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SeriesImmigration detentionOctober 1, 2026

Immigration detention · October 1, 2026 · updated 2026-10-06

The Supreme Court will decide whether immigrants who have lived here for years must be jailed for their whole deportation case without a bond hearing

For three decades they could ask for release. In July 2025 the Trump administration said the law forbids it. Nine federal appeals courts have said it does not.

The storyJust the factsShow the work

What happened

The Supreme Court agreed on October 1 to decide whether the government must keep immigrants locked up for the entire length of their deportation cases if they entered the United States without being legally admitted, including people arrested years after they arrived.12

  • The Supreme Court agreed on October 1 to decide whether the government must keep immigrants locked up for the entire length of their deportation cases if they entered the United States without being legally admitted, including people arrested years after they arrived.12

For nearly 30 years, people in that position could ask a judge to release them on bond while their cases were decided.7 In July 2025, as the Trump administration carried out a sweeping immigration crackdown, it declared that the law forbids those hearings and that the only way out of detention is parole, which the Department of Homeland Security grants case by case.3826

  • For nearly 30 years, people in that position could ask a judge to release them on bond while their cases were decided.7
  • In July 2025, as the Trump administration carried out a sweeping immigration crackdown, it declared that the law forbids those hearings and that the only way out of detention is parole, which the Department of Homeland Security grants case by case.3826

Detained immigrants sued over the change, and the courts split. Most judges, including those on nine federal appeals courts, ruled that the law's no-bond rule covers people caught crossing into the country or soon after, not people who have been living here for years. Read the administration's way, they said, it would mean jailing millions of people without a hearing.4513 Two appeals courts sided with the administration, holding that the law requires detaining all noncitizens who were never admitted.13 Which rule a detained person gets now depends on where they are held.

  • Detained immigrants sued over the change, and the courts split. Most judges, including those on nine federal appeals courts, ruled that the law's no-bond rule covers people caught crossing into the country or soon after, not people who have been living here for years. Read the administration's way, they said, it would mean jailing millions of people without a hearing.4513
  • Two appeals courts sided with the administration, holding that the law requires detaining all noncitizens who were never admitted.13
  • 45Politico tracker, read October 6, 2026At least 20,250 of those were rulings against the administration
  • 13Fourth Circuit opinion, September 10, 2026The First, Second, Third, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits concluded that Section 1226 appliesCongress mandated the detention of millions of peopleSection 1225 applies to all noncitizens who have not been admitted to the United States

One man's case

The Supreme Court took up the case of Ricardo Aparecido Barbosa da Cunha. He came from Brazil in 2004 or 2005 without being inspected at the border, and over the next two decades built a life in Massachusetts, with a wife, two children who are U.S. citizens, a home he owns and a small construction business.7 He applied for asylum in 2016, and while the application was pending he was allowed to stay and work legally. He had never been arrested.7377

  • The Supreme Court took up the case of Ricardo Aparecido Barbosa da Cunha. He came from Brazil in 2004 or 2005 without being inspected at the border, and over the next two decades built a life in Massachusetts, with a wife, two children who are U.S. citizens, a home he owns and a small construction business.7
  • He applied for asylum in 2016, and while the application was pending he was allowed to stay and work legally. He had never been arrested.7377
  • 7Second Circuit opinion, April 28, 2026He lives in Massachusetts with his wife and two U.S.-citizen children, owns his home, and owns and runs a small construction business.In 2016, he applied for asylum and was granted work authorization while his application was under review.Petitioner has never been arrested for or charged with a crime.
  • 37USCIS, Obtaining Asylum in the United StatesYou may live in the United States while your Form I-589 is pending before USCIS.

