Law360 (October 1, 2026, 9:58 AM EDT) -- The U.S. Supreme Court on Thursday agreed to review whether the Trump administration can detain unauthorized immigrants without bond until their immigration cases conclude, regardless of whether they had already been living in the country.

The justices said in an order they will review a decision from the Second Circuit, which ruled against the government. Two other similar petitions for review remain pending — one of a Sixth Circuit decision, which also ruled against the government, and a Fifth Circuit decision that sided with the Trump administration's interpretation of the Immigration and Nationality Act. The justices' order did not indicate if they will review the additional two cases as well. 

The federal government sought review of the Second and Sixth circuit decisions, while the American Civil Liberties Union asked the justices to review the Fifth Circuit decision.

In its petition for review of the Sixth Circuit decision, the government had asked the justices to review whether detaining migrants without bond until their immigration cases conclude adheres with due process.

In the Second Circuit case, the government only asked the justices to review whether any noncitizen present in the U.S. without having been admitted is subject to mandatory detention under the INA.

The circuits have split 9 to 2 on the issue, with only the Fifth and Eighth circuits ruling in the government's favor.

Nearly all the circuit decisions have been split, except the Second and Tenth circuit decisions, in which unanimous panels rejected the government's position.

In taking up the cases, the justices will decide whether immigrants who crossed the border without authorization, and have already been living in the country, are subject to mandatory detention under Title 8, Section 1225(b)(2)(A) of the U.S. Code, which codifies the INA provision. Successive administrations for 30 years have determined the provision applies only to immigrants arriving at the border.

Unauthorized immigrants who are not a flight risk, and who don't pose a danger to the community, have been treated as eligible for release on bond under Section 1226 for the last three decades.

But in July 2025, Todd Lyons, the former acting director of U.S. Immigration and Customs Enforcement, issued a directive instructing ICE officers to stop referring unlawful immigrants for bond hearings, making anyone who entered the U.S. unlawfully subject to mandatory detention while their immigration cases are pending.

In the Matter of Yajure Hurtado, the Board of Immigration Appeals backed that directive the following September, ruling that immigration judges lack authority to hear or grant bond requests from noncitizens who enter the U.S. without inspection and admission.

The policy shift sparked an avalanche of habeas petitions from detained immigrants seeking bond hearings in their immigration court cases, or outright release from ICE detention. The overwhelming majority of lower courts to weigh the issue have rejected the government's position.

The underlying issue turns on whether unauthorized immigrants who are already in the country can also be considered as seeking to be admitted into the country, rendering them subject to mandatory detention under Section 1225.

The phrases — "applicant for admission" and "seeking admission" — appear in Section 1225(b)(2)(A), which provides that "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."

The Fifth Circuit held that the ordinary meaning of "seeking" implies that an applicant for admission is seeking admission as long as their application is pending, much like a college applicant. 

The Second Circuit, meanwhile, determined that seeking "expresses present action" that can only apply to individuals who present themselves at a port of entry or who are apprehended near the border shortly after crossing it, while the Sixth Circuit concluded that "seeking admission" implies an affirmative act. 

Michael K.T. Tan of the American Civil Liberties Union, who represents the respondents in the case, said that lower courts "have repeatedly and resoundingly rejected the Trump administration's radical misinterpretation of the law."

"Try as it might, the government cannot twist the law to detain immigrants for months or even years on end without a bond hearing. Not only is it cruel and inhumane; it is unlawful. We look forward to making that case to the Supreme Court," Tan said.

An unnamed spokesperson for the U.S. Department of Homeland Security welcomed the Supreme Court's decision to take up the case. 

"Since President Trump retook office, DHS has secured critical legal victories to advance the president's immigration enforcement agenda, winning the vast majority of high-priority cases we brought before the court. As our record in the U.S. Supreme Court demonstrates, the law is on our side," the spokesperson said.

The federal government is represented by Solicitor General D. John Sauer of th U.S. Department of Justice.

The respondents are represented by the American Civil Liberties Union and the Northwest Immigrant Rights Project.

The case is Rhoney v. Barbosa da Cunha, case number 26-104, before the U.S. Supreme Court.

--Editing by Robert Rudinger.

Update: This story has been updated with additional information and comments from the ACLU and the DHS.

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