Ninth Circuit deepens split over Trump’s mandatory detention policy
The U.S. Court of Appeals for the 9th Circuit ruled against the Trump administration’s policy of mandatory detention for illegal immigrants. A three-judge panel, in a 2-1 decision, concluded that the 1996 Immigration and Nationality Act does not support indefinite detention of illegal immigrants during their removal proceedings, contradicting the administrationS interpretation. Judge Daniel Bress, writing for the majority, stated that the government’s new interpretation complicates the law and is less consistent with the statute’s text and history. The dissent, led by Judge Carlos Bea, argued that the statutory language supports the administration’s policy, emphasizing that detainees without admission shoudl be subject to mandatory detention.
This ruling added to the division among circuits regarding the legality of the detention policy, with other circuits like the 2nd, 6th, 7th, 10th, and 11th supporting the administration’s stance, while the 5th and 8th circuits opposed it. A similar split was seen in a decision by the 7th Circuit, which also found the policy unsupported by the INA, prompting calls for Supreme Court review. U.S. Circuit Judge Diane Sykes expressed hope that the Supreme Court will resolve the split, with petitions for certiorari already filed. The Supreme Court’s next term begins in October 2026, and it is expected to address these issues during that session.
The U.S. Court of Appeals for the 9th Circuit handed the Trump administration a loss Thursday on its policy of mandatory detention for illegal immigrants, adding to the deep divide among federal appeals courts on the legality of the policy.
A three-judge panel on the 9th Circuit ruled 2-1 to reject the Trump administration’s assertion that the 1996 Immigration and Nationality Act permits them to keep illegal immigrants detained indefinitely while their removal proceedings play out in court. The Trump administration argues the INA has allowed this policy, but that previous presidential administrations declined to enact it. The 9th Circuit joined the 2nd, 6th, 7th, 10th, and 11th Circuits in rejecting the administration’s policy, countering the 5th and 8th Circuits, which have said the policy is lawful.
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“We conclude that the text, context, and structure of the INA, considered as a whole, did not direct such a significant, yet overlooked, change in the law,” U.S. Circuit Judge Daniel Bress, an appointee of President Donald Trump, said in his ruling. “Although no reading of the complicated and interrelated textual provisions at issue here is without some shortcomings, the historical understanding of the statute is the better one.”
“The government’s new interpretation, by contrast, is less consistent with the statutory text and introduces a series of interpretative complications. We accordingly do not think that Congress in 1996 made such a large-scale change to our established system of immigration detention in the way that the government now contends,” Bress added.
The ruling by Bress for the 9th Circuit panel was joined by U.S. Circuit Judge M. Margaret McKeown, a Clinton appointee. U.S. Circuit Judge Carlos Bea, an appointee of former President George W. Bush, wrote the dissent, arguing that the text of the INA supports the administration’s mandatory detention policy and noting the two appeals courts that have endorsed the policy as lawful.
“Much of what I write here in dissent has been said before in the opinions and dissents of the five Circuit Courts which have decided cases similar to this appeal. Nonetheless, out of respect for the majority, I address their several arguments and explain why I dissent from each of them,” Bea wrote. “Because I conclude that the text determines that aliens present without admission who are apprehended inside the United States are subject to mandatory detention without bond under § 1225(b)(2)(A), I respectfully dissent.”
The 9th Circuit’s ruling came the same day a panel on the 7th Circuit also handed down a 2-1 ruling that found the INA does not support the administration’s stance. A pair of Biden appointees were in the majority for the ruling, with U.S. Circuit Judge Diane Sykes, a Bush appointee, dissenting and urging the Supreme Court to resolve the split between the different appeals courts.
“At this point, only the Supreme Court can bring uniformity and settle this question once and for all. I anticipate that it will do so soon. The Solicitor General has filed two petitions for certiorari asking the Supreme Court to review the decisions of the Second and Sixth Circuits addressing this very question,” Sykes wrote.
“I hope the Court accepts the Solicitor General’s invitation. The arguments on both sides have been fully ventilated, the circuits are deeply split, and our court has joined the wrong side,” Sykes added.
The next time the Supreme Court is likely to announce cases it will take up for arguments during its next term is in October, when the high court’s next term begins. The Supreme Court’s next term will go from October 2026 until the end of June 2027.
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