An Atlanta-based federal appeals court on Thursday became the latest to block a broad Immigration and Customs Enforcement policy that sought to detain, without bond, virtually anyone the Trump administration moves to deport — not just newly arrived border crossers. In a 2-1 decision, a divided three-judge panel of the 11th U.S. Circuit Court of Appeals held that the agency’s reinterpretation of long-standing immigration statutes exceeded the authority Congress had granted.
“Simply put, the language that Congress has chosen to use does not grant to the Executive unfettered authority to detain, without the possibility of bond, every unadmitted alien present in the country,” wrote Judge Stanley Marcus, a Clinton appointee, for the majority. He was joined by Judge Robin Rosenbaum, an Obama appointee. The majority said the administration’s reading would expose millions of people — many with jobs, U.S. citizen children and spouses, no criminal records and consistent attendance at immigration proceedings — to mandatory, mass detention without a bond hearing. “Nowhere in the text, structure, or history of [federal immigration law] does that reading find steady footing,” Marcus wrote.
Judge Barbara Lagoa, a Trump appointee, dissented. She argued that the government’s effort to apply the detention mandate to a far wider population reflected enforcement failures by prior administrations rather than any statutory overreach, writing that past non-enforcement cannot be used to narrow a statute’s meaning.
The ruling addresses an abrupt shift by ICE that began last July, when the agency declared that virtually anyone it targets for removal should be treated as an “applicant for admission” and therefore subject to mandatory detention without bond. That reinterpretation was affirmed in September by the Board of Immigration Appeals, the justice department-run panel that sets policy for immigration courts.
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Courts across the country have split over the issue, setting up an increasing likelihood the Supreme Court will have to weigh in. The 11th Circuit’s decision follows a spate of litigation: more than 420 district judges have rejected the administration’s approach, while fewer than 50 have endorsed it, according to court tallies. The federal appeals courts themselves have not reached a consensus — the 5th and 8th Circuits issued divided rulings upholding the administration’s interpretation, the 2nd Circuit in New York recently rejected it, and the 7th Circuit in Chicago produced a deadlock this week.
The legal dispute turns on language from a 1996 law designed to streamline deportations and to require detention without bond of people who are newly arriving and “seeking admission” to the United States. For decades, both Democratic and Republican administrations applied that mandate narrowly to recent border crossers, while long-term residents in the interior were typically processed under a different statute that allowed bond hearings before immigration judges. ICE’s new position collapses that distinction by treating anyone subject to a removal proceeding as an “applicant for admission.”
Since the policy was announced, it has generated a deluge of emergency habeas petitions and other litigation challenging the agency’s authority to impose mandatory detention so broadly. The 11th Circuit’s decision adds another major judicial rebuke to that challenge, but with appeals courts divided, the question now seems likely to reach the Supreme Court unless Congress intervenes.
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The case will be closely watched by immigrant advocates and state and local officials alike, who warn that the policy, if upheld, could sweep into custody large numbers of long-settled noncitizens and their U.S. family members. The 11th Circuit ruling narrows ICE’s immediate ability to detain en masse, but more appeals are pending and further high-court clarification appears probable.
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