Why Circuit Courts Keep Reaching Opposite Conclusions on Immigration Detention

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More than 360 federal judges said no. Then one appeals court said yes.

On February 6, 2026, a divided panel of the Fifth Circuit Court of Appeals sided with the Trump administration’s new rule about how long immigrants can be held without a hearing. The 2-1 decision said the government could hold people in detention without bond hearings simply because they entered the country illegally—even if that happened years or decades ago, even if they’ve built families and careers here, even if they pose no apparent danger or flight risk.

Three Decades of Consistent Practice

For nearly three decades, both Republican and Democratic administrations answered the same question the same way: Can you detain someone indefinitely without a hearing because of how they entered the country years ago? No. Under consistent practice through multiple presidencies, people caught inside the country (not at the border)—weeks, months, or years after crossing—could request a bond hearing. An immigration judge would decide whether they needed to be locked up or could be released while their case proceeded.

In 2025, the Department of Homeland Security began implementing new guidance that declared these same individuals “applicants for admission”—people the government says are still trying to enter the country—subject to mandatory detention under Immigration and Nationality Act Section 1225(b)(2)(A), a law that doesn’t allow bond hearings. The Board of Immigration Appeals formally adopted this position in September 2025.

As of mid-January 2026, approximately 73,000 people sit in immigration detention facilities across the United States. Many are long-term residents with jobs, children in school, mortgages. Under the new interpretation, they face indefinite detention without anyone ever determining whether confinement is needed.

When immigration judges started denying the government’s authority to hold people this way, district courts began granting requests to release detainees. Then the Fifth Circuit broke ranks.

The Fifth Circuit’s Reasoning

Writing for the majority, Reagan-appointed Judge Edith Jones concluded the statutory language was unambiguous. People who entered without proper admission remain “applicants for admission”—people the government says are still trying to enter the country—indefinitely, subject to mandatory detention, regardless of how long they’ve lived here. “The text says what it says, regardless of the decisions of prior Administrations,” Jones wrote. Previous administrations “decided to use less than their full enforcement authority…does not mean they lacked the authority to do more.”

Trump-appointed Judge Stuart Kyle Duncan joined her. Biden-appointed Judge Dana Douglas dissented sharply, writing that the government’s reading would require detention without bond of “as many as 2 million immigrants residing in the United States—’some of them the spouses, mothers, fathers, and grandparents of American citizens.'”

The decision creates a geographic lottery. If you’re detained in Texas, Louisiana, or Mississippi—the states the appeals court covers—the new rule applies. No bond hearing, no matter your circumstances. If you’re detained in California or other Ninth Circuit states, different protections might apply. Same facts, opposite outcomes, depending on where ICE picks you up.

The Statutory Ambiguity

Congress never clearly explained what the law means about when someone stops being an “applicant for admission” seeking entry and becomes someone “present in the United States” subject to different rules. This distinction matters enormously. The law mandates detention without bond for applicants for admission—the harsh regime the government now seeks to apply universally. But it allows immigration judges discretion to release other detained people on bond after an individualized hearing.

Section 1225(b)(2)(A) says if an immigration officer determines that an alien “seeking admission” is “not clearly and beyond a doubt entitled to be admitted,” that alien “shall be detained” pending deportation hearings. The statute defines “applicants for admission” to include “an alien present in the United States who has not been admitted or paroled.”

But does someone caught in Houston three years after crossing the border qualify as currently “seeking admission”? Or did that status end once they entered the country’s interior and became simply “present in the United States” without having been admitted?

For nearly three decades, the executive branch—through Republican and Democratic administrations alike—answered this question consistently. An internal DHS interpretation maintained that Section 1226(a) lets judges decide each case individually whether to release someone—and that law governed detention of people caught in the interior. This meant thousands of individuals with long-standing ties could be held only if the government proved they posed a flight risk or danger.

