Third Circuit Just Blocked Trump's Mandatory ICE Detention Policy

Three facts, fast

• The Third Circuit ruled on August 28, 2026 that ICE cannot deny bond hearings to longtime U.S. residents. The vote was 2-1.
• Eight federal appeals courts have now ruled against the Trump administration's mandatory detention policy. Two have ruled in its favor. The Supreme Court is expected to resolve the split in the term that begins in October 2026.
• In the Ninth Circuit (which includes Washington) and the Tenth Circuit (which includes Colorado), bond hearings are already required. If your family member is detained by ICE in one of these jurisdictions and has not been given a bond hearing, that detention likely violates federal law.

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The U.S. Court of Appeals for the Third Circuit ruled Friday that Immigration and Customs Enforcement cannot detain longtime U.S. residents without a bond hearing. In a 2-1 decision issued in Philadelphia, the court held that the Trump administration's mandatory detention policy violates both the Immigration and Nationality Act and the Due Process Clause of the Fifth Amendment. The ruling upheld orders requiring the release of two people who had been detained by ICE without any immigration judge ever considering whether they posed a flight risk or a danger to the community.

The Third Circuit is the eighth federal appeals court to rule against the Trump administration's policy. The First, Second, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits reached the same conclusion earlier this year. Two circuits, the Fifth and the Eighth, have gone the other way. The federal circuit split is now 8 to 2, and the Supreme Court is widely expected to take up the question when its term begins in October.

For families with a loved one in ICE custody, the ruling matters. For families in Colorado and Washington, where Novo Legal Group has offices, the Third Circuit's reasoning tracks the law that already applies in the Ninth and Tenth Circuits. Bond hearings are the rule in our home jurisdictions, and the Third Circuit's opinion strengthens the argument that the rule should apply nationwide.

This post explains what the Third Circuit ruled, what changed in July 2025 to create this litigation in the first place, where each federal circuit now stands, what the ruling means for people currently in ICE detention across the country, and what happens next as the case moves toward the Supreme Court.

What the Third Circuit ruled

The case decided Friday involved two people who had lived in the United States for years, one for nearly two decades. Both had entered the country without inspection long before their arrests. Both were picked up by ICE in the interior, far from any border. Both were then placed in mandatory detention under 8 U.S.C. § 1225(b)(2)(A), the federal statute that ordinarily governs detention of arriving noncitizens at ports of entry. Neither was given a bond hearing.

The Third Circuit's majority opinion, joined by a Biden appointee and a Trump appointee, rejected the government's use of that statute to justify holding longtime residents without bond. The court's reasoning rested on the plain text of the statute. Section 1225 applies to a noncitizen who is an "applicant for admission" and is "seeking admission" to the United States. The court concluded that Congress's choice of the word "seeking" implies a present and ongoing effort to gain admission. A person who has been living in the United States for years, working, raising a family, and building a life, is not in the ongoing act of seeking to enter.

For those individuals, the court held, the correct statute is Section 1226(a), which applies to noncitizens in the interior of the country. Section 1226(a) permits an immigration judge to release a detainee on bond after considering whether the person is a flight risk or a danger to the community.

The court also held that the government's policy violates the Fifth Amendment's Due Process Clause. Longtime U.S. residents possess constitutional protections that are simply not the same as the protections that apply to a person apprehended immediately after crossing the border. Denying detainees any opportunity to demonstrate they are not dangerous and not likely to flee creates an unacceptable risk of prolonged wrongful detention. That risk, the majority concluded, cannot be squared with due process.

How ICE detention worked before July 2025

For nearly 30 years before July 2025, federal immigration law distinguished between two categories of detained noncitizens.

People detained at or near the border, either upon arrival at a port of entry or shortly after entering without inspection, were treated as applicants for admission under Section 1225. Their detention was mandatory. They were not entitled to a bond hearing before an immigration judge.

People detained in the interior, even those who had entered without inspection years or decades earlier, were treated as being in removal proceedings under Section 1226. Their detention was discretionary. They were entitled to a bond hearing before an immigration judge, who could release them on bond if they were not a flight risk or a danger to the community.

Under that framework, a mother stopped at a traffic stop in Seattle after 15 years in the country, or a father arrested at his workplace in Denver after 20 years, was entitled to have a judge review whether he needed to be locked up while his case was pending. In practice, bond was often granted to people without criminal convictions who had family, employment, and community ties in the United States.

That framework held across four presidential administrations of both parties.

What changed in July 2025

In July 2025, the Department of Homeland Security issued a memo reinterpreting Section 1225 to apply to anyone who had ever entered the country without inspection, regardless of how long ago the entry occurred or how long the person had lived in the United States since then.

