The Growing Circuit Split Over Mandatory Detention
By Mercy Li
On September 10th, 2026, the Fourth Circuit Court of Appeals rejected one of the Trump administration’s most sweeping immigration policies. Due to a reinterpretation of established immigration laws, over thousands of noncitizens are now facing indefinite detention. Consequently, in a 2-1 decision, the Fourth Circuit became the ninth federal appeals court to rule that unauthorized immigrants living in the United States cannot be automatically subject to detainment without the opportunity for a bond hearing, with Judge Nicole Berner likening such detentions to the “historical stain” of Japanese internment in World War II. The ruling deepens a growing circuit split between the appellate courts, with the Fifth and Eighth Circuits having reached the opposite conclusion.
The case brought to the Fourth Circuit, Lopez Garcia v. Guadian, involved two noncitizen immigrants, Oscar Enrique Lopez Garcia and Juan Jose Rivera, both of whom entered the United States without authorization. Nonetheless, both had lived in the United States for decades, having formed significant ties to their community before being detained in October 2025. Prior to the Trump administration’s policy change in July 2025, such cases were typically reviewed on an individual basis by an immigration judge and given a release on bond, barring that the noncitizen had committed certain crimes or was considered a flight risk. However, instead, both were detained without the opportunity for bond hearings.
This revision in policy stems from a reinterpretation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which had greatly expanded the authority of the government to detain and deport immigrants. The act required the mandatory detention of “an alien seeking admission” who is not “clearly and beyond a doubt entitled to be admitted.” Although the act created the legal basis for detention without individualized bond hearings, in previous administrations, the phrase “seeking admission” was interpreted broadly in a functional and time-bound sense, applying only to those who were seeking entry at the border. However, the current administration has now expanded that interpretation to include noncitizens who already reside within U.S. borders, deeming that noncitizens who had entered without inspection were still legally “seeking admission,” hence qualifying them for mandatory detention.
Currently, only the Fifth and Eighth Circuits have upheld the government’s interpretation, while the other nine have rejected it. For instance, the Fifth Circuit’s ruling focused on a strict reading of the text of the 1996 statute, with Judge Edith Jones writing in Buenrostro-Mendez, “Congress’s purpose matters far less than what it wrote.” The opinion argued that no matter whether a noncitizen was within the borders or not, as long as they were applying for admission, they were necessarily seeking admission. On the contrary, in Cirrus Rojas v. Olson, the Seventh Circuit ruled that because Congress had left “seeking admission” undefined, courts should resort to ordinary meaning, and an immigrant already residing within U.S. borders would not be seeking admission in an ordinary sense. Similarly, in Lopez Garcia v. Guadian, the Fourth Circuit ruled that “seeking admission” and “applicant for admission” were legally distinct, as noncitizens already in the country were not requesting entry at the border. Moreover, it also follows that the 2025 Laken Riley Act’s expansion of mandatory detention to certain crimes would be pointless under Congress’ interpretation.
Although all eleven regional circuits have now reached their respective decisions, the questions surrounding mandatory detention do not end there. For many jurisdictions, there still remains the question of due process, as courts consider the constitutional implications of indefinite mandatory detention. For instance, though the Fifth Circuit ruled in favor of the administration’s reading of mandatory detention, the court nonetheless ruled against the prolonged holding of long-term residents by way of the Due Process Clause. On July 2nd, the case Sosnava Rodriguez v. Ortega had mandated an individualized custody hearing for detained noncitizen residents within 90 days of detention. However, eight days later, due to the gravity of the decision, the full court vacated the decision and ordered a rehearing en banc. On July 14th, the court subsequently vacated the decision, and the case is now scheduled for oral argument before September 24th. Consequently, the issue of due process still remains open for contestation in the Fifth Circuit and many others.
Cases where the appellate courts are so deeply divided as this one are almost certain to be reviewed by the Supreme Court in upcoming terms. Another case dealing with prolonged mandatory detention was Genalo v. Black, which was originally set to be heard by the Supreme Court next month before it was mooted, as one of the men had left the U.S. and the other had been pardoned for their crime. Although the two men in the case were not under mandatory detention because of the current administration’s reinterpretation of the IIRIRA but rather because of certain crimes they had committed, the case still could have addressed pertinent questions surrounding the constitutionality of indefinite detention without the possibility of a bond hearing.
It would be far from the first time where the Supreme Court had to address questions surrounding the limits of mandatory detention. In 2001, under Zadvydas v. Davis, the court limited the government’s ability to detain those who had been detained but could not be deported because of poor U.S. diplomatic relations with their country of origin, on the basis of due process. However, in 2003, under Demore v. Kim, the court also ruled that mandatory detention without the possibility of a bond hearing was permissible as long as immigration court proceedings were ongoing. The tension between Zadvydas and Demore remains central to the circuit split at hand. Demore recognizes that immigration detention can serve legitimate governmental purposes, while Zadvydas establishes that those purposes do not give the government unlimited authority to deprive a person of liberty indefinitely. The current circuit split forces the courts to confront where that constitutional boundary lies when mandatory detention is expanded to people who have lived in the country for years.
The implications of this circuit split are wide and ranging. In splits such as these, geography controls— the administration’s reinterpretation is enforced unevenly throughout the country, with some immigrants being able to attain releases on bond while others are detained indefinitely. Such varying differences across circuits creates additional legal complications and hurdles for detained immigrants. Noncitizens detained by the government are governed by the law of the circuit that they are geographically confined within, not the removal venue, which means that being transferred can completely shift the rights they are entitled to. As Genalo v. Black was recently mooted, it may be months before the Supreme Court is able to address the issue of mandatory detention. Should the Supreme Court rule in favor of the reinterpretation of the IIRIRA, data suggests that over six million people who would have previously been afforded bond hearings would be subject to mandatory detention. Until then, a resident noncitizen’s right to a bond hearing depends entirely on where they are detained.
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