Fifth Circuit rules mandatory detention beyond 90 days violates due process, dealing blow to Trump policy

The United States Court of Appeals for the Fifth Circuit ruled on Thursday that immigrants cannot be detained for more than 90 days without a bond hearing, striking down a key part of the Trump administration’s immigration enforcement policy. The 2-1 decision from the New Orleans-based court applies to states within its jurisdiction, including Texas and Louisiana, and could affect thousands of individuals held under the administration’s interpretation of federal immigration law.

The ruling addressed a novel interpretation of a federal statute that the Trump administration had adopted, treating certain non-citizens already living in the United States as “applicants for admission” subject to mandatory detention without the possibility of bond. A previous panel of the same court had upheld this interpretation in February, but that decision did not consider whether the Fifth Amendment’s due process clause required bond hearings for those detained.

Writing for the majority, U.S. Circuit Judge Leslie Southwick, an appointee of Republican President George W. Bush, cited the Supreme Court’s 2001 decision in Zadvydas v. Davis to hold that due process protections extend to all individuals within U.S. borders, including the two Mexican citizens and one Honduran national whose cases were before the court. “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,” Southwick wrote.

The dissenting judge, Cory Wilson, a Trump appointee, argued that the majority “marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress.” The split decision reflects ongoing legal battles over the scope of executive power in immigration enforcement.

Rebecca Cassler, a lawyer for the migrants with the American Immigration Council, said in a statement that they “are delighted that the panel recognised the core constitutional principle that the due process clause does not allow the government to lock them away indefinitely.” The U.S. Department of Homeland Security, which oversees Immigration and Customs Enforcement (ICE), did not respond to a request for comment.

Under federal immigration law, individuals arriving at the border can be held without bond while their cases proceed. The Trump administration extended this policy to non-citizens already residing in the country, a shift that the Board of Immigration Appeals endorsed in September 2025. Immigration judges across the country then began ordering mandatory detention, leading to legal challenges.

The Fifth Circuit’s ruling adds to a circuit split on the issue, with other appellate courts reaching different conclusions. Last week, the Trump administration asked the Supreme Court to resolve the disagreement, a request that may now gain urgency following this decision.