A federal appeals court compared the Trump administration’s no-bond immigrant detention policy to the mass internment of Japanese Americans during World War II, in a scathing decision on Thursday.
In the 2-1 ruling, 4th Circuit Court of Appeals Judge Nicole Berner argued that the administration had asked the court to “interpret certain amendments” made to federal immigration laws in 1996 in order to eliminate bond hearings for individuals in Immigration and Customs Enforcement detention.
“Mass detention of marginalized individuals without due process harkens back to some of the darkest moments in our country’s history,” Berner wrote, comparing the ICE detentions to the unconstitutional detainment of Chinese immigrants in the 1890s and the internment of thousands of Japanese people in camps in the 1940s.
Prior to Trump’s interpretation of the federal immigration law, noncitizens were generally released from ICE detention on bond “unless one or more of the following circumstances applied: the noncitizen had committed a certain crime, the noncitizen was considered a flight risk, or the noncitizen posed a danger to his community.”
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None of the immigrants in ICE detention — more than 65,000 individuals as of July, according to the public data portal TRAC Immigration — are currently allowed bond hearings, after ICE issued internal guidance in July 2025 to move away from the previous legal standard for detainees.
Thursday’s ruling added to several other appeals courts’ decisions to block the policy, marking the ninth such loss for the administration.
“Those shameful and abhorrent past detentions were limited in scope in comparison to the mandatory detention that the Government urges us today to find that Congress established thirty years ago in an ambiguously worded statutory provision,” Berner, a Joe Biden appointee, wrote. “We decline to do so.”
Berner described the Trump administration’s immigration crackdown as a “tsunami” and noted that an “overwhelming majority—over five hundred” federal district courts have rejected the government’s interpretation of the law.
“Five presidential administrations, including the first Trump Administration, acted in accordance with this interpretation of the statute,” Berner wrote, adding that the previous precedent for allowing immigrants to be released on bond “provides weighty evidence” in support of the petitioners’ claim that “they should be provided a bond hearing.”
The Trump administration has lost nine of the 11 appeals court rulings on the issue, and the Supreme Court is likely to pick up the case in its next term.
In her dissent, Judge Allison Jones Rushing, a Trump appointee, argued that the Trump administration’s preference for the “rigidity” found in some federal immigration codes versus the “flexibility” found in other statutes deployed by previous administrations does not mean that the government’s current posture on enforcement is inherently illegal.
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