A federal appeals court handed the Trump administration a setback Tuesday, ruling 3-0 that illegal immigrants who crossed into the United States years ago and weren’t caught immediately cannot be held under mandatory ICE detention, striking at a key tool in the president’s mass deportation effort.
The 2nd U.S. Circuit Court of Appeals issued the decision, with Judge Joseph F. Bianco, a Trump appointee, writing the opinion. The ruling creates a direct split with several other federal circuits that have reached the opposite conclusion, making Supreme Court review likely.
“That is not what the law says,” Bianco wrote, rejecting the government’s expanded reading of mandatory detention authority.
The case centers on Ricardo Aparecido Barbosa Da Cunha, a Brazilian who slipped into the country in 2004 or 2005 and hasn’t left. He applied for asylum in 2016 and was issued a work permit. Last year, ICE moved to arrest and hold him under mandatory detention as the administration ramped up interior enforcement.
At issue is a provision of immigration law that strips migrants of their right to a bond hearing, requiring them to sit in detention while their immigration cases are resolved. For decades, courts read that provision to apply mainly to migrants arrested at or near the border right after crossing. Under that interpretation, someone who sneaked in and lived here for years had access to a bond hearing before a judge.
The Trump administration changed that. ICE issued guidance last year reinterpreting the mandatory detention statute to cover anyone arrested in the interior, regardless of how long they’d been in the country. The administration’s argument: the law doesn’t carve out an exemption based on how much time has passed.
The 2nd Circuit rejected that reading in full.
Bianco acknowledged the court was splitting from several sister circuits but said most district court judges that had looked at the issue ruled his way. The 3-0 vote was unanimous.
The 2nd Circuit’s jurisdiction covers New York, Connecticut, and Vermont. Those three states have been particularly resistant to federal immigration enforcement, with sanctuary policies and legislation restricting ICE access to state databases. The ruling gives defense lawyers in that jurisdiction a new tool to seek release for clients facing mandatory detention.
