The Fifth U.S. Circuit Court of Appeals handed the Trump administration a significant legal setback Thursday, ruling 2-1 that Immigration and Customs Enforcement cannot detain immigrants for more than 90 days without giving them a chance to seek release on bond. The decision could affect thousands of migrants held in ICE facilities across Texas and Louisiana, two states at the center of the federal government's stepped-up deportation effort.
Judge Leslie Southwick authored the majority opinion, leaning on the Fifth Amendment's due process clause and a 2001 U.S. Supreme Court precedent holding that constitutional protections extend to all persons within U.S. borders, citizens and non-citizens alike. The cases before the court involved two Mexican citizens and one Honduran national facing deportation proceedings.
The ruling lands at a moment when the administration has been accelerating enforcement. The Department of Homeland Security has ramped up its arrest rate to roughly 2,000 per day, with reports indicating DHS arrested some 10,000 illegal immigrants in a single recent week. A federal appeals court decision forcing bond hearings for detainees held longer than 90 days threatens to slow that machinery, and to put thousands of cases back before immigration judges who may order release.
The 2-1 split revealed a deep disagreement about where the Constitution draws the line between executive enforcement power and individual liberty claims by non-citizens. Southwick, writing for the majority, framed the question in sweeping terms.
As Fox News reported, Southwick wrote:
"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."
Judge Cory Wilson disagreed. In his dissent, Wilson argued that the majority "marginalizes the Constitution's express grant of plenary authority over immigration matters to Congress." That doctrine, Congress's broad, largely unreviewable power to set immigration rules, has been a bedrock principle in federal courts for more than a century. Wilson's position reflects the view held by many conservative legal scholars: that when Congress grants the executive branch detention authority, the judiciary should not graft a 90-day expiration date onto it.
The tension between these two positions is heading for the Supreme Court. The justices have already agreed to examine the bond-hearing question, though oral arguments are not expected until 2027. In the meantime, the Trump administration has asked the high court to bar lower judges from releasing illegal immigrants until the deportation process concludes.
The Fifth Circuit's ruling stands in direct tension with a decision from the Eighth Circuit Court of Appeals issued in March. That court barred lower judges from releasing illegal migrants after DHS arrest, the opposite result. The Eighth Circuit's jurisdiction covers Minnesota, Indiana, Missouri, and several other states.
Minnesota had been a particular flashpoint. Pro-migration judges and lawyers in that state and elsewhere used bond proceedings to release detained illegal immigrants at a pace that alarmed enforcement officials. Over recent months, more than 10,000 illegal migrants were released after arrest through such proceedings, a figure that helps explain the administration's urgency in seeking Supreme Court intervention.
Now two federal circuits have reached opposite conclusions on the same constitutional question. That kind of split virtually guarantees Supreme Court review, but the 2027 timeline means the legal uncertainty will persist for months, possibly more than a year.
The Supreme Court already faces a packed docket on executive power and immigration. Adding another contested detention question only raises the stakes of a term that could reshape the boundaries of presidential enforcement authority.
For the Americans who live in communities absorbing the consequences of illegal immigration, circuit-court doctrinal disputes are abstractions. The practical question is simpler: will people arrested by ICE stay in custody long enough to be deported, or will they be released back into the interior?
The Fifth Circuit's answer, that after 90 days, detained migrants must get a bond hearing, creates a procedural gateway that immigration attorneys will use aggressively. Bond hearings require judges, courtrooms, lawyers, and time. Immigration courts are already overwhelmed. Every hearing added to the docket pushes other cases further out. And every migrant released on bond becomes harder to locate if a final deportation order eventually issues.
Rebecca Cassler of the American Immigration Council called the ruling a victory, telling Newsmax she was "delighted that the panel recognized the core constitutional principle that the due process clause does not allow the government to lock them away indefinitely."
That framing, "indefinitely", does real work. No one in the administration has proposed holding migrants without any process forever. The dispute is whether 90 days is a constitutionally mandated ceiling or whether Congress's broad detention authority permits longer holds while deportation proceedings grind forward. Casting enforcement detention as indefinite imprisonment is effective advocacy. It is not a neutral description of the policy at issue.
The Fifth Circuit ruling fits a broader pattern. Across the federal judiciary, judges have repeatedly intervened to limit, delay, or block the administration's immigration enforcement actions. Federal prosecutors have had to challenge judicial dismissals of cases against illegal immigrants accused of serious offenses. Courts have ordered the release of detainees over the administration's objections. And legal advocacy groups have forum-shopped aggressively, seeking sympathetic judges in circuits likely to rule against enforcement.
The result is a patchwork. In states covered by the Eighth Circuit, ICE can hold detainees without bond hearings after arrest. In Texas and Louisiana, states on the front lines of border enforcement, the Fifth Circuit now says it cannot hold them past 90 days without offering a hearing. The law varies depending on which side of a state line a detention facility sits.
That incoherence is not the administration's doing. It is the product of a judiciary that cannot agree on basic questions about who has authority over immigration enforcement, questions the Supreme Court will eventually have to resolve.
Meanwhile, the cases that prompted this ruling involved real people with real records. The two Mexican citizens and one Honduran national at the center of the Fifth Circuit decision were in deportation proceedings. The court's ruling does not dismiss their cases. It simply requires the government to give them a chance to argue for release while those cases proceed. Whether individual immigration judges grant bond, and under what conditions, will determine whether the ruling amounts to a procedural speed bump or a genuine obstacle to removal.
The administration's track record suggests it will not accept the decision quietly. The Trump team has already signaled its intent to take the bond-hearing question to the Supreme Court, and the circuit split gives the justices a strong reason to act. Other deportation fights have already reached the high court through similar paths, appeals court losses followed by aggressive petitions for review.
The Fifth Circuit's ruling will almost certainly be appealed. The administration has the circuit split, the pending Supreme Court case, and Congress's historically broad immigration authority all working in its favor on the merits. But timing matters. Until the Supreme Court acts, the 90-day bond-hearing requirement is the law in Texas and Louisiana, two of the most important states for interior enforcement.
Every day that legal uncertainty persists, immigration lawyers file motions. Judges hold hearings. Detainees walk out of facilities on bond. And the deportation pipeline slows.
The Constitution protects everyone within American borders. No serious person disputes that. But due process has never meant that Congress cannot authorize the executive branch to detain people who entered the country illegally while their removal cases are decided. Judge Wilson's dissent had it right: the majority's reading shrinks congressional authority over immigration to fit a judicial preference.
When the Supreme Court finally takes up this question, it will decide more than a procedural rule about bond hearings. It will decide whether federal judges or the elected branches get the last word on who stays and who goes. Until then, the people paying the price for judicial indecision are the same ones who always do, the citizens and lawful residents left waiting for a government that enforces its own laws.
