The Trump administration’s policy of detaining immigrants who crossed the border illegally years ago and then holding them without a bond hearing was ruled to be unlawful by an appeals court on Tuesday.
The unanimous ruling by a three-judge panel from the U.S. Court of Appeals for the Second Circuit creates a split with two other appeals courts that have concluded the administration’s policy is legal. The split means the issue is likely to be reviewed and ultimately decided by the Supreme Court. Tuesday’s opinion was written by one of President Trump’s first-term appointees, Judge Joseph F. Bianco, a law professor and former federal prosecutor.
The 61-page opinion harshly rebukes the administration’s aggressive interpretation of immigration law, by which the administration deems anyone who crossed the border illegally to still be “seeking admission” no matter when they came to the country. That would make them a potential target for indefinite detention under federal law, even if they have been living and working in the United States for years.
Writing for the panel sitting in Manhattan, Judge Bianco said the government had made an “attempt to muddy these textually clear waters.” He wrote that the administration’s interpretation of the law “defies the statute’s context, structure, history, and purpose” and contradicts “longstanding executive branch practice.”
The ruling echoes concerns raised by Judge Ralph R. Erickson, a Trump-appointed judge on the U.S. Court of Appeals for the Eighth Circuit who dissented from a March ruling that upheld the administration’s policy.
The administration’s use of the policy has led to thousands of migrants being detained for months. Many have filed petitions challenging the legality of the detentions. The flood of cases has at times overwhelmed the federal courts as well as the Justice Department’s capacity to promptly comply with orders from judges to release immigrants deemed to be unlawfully detained.
During his first term, Mr. Trump championed judges like Mr. Bianco, a Catholic deacon and longtime member of the conservative Federalist Society who once expressed admiration for the former Supreme Court Justice Antonin Scalia. “I strongly share his originalist or textualist philosophy,” Judge Bianco told a county bar association, according to materials provided to the Senate during his confirmation process. He was first elevated to the federal bench by President George W. Bush. The Federalist Society is associated with originalism — a set of legal theories that emphasize the text and original meaning of the law.
“We join the overwhelming majority of federal judges across the nation,” Judge Bianco wrote, “and conclude that the government’s novel interpretation of the immigration statutes defies their plain text.”
Judge Alison J. Nathan, an appointee of President Joseph R. Biden Jr., and Judge José A. Cabranes, an appointee of President Bill Clinton, joined Judge Bianco in his opinion. The Justice Department did not immediately respond to a request for comment.
“The law is clear,” said Michael K.T. Tan, a lawyer for the American Civil Liberties Union who represented the petitioner, Ricardo Aparecido Barbosa da Cunha, during the appeal. “The government can’t lock up immigrants like Mr. Barbosa da Cunha without giving them the basic due process of a bond hearing. This ruling is an important victory, and we are thrilled for our client and his family.”
Mr. Barbosa da Cunha was born in Brazil but entered the United States more than 20 years ago, then applied for asylum in 2016 and obtained a work permit. Officers from Immigration and Customs Enforcement arrested him under the new policy in September 2025 while he was driving to work in Norwood, Mass., and began taking steps to deport him.
Tuesday’s ruling affirmed a district-court judge who had ordered Mr. Barbosa da Cunha to be released on bond after determining that he was neither a flight risk nor a threat to public safety. If the government wants to contest the ruling, it could seek a rehearing by the full appellate court or ask the Supreme Court to intervene.
In addition to those judges who have found that the policy violates statute, some judges have ordered detainees to be released on constitutional grounds.
On Wednesday, the U.S. Court of Appeals for the Fifth Circuit will hear arguments in a case where the petitioners argue that the Trump administration’s policy violates their due process rights under the Fifth Amendment. That court, which has appellate jurisdiction over Texas, Louisiana and Mississippi, has already issued a ruling finding the statutory interpretation the administration has used to detain migrants without bond to be legal.
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