Appeals Court Rules ICE's Expanded Mandatory Detention Policy Illegal, Creating Circuit Split
On Tuesday, April 28, 2026, the 2nd U.S. Circuit Court of Appeals unanimously ruled that ICE's expanded mandatory detention policy is unlawful, deepening a split among federal appeals courts. (cbsnews.com)
The unanimous panel issued its ruling Tuesday in a case brought by Brazilian national Ricardo Aparecido Barbosa da Cunha. Da Cunha has lived in the United States since about 2005, sought asylum in 2016, had work authorization and no criminal convictions before a September 2025 arrest. Judge Joseph Bianco wrote that the government's interpretation would create "the broadest mass-detention-without-bond mandate in our Nation's history" and that the statute does not permit detention when a person poses no danger or flight risk.
The panel said the government cannot rely on a statute used for recent border stops and for noncitizens with criminal histories to mandate detention for long-resident, noncriminal asylum seekers. The 2nd Circuit expressly broke with the 5th and 8th Circuits on the same law, a split that makes Supreme Court review more likely.
CBS News framed the ruling as a rejection of "Trump's mandatory ICE detention policy." The order blocks ICE from indefinitely holding noncitizens in removal proceedings without considering criminal history or the date and point of entry.
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📌 Key Facts
- On Tuesday, April 28, 2026, the 2nd U.S. Circuit Court of Appeals unanimously ruled that ICE cannot apply its mandatory detention policy to indefinitely hold noncitizens in removal proceedings without considering their criminal history or date and point of entry.
- The case involves Brazilian national Ricardo Aparecido Barbosa da Cunha, who has lived in the U.S. since about 2005, sought asylum in 2016, held work authorization, had no criminal convictions, was arrested in September 2025, and was denied bond under ICE’s mandatory detention policy.
- Judge Joseph Bianco, a Trump appointee, wrote that the government’s interpretation would create "the broadest mass-detention-without-bond mandate in our Nation’s history" for "millions of noncitizens" and said the law does not support detention regardless of how long proceedings take when the person poses no danger or flight risk.
- The judicial panel held that the government cannot rely on the statutory provision used for recent border stops and for noncitizens with criminal histories to mandate detention of long‑resident, non‑criminal asylum seekers like da Cunha.
- The 2nd Circuit expressly broke with the 5th and 8th Circuits’ readings of the same statute, deepening an existing circuit split and making Supreme Court review more likely.
📰 Source Timeline (2)
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- On Tuesday, April 28, 2026, the 2nd U.S. Circuit Court of Appeals unanimously ruled that ICE cannot apply its mandatory detention policy to indefinitely hold noncitizens in removal proceedings without considering their criminal history or date and point of entry.
- The case involves Brazilian national Ricardo Aparecido Barbosa da Cunha, who has lived in the U.S. since about 2005, sought asylum in 2016, had work authorization, and no criminal convictions, but was arrested in September 2025 and denied bond under ICE’s mandatory detention policy.
- Judge Joseph Bianco, a Trump appointee, wrote that the government’s interpretation would create "the broadest mass-detention-without-bond mandate in our Nation’s history" for "millions of noncitizens" and said the law does not support detention regardless of how long proceedings take when the person poses no danger or flight risk.
- The 2nd Circuit expressly broke with the 5th and 8th Circuits’ readings of the same statute, deepening an existing split and making Supreme Court review more likely.
- The panel held that the government cannot rely on the statutory provision used for recent border stops and noncitizens with criminal histories to mandate detention for long‑resident, non‑criminal asylum seekers like da Cunha.