A federal appeals court on Tuesday rejected the Trump administration’s attempt to expand mandatory detention for noncitizens arrested inside the United States, escalating a legal clash that is increasingly likely to be decided by the Supreme Court.
In a 61-page ruling from the U.S. Court of Appeals for the 2nd Circuit, a three-judge panel concluded the administration’s interpretation of immigration law breaks from both the statute’s language and decades of consistent practice. Writing for the majority, Judge Joseph Bianco said the policy would effectively authorize sweeping detention without bond hearings for a broad class of people already living in the country.
Even if the government’s reading were legally plausible, Bianco said, courts should reject it to avoid triggering serious constitutional concerns tied to prolonged detention without individualized review. Bianco was appointed to the appeals court by President Donald Trump during his first term.
The decision adds to a growing divide among federal appeals courts. The 5th and 8th circuits have backed the administration’s approach, while judges on the 7th Circuit have expressed doubts, creating a clear pathway for high court review.
At the center of the dispute at the 2nd Circuit is Ricardo Aparecido Barbosa da Cunha, a Brazilian national who had lived illegally in the United States for about 20 years before his arrest by immigration authorities. After a lower court granted his habeas petition, he received a bond hearing and was released. The government acknowledged he posed no public safety threat and was not a flight risk.
For years, illegal immigrants in that position — arrested within the country rather than at the border — were typically eligible to request release while their immigration cases proceeded. Trump has shifted course from that standard, arguing that such individuals fall under a provision requiring detention for those “seeking admission,” even if they have long resided in the U.S.
The 2nd Circuit disputed that framing. Bianco wrote that the statute does not apply to someone like Barbosa da Cunha, who was not attempting lawful entry at the time of his arrest. To illustrate the point, he compared the government’s theory to treating someone who sneaks into a baseball game but is able to evade security until the 7th inning the same as a fan attempting to enter the game at the stadium entrance.
“The government claims that mandatory detention must continue regardless of how long removal proceedings take,” Bianco wrote, adding that the law does not support that outcome.
“If someone sneaks into Yankee Stadium at the start of the game with no ticket for admission (and no intention of ever paying) and he is later found by security in a seat in the seventh inning, no one would consider that fan to be ‘seeking admission’ to the game,” Bianco wrote.
In essence, the majority on the panel acknowledged that the baseball fan in the metaphor still entered illegally, yet clarified that it is not correct to suggest that they are still “seeking admission” once they are inside the venue. For this reason, a person with a pending asylum application who was only arrested after an indefinite period of residing in the U.S. should be eligible to seek release on bond, the court held.
The opinion also noted that while a handful of appellate courts have sided with the administration, most federal trial courts examining the issue have ruled the opposite way.
In a concurring opinion, Judge José Cabranes, an appointee of former President Bill Clinton, questioned the idea that Congress quietly authorized detention for millions of long-settled noncitizens without courts or policymakers recognizing it for decades. He pointed to the Supreme Court’s 2018 decision in Jennings v. Rodriguez, written by Chief Justice John Roberts, as reinforcing the idea that at least some individuals already inside the country remain eligible for bond hearings.
Judge Alison Nathan, an appointee of former President Joe Biden, joined the panel, which ruled in favor of Barbosa da Cunha. The Brazilian national’s legal team includes attorneys affiliated with the American Civil Liberties Union Foundation and the New York Civil Liberties Union.