A divided Fifth U.S. Circuit Court of Appeals ruled Thursday that Immigration and Customs Enforcement cannot detain immigrants for more than 90 days without giving them a chance to seek release on bond, a decision that could affect thousands of detainees in Texas and Louisiana and slow the Trump administration's deportation operations at a critical moment.
The 2-1 ruling lands squarely against the administration's expanded interpretation of mandatory detention authority and deepens a growing split among federal appeals courts over how long the government can hold people while their removal cases grind through the system.
Judge Leslie Southwick wrote for the majority, grounding the decision in the Fifth Amendment's due process protections. Judge Cory Wilson dissented sharply, arguing the panel had overstepped into territory the Constitution reserves for Congress. The case involved two Mexican citizens and one Honduran national whose detention had stretched beyond the 90-day mark without any hearing on release.
The majority leaned on a 2001 U.S. Supreme Court finding that the due process clause protects everyone within U.S. boundaries, including non-citizens. That precedent, as reported Friday, formed the backbone of Southwick's opinion.
Southwick framed the stakes in sweeping terms:
"It is part of the historic majesty of this long-ago founding charter that it makes no exceptions in providing basic rights to those within our boundaries, including a right to be heard when personal liberty is taken."
That language will please civil-liberties advocates. It should worry anyone who watches how bond hearings actually play out in immigration courts, where release decisions can put illegal immigrants back on the street in communities already bearing the costs of lax enforcement.
Wilson, in dissent, accused the majority of sidelining Congress's constitutional role. He wrote that the panel "marginalizes the Constitution's express grant of plenary authority over immigration matters to Congress." That is not a minor complaint. The plenary power doctrine has been the legal bedrock for federal immigration enforcement for more than a century.
The Fifth Circuit's decision puts it at odds with the Eighth Circuit, which in March barred lower-court judges from releasing illegal immigrants after DHS arrested them, a ruling described at the time as a major win for the Trump administration. The Eighth Circuit's jurisdiction covers Minnesota, Indiana, Missouri, and several other states.
That March decision came after more than 10,000 illegal migrants had been released by what the administration characterized as pro-migration judges and lawyers over the preceding months. The Eighth Circuit shut the door. Now the Fifth Circuit has cracked it back open, in the very states, Texas and Louisiana, where ICE conducts some of its heaviest enforcement operations.
The contradiction between circuits is exactly the kind of conflict the Supreme Court exists to resolve. And the justices have already signaled they intend to do so. The Court has agreed to examine the bond-hearing question, though not until 2027. The Second Circuit recently rejected the same Trump detention policy, adding yet another layer to the split and increasing pressure for the high court to act sooner.
The Trump administration has already asked the Supreme Court to bar judges from releasing illegal immigrants until the deportation process is finished. That petition, combined with the accelerating circuit split, makes it likely Thursday's ruling will be appealed.
The timing could not be worse for the enforcement apparatus. A New York Times report cited by Breitbart News placed the current DHS arrest rate at roughly 2,000 illegal immigrants per day, with 10,000 arrested in a single recent week. That pace represents a dramatic escalation from the Biden era, when the administration pursued what critics called disastrous open-border policies that took a heavy toll on American communities.
Every one of those detainees now held in Texas or Louisiana past the 90-day mark may be entitled to a bond hearing under Thursday's ruling. Immigration courts are already overwhelmed. Adding thousands of mandatory bond proceedings will strain the system further and, in practical terms, guarantee that some detainees walk free while their cases remain unresolved.
The Fifth Circuit has previously handed the administration wins on mandatory detention, which makes this panel's break all the more notable. The same court that backed Trump's enforcement posture in earlier cases now says ICE has gone too far.
Bond hearings are not abstract legal proceedings. They produce release decisions. And release decisions put people back into neighborhoods. The names of Laken Riley and Sheridan Gorman, Americans killed after illegal migrants were released, remain a grim reminder of what can happen when the system prioritizes process over public safety.
None of that means due process is optional. It isn't. But the majority's opinion reads as though indefinite detention were the only alternative to a 90-day bond-hearing mandate. Wilson's dissent at least acknowledges that Congress, not a three-judge panel, is the branch the Constitution empowers to draw those lines.
The broader judicial landscape on immigration enforcement remains fractured. While the Fifth Circuit moved against the administration here, the Ninth Circuit recently blocked a California law targeting ICE agents, showing that not every appellate court is pulling in the same direction on enforcement questions.
Meanwhile, the relationship between the Trump White House and the federal judiciary continues to simmer. The administration's aggressive posture on detention, deportation, and executive authority has produced a steady stream of courtroom confrontations. The quiet but high-stakes standoff between the administration and the Supreme Court looms over every one of these rulings.
The 2027 timeline for Supreme Court review of the bond-hearing issue means the current patchwork will persist for months. In one circuit, ICE can hold detainees through the full deportation process. In another, it must offer bond hearings at 90 days. In yet another, the rules remain unsettled.
That is not a legal framework. It is a jurisdictional lottery, and the people who lose are the communities in Texas and Louisiana that have borne the heaviest burden of illegal immigration for years.
The administration's options are limited in the short term. It can seek an emergency stay. It can petition for en banc review by the full Fifth Circuit. It can press the Supreme Court to expedite its consideration. But none of those paths offer a quick fix.
Texas, for its part, has not waited passively for federal courts to sort out enforcement authority. The Fifth Circuit's earlier decision clearing Texas to enforce its SB 4 migrant arrest law showed the state's willingness to act where it believes the federal government has fallen short.
Thursday's ruling does not end the fight. It sharpens it. The question is whether the Supreme Court will let the confusion drag into 2027, or step in before the enforcement machinery grinds to a halt in the states that need it most.
When the Constitution's guarantee of due process becomes a tool for keeping illegal immigrants out of custody and in American communities, something has gone badly wrong, not with the Constitution, but with the judges reading it.
