The Trump administration has asked the U.S. Supreme Court to approve its policy of detaining illegal immigrants who have been in the country for years without releasing them on bond.
Adopted last year, the policy represents a change from how previous administrations interpreted a specific provision of the federal Immigration and Nationality Act (INA). It also led to a flood of lawsuits from immigrants challenging detention.
Three federal courts of appeals have rejected the policy, while two have upheld it. The result has been uneven enforcement across the country, raising questions about how millions of illegal immigrants would be detained.
The Illegal Immigration Reform and Immigrant Responsibility Act, which amended the INA, required detention without bond for illegal immigrants seeking entry into the country.
The provision at issue, Section 1225 of the INA, says individuals seeking admission “shall be detained” if an immigration officer determines they are “not clearly and beyond a doubt entitled to be admitted.”
In President Donald Trump’s second administration, the government said this detention mandate applied to individuals who had already entered the United States. Multiple illegal immigrants have argued that portion of the INA didn’t apply to them because they were already in the country and therefore no longer seeking admission or undergoing a formal admissions process.
Instead, they said another provision of the INA—Section 1226—applied and allowed them to receive bond hearings.
The position that illegal immigrants apprehended in the interior of the United States may be held without bond “has not been the policy of any prior administration, including the first Trump administration,” Super said.
The policy is part of the administration’s broader immigration strategy, which includes ending so-called catch-and-release efforts, or releasing migrants as they await hearings after being apprehended at the border.
In the new petition, U.S. Solicitor General D. John Sauer states that the case is about “eleven aliens who entered the United States illegally and are now present in the country without having been admitted.”
The respondents, who were apprehended between June and September 2025, were put into removal proceedings and charged with being inadmissible and being present in the United States without being admitted or paroled. To be paroled is to be allowed into the country subject to a later decision on immigration status.
Several of the respondents were also charged with not possessing valid immigration documents.
Sauer said the U.S. Department of Homeland Security ruled that the respondents should be detained under Section 1225 for the duration of their removal proceedings. Several respondents asked for bond hearings before an immigration judge. The immigration judges eventually found that Section 1225 deprived them of authority to grant bond.
The respondents filed habeas petitions with federal district courts in Michigan seeking release. All the release requests were granted. In three of the four cases, the district court also found that detaining respondents without conducting a bond hearing violated their due process rights.
Sauer said the government released the respondents without holding a bond hearing and appealed to a panel of the Cincinnati, Ohio-based U.S. Court of Appeals for the Sixth Circuit. In a divided opinion, the appeals court affirmed.
The panel found Section 1225 does not apply to noncitizens already present in the country because they are not “seeking admission.” The panel also determined that the detention of the respondents without bond hearings violated their due process rights.
Sauer urged the Supreme Court to accept the government’s appeal.
The legal question is “whether aliens present in the United States after an illegal entry must be detained while their removal proceedings unfold.
“The correct answer is yes: 8 U.S.C. 1225(b)(2)(A) mandates detention for such aliens pending their removal proceedings, and there is no due-process problem with that result,” he said.
The Sixth Circuit’s holdings are “incorrect,” he said, and given the 3–2 split among appeals courts, there is now “an unworkable patchwork of inconsistent immigration enforcement, where aliens present without admission are subject to mandatory detention in some circuits but are entitled to bond hearings and often released in others.”
“Immigration enforcement should not depend on geographical happenstance,” he said.
It is unclear when the Supreme Court will take up the petition.