On September 26, 2025, immigration officers arrested him as he drove to work in Norwood, Massachusetts, and took him to an Immigration and Customs Enforcement (ICE) detention center in Buffalo, New York.714 He asked for a bond hearing and was refused. Three weeks earlier, the Justice Department's immigration appeals board had told immigration judges, who work for the department, that the new rule barred such hearings.79

  • On September 26, 2025, immigration officers arrested him as he drove to work in Norwood, Massachusetts, and took him to an Immigration and Customs Enforcement (ICE) detention center in Buffalo, New York.714
  • He asked for a bond hearing and was refused. Three weeks earlier, the Justice Department's immigration appeals board had told immigration judges, who work for the department, that the new rule barred such hearings.79

He challenged his detention in federal court. Because ICE had moved him to Buffalo, the challenge went through the federal courts in New York rather than Massachusetts, and a judge there ordered the government to give him a bond hearing.714 That matters because a detained person's case goes to the courts where ICE holds them, and those courts do not all agree. In Texas and Louisiana, where the federal appeals court sided with the administration, detained immigrants face more hurdles to release than in most of the country.46 On October 28, an immigration judge found he posed no danger and was not a flight risk. He went home the next day, after 33 days in custody.147

  • He challenged his detention in federal court. Because ICE had moved him to Buffalo, the challenge went through the federal courts in New York rather than Massachusetts, and a judge there ordered the government to give him a bond hearing.714
  • That matters because a detained person's case goes to the courts where ICE holds them, and those courts do not all agree. In Texas and Louisiana, where the federal appeals court sided with the administration, detained immigrants face more hurdles to release than in most of the country.46
  • On October 28, an immigration judge found he posed no danger and was not a flight risk. He went home the next day, after 33 days in custody.147
  • 7Second Circuit opinion, April 28, 2026he had already been transported to an ICE detention facility in BuffaloAn immigration judge, recognizing that Petitioner presents no danger to persons or property or risk of flight, released him on bond.
  • 14Justice Department petitionwithin ten days of its initial text orderA bond hearing was held on October 28, 2025, and respondent was released on bond the next day.
  • 46Associated Press, September 10, 2026those in other places, including Texas and Louisiana, face additional hurdles to seek release

The government appealed. It did not dispute the finding that he was neither dangerous nor likely to flee. Its argument was that under the 1996 law those facts make no difference, and that he had to stay detained for as long as his deportation case lasted.7 In April 2026 the Second Circuit, the federal appeals court for New York, ruled against the government and held that his detention falls under the part of the law that lets a judge grant bond.7

  • The government appealed. It did not dispute the finding that he was neither dangerous nor likely to flee. Its argument was that under the 1996 law those facts make no difference, and that he had to stay detained for as long as his deportation case lasted.7
  • In April 2026 the Second Circuit, the federal appeals court for New York, ruled against the government and held that his detention falls under the part of the law that lets a judge grant bond.7

His deportation case is still open, and his next court date is June 28, 2027. Under the government's reading, he would have been held for the 21 months between his arrest and that date.7 The government had already asked the Supreme Court to decide the question, and on October 1 the Court agreed to hear his case.41

  • His deportation case is still open, and his next court date is June 28, 2027. Under the government's reading, he would have been held for the 21 months between his arrest and that date.7
  • The government had already asked the Supreme Court to decide the question, and on October 1 the Court agreed to hear his case.41

He first filed in federal court in Massachusetts. With both sides agreeing, the case was transferred to the federal court for western New York, where a judge in Rochester ordered the hearing.7

In September 2026 the Second Circuit declined to have its full bench rehear the case. Judge Steven Menashi dissented.815

His lawyer, Paul Dwyer, said Barbosa da Cunha "has never missed an immigration appointment or hearing."33

The warrant officers used to arrest him cited section 236 of the immigration law, the section that allows bond. The government later argued he was held under section 235, which does not.7

What changed

The hearing Barbosa da Cunha was denied had been routine since 1997, when the government's rules for the 1996 immigration law said people who entered without inspection "will be eligible for bond and bond redetermination." Five administrations kept that practice.127

  • The hearing Barbosa da Cunha was denied had been routine since 1997, when the government's rules for the 1996 immigration law said people who entered without inspection "will be eligible for bond and bond redetermination." Five administrations kept that practice.127

The administration framed its immigration crackdown around crime. The first bill President Trump signed in his second term, in January 2025, was the Laken Riley Act, named for a 22-year-old nursing student murdered in 2024 by a Venezuelan man living in the country illegally. It requires detaining immigrants charged with crimes such as theft and burglary.4847

