Eleventh Circuit joins second circuit in rejecting mandatory detention without bond hearings

On May 7, 2026, a three-judge panel of the Eleventh Circuit Court of Appeals ruled 2-1 against the Trump administration's mandatory detention policy. Circuit Judge Beverly Martin and Judge Jill Pryor wrote the majority opinion; a dissenting opinion noted disputes over statutory interpretation. The ruling applied to noncitizens arrested in the interior (not at the border) and found that immigration law requires individualized bond hearings before detention. (11th Circuit Opinion)

The case, Alvarez v. Warden, Federal Detention Center Miami (No. 25-14065), involved two Mexican citizens living in Florida who were arrested by ICE after routine traffic stops in September 2025. They were detained without bond under the administration's no-bond policy despite having no criminal records. (Justia)

The Eleventh Circuit joins the Second Circuit, which issued a similar 3-0 ruling on April 28, 2026. Both courts rejected the government's argument that anyone who entered without legal status can be detained automatically. Circuit Judge Joseph Bianco, a Trump appointee confirmed in 2020, wrote the Second Circuit's opinion and found the statute's language 'unambiguous.' (National Law Journal)

The Second Circuit case involved Ricardo Aparecido Barbosa da Cunha, a Brazilian construction worker who lived in the U.S. since 2005, applied for asylum in 2016, received work authorization, and was arrested during his drive to work. He was denied bond under the no-bond policy despite no criminal record. (GPB News)

The circuit split now stands at a 2-2-1 divide: the Second and Eleventh Circuits reject mandatory detention; the Fifth and Eighth Circuits upheld it; the Seventh Circuit deadlocked 1-1-1, failing to break a tie. Federal immigration law differs by region: bond hearings are required in Atlanta (11th Circuit) and New York (2nd Circuit), but not in New Orleans (5th Circuit) or the Midwest (8th Circuit). This kind of split creates strong pressure for Supreme Court review. (Christian Science Monitor)

More than 300 federal district court judges across the country have ruled against ICE's reclassification policy, finding that immigrants arrested in the interior should receive bond hearings. (American Immigration Council)

The policy at issue began on July 8, 2025, when ICE Acting Director Todd M. Lyons issued a memo expanding mandatory detention beyond INA SS 236(c), which applies to specific criminal categories. The memo reclassified anyone who entered without inspection as an 'applicant for admission' under SS 235(b)(2)(A), subjecting them to mandatory detention without bond. (Immigration Policy Tracking Project)

The policy applies regardless of how long someone has lived in the U.S., whether they have pending asylum applications, work authorization, or U.S. citizen children. The scope was massive: more than 65,000 noncitizens were detained under this policy without bond hearings as of May 2026. (Axios)

The core statutory dispute turns on a narrow but high-stakes question. INA SS 236(a) grants immigration officers discretion: they 'may' arrest and detain aliens pending removal, but individual circumstances must be weighed. INA SS 236(c) uses mandatory language: DHS 'shall' detain any alien removable for specified crimes. (CRS Legal Sidebar)

The administration argues that anyone who entered without inspection is an 'applicant for admission,' a legal category subject to SS 235(b)(2)(A)'s mandatory detention. The courts argue that the statute uses 'applicant for admission' to mean people at the border or ports of entry, not people arrested deep in the interior years after arrival. Both the Second and Eleventh Circuits emphasized the statutory text and concluded that SS 236(a), not SS 235(b)(2)(A), governs interior arrests. (11th Circuit Opinion)

Historical precedent constrains this fight. In Demore v. Kim (2003), the Supreme Court upheld mandatory detention under SS 236(c) for criminal aliens, but only for that narrow category. The Court emphasized that detention must be tied to criminal conduct. In Zadvydas v. Davis (2001), the Supreme Court held that indefinite post-removal detention violates due process: once an alien is ordered removed, the government can't hold them forever while waiting for a country to accept them. (Demore v. Kim) (Zadvydas v. Davis)

Both precedents reject indefinite detention without limit. The Eleventh Circuit applies this principle: SS 236(a)'s discretionary language ('may' detain) implies individualized assessment, not categorical detention.

After the Supreme Court abolished Chevron deference in Loper Bright Enterprises v. Raimondo (June 2024), courts interpret statutes independently without deferring to agency guidance. Chief Justice John Roberts wrote that 'Chevron is overruled' and courts 'must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.' (Loper Bright)

This matters because, before Loper Bright, courts had to accept the agency's interpretation if it was 'reasonable.' Now courts determine the statute's best reading on their own. The Eleventh Circuit couldn't defer to DHS's interpretation that interior arrivals count as 'applicants for admission.' The court had to read the statute itself. (Lexology)

A bond hearing is a proceeding where an immigration judge determines whether detention is justified. The Executive Office for Immigration Review (EOIR) defines bond proceedings as hearings where judges assess whether release is appropriate. Judges weigh danger to the community, flight risk, and national security. The burden falls on the detained person to prove they're not a danger and are likely to appear for future proceedings. (EOIR Policy Manual)

Immigration judges deny bond regularly. Bond amounts, when granted, typically range from $1,500 to $25,000. The May 7 ruling treats bond hearings as a due process right under INA SS 236(a), not a discretionary favor. (ILRC)