Habeas Petitions and Mandatory Immigration Detention: A Fourth Circuit Update

“On to Richmond!”  That was the cry of the Army of the Potomac during the U.S. Civil War that spread freedom to enslaved people. The “On to Richmond” cry today is also in the cause of freedom: freedom for immigrants detained under a radical new policy imposed by Trump’s Justice Department that required a sizable number of immigrants to be detained during their removal proceedings.

The destination is the U.S. Court of Appeals for the Fourth Circuit, itself housed in a building that once was the Treasury for the Confederate States of America.  This court is set to decide whether the Trump administration’s interpretation of the law regarding detention is correct or whether multitudes of detained immigrants are eligible for release from custody.

Why Habeas Petitions Matter in Mandatory Detention Cases

Since the new administration policy took effect in August 2025, immigrants have challenged their detention in federal courts. In March, we wrote about petitions of habeas corpus and how they are increasingly being used to secure the release of detained immigrants.

In the wake of the Trump Administration’s new policy of mandatory detention in cases where immigrants would have been previously released on bond, filing a habeas petition is now often the only legal pathway to freedom. This is because, in a complete departure from longstanding practice, the Department of Homeland Security now claims that federal law mandates detention for immigrants who entered the U.S. without an official admission by an immigration officer at a point of entry—known as “entry without inspection” or EWI.

Immigration attorneys around the country have been challenging this draconian new policy in federal court and have won the vast majority of these cases. The government has appealed these rulings and now the appellate courts have begun to weigh in, including a major decision last week.

The Second Circuit Rejects Mandatory Detention Without Bond

In a 3-0 decision on April 28, 2026, the Second Circuit ruled that the Trump Administration is misapplying the law by denying bond hearings to immigrants who have entered without inspection.

Trump appointee Joseph Bianco wrote the opinion and found that the statutory provision that the Trump Administration is citing to support mandatory detention does not apply to those who have entered without inspection and that this is clear from the law itself, as well as its “context, structure, history, and purpose.” He also observed that the administration’s policy would lead to the “broadest mass-detention-without-bond mandate in our Nation’s history for millions of noncitizens.”

The case was brought as a habeas petition by an immigrant from Brazil with an active asylum application. He has lived in the United States for more than twenty years, has a work permit, owns his own construction business, and has no criminal record. He was apprehended by ICE driving to work last year. The Second Circuit decision conflicts with a 5th Circuit ruling where a split panel upheld the detention policy, likely teeing up this issue for the Supreme Court.

Benach Pitney Reilly’s Fourth Circuit Habeas Case

Meanwhile, Benach Pitney Reilly is currently litigating the same issue in the 4th Circuit, where we represent Oscar Enrique Lopez Garcia, an immigrant with no criminal history who has lived in the United States for 30 years. We filed a habeas petition on Mr. Garcia’s behalf after he was apprehended last October on his way to work.

The district court ruled that Mr. Garcia must be provided with a bond hearing, which resulted in Mr. Garcia’s release and return home.  However, the government has appealed.

With co-counsel, we have argued to the appellate court that this radical change denying bond hearings to immigrants like Mr. Garcia—and his co-petitioner who was also detained last year after decades in this country—flies in the face of the plain text of the law and its interpretation by five consecutive presidential administrations.

We also observe, as Judge Bianco did, that if the policy is allowed to remain in place, it would result in the mandatory detention of millions of people. The ACLU is co-counsel in the case. Oral arguments will take place today, May 5, 2026, and will be live-streamed here.

What Comes Next for Mandatory Detention in Federal Court

Benach Pitney Reilly will continue to report on this case and the fate of the mandatory detention policy in the federal courts.