  • The administration framed its immigration crackdown around crime. The first bill President Trump signed in his second term, in January 2025, was the Laken Riley Act, named for a 22-year-old nursing student murdered in 2024 by a Venezuelan man living in the country illegally. It requires detaining immigrants charged with crimes such as theft and burglary.4847
  • 48Roll Call, January 29, 2025the first bill signing of his whirlwind second term
  • 47CBS News, January 29, 2025named after a 22-year-old nursing student who was murdered by an undocumented Venezuelan immigrant last yearexpands mandatory detention to include noncitizens convicted of or charged with burglary, larceny, theft or shoplifting

The bond rule reached far past people charged with crimes. On his first day back in office, Trump ordered the Department of Homeland Security to hold people arrested for immigration violations until their cases were decided, "to the extent permitted by law," and to "allocate all legally available resources" to detention.24 On July 4 he signed a budget law with $45 billion for detention space.25 Four days later, ICE told its employees that the department had "revisited its legal position": everyone who entered without inspection would now be held without a bond hearing, criminal record or not.2610

  • The bond rule reached far past people charged with crimes. On his first day back in office, Trump ordered the Department of Homeland Security to hold people arrested for immigration violations until their cases were decided, "to the extent permitted by law," and to "allocate all legally available resources" to detention.24
  • On July 4 he signed a budget law with $45 billion for detention space.25
  • Four days later, ICE told its employees that the department had "revisited its legal position": everyone who entered without inspection would now be held without a bond hearing, criminal record or not.2610

When the memo became public a week later, the department said the change would keep "these criminals and lawbreakers off American streets," and tied it to the new money.27

  • When the memo became public a week later, the department said the change would keep "these criminals and lawbreakers off American streets," and tied it to the new money.27
Department of Homeland Security·July 15, 2025·Post on X

"now thanks to the Big Beautiful Bill, we will have plenty of bed space to do so."27

@DHSgov

ICE said the new rule "closes a loophole to our nation's security." In September the Board of Immigration Appeals adopted it, which made it binding on every immigration judge in the country.419

  • ICE said the new rule "closes a loophole to our nation's security." In September the Board of Immigration Appeals adopted it, which made it binding on every immigration judge in the country.419
From bond hearings to the Supreme Court
DateWhat happened
1997A government rule says people who entered without inspection can be released on bond.
Jan. 20, 2025Executive order to hold people arrested for immigration violations until their cases are decided.
July 4, 2025Budget law with $45 billion for detention space.
July 8, 2025ICE memo ends bond hearings for people who entered without inspection.
Sept. 5, 2025Board of Immigration Appeals makes the rule binding on immigration judges.
Sept. 26, 2025Barbosa da Cunha is arrested driving to work.
Oct. 29, 2025He is released on bond.
Apr. 28, 2026The Second Circuit rules for him.
Sept. 10, 2026The Fourth Circuit becomes the ninth appeals court against the rule.
Oct. 1, 2026The Supreme Court takes the case.

The July 8 memo expected a legal fight. It called the new position "likely to be litigated," and it said the change "may, however, warrant re-detention of a previously released alien."26

Since January 2025 ICE has spent billions of dollars on six detention expansion projects, including 11 warehouses bought for about $1.07 billion. It now plans to sell seven of them.36

The fight over two phrases

The legal fight comes down to two phrases in one sentence of the 1996 law.2

  • The legal fight comes down to two phrases in one sentence of the 1996 law.2
The detention sentence·1996, as compiled in 2024·Section 235 of the immigration law

"in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained"34

Government Publishing Office

The administration's reading

The administration points to the law's definition: anyone in the country who was never legally admitted counts as an "applicant for admission," however long they have been here, and the sentence says such people "shall be detained."34 The administration says Congress wrote it that way in 1996 so that people who crossed illegally would no longer be better off than people who presented themselves at a port of entry.14 As for the 30 years of bond hearings, the administration says earlier administrations simply chose not to detain everyone the law covered. As the Fifth Circuit put it, that "does not mean they lacked the authority to do more."28

  • The administration points to the law's definition: anyone in the country who was never legally admitted counts as an "applicant for admission," however long they have been here, and the sentence says such people "shall be detained."34
  • The administration says Congress wrote it that way in 1996 so that people who crossed illegally would no longer be better off than people who presented themselves at a port of entry.14
  • As for the 30 years of bond hearings, the administration says earlier administrations simply chose not to detain everyone the law covered. As the Fifth Circuit put it, that "does not mean they lacked the authority to do more."28