The Trump administration’s reinterpretation flips this entirely. Under its reasoning, the plain text governs, regardless of how prior administrations understood it. The government points to the statutory language defining applicants for admission—it includes “an alien present in the United States who has not been admitted,” making no exception for those present for years. Section 1226(c), a law requiring detention for people with specific criminal convictions, would be partially superfluous if Section 1225(b) didn’t also apply to some people caught inside the country.

Federal judges reaching the opposite conclusion focus on different textual clues. They note that “seeking admission” suggests an active, ongoing process—someone trying to enter the country, not someone who entered illegally a decade ago. District judges have pointed out that applying mandatory detention to someone caught years after entry produces what one judge called an “absurd result” Congress presumably didn’t intend—especially since Section 1226(a) explicitly provides the mechanism for bond hearings. Multiple judges noted this interpretation nullifies large portions of Section 1226(a) for this entire class of people, rendering statutory language meaningless.

Textualism Versus Holistic Interpretation

The appeals court majority embraced textualism—focusing only on the exact words written in the law, regardless of how prior administrations applied them. The dissenting judges and hundreds of district judges employed a more holistic approach—considering statutory structure, historical practice, legislative history, and the principle that you shouldn’t read statutes to make other provisions pointless.

This methodological split reflects broader battles within the federal judiciary about how courts should interpret ambiguous statutes. Consider how Reagan-appointed Judge Jones handled the three-decade administrative consensus. She said prior practice was irrelevant—those administrations simply chose not to exercise their full authority. To judges who rejected the policy, that reasoning misses the point. When multiple administrations operating under different political ideologies all adopt the same interpretation, it suggests something about what the statute genuinely permits. When Congress rewrote detention statutes in 1996, it did so against the backdrop of existing practice, which presumably informed what Congress understood the statute to mean.

Judges emphasizing original public meaning and exact statutory text look primarily at what the statute’s words meant at enactment, with less weight given to administrative practice. Judges emphasizing statutory structure and legislative history weigh prior consistent practice more heavily. The textualist approach reflects a judicial philosophy that’s become increasingly prominent in conservative legal circles. District judges, who encounter constitutional concerns more vividly through individual cases, more often employ the holistic approach.

Constitutional Concerns

Lurking beneath the statutory debate is a deeper constitutional concern. The Constitution says the government can’t take away someone’s freedom unfairly—and the Supreme Court has explicitly held this protection extends to noncitizens in deportation hearings.

District judges handling hundreds of requests to release detainees have frequently concluded the constitutional concern is real. Other judges noted individuals detained for more than a year without any bond hearing, without criminal records, with established family ties—exactly the sort of prolonged detention that raises constitutional red flags.

These constitutional concerns help explain why the disagreement breaks down only partially along ideological lines. While Trump-appointed judges are more likely to support the administration’s position, many appointed by Republican presidents rejected it anyway. Conservative judges have demonstrated commitment to constitutional limits on executive detention power, particularly when indefinite confinement appears truly unlimited.

The End of Chevron Deference

Until recently, courts applied a rule that courts had to trust the government’s interpretation: when a statute was ambiguous, courts deferred to an agency’s reasonable interpretation. This doctrine would have favored the Trump administration’s novel interpretation, since it came from the agency responsible for administering immigration law.

In June 2024, the Supreme Court eliminated that rule in Loper Light Enterprises v. Raimondo, holding that courts must interpret statutes themselves rather than deferring to agency interpretations, even reasonable ones.

By the time DHS issued its new detention policy in 2025, the legal framework had already shifted. Yet different judges have drawn different conclusions about what should replace the old rule. Under the new regime, agencies’ views are relevant but not controlling. Some judges treat the administration’s interpretation as merely one consideration among many, while others give it substantial weight as reflecting agency expertise.

Geographic Variation in Legal Rights

The federal appeals system is organized geographically, with each of 13 circuits hearing cases from specific regions. This geographic organization matters enormously for immigration law, because enforcement is geographically concentrated and the composition of each appeals court varies significantly.

