Federal Appellate Courts Continue to Split on Trump Immigration Detention Policy
Detainees held at the South Texas Family Residential Center in Dilley, Texas. Photo by Brenda Bazán/Associated Press.
The Sixth and Eleventh Circuits Reject Mandatory Detention without Bond
Yesterday, May 12, 2026, a divided panel of the U.S. Court of Appeals for the 6th Circuit struck down the Trump Administration’s draconian new policy which requires detention of nearly all immigrants during removal proceedings.
The opinion found that the policy conflicts with federal immigration law and violates due process rights guaranteed by the Fifth Amendment, which the Court reminds us are “shared by citizens and noncitizens alike.”
The opinion followed a ruling last Wednesday, May 6, 2026, when the Eleventh Circuit rejected the DHS policy, concluding it conflicts with congressional intent, the relevant statutory text, and federal immigration practice for nearly 30 years.
Writing for the majority, Judge Stanley Marcus explained that the law “does not grant to the Executive unfettered authority to detain, without the possibility of bond, every unadmitted alien present in the country.”
The Growing Federal Court Split over Immigration Detention
These were only the latest federal appellate courts to wade into the vigorous debate over the legality of detaining immigrants who have been living in the United States for years or even decades without so much as a bond hearing.
The Fourth Circuit Case Involving Oscar Enrique Lopez Garcia
Last week, we wrote about our representation of Oscar Enrique Lopez Garcia, a 30-year resident of the U.S. who was apprehended by the government last October on his way to work. He was denied a bond hearing by the Department of Homeland Security (DHS) despite having no criminal history.
We filed a successful habeas petition to secure a bond hearing for Mr. Garcia, which resulted in his release and return home. The government appealed, however, and the case is now before the Fourth Circuit Court of Appeals. The court heard arguments last week over the lawfulness of the Trump Administration’s draconian new policy requiring nearly all immigrants like Mr. Garcia to be detained.
How Earlier Circuit Court Decisions Shaped the Debate
Before our Fourth Circuit argument, several other federal appellate courts had already weighed in on the policy. In April, the Second Circuit ruled that the Trump detention policy is inconsistent with the governing immigration statute and would lead to the “broadest mass-detention without-bond mandate in our Nation’s history for millions of noncitizens.” That decision conflicted with earlier rulings by the Fifth Circuit and Eighth Circuit upholding the policy.
Why Supreme Court Review is Increasingly Likely
These split decisions by the federal circuits almost certainly invite Supreme Court review of the case. Benach Pitney Reilly will continue to provide updates on this issue.