Second Circuit Rejects ICE’s No-Bond-Hearing Policy Under 8 U.S.C. § 1226(a)

The Second Circuit rejected the government’s effort to deny bond hearings to longtime U.S. residents arrested inside the country, ruling that immigration officials cannot treat them as new arrivals subject to mandatory detention. The decision targets the no-bond-hearing policy adopted by Immigration and Customs Enforcement in 2025.

The court ruled April 28, 2026, in Cunha v. Freden. A unanimous three-judge panel, comprising Judges Cabranes, Bianco and Nathan, said the government’s interpretation “is not what the law says.”

The case involved Ricardo Aparecido Barbosa da Cunha, a Brazilian national who had lived in the United States for 20 years and has two U.S. citizen children. His arrest in September 2025 became the lead challenge to the detention approach in New York, Connecticut and Vermont.

The ruling does not guarantee release. It requires an individualized hearing before an Immigration Judge, where the government and the detained person can present arguments about custody.

The dispute centers on how federal law treats people who entered without inspection but were later arrested in the interior. The government has relied on 8 U.S.C. § 1226(a) for ordinary interior arrests, while arguing that § 1225(b)(2)(A) requires detention without a bond hearing.

The July 2025 directive moved interior arrests into the mandatory-detention system

Acting ICE Director Todd Lyons issued the July 8, 2025 memorandum that directed officers to classify people who entered without inspection as “applicants for admission.” That classification placed them under the detention rules traditionally used for people stopped at the border.

The result was a loss of access to bond hearings before an Immigration Judge. Courts have repeatedly examined whether the agency could make that change through an internal directive rather than congressional action.

The policy particularly affected people with long ties to the United States. A Sixth Circuit majority said treating long-term residents as “applicants for admission” violated due process.

Judge Eric Clay wrote that the opposite result “would subject long-term law-abiding residents. to the hardship of mandatory detention without due process.”

The statutory debate also followed the Supreme Court’s 2024 decision in Loper Bright Enters. v. Raimondo. Courts cited that decision while rejecting deference to the Board of Immigration Appeals’ interpretation in Matter of Yajure Hurtado (2025).

Appellate rulings now leave states under different detention rules

The First Circuit added another rejection on August 13, 2026. In Guerrero Orellana v. Moniz, it upheld a district court ruling for detainees in New England and found that the government’s approach conflicted with “relevant statutory text and congressional intent.”

The First Circuit held that people who entered the United States and were later detained in the interior remain eligible for bond hearings. That decision made it the seventh appellate court described as rejecting the policy.

Other rulings have followed different paths:

The circuit tally remains unsettled. One account lists the Second, Third, Sixth, Seventh, Ninth, Tenth, Eleventh and First circuits as rejecting the agency’s position, while identifying the Fifth and Eighth circuits as upholding it. Another account describes five appellate courts as rejecting the policy, two as upholding it, and the Seventh Circuit as deadlocked.

The disagreement has practical consequences. Mandatory detention remains in force in Texas, Louisiana and Mississippi after the Fifth Circuit’s July 14, 2026, decision to vacate its earlier panel ruling. The full court set an en banc rehearing for September.

Detention expansion has amplified the fight over bond hearings

Congress provided $170 billion under the One Big Beautiful Bill Act, signed July 4, 2025, to expand detention capacity to 100,000 beds daily. The law also funded the hiring of 10,000 new ICE officers.

The expansion gave the agency capacity to pursue more interior arrests while courts considered whether detainees could seek release. Data from November 2025 showed that 73% of people held under the mandatory-detention policy had no criminal convictions of any kind.

Families increasingly turned to federal habeas corpus petitions. Filings reached 9,911 in March 2026, a record high, as detainees challenged custody without a bond hearing.

Lower-court litigation has generally favored detainees. A May 2026 analysis estimated roughly 90% government losses in cases challenging the detention policy, including approximately 10,400 losses and 1,200 victories.

Some detainees have abandoned asylum claims through voluntary departure to avoid months in custody without a hearing. That pattern has been reported in the Fifth and Eighth circuits, where mandatory detention has received more judicial support.

The administration is seeking a nationwide answer

The Department of Homeland Security has opposed the appellate rulings. James Percival, the department’s general counsel, said the administration “strongly disagrees” with the decisions and is “confident in its legal position” as it seeks Supreme Court review.

The Department of Justice petitioned the Supreme Court on June 26, 2026, to resolve the circuit split. Arguments are expected during the October 2026 term.

The cases involve more than a classification dispute. They determine whether a person arrested after years in the United States can ask an Immigration Judge for release, or must remain detained while removal proceedings continue.

Adriana Lafaille, managing attorney at the ACLU of Massachusetts, said the First Circuit ruling limited the administration’s ability to recast existing law through executive action:

“This ruling affirms that the Trump administration cannot unilaterally rewrite federal statutes to suit its political agenda.”

The Supreme Court’s eventual decision will determine whether the differing rules continue across jurisdictions or give immigration officials one national detention standard.