Fourth Circuit rejects Trump administration ICE detention policy, ninth appeals court to rule against it

On September 10, 2026, the 4th U.S. Circuit Court of Appeals ruled 2-1 against the Trump administration's July 2025 policy mandating the detention of undocumented immigrants without bond. The decision, written by Judge Nicole Berner, compared the policy to the World War II internment of Japanese Americans. The ruling marks the ninth federal appeals court to reject the policy, which applies mandatory detention to interior residents who have lived in the U.S. for decades, setting the stage for a likely Supreme Court showdown.

Fourth Circuit detention ruling

• ▪The 4th U.S. Circuit Court of Appeals case involved Oscar Enrique Lopez Garcia of El Salvador and Juan Jose Rivera of Guatemala, who had lived in the U.S. for over two decades before being detained by ICE in 2025.
• ▪The 4th U.S. Circuit Court of Appeals held that Section 1226 of the Illegal Immigration Reform and Immigrant Responsibility Act, which permits bond hearings, governed the detention of Oscar Enrique Lopez Garcia and Juan Jose Rivera.
• ▪On September 10, 2026, the 4th U.S. Circuit Court of Appeals ruled 2-1 against the Trump administration's policy of detaining certain undocumented immigrants without bond.
• ▪The 4th U.S. Circuit Court of Appeals majority opinion was written by Judge Nicole Berner and joined by Senior Judge Barbara Keenan, with Judge Allison Jones Rushing dissenting.

ICE mandatory detention policy shift

• ▪The Trump administration's mandatory detention policy relies on interpreting immigrants who entered unlawfully as 'applicants for admission' under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.
• ▪In July 2025, the Trump administration announced a policy to mandate the detention of any undocumented immigrant found in the U.S. whom Immigration and Customs Enforcement determines was not granted permission to enter.
• ▪The July 2025 policy shift applied mandatory detention without bond to immigrants residing in the interior of the country, whereas prior administrations applied it only to recent border crossers.

Appeals court split on detention

• ▪The First, Second, Third, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have ruled against the mandatory detention policy, while the Fifth and Eighth Circuits have backed it.
• ▪More than 460 federal judges have rejected the Trump administration's mandatory detention approach, while just over 50 have sided with it.
• ▪Nine federal appeals courts, including the 4th U.S. Circuit Court of Appeals, have ruled against the Trump administration's mandatory detention policy, while two appeals courts have upheld it.
• ▪The Department of Homeland Security recently sought U.S. Supreme Court review of a 6th U.S. Circuit Court of Appeals decision that ruled against the mandatory detention policy.

Historical detention comparisons

• ▪4th U.S. Circuit Court of Appeals Judge Nicole Berner compared the Trump administration's mass detention policy to the World War II internment of Japanese Americans and the 1890s detention of Chinese immigrants under the Geary Act.
• ▪In her dissent, Judge Allison Jones Rushing criticized the 4th U.S. Circuit Court of Appeals majority for focusing on moral implications and comparing immigration detention to internment camps.
• ▪Judge Nicole Berner noted that the Trump administration's interpretation of the immigration statute could require the arrest of around 6 million people, dwarfing historical mass detentions.

Bond hearing due process rights

• ▪Bond hearings require the government to prove that a detained noncitizen poses a danger to the community or is a flight risk to continue detention before removal proceedings.
• ▪The 4th U.S. Circuit Court of Appeals ruling means noncitizens within its jurisdiction will not need to file habeas corpus petitions in federal courts to seek bond hearings.
• ▪Immigrant rights groups, including the ACLU, argue that denying bond hearings to longtime residents during removal proceedings violates basic due process rights.

Debatable claims

• ▪Comparing Trump's immigration detention policy to WWII internment is justified
• ▪The Trump administration's mandatory detention of interior undocumented immigrants is lawful