The Trump administration‘s policy of keeping illegal immigrants in detention during their deportation proceedings has resulted in hundreds of lawsuits and has splintered appeals courts over its legality, leading the issue toward likely Supreme Court review as more appeals courts weigh in with different interpretations of the policy.
The U.S. Court of Appeals for the 11th Circuit became the latest appellate court to add to the divide over the policy of detaining illegal immigrants, rather than releasing them on bond, during removal proceedings this week, ruling 2-1 against the administration on Wednesday. The federal appeals court covering the states of Alabama, Florida, and Georgia joined the 2nd Circuit in ruling against President Donald Trump, while the 5th Circuit and 8th Circuit have handed the president wins on the issue. The 7th Circuit was evenly split on the matter.
The variety of different rulings tee up a divide the Supreme Court will ultimately need to resolve.
Mandatory detention policy stems from a new use of a 1996 law
The legal dispute over whether the mandatory detention policy is lawful comes down to a provision of federal law enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Prior to the 1996 law, which updated the Immigration and Nationality Act, federal law split on its requirements for illegal immigrants, based on whether they had been apprehended at the border or whether they were caught in the interior of the country, to determine if they were eligible for speedy removal. Andrew Arthur, the Center for Immigration Studies’s resident fellow in law and policy, told the Washington Examiner the 1996 law changed the standard for who could be deported quickly, specifying that officials were to look at whether a noncitizen had been “admitted” to the country.
“Rather than making a distinction between whether an alien had entered or hadn’t, the distinction that Congress came up with was whether they had been admitted or hadn’t been admitted. So if you entered the United States illegally, you evade inspection, haven’t been admitted, and therefore you are subject to inadmissibility,” Arthur said.
Someone who has been admitted into the country, even if he or she is an illegal immigrant, is not subject to accelerated removal proceedings or mandatory detention and would go through a different set of deportation proceedings.
But courts have found little consensus over what counts as an admission to the United States.
The disagreement from the district and appeals courts stems from whether an illegal immigrant in the interior of the country is seeking admission or whether he or she should be considered as already admitted.
“The argument that most district court judges have bought has been that there is some distinction between an applicant for admission and an alien seeking admission. That Congress intended that distinction because it wanted to make clear that detention only applies to aliens who are at the border or the ports,” Arthur said.
“That’s plainly not correct, because if you read through the rest of that line [in the law], it says an alien seeking admission is not clearly and beyond the doubt entitled to be admitted,” Arthur said. “That’s really just the standard for deciding whether somebody should be denied admission, not whether somebody should be detained or not detained.”
Appeals courts sharply split on the issue with more rulings to come
The three judge panel on the 11th Circuit found by a 2-1 margin that the Trump administration’s “re-interpretation” of the Immigration and Nationality Act to define illegal immigrants in the interior of the country as “seeking admission” into the country was unlawful, instead finding that “no-bond detention generally applies to arriving aliens seeking lawful entry to the country, and not to aliens who are simply present here.”
U.S. Circuit Judge Stanley Marcus, an appointee of former President Bill Clinton, authored the majority, joined by U.S. Circuit Judge Robin Rosenbaum, an appointee of former President Barack Obama.
U.S. Circuit Judge Barbara Lagoa, a Trump appointee, penned a dissent to the ruling, arguing that the majority conceded “that ‘applicant for admission’ and ‘seeking admission,’ on their ordinary meaning, are ‘synonymous,’” seemingly siding with the Trump administration’s view, but then spent “fifty pages explaining why the ordinary meaning does not apply.”
“The Fifth and Eighth Circuits disagree. So do I,” Lagoa wrote. “I respectfully dissent.”
The 11th Circuit’s ruling came roughly a week after the 2nd Circuit became the first appeals court to buck the administration’s mandatory detention policy. The 2nd Circuit’s April 28 ruling found that the Trump administration’s mandatory detention policy went against federal immigration law and decades of practice.
Two federal appeals courts have sided with the Trump administration, with the 5th Circuit being the first to do so in February, followed by the 8th Circuit in March. The 7th Circuit offered an evenly split decision over the legality of Trump’s mandatory detention policy in its ruling earlier this week, in which one judge rejected the administration’s view, one judge sided with it, and the other judge neither endorsed nor rejected the policy.
While five judicial circuits have already issued conflicting rulings on Trump’s mandatory detention policy for illegal immigrants, other appeals courts could add to the split with forthcoming rulings on the matter. Earlier this week, three-judge panels on the 1st Circuit and 4th Circuit, respectively, heard arguments in Justice Department appeals of lower court decisions against the administration’s policy.
The 1st Circuit panel grilled the DOJ lawyers and appeared skeptical of their arguments to allow for mandatory detention of illegal immigrants in the interior of the country. The Monday oral arguments seemed likely to lead to a decision in the coming weeks more in line with the 2nd Circuit and 11th Circuit rulings than the rulings from the 5th Circuit and 8th Circuit.
During arguments on Monday, U.S. Circuit Judge Sandra Lynch, a Clinton appointee, conceded that ultimately, “the Supreme Court is going to have to decide this,” and it appears the justices will likely hear a case involving the Trump administration policy at some point during their next term.
Mandatory detention could make its way before the justices
The Supreme Court concluded its final scheduled oral arguments for the current term last week, meaning the earliest the justices would hear the case, barring an unusual summertime argument, is in early October when they begin their next term.
“They’re out of time to schedule a hearing this term, which would mean that they would kick it over the next term and just live with the circuit split in the interim,” Arthur said, noting full merits arguments in a case before the Supreme Court would have to be months away.
None of the cases where appeals courts have ruled on the mandatory detention policy have been appealed by either side to the Supreme Court, but that could change in the coming months. The issue could also be petitioned on the emergency docket pending a petition for full merits arguments, which could lead the justices to have to make a tough preliminary decision on the matter in the interim.
“It’s going to be very difficult for them to issue an in-chambers order one way or the other,” Arthur told the Washington Examiner. “Because if they find in favor of the administration, you’re basically going to be changing the old policy. If you find in favor of the aliens, then you’re enjoining the federal government, and when it comes to enjoining the federal government from taking an action that the statute says it must take, the burden is pretty high.”
FIRST CIRCUIT COULD INTENSIFY JUDICIAL DIVISIONS OVER TRUMP’S MANDATORY DETENTION POLICY
If the Supreme Court takes up the case, it would mark the latest instance of the high court reviewing a key Trump administration policy or action since he returned to office in January 2025.
The Supreme Court has already struck down his sweeping tariffs, and has yet to rule on his power to fire independent agency heads, his executive order on birthright citizenship, or his bid to end Temporary Protected Status for Haiti and Syria. The high court’s rulings in the other Trump cases are expected by the end of June.