The reading most courts adopted

Barbosa da Cunha's lawyers argued, and the Second Circuit agreed, that the sentence covers only an applicant for admission who is also "seeking admission," which means asking to come in, as someone at the border does. A man who has lived in Massachusetts for twenty years is not asking to come in, so he falls under a different section, which lets the government release him on bond.735 The government itself read the law this way for nearly 30 years. And if everyone who entered illegally already had to be detained, Congress would have had no reason to pass the Laken Riley Act in 2025 to require detention of those charged with certain crimes.7

  • Barbosa da Cunha's lawyers argued, and the Second Circuit agreed, that the sentence covers only an applicant for admission who is also "seeking admission," which means asking to come in, as someone at the border does. A man who has lived in Massachusetts for twenty years is not asking to come in, so he falls under a different section, which lets the government release him on bond.735
  • The government itself read the law this way for nearly 30 years. And if everyone who entered illegally already had to be detained, Congress would have had no reason to pass the Laken Riley Act in 2025 to require detention of those charged with certain crimes.7
Where the federal appeals courts stand
SideCircuits
Against the administrationFirst, Second, Third, Fourth, Sixth, Seventh, Ninth, Tenth, Eleventh
For the administrationFifth, Eighth

The Fourth Circuit's opinion lists the eight courts before it and the two on the other side.13

The Board of Immigration Appeals said the other reading would leave people who evaded capture "rewarded with the opportunity for a bond hearing."9

The Board of Immigration Appeals answered the Laken Riley argument by quoting the Supreme Court: "redundancies are common in statutory drafting."9

In 1996 Congress estimated that 100,000 to 200,000 people would fall under its new criminal-detention rule, and it let the Attorney General delay that rule for lack of jail space, which he did. The Second Circuit noted that Congress made no estimate and allowed no delay for the sentence the government relies on, which the court said would have covered about two million people at the time.7

Judge José Cabranes of the Second Circuit said the government was claiming that Congress required the detention of millions "but that some thirty years passed before anyone noticed." He added: "The capacity to carry out the largest detention in American history went unbuilt."15 Judge Menashi, dissenting, said the law's definition settles it, because the law deems everyone present without admission an applicant for admission.15

The Guardian called it "indefinite detention." Judge Menashi wrote that detention under this rule has a "definite termination point," the end of the deportation case. For Barbosa da Cunha that end was at least June 28, 2027.4315

DHS says it is "enforcing this law as it was actually written." The ACLU, which represents Barbosa da Cunha, calls it a "radical misinterpretation of the law."2733

What happens next

The ruling will answer only what the 1996 law says.2 Whether the Constitution allows holding someone that long without a hearing is a separate question that other cases are still raising, including a government petition the Court has not acted on.21 Barbosa da Cunha remains free on bond, which the government can revoke at any time.15

  • The ruling will answer only what the 1996 law says.2
  • Whether the Constitution allows holding someone that long without a hearing is a separate question that other cases are still raising, including a government petition the Court has not acted on.21
  • Barbosa da Cunha remains free on bond, which the government can revoke at any time.15

Congress could also settle it. Republican senators led by Ted Budd of North Carolina have proposed writing mandatory detention into the law, which Budd said "would eliminate any doubt."29 Democratic Senators Alex Padilla and Dick Durbin have proposed the opposite, a bill saying the border's mandatory detention rules do not apply inside the country.30

  • Congress could also settle it. Republican senators led by Ted Budd of North Carolina have proposed writing mandatory detention into the law, which Budd said "would eliminate any doubt."29
  • Democratic Senators Alex Padilla and Dick Durbin have proposed the opposite, a bill saying the border's mandatory detention rules do not apply inside the country.30

The Court had scheduled a constitutional case, Genalo v. G.M., for argument on October 13. It was dismissed at the parties' request on September 11. On September 21 the government filed a similar case, Genalo v. D.C., and the detained person's lawyers must respond by October 21.2021

The constitutional limit is unsettled even where the administration has won on the statute. In July 2026 a Fifth Circuit panel held that due process lets the government hold people under this rule "for ninety days but no longer without a bond hearing." The full Fifth Circuit then vacated that ruling to rehear the case itself.14

  • 14Justice Department petitionthe Government may detain aliens under Section 1225(b)(2)(A) for ninety days but no longer without a bond hearing.The Fifth Circuit then sua sponte ordered rehearing en banc and vacated the panel decision.

