As part of the Trump administration’s hardline approach to migrants, the Immigration and Customs Enforcement agency has ramped up the number of people it detains. Soon, the Supreme Court may decide whether one of the administration’s preferred tactics is legal. In separate cases, the Department of Justice and attorneys for migrants have asked the justices to decide whether ICE can detain migrants who have been living in the United States without the government’s permission for many years and refuse to let them ask an immigration judge for release.
Under multiple presidential administrations, ICE has long operated a large detention network. But since Trump returned to the White House in January 2025, the agency’s detention operation has grown dramatically. Instead of holding approximately 40,000 people on average each day, as it did in January 2025, ICE’s latest publicly available data, from July 2026, indicates that it held 65,634 people daily. Only 1 in 10 of those individuals was arrested by Customs and Border Protection, the Department of Homeland Security unit responsible for enforcing immigration law at the nation’s borders. The rest – almost 59,000 – were arrested by ICE.
In addition to operating the federal government’s migrant detention network, ICE enforces immigration law in areas that are not near the nation’s borders. Congress has authorized CBP and ICE to detain people who immigration agents believe are in the United States in violation of immigration law. One section of the Immigration and Nationality Act requires immigration agents – typically CBP officers staffing ports-of-entry or their Border Patrol colleagues deployed between ports-of-entry – to treat as an “applicant for admission” any migrant “present in the United States who has not been admitted” and detain them. Another section allows agents to detain other migrants, but it gives migrants the option of requesting release on bond from DHS or an immigration judge.
Since 1996, when these provisions were added to federal law, immigration officials have applied the first detention provision to people who arrive at a port-of-entry or who Border Patrol officers encounter away from an official border crossing point. By contrast, officials have applied the second provision to people apprehended in cities and towns throughout the United States that are not near the border. In effect, this has meant that ICE can detain tens of millions of people who are living in the United States possibly in violation of immigration law, but these individuals can ask an immigration judge to release them, after paying a bond, if they can show that they are unlikely to fail to show up for court dates or endanger the public.
The decades-old practice changed suddenly last summer. In July, ICE announced that it would detain every migrant found anywhere in the United States who agents believed had not been granted permission to enter. None of these migrants would be allowed to request release, on bond, from an immigration judge, the new policy instructed. Two months later, the DOJ’s Board of Immigration Appeals – the highest immigration appellate body in the executive branch – agreed, making the Trump administration’s policy binding on immigration judges nationwide.
Since last summer, federal circuit courts have issued a slew of decisions on the legality of ICE’s new mandatory detention policy. Of those circuits to have decided the matter, most – the U.S. Courts of Appeals for the 1st, 2nd, 6th, 7th, 9th, 10th, and 11th Circuits – have found the administration’s policy illegal. They take the view that the mandatory detention provision applies to people who are at or near the border, but people who are within the United States can request that an immigration judge release them. The U.S. Court of Appeals for the 6th Circuit also determined that the government’s broad application of detention without the possibility of release on bond violates the Fifth Amendment’s due process clause. Only two circuits – the U.S. Courts of Appeals for the 5th and 8th Circuits – have sided with the Trump administration. They take the view that federal immigration law requires immigration agents to mandatorily detain anyone who is present in the United States without having been admitted no matter where that person is located or how long they have been living in the country.
Two of these cases are now waiting action by the Supreme Court. In Raycraft v. Lopez-Campos, the solicitor general, who represents the federal government before the Supreme Court, asked the justices to overturn the 6th Circuit’s decision. The government argues that letting migrants who have not been granted permission to live in the United States request release on bond is “perverse.” Led by the ACLU, advocates for migrants asked the justices to add the 5th Circuit’s decision in Buenrostro-Mendez v. Bondi, which deals with the same issue, to its calendar. They argue that the Trump administration’s position reflects a “radical, new, and countertextual interpretation” of immigration law.
The court is likely to agree to weigh in on one or both cases. Even without considering the Trump administration’s emphasis on expanding ICE’s detention operations, the existing disagreement among the circuit courts is a strong reason for the court to become involved because only it can announce a single interpretation that applies nationwide.
Moreover, the circuit split is growing. Since the solicitor general and ACLU asked the justices to intervene, the U.S. Courts of Appeals for the 7th and 9th Circuits issued their decisions, both disagreeing with the government’s view. Another came 10 days after the solicitor general filed its petition for a writ of certiorari in Raycraft and on the very day that the ACLU filed its petition in Buenrostro-Mendez. Acknowledging that a three-judge panel of the 5th Circuit sided with the government’s view of the INA in Buenrostro-Mendez, a different three-judge panel of the 5th Circuit determined that ICE’s policy violates the due process clause. Eight days later, the full 5th Circuit vacated the panel’s decision and announced that it will rehear the case.
Whether the justices add Raycraft or Buenrostro-Mendez to their calendar will likely depend on whether they want to focus solely on the laws enacted by Congress or instead delve into constitutional law. The 5th Circuit did not address the constitutionality of ICE’s mandatory detention policy in Buenrostro-Mendez, while the 6th Circuit did in Raycraft. The ACLU and solicitor general each claim that difference is why the justices should agree to hear their preferred case. Raycraft is “the best vehicle” to resolve the “untenable divide” among the circuits because “its due-process holding effectively invalidated a federal statute,” the solicitor general wrote to the justices. With only one circuit having decided whether ICE’s policy is constitutional, “there is no split on that question,” making the 5th Circuit’s Buenrostro-Mendez decision “a superior vehicle,” according to the ACLU.
Aside from the 6th Circuit’s constitutional law analysis in Raycraft, two other circuits have noted that detaining people apprehended in the nation’s interior to mandatory detention could violate the due process clause. The 2nd Circuit explained that ICE’s position raises “grave constitutional concerns” and the 7th Circuit later added that the “government’s interpretation poses grave due-process concerns.” That said, neither the solicitor general nor the ACLU urge the justices to treat these discussions as central to the circuit courts’ decisions. And even if the justices were to give more weight to the circuit courts’ constitutional law discussions than either the ACLU or solicitor general suggest they do, neither would create a circuit split on the constitutional question since both suggest that they agree with the 6th Circuit.
Whatever course comes next for ICE’s mandatory detention policy, it is likely to lead to the Supreme Court. Once there, the justices will again have to decide just how much power the executive branch has to enforce immigration law, even if that involves shifting policy positions at a moment’s notice. Either way, the court will have to grapple with the Trump administration’s desire to adopt aggressive enforcement tactics in pursuit of the president’s immigration goals.