The Fifth Circuit—covering Texas, Louisiana, and Mississippi—has become conservative. Judge Jones was appointed by Reagan and has served for decades; Judge Duncan was appointed by Trump. The appeals court has a conservative majority, and its immigration decisions reflect that composition.

By contrast, the Ninth Circuit, covering the western United States including California, has a more moderate to liberal composition and has consistently provided greater protection to immigrants’ rights. Multiple states filed a formal statement with the Ninth Circuit opposing mandatory detention without hearings, arguing detention is often unnecessary and causes profound harms to families and communities. The Third Circuit has developed case law requiring individualized hearings once detention becomes prolonged—protection the Fifth Circuit explicitly rejects.

A Venezuelan national who entered illegally five years ago but has since established a family and job would face mandatory detention without any bond hearing if held in Texas. If detained in California, different protection might apply. If detained in the Third Circuit, yet another legal standard would govern.

This geographic variation in fundamental legal rights has drawn criticism from scholars and judges who argue it’s inherently unfair and creates perverse incentives for how enforcement resources are deployed. The political composition of circuits reflects appointment patterns—Republican appointees, particularly Trump appointees, tend to give greater deference to executive enforcement authority. Democratic appointees tend to scrutinize detention more carefully. Yet some Republican appointees have rejected the administration’s position, suggesting judicial philosophy and constitutional concern matter independently of partisan appointment.

Path to Supreme Court Review

Given the stark disagreement between the Fifth Circuit and hundreds of district judges—and the probability of conflicting decisions from other circuits—Supreme Court intervention appears nearly inevitable. Multiple circuits have immigration detention cases scheduled for oral argument in coming months. The existence of a disagreement between courts is the main reason the Supreme Court takes a case.

Several procedural paths could bring this case to the Supreme Court. The government could ask for review, seeking reversal of lower court rulings that rejected its interpretation. Alternatively, detained individuals could ask the Supreme Court to review the Fifth Circuit’s decision. Given the stakes—affecting potentially millions of noncitizens currently in the country without legal status—and the clear split, the Supreme Court would face pressure to grant review relatively quickly.

The Supreme Court’s current composition suggests how the case might be decided. Six of the nine justices tend to favor government power, and several conservative justices have shown skepticism toward immigrants’ rights claims. Yet the Supreme Court has also shown some willingness to limit executive detention power based on constitutional concerns. Justice Barrett’s position remains somewhat uncertain on immigration issues, and she could potentially be a swing vote.

Real-World Consequences

Vera Institute data shows more than 290,000 people have been detained by ICE since the start of Trump’s second term. Many are detained under this new mandatory detention policy, unable to access bond hearings that might lead to their release.

Consider someone detained in Fifth Circuit jurisdiction—Texas, Louisiana, or Mississippi. Under the new rule, that person will remain in detention without any bond hearing unless ICE chooses to release them for compassionate reasons. Average detention length in the Fifth Circuit exceeds 90 days for nearly 40 percent of detainees. Detention costs approximately $152 per person per day, whereas case management programs cost $4 per day and achieve nearly perfect compliance with court dates. A person detained for six months costs taxpayers over $27,000 in detention expenses, yet would likely appear for their immigration proceedings regardless.

Families are separated when a parent is suddenly detained at a required ICE check-in or removed while picking up children from school. People lose jobs and homes because they cannot work while detained. Children experience trauma and psychological distress when parents disappear into detention facilities, often transferred far from family and community.

The empirical case for mandatory detention appears weak. The Trump administration has justified the policy as necessary to prevent flight or protect public safety, yet the overwhelming majority of those detained pose neither risk. Case management programs show near-perfect compliance—99 percent of individuals appear for required ICE officer appointments and 100 percent appear for court hearings when assigned a case manager.

A Vietnamese national detained under the new policy has sued based on constitutional violations. A Venezuelan with legal permission to stay in the country temporarily was detained after her status expired. Countless others with deep community ties find themselves locked up without any judicial determination that detention remains necessary.