The government had asked the Court to wait on this case and take a different one, Lopez-Campos, from the Sixth Circuit. The Court has not acted on that petition.1422

In February 2026, Rep. Pramila Jayapal and 62 other House members asked DHS and the Justice Department to rescind the July memo. Their letter said judges "have told you 1,600 times exactly what the law is." California, New York and 16 other states filed a brief against the rule in a federal appeals court.3132

Sources

The records

Everything this page rests on, numbered where the story cites it. We keep a dated copy of each one.

Primary documents

  1. 1Order list, October 1, 2026 · Supreme Court, 2026-10-01 · the grant of review
  2. 2Question presented · Supreme Court, 2026-10-01 · the question the Court agreed to hear
  3. 3Cases for argument, October 1, 2026 · Supreme Court, 2026-10-01 · the grant date and the absence of an argument day
  4. 4Docket for this case as of October 2, 2026 · Supreme Court, 2026-10-02 · the filing dates through the grant, as the docket stood on October 2
  5. 5Docket for this case as of October 5, 2026 · Supreme Court, 2026-10-05 · the docket after the response was posted, and the reply still listed without its text
  6. 6Response to the petition, August 21, 2026 · Supreme Court, 2026-08-21 · his account of the 1996 detention provisions
  7. 7Second Circuit opinion, April 28, 2026 · Second Circuit, 2026-04-28 · the decision under review
  8. 8Order denying rehearing, September 25, 2026 · Second Circuit, 2026-09-25 · the rehearing denial
  9. 9Board of Immigration Appeals, September 5, 2025 · Board of Immigration Appeals, 2025-09-05 · the bond-authority decision
  10. 10Customs memorandum · Customs and Border Protection, 2025-07-10 · the signed detention memorandum
  11. 11Customs notice of the July 10 guidance · Customs and Border Protection, 2025-09-18 · the public notice of the guidance
  12. 12Federal Register rule, March 6, 1997 · Federal Register, 1997-03-06 · written bond eligibility before the July 2025 change
  13. 13Fourth Circuit opinion, September 10, 2026 · Fourth Circuit, 2026-09-10 · which courts required a bond hearing, and the count of cases
  14. 14Justice Department petition · Department of Justice, docketed 2026-07-23 · the due-process question a Sixth Circuit petition also presents
  15. 15Opinions filed with the rehearing denial, September 25, 2026 · Second Circuit, 2026-09-25 · the concurrence that agreed with the dissent
  16. 16Lopez-Campos docket as of October 3, 2026 · Supreme Court, saved 2026-10-03 · another petition, from the Sixth Circuit, with no grant on the saved page
  17. 17Buenrostro-Mendez docket as of October 3, 2026 · Supreme Court, saved 2026-10-03 · another petition, from the Fifth Circuit, rescheduled and with no grant on the saved page
  18. 18Letter from Barbosa da Cunha's counsel, September 14, 2026 · Supreme Court, 2026-09-14 · the dismissal of Genalo v. G.M., and the request to grant only the statutory question
  19. 19Letter from Barbosa da Cunha's counsel, September 25, 2026 · Supreme Court, 2026-09-25 · the new petition's constitutional issues, and the same request
  20. 20Genalo v. G.M. docket as of October 5, 2026 · Supreme Court, 2026-10-05 · a related constitutional case set for argument and then dismissed
  21. 21Genalo v. D.C. docket as of October 5, 2026 · Supreme Court, 2026-10-05 · the September 21 petition, with a response due October 21 and no grant
  22. 22Lopez-Campos docket as of October 5, 2026 · Supreme Court, 2026-10-05 · the Sixth Circuit petition, with no grant or denial on the October 5 page
  23. 23House Judiciary Committee report, March 4, 1996 · House of Representatives, 1996-03-04 · lawful admission as the pivotal factor in status, and the bond authority as a restatement
  24. 24Executive Order 14159, January 20, 2025 · Federal Register, 2025-01-29 · the order to detain people arrested for immigration violations
  25. 25Budget law, July 4, 2025 · Public Law 119-21, section 90003 · the $45 billion for detention space
  26. 26ICE memo to all employees, July 8, 2025 · Immigration and Customs Enforcement, 2025-07-08 · the change in detention policy
  27. 27Department of Homeland Security post, July 15, 2025 · @DHSgov on X · the department's own account of the change
  28. 28Fifth Circuit opinion, February 6, 2026 · Fifth Circuit, 2026-02-06 · the government's side of the split
  29. 29Sen. Ted Budd, May 21, 2026 · senate release · the Republican bill
  30. 30Sens. Alex Padilla and Dick Durbin, September 25, 2026 · senate release · the Democratic bill
  31. 31House members' letter, February 10, 2026 · Rep. Pramila Jayapal · the request to rescind the memo
  32. 32California Attorney General, January 28, 2026 · state release · the states' brief against the rule
  33. 33ACLU release, October 1, 2026 · his lawyers · his lawyers' statements

