Immigration · Crime & Justice · September 16, 2026
A year into the policy that tells ICE to hold anyone who ever crossed the border without inspection until their case ends, the scorecard is lopsided and the map is what matters. Nine federal appeals courts have now said the policy misreads the statute. Two, covering Texas, Louisiana, Mississippi, Arkansas, Missouri and the Dakotas, have said it does not. The Supreme Court’s chance to settle it evaporated last week when a governor’s pardon mooted the case. Until the justices pick another one, a detained father in Virginia gets a bond hearing and a detained father in Texas does not.
- The Fourth Circuit ruled 2–1 on September 10 in Lopez Garcia v. Guadian that immigrants arrested inside the country after living here for years fall under the bond-eligible statute, not the border mandatory-detention provision.[1]
- The majority wrote that “mass detention of marginalized individuals without due process harkens back to some of the darkest moments in our country’s history,” citing Japanese American internment and the 1892 Geary Act.[2]
- The count is now nine circuits against the policy (First, Second, Third, Fourth, Sixth, Seventh, Ninth, Tenth, Eleventh) and two for it (Fifth, Eighth).[3]
- On September 11 the Supreme Court dismissed Genalo v. G.M., its October test case on prolonged detention, after Gov. Kathy Hochul pardoned the detainee. The solicitor general says the administration will seek an “alternative vehicle.”[4][5]
The Story So Far
In 2025 the Department of Homeland Security reinterpreted a 1996 statute. Anyone who entered without inspection, it said, remains an “applicant for admission” no matter how long ago, and applicants for admission must be detained under 8 U.S.C. §1225(b)(2)(A) with no access to a bond hearing before an immigration judge. For three decades before that, five administrations, including the first Trump administration, had treated people arrested in the interior under §1226(a), which lets a judge weigh release on bond.[2]
The practical effect was a detention population at record levels and, as Kemetic Minds reported Monday, 57 deaths in ICE custody as the detained population jumped 70%. Hundreds of district judges have ordered individual bond hearings. The appeals courts have been deciding, one by one, whether the government’s reading survives.
1. Two Men, Two Decades, One Sentence From the Court
Oscar Enrique Lopez Garcia and Juan Jose Rivera, Salvadoran and Guatemalan nationals, had each lived in the United States for more than twenty years when ICE arrested them in 2025. The government never argued that either man was dangerous or likely to flee. It argued only that the statute forbade a judge from asking.[3]
Judge Nicole Berner, joined by Judge Barbara Milano Keenan, rejected that. Congress, the majority reasoned, would have said so plainly in 1996 if it meant to authorize mandatory detention of millions of people already living here, and “five presidential administrations, including the first Trump Administration, acted in accordance with this interpretation of the statute.”[2] Judge Allison Jones Rushing dissented on the text: “‘Applicant for admission’ and ‘alien seeking admission’ both refer to an alien who requests lawful entry into the United States.”[2]
“Mass detention of marginalized individuals without due process harkens back to some of the darkest moments in our country’s history. The stain of these detentions on our nation—and the judiciary’s abdication of its obligation to protect basic freedoms—continues to haunt us.”
— Fourth Circuit majority opinion, Lopez Garcia v. Guadian, September 10, 2026[1]
The history the court reached for was Executive Order 9066, under which more than 120,000 Japanese Americans and Japanese residents were interned, and the Geary Act of 1892, which detained Chinese laborers who could not produce papers.[6]
2. The Map Now Decides Due Process
| Circuits rejecting the policy | Circuits upholding it |
|---|---|
| First (New England), Second (NY, CT, VT), Third (PA, NJ, DE), Fourth (VA, MD, NC, SC, WV), Sixth (OH, MI, KY, TN), Seventh (IL, IN, WI), Ninth (West Coast, AZ, NV, and more), Tenth (CO, UT, and more), Eleventh (FL, GA, AL) | Fifth (TX, LA, MS), Eighth (MO, AR, IA, MN, NE, ND, SD) |
Sources: ACLU, Newsweek, Migrant Insider.[3][6][7]
The Fifth Circuit’s position has a wrinkle. In July it held that ICE cannot hold people longer than 90 days without a bond hearing, a partial limit that still leaves the first three months of detention unreviewable in Texas, Louisiana and Mississippi, the states with the largest detention capacity.[8] The Eighth Circuit sided with the administration outright.
For a family, the consequence is arithmetic. Two people with the same history, arrested the same week, one in Norfolk and one in Houston, will have different rights for months, and possibly years, until the Supreme Court acts.
