Appeals Court Rejects Ice Detention Policy, Setting Stage For Scotus

A federal appeals court on Thursday rejected ICE’s effort to detain millions of people without bond, comparing it to the “historical stain” of Japanese internment during World War II.

“Mass detention of marginalized individuals without due process harkens back to some of the darkest moments in our country’s history,” 4th Circuit Court of Appeals Judge Nicole Berner, a Biden appointee, wrote in a 2-1 majority opinion joined by Judge Barbara Keenan, an Obama appointee.

“Those shameful and abhorrent past detentions were limited in scope in comparison to the mandatory detention that the Government urges us today to find that Congress established thirty years ago in an ambiguously worded statutory provision. We decline to do so,” Berner wrote.

It’s the ninth loss in a row for ICE at federal appeals courts, all of which have now ruled on the policy. The Supreme Court is all but certain to take up the issue in its next term.

Nine of the 11 appellate circuits to take up the matter have agreed that the Trump administration’s approach relies on a misreading of the 1996 immigration reform law that established current deportation and detention policies.

Every administration until this one — including Trump’s first — interpreted that law as requiring the detention of people who recently crossed the border. But in July 2025, ICE abruptly changed course and concluded that people residing in the interior of the country, even for decades, were subject to mandatory detention while their immigration proceedings played out for months or years.

The policy shift has led to a tsunami of emergency lawsuits filed by people detained by ICE under the new policy. And more than 460 federal judgesrejected the new approach, while just over 50 sided with the Trump administration’s position. rejections have cut across ideologies, with a vast majority of judges appointed by all modern presidents — including Trump — turning down the administration’s position. That lopsided result has carried over to the appeals court level.

Nevertheless, the administration has persisted in applying its new approach, generating hundreds of new emergency lawsuits every day and legal battles that have roiled the courts, strained the relationship between ICE and Justice Department, upended tens of thousands of lives and drawn increasingly pointed rebukes from the judiciary.

Under ICE’s new view of the law, people who have lived inside the U.S. for years could still be treated as “seeking admission” to the country and therefore subject to mandatory detention without bond. Judges who have sided with ICE say this is a logical — even obvious — conclusion that would ensure people who successfully evade detection at the border aren’t given greater due process rights than those that present themselves to authorities soon after entering the country.

In a dissent from the 4th Circuit’s ruling, Judge Allison Rushing, a Trump appointee, said the fact that no prior administration embraced its full enforcement power does not mean the Trump administration’s decision to do so is illegal.

“The majority clearly has strong views about what it considers the ‘moral implications’ of denying individuals bond during their removal proceedings,” Rushing wrote, but said the court must be bound by interpretations of the law that are “grounded in the Constitution.”

The vast majority of courts, however, say Congress’ judgment in 1996 clearly did not contemplate the largest mass detention policy in American history — and if it did, it would have made the policy explicit, not buried in legalese fine print and unnoticed for 30 years. And they say it would render superfluous one of Trump’s top policy achievements: the Laken Riley Act, which required detention without bond for immigrants charged or convicted of certain crimes.