Immigrants ask Fifth Circuit to revisit ruling on “historically unprecedented” mandatory detention policy

A 2-1 panel of the Fifth Circuit sided with the Trump admin — splitting with the vast majority of judges to consider the matter. Now, an attempt to reverse that.

On Monday, lawyers for immigrants in two pivotal cases over the Trump administration’s mandatory immigration detention policy asked the full U.S. Court of Appeals for the Fifth Circuit to reverse a February panel decision that sided with the extreme policy.

In the petition for en banc review of the 2-1 decision from February, the lawyers argue that the panel decision allows “a historically unprecedented detention regime that Congress never intended.”

On Monday night, Law Dork was provided a copy of the petition seeking to reverse that ruling and is making it publicly available.

Notably, the panel’s decision split with the overwhelming majority of judges — who reached the opposite conclusion about the administration’s policy.

As I wrote at Law Dork about the panel ruling from Judge Edith Jones, a Reagan appointee, who was joined by Judge Kyle Duncan, a Trump appointee, the decision, if it stands, gives “the Trump administration a powerful tool … to enact mass detentions as part of its mass-deportation program.“

So, what’s going on?

From February:

As covered at Law Dork on February 4, the Trump administration issued an internal policy change in 2025 that represented a unilateral shift in how people already in the United States but still without legal status would be treated when the government is seeking to deport them.

Prior to now, the understanding of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) has been that people present in the country who were never legally admitted here are subject to a section of law that allows release and requires bond hearings (absent exceptions in the law) if the government seeks to deport them — and not a different section of law that requires mandatory detention. That second section has been applied only to “arriving aliens,” which just so happens to be the language used in that title of the U.S. Code.

Not so, said the Trump administration, which argues that everyone who was never legally admitted to the country is subject to the mandatory detention provision. The bond-hearing section, they argue, essentially only applies to people who overstay their visas.

All of this was considered by the Fifth Circuit panel in an extremely rushed fashion — with the decision coming out just days after the oral arguments in the case.

What happened?

Jones and Duncan — two of the four most extreme-right judges on the far-right court — ignored or pushed aside everything that everyone — presidents and past administrations, Congress, and the courts — had done since the law’s 1996 passage to conclude that the Trump administration got it right.

Judge Dana Douglas, a Biden appointee, dissented.

Reversing this ruling is a high priority for those fighting the administration’s immigration policies — and the ruling was such an outlier and so easily refuted that even the full Fifth Circuit — conservative as it is — might side with the petitioners.

On Monday, the lawyers fighting this Trump administration policy from the ACLU, Robert and Ethel Kennedy Human Rights Center, and Austin firm O’Connor & Associates filed the petition for en banc review, making their best case.

Their conclusion included a sharp note from Douglas’s dissent:

Law Dork will have more on this case as it proceeds.