Under the new interpretation, a person arrested by ICE in the interior after 20 years of residence was still an "applicant for admission" who could be held under Section 1225 without a bond hearing. The Board of Immigration Appeals endorsed the position in two precedential decisions, Matter of Q. Li in May 2025 and Matter of Yajure-Hurtado in September 2025.

The practical effect was immediate and sweeping. People who had previously reported to ICE regularly under orders of supervision or alternatives to detention were suddenly subject to mandatory detention without any judicial review of their circumstances. Long-term residents with U.S.-citizen children, stable employment, and no criminal history were held in ICE facilities for months without any bond hearing.

What federal law actually says

Two statutes are at the center of this litigation.

8 U.S.C. § 1225(b)(2)(A) provides that a noncitizen who is "seeking admission" and "is not clearly and beyond a doubt entitled to be admitted" shall be detained for a removal proceeding. Detention under this section is mandatory. There is no provision for a bond hearing before an immigration judge.

8 U.S.C. § 1226(a) provides that a noncitizen "may be arrested and detained pending a decision on whether the alien is to be removed." Detention under this section is discretionary. Immigration judges have authority to release a detainee on bond after considering flight risk and danger to the community.

The dispute is which statute governs. If Section 1225 applies to anyone who ever entered without inspection, then everyone in that group can be held without bond. If Section 1225 applies only to people currently in the act of seeking admission, and Section 1226 governs everyone in the interior, then longtime residents are entitled to bond hearings.

The Third Circuit's answer is clear: a person who has been living in the United States for years is not seeking admission within the meaning of Section 1225. That person falls under Section 1226 and is entitled to a bond hearing.

The circuit split: where each court stands

Ten federal circuit courts of appeals have ruled on this question. The split is 8 to 2.

Ruled that bond hearings are required (Section 1226 applies to longtime residents):

• First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico)
• Second Circuit (Connecticut, New York, Vermont)
• Third Circuit (Pennsylvania, New Jersey, Delaware, U.S. Virgin Islands) ruled today
• Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee)
• Seventh Circuit (Illinois, Indiana, Wisconsin)
• Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington), includes Novo Legal's Seattle office
• Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming), includes Novo Legal's Denver office
• Eleventh Circuit (Alabama, Florida, Georgia)

Ruled that mandatory detention applies (Section 1225 covers longtime residents):

• Fifth Circuit (Louisiana, Mississippi, Texas)
• Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota)

Not yet ruled:

• Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, West Virginia)

The split is significant because it means the same federal statute is being applied differently in different parts of the country. A person in Fort Worth (Fifth Circuit) can be held without a bond hearing. A person in Denver (Tenth Circuit) or Seattle (Ninth Circuit) is entitled to one. That kind of geographic disparity in the application of federal law is exactly the situation the Supreme Court exists to resolve.

What this means depending on where you are

The practical effect of Friday's ruling depends heavily on which circuit governs your detention.

In Colorado, Washington, and the rest of the Ninth and Tenth Circuits: The law has not changed. Bond hearings were already required before today. The Third Circuit's ruling reinforces the reasoning that already governs in these jurisdictions and adds another authoritative voice against the Trump administration's policy.

In Pennsylvania, New Jersey, Delaware, and the rest of the Third Circuit: Friday's ruling takes effect immediately. ICE detainees who have been held without bond hearings in these states are entitled to seek release under Section 1226(a). Existing detentions must be reviewed. Habeas petitions filed on this basis should now succeed.

In the First, Second, Sixth, Seventh, and Eleventh Circuits: Bond hearings are already required. The Third Circuit's ruling adds to the weight of authority.

In the Fifth Circuit (Texas, Louisiana, Mississippi) and the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota): Mandatory detention without bond hearings remains the rule under current appellate precedent. Detainees in these circuits can still challenge their detention through habeas corpus, but the controlling circuit precedent is unfavorable. Supreme Court review is the most likely path to change in these jurisdictions.

In the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, West Virginia): The circuit has not yet ruled. Detainees in these states are in an uncertain posture. Bond hearing requests are being litigated case by case.

What happens next: the Supreme Court

With an 8-2 circuit split on a question that affects tens of thousands of detained immigrants nationwide, Supreme Court review is not just likely, it is expected. The Justice Department has already signaled that it will seek certiorari from the Fifth Circuit ruling in its favor. Any of the eight circuits that have ruled against the administration could also see certiorari petitions from the government.

The Supreme Court's term begins on the first Monday in October. The Court could grant certiorari and set the case for argument at any point during the 2026-2027 term. A ruling could come as early as spring 2027 or as late as June 2027. If the Court takes the case and rules on the merits, its decision will establish a nationwide rule that resolves the circuit split.

Until the Supreme Court speaks, the rule in each circuit continues to apply. That means a person detained today in the Third Circuit is entitled to a bond hearing. A person detained today in the Fifth Circuit is not. The uneven application of federal immigration law will persist until the Court intervenes.