Judicial Disagreement and Caseload Pressure

This split reflects a deeper crisis within the federal judiciary over how to approach a highly charged and politicized issue. Federal judges have sworn an oath to interpret law faithfully according to their best understanding, yet they operate within a system in which judicial appointments have become nakedly political and the same ambiguous statute yields opposite conclusions depending on which judge decides.

One judge compared the situation to Sisyphus rolling a boulder uphill, as the Trump administration filed the same cases repeatedly with slightly different facts, generating the same judicial rejections. Other judges began issuing terse, carbon-copy rulings to dispatch the overwhelming caseload. This pattern suggests the repeated judicial rejections represent genuine disagreement rather than random variation—the consistency across geographic regions, judicial philosophies, and appointment sources points to real statutory and constitutional problems with the detention policy.

Yet the Fifth Circuit’s decision demonstrates this isn’t a unanimous judgment among appellate judges. Two experienced judges, including one with decades of service, concluded that textualism and proper deference to executive interpretation required upholding the policy. Their reasoning, while rejected by the broad judicial consensus, reflects a coherent judicial philosophy and the federal government’s institutional interest in enforcement discretion.

Pending Circuit Court Decisions

Multiple federal appellate courts are currently considering immigration detention issues. The Seventh Circuit has signaled opposition to the administration’s position based on preliminary rulings. The Ninth Circuit has cases pending and will likely receive arguments from 19 states opposing mandatory detention. The Second, Third, and Fourth Circuits have related cases in their dockets. Within weeks or months, these other circuits will likely issue decisions, either reinforcing the Fifth Circuit’s approach or deepening the split.

If other circuits reject the Fifth Circuit’s reasoning, the Supreme Court will face mounting pressure to intervene. A Supreme Court decision could definitively resolve which interpretation is correct. A decision upholding the Fifth Circuit would expand mandatory detention substantially; a decision reversing would constrain it.

Congress could also intervene. The statute’s ambiguity persists partly because Congress has never clearly specified its intent regarding detention of people caught in the interior. Legislative clarity could resolve the split immediately, but current partisan polarization makes immigration reform legislation unlikely. Absent Supreme Court intervention or legislative action, the split will persist, creating geographic variation in legal rights and enforcement discretion.

Ambiguity and Judicial Choice

The Fifth Circuit’s February 2026 decision represents a watershed moment—the first appellate court to embrace the Trump administration’s radical reinterpretation of immigration detention law. Yet that decision exists in jarring contradiction with the near-universal rejection by district judges nationwide and the likely future disagreement of other appellate circuits.

Immigration detention statutes contain genuine ambiguities about whom they cover and under what circumstances detention may occur. Reading a law requires judges to make choices about how to weight competing textual clues, how much deference to give administrative practice, whether to avoid constitutional problems by interpreting the statute narrowly, and how to read statutory provisions coherently as a whole. Different judges, acting in good faith and applying different judicial philosophies, reach opposite conclusions about what the same statute permits.

These disagreements carry staggering real-world consequences for over 70,000 people currently detained in immigration facilities, many of whom pose no danger or flight risk. An identical set of facts yields opposite legal outcomes depending on geographic location and judicial assignment—an outcome federal judges themselves have criticized as fundamentally unfair.

The split that has emerged will almost certainly reach the Supreme Court, which will be forced to choose between competing interpretations and determine definitively what due process rights noncitizens possess during immigration detention. Until that resolution arrives, thousands of immigrants will remain in detention without bond hearings under the Fifth Circuit’s new rule, while others in different circuits may continue to receive the judicial review that district judges nationwide have deemed constitutionally necessary.

The disagreement between courts reflects genuine constitutional and statutory tension about how to balance executive enforcement discretion against individual liberty and due process protection. For now, the federal judiciary speaks with a divided voice. The people caught in that division bear the consequences.

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