The Supreme Court agreed on October 2, 2026, to review the Trump administration’s policy of detaining illegal immigrants without a bond hearing while their deportation cases are pending. The case, Rhoney v. Barbosa da Cunha, is among the first the justices will consider after their summer recess, coinciding with the opening of the new term.
The policy stems from a guidance memo issued by Immigration and Customs Enforcement (ICE) in July 2025. For approximately 30 years, only immigrants apprehended at the border or those with specific criminal convictions could be held without a bond hearing. The ICE memo altered this practice, instructing officers to treat any individual who entered the country illegally as if they were still at the border, thereby denying them the right to a bond hearing.
The administration cited a section of federal law that mandates such immigrants “shall be detained,” overriding the previous provision allowing judges to grant bond releases of at least $1,500.
The case is named after Ricardo Aparecido Barbosa da Cunha, a Brazilian national who entered the U.S. without documentation around 2005. After applying for asylum in 2016, he obtained a work permit, purchased a home, and operated a small business. However, he was arrested by ICE in 2025. An immigration judge ruled that the new policy prevented any bond hearing, prompting him to appeal to federal court, where the New York-based Second Circuit ruled in his favor.
Since the memo's implementation, courts have issued conflicting rulings. The Fifth and Eighth Circuits have supported the administration's stance, while the Second, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have opposed it. According to a count by Politico, federal district judges have ruled against the policy over 9,300 times.
Justice Department attorneys informed the court that this division has resulted in an inconsistent legal landscape, where immigrants may be detained in one region while being released in another. The Supreme Court's decision to review the policy occurs amid ongoing immigration enforcement efforts by the Trump administration, which reported over 356,000 removals in the fiscal year 2026. The case will be considered by three justices appointed by Trump: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, whom he expressed regret about selecting earlier this week.