Official data

  1. 34Detention section, 2024 compilation · Government Publishing Office, 2024 edition · the detention statute
  2. 35Bond section, 2024 compilation · Government Publishing Office, 2024 edition · the bond statute
  3. 36GAO-26-108663, September 2026 · Government Accountability Office · how ICE spent on detention expansion
  4. 37USCIS, Obtaining Asylum in the United States · read 2026-10-06 · what a pending asylum application allows

Coverage checked

  1. 38Associated Press, October 1, 2026 · published 2026-10-01 · the grant as reported
  2. 39CBS News, October 1, 2026 · published 2026-10-01 · the count that is not in the court records
  3. 40The Hill, October 1, 2026 · published 2026-10-01 · the grant as reported
  4. 41CBS News, July 15, 2025 · published 2025-07-15 · ICE's statement and that day's detention count
  5. 42Reuters, October 1, 2026 · published 2026-10-01 · the millions and the lawsuit count
  6. 43The Guardian, October 1, 2026 · published 2026-10-01 · the port-of-entry line
  7. 44Aaron Reichlin-Melnick on X, April 28, 2026 · posted 2026-04-28 · the criminal-record line
  8. 45Politico tracker, read October 6, 2026 · updated through 2026-10-06 · the count of rulings
  9. 46Associated Press, September 10, 2026 · published 2026-09-10 · where the split leaves detained people
  10. 47CBS News, January 29, 2025 · published 2025-01-29 · the Laken Riley Act and its origin
  11. 48Roll Call, January 29, 2025 · published 2025-01-29 · the first bill of the second term

How we check.

Figures in the source documents 6

Days from the appeals decision to the grant

156 days

Computed: October 1, 2026 minus April 28, 2026 = 156 days.

October 1, 2026 · Supreme Court of the United States
THURSDAY, OCTOBER 1, 2026
Read the source
April 28, 2026 · U.S. Court of Appeals for the Second Circuit
Decided: April 28, 2026
Read the source

Days from the July 8 guidance date to the grant

450 days

Computed: October 1, 2026 minus July 8, 2025 = 450 days.

October 1, 2026 · Supreme Court of the United States
THURSDAY, OCTOBER 1, 2026
Read the source
July 8, 2025 · U.S. Court of Appeals for the Second Circuit
July 8, 2025
Read the source

Days from the July 10 Customs guidance to the grant

448 days

Computed: October 1, 2026 minus July 10, 2025 = 448 days.

October 1, 2026 · Supreme Court of the United States
THURSDAY, OCTOBER 1, 2026
Read the source
July 10, 2025 · U.S. Customs and Border Protection
July 10, 2025
Read the source

Days from the Board decision to the grant

391 days

Computed: October 1, 2026 minus September 5, 2025 = 391 days.

October 1, 2026 · Supreme Court of the United States
THURSDAY, OCTOBER 1, 2026
Read the source
September 5, 2025 · Board of Immigration Appeals
Decided September 5, 2025
Read the source

Days from the petition to the grant

70 days

Computed: October 1, 2026 minus July 23, 2026 = 70 days.

October 1, 2026 · Supreme Court of the United States
THURSDAY, OCTOBER 1, 2026
Read the source
July 23, 2026 · Supreme Court of the United States
Docketed: July 23, 2026
Read the source

Sources

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