The bottom line. Whether ICE can hold undocumented migrants without giving them a chance to seek bond from an immigration judge now rests with the Supreme Court, which faces conflicting rulings from the federal appeals courts.

Two competing appeals—one filed by the Justice Department, the other by migrant advocates—are now before the high court, each asking justices to settle the legality of a detention directive rolled out by the administration in July 2025. Under that directive, ICE is required to take into custody any migrant encountered anywhere in the country whom agents suspect lacks legal entry status, and those individuals are barred from asking an immigration judge to set bond for their release.

Agency figures show the average daily number of people held by ICE reached 65,634 by July 2026, the most recent public data available. Of that total, about 59,000 were picked up by ICE officers themselves rather than by Border Patrol—a sign of how the policy reaches far beyond the border zone and into American communities.

SCOTUSblog's analysis suggests the court is likely to agree to weigh in on one or both cases.

At the heart of the fight is a provision of the Immigration and Nationality Act that says any migrant "present in the United States who has not been admitted" must be treated as an "applicant for admission" and held in custody. For nearly three decades after that language was added, immigration authorities interpreted it narrowly, applying it only to people showing up at official border crossings or caught by Border Patrol between them. Migrants arrested elsewhere, such as in cities or towns, could ask an immigration judge to release them after posting bond.

That changed in July 2025, when ICE said it would extend the mandatory detention rule to every migrant found within U.S. borders. The DOJ's Board of Immigration Appeals then made the policy binding on all immigration judges nationwide two months later.

Circuit Split

The policy has produced a sharp divide in the federal courts. The 2nd, 6th, 7th, 9th, and 11th Circuits have struck it down, concluding that the mandatory detention language was meant for border-area encounters only. The 6th Circuit went further, ruling that the policy also runs afoul of the Fifth Amendment's due process guarantee. On the other side, the 5th and 8th Circuits backed the administration, saying the law plainly requires detention of anyone present without admission, no matter where they live or how long they've been in the country.

In Raycraft v. Lopez-Campos, the solicitor general is urging the justices to reverse the 6th Circuit, describing the idea of letting undocumented migrants seek bond as "perverse." Meanwhile, in Buenrostro-Mendez v. Bondi, the ACLU is asking the court to overturn the 5th Circuit's ruling, branding the government's stance a "radical, new, and countertextual interpretation" of the statute.

What This Means Right Now

For now, whether a detained migrant can ask an immigration judge for bond depends on where they were arrested: in most of the country, yes; in the 5th and 8th Circuits, generally no—creating a patchwork of rules across the nation.

If the Supreme Court takes up the case, its ruling would replace that patchwork with a single national standard on whether interior detention without bond is lawful.

Since the petitions were filed, additional appellate rulings—including from the 7th and 9th Circuits—have come down against the administration, adding weight to calls for the justices to step in.