face of longstanding practice.

The government is arguing that Congress “created a detention mandate that’s larger by several orders of magnitude, that covers millions of people, and that somehow escaped everyone’s notice for the past 30 years,” he said.

And last year’s Laken Riley Act, which expanded the list of crimes that would make a noncitizen eligible for mandatory detention, would make no sense if the government already had the power to mandatorily detain them, Tan said.

Jones noted that the Laken Riley Act may well have been passed to “reinforce the unavailability of bond at a time before the administration had read the law differently.”

Bond Hearings Denied

The underlying cases, consolidated for appeals purposes, involve two men who have lived in the US for years after illegally crossing the border from Mexico. Both were taken into custody by the Department of Homeland Security last year and were denied the chance for a bond hearing in immigration court under the Trump administration’s new mandatory detention policy.

Each filed a petition for habeas corpus in district court, among a flood of such cases after immigration judges—which are part of the executive branch—began denying bond hearings.

District court judges granted the habeas petitions, ordering immigration judges to conduct bond hearings. Both men were released from detention in October.

The administration is appealing the grant of those habeas petitions, saying despite the petitioners’ years living within US borders they are still “applicants for admission” who weren’t admitted into the country and should be detained.

The Trump administration’s reinterpretation of the law dates to summer 2025. Individual detainees subsequently filed an avalanche of habeas corpus petitions in district court, where federal judges have almost universally disagreed with the administration’s interpretation.

And district court judges in class cases, including one involving a nationwide class, have said the government is wrong and noncitizens have the right to a bond hearing—though immigration courts, which are under the executive branch, have largely still declined to conduct those hearings.

The US Court of Appeals for the Seventh Circuit has already cast skepticism on the government’s view of mandatory detention in an initial decision related to a consent decree, but Tuesday’s arguments are the first at which appellate judges confronted the matter head-on.

Multiple other appellate arguments on the mandatory-detention matter are scheduled in the coming months, and close observers believe the question will ultimately make its way to the US Supreme Court.

The case is Buenrostro-Mendez v. Bondi, 5th Cir., Nos. 25-20496, 25-40701 (cons.), oral arguments 2/3/26.