What we don't know yet

Several important questions remain open even after Friday's ruling:

• Whether the Trump administration will seek en banc review from the full Third Circuit before pursuing certiorari.
• How quickly the Supreme Court will act on the certiorari petitions already filed from the Fifth Circuit and other jurisdictions.
• Whether the Court will consolidate multiple cases from different circuits when it decides to hear the issue.
• How lower courts and ICE will handle bond hearings during the pendency of Supreme Court review, particularly in the Fifth and Eighth Circuits where mandatory detention remains the rule.
• Whether Congress will act to amend Section 1225 or Section 1226 while the litigation continues, which could moot the pending appeals.
• How the Fourth Circuit will rule when it takes up the question.

We will publish updates as material developments occur.

What to do now

If your family member is currently detained by ICE without a bond hearing:

Where the detention is occurring matters. In Colorado, Washington, and the other states within the Ninth and Tenth Circuits, bond hearings are required. If a hearing has not been requested or scheduled, contact an immigration attorney promptly to file a bond motion or a habeas petition. In Pennsylvania, New Jersey, or Delaware, Friday's ruling requires immediate action to request release under Section 1226. In the Fifth or Eighth Circuits, habeas relief is more difficult under current precedent, but not impossible.

If your family member is at risk of ICE detention:

Prepare now. Gather documentation of long-term U.S. residence, family ties, employment history, and any pending immigration applications. If ICE detains a family member, having this documentation ready in the first 24 to 48 hours often makes the difference between a quick bond hearing and prolonged detention.

If you have an immigration attorney and your case has been quiet:

Ask about the current status of ICE detention practices in your jurisdiction. Ask whether any bond hearing requests are pending, whether any habeas petitions are being considered, and what steps the office is taking in light of the shifting appellate landscape.

If you are yourself an immigration attorney or advocate:

Review pending detention cases against the standard the Third Circuit just articulated. In circuits that require bond hearings, ensure that hearings are being requested and, where they are not being scheduled, that habeas petitions are being filed. In circuits that do not yet require bond hearings, monitor the certiorari docket carefully.

Frequently asked questions

Does the Third Circuit ruling apply to my family member in another state?

The ruling directly binds federal courts and ICE offices within the Third Circuit, which covers Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands. Outside the Third Circuit, the ruling is persuasive but not binding. However, in the eight circuits that have ruled that bond hearings are required, the underlying rule was already the law. The Third Circuit's opinion adds to the body of authority.

What is a bond hearing?

A bond hearing is a proceeding before an immigration judge in which the government must justify continued detention. The judge considers whether the detainee is a flight risk or a danger to the community. If neither, the judge may set a bond amount that allows the person to be released while the removal case continues.

What is Section 1225 versus Section 1226?

Section 1225 of the Immigration and Nationality Act (8 U.S.C. § 1225) governs the detention of noncitizens who are seeking admission to the United States. Detention under Section 1225 is mandatory and no bond hearing is available. Section 1226 (8 U.S.C. § 1226) governs the detention of noncitizens in removal proceedings within the United States. Detention under Section 1226 is discretionary and bond hearings are available.

Does this ruling affect DACA recipients?

Indirectly. DACA is a form of temporary protection that does not confer lawful immigration status. DACA recipients who are detained by ICE would nonetheless be entitled to bond hearings under Section 1226 in circuits that follow the Third Circuit's reasoning. In the Fifth and Eighth Circuits, the current rule that treats interior arrestees as applicants for admission could apply to DACA recipients who entered without inspection.

Can ICE still detain someone with a criminal record?

Yes. Section 1226(c) provides for mandatory detention of noncitizens with certain criminal convictions. That provision is separate from the mandatory detention question at issue in the Third Circuit ruling. A person with a qualifying criminal conviction may still be held without a bond hearing under Section 1226(c), even in circuits that require bond hearings under Section 1226(a).

How long will it take for the Supreme Court to rule?

If the Court grants certiorari during its 2026-2027 term, argument would likely be held in the winter or spring, with a decision expected by the end of the term in late June 2027. If the Court declines to hear the case, or delays granting certiorari, the current patchwork rule would continue.

Why Novo Legal

Novo Legal Group is a bilingual, community-rooted human rights firm. Every attorney and staff member on our team is fluent in English and Spanish. Spanish is not a translation afterthought here, it is how we think. We publish same-day analysis when federal policy shifts against our community, because we know our clients are Googling at 10pm with a family member in ICE custody and no clear sense of what to do next. We do not do scare language, and we do not do "call now" pressure. We do fierce advocacy and straight answers.

Aaron Elinoff, Managing Partner, has been representing immigrant families in Colorado and Washington since 2013. Both of those states sit in circuits that already require ICE bond hearings for longtime residents. If your family member is in ICE detention anywhere in the country, bring the case to us. We will tell you what we would do.

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