3. The Test Case That Vanished
The justices had a vehicle. Genalo v. G.M. was set for argument October 13 and asked whether prolonged detention, in this case a lawful permanent resident held 21 months without a hearing, triggers a constitutional right to bond review, as the Second Circuit held in 2024. On August 28, Gov. Hochul granted the man a full and unconditional pardon for the conviction that made him deportable. On September 11 both sides filed a joint stipulation that the case was moot, and the Court dismissed it.[4][5]
“Mr. G.M. spent 21 months locked away by ICE, separated from his family and community, without any consideration of whether he actually posed a danger or a flight risk.”
— Amit Jain, MacArthur Justice Center[4]
Solicitor General John Sauer agreed the case was moot but told the Court the administration would look for an “alternative vehicle” to challenge the Second Circuit’s rule.[5] DHS has already petitioned in a Sixth Circuit case on the §1225/§1226 question, and attorneys on the Fourth Circuit case expect review there.[3] Either way, the earliest a merits ruling could come is the term that ends in June 2027.
4. What the Lawyers Who Won Are Saying
The ACLU’s Immigrants’ Rights Project, the ACLU of Virginia, Benach Pitney Reilly and Ceartas Solutions represented the two men on appeal. Their statements are short and worth reading in full because they frame what comes next.
- My Khanh Ngo, ACLU senior staff attorney: “The courts have resoundingly rejected the administration’s cruel policy and its blatant disrespect for the rule of law.”[9]
- Sophia Gregg, ACLU of Virginia: “The government cannot rewrite immigration law to serve this administration’s anti-immigrant agenda by detaining people en masse.”[9]
- Sarnata Reynolds, Ceartas Solutions: “The government cannot imprison members of our communities throughout their immigration cases without giving them a meaningful chance to seek release.”[9]
What’s Disputed or Unconfirmed
- The statute’s meaning. That is the live legal question, and two circuits read it the government’s way. The nine-to-two count describes the split, not a final answer.
- Which case the Supreme Court will take. DHS’s Sixth Circuit petition is pending; the government has not said which “alternative vehicle” it will pursue for the prolonged-detention question.
- Whether ICE is complying. Advocates have reported bond hearings still being denied inside circuits that rejected the policy; we have not independently verified current practice in each circuit.
How to Verify This Yourself
- Search the Fourth Circuit’s published opinions for Lopez Garcia v. Guadian, decided September 10, 2026.
- Read the ACLU’s release on the Fourth Circuit ruling and its release on the Genalo dismissal.
- The National Immigration Law Center keeps a rapid-response tracker of bond eligibility by circuit.
What You Can Do Right Now
- If someone you know is detained, the circuit where they are held determines whether a habeas petition for a bond hearing is likely to succeed today. Legal aid groups in the nine circuits are filing them in volume.
- Know the number: the ACLU and NILC trackers above list which detention centers sit in which circuit.
- Ask your senators where they stand on the DHS petition for Supreme Court review; the solicitor general’s office answers to the political branches.
Kemetic Minds Analysis
Due process that depends on a zip code is not due process. The Fourth Circuit did something judges rarely do: it named the ancestors of this policy out loud, the internment orders and the exclusion acts that this country later apologized for. Nine courts have now said the statute does not permit what ICE is doing. The two that disagree happen to sit over the largest detention warehouses in the country. That is not an accident of geography, and it will not be fixed by a pardon.
References
- U.S. Court of Appeals for the Fourth Circuit. (2026, September 10). Lopez Garcia v. Guadian (published opinion). ca4.uscourts.gov — primary source. ↩
- Dodson, J. (2026, September 10). Fourth Circuit rejects Trump’s interpretation of immigrant detention policy. Courthouse News Service. courthousenews.com ↩
- American Civil Liberties Union. (2026, September 10). Federal Appeals Court Rules Against Trump Mandatory Detention Policy [Press release]. aclu.org — primary source (party statement). ↩
- American Civil Liberties Union. (2026, September 11). Parties File Joint Request to Dismiss Supreme Court Immigration Detention Case [Press release]. aclu.org — primary source (party statement). ↩
- Fox News. (2026, September). Supreme Court drops noncitizen bond hearing case after Hochul pardon. foxnews.com ↩
- Newsweek. (2026, September 10). Federal judges rebuke ICE detention as similar to WWII internment camps. newsweek.com ↩
- Migrant Insider. (2026, September). Nine straight: 4th Circuit rejects ICE’s no-bond detention dragnet. migrantinsider.com — specialist/tertiary source. ↩
- Verite News. (2026, July 6). Federal appeals court shoots down Trump’s mandatory immigration detention policy. veritenews.org ↩
- American Civil Liberties Union. (2026, September 10). Statements of counsel, in Federal Appeals Court Rules Against Trump Mandatory Detention Policy. aclu.org ↩
Related Reading
Investigative methodology: the ruling’s language is quoted as reported by Courthouse News and Newsweek and as excerpted in the ACLU’s release; readers should consult the opinion itself, linked above, for full context. Secondary reporting from Fox News and Verite News; specialist tracking from Migrant Insider and NILC.