The Supreme Court Will Decide Whether the Government Can Detain Immigrants Without Bond Hearings. What Is Settled and What Is Disputed.

What we found

• On Oct. 1, 2026 the Supreme Court granted review in Rhoney v. Barbosa da Cunha (No. 26-104). The Solicitor General had filed the petition on July 23. The question: whether 8 U.S.C. § 1225(b)(2)(A) “mandates the detention pending removal proceedings of aliens who, like respondent, are present in the United States without having been admitted.” No argument date was set on the pages we read [1][2][5].
• The respondent is Ricardo Aparecido Barbosa da Cunha, a Brazilian citizen who entered without inspection around 2004 or 2005. ICE arrested him at a traffic stop in Massachusetts in September 2025. A federal district court in New York granted his habeas petition and the 2nd Circuit affirmed on April 28, 2026, holding his detention is governed by § 1226(a), which allows bond [2]. CBS adds that he has no criminal convictions [4].
• The 2nd Circuit's panel (Cabranes, Bianco, Nathan) held the statute's text, context and history do not support mandatory detention for people like him, and added that even if the government's reading were plausible it would reject it to avoid “the serious constitutional questions attendant to what would be the broadest mass-detention-without-bond mandate in our Nation's history for millions of noncitizens” [2].
• What supports “millions.” The opinion says the government began arguing in 2025 that § 1225(b)(2)(A) bars bond for all inadmissible noncitizens unlawfully present, “by all accounts, millions of men, women, and children.” It also cites oral argument in which the government acknowledged the number of people covered by § 1225 was “likely” “at least millions” in the late 1990s and “has obviously increased” [2]. We found no count of how many people are held under the policy today.
• The policy. ICE issued interim guidance on July 8, 2025 treating people who entered unlawfully as subject to mandatory detention [2]. CBS says that eliminated bond eligibility for all immigrants in the country illegally; previously only certain groups were ineligible [4].
• The circuits are split. The Congressional Research Service (version of Sept. 17, 2026) lists nine circuits (1st, 2nd, 3rd, 4th, 6th, 7th, 9th, 10th and 11th) rejecting the government's reading and two (5th and 8th) upholding it [3]. CBS reports the same 9-to-2 count [4]. This resolves the conflicting counts in our earlier draft.
• The government's position. Its petition says the 2nd Circuit's decision conflicts with the 5th and 8th Circuits and asked the Court to hold this petition pending another petition (Lopez-Campos) on the same question. The Court instead granted this one [2]. DHS told AP that “judicial activists have been repeatedly overruled by the Supreme Court on these questions. ICE has the law and the facts on its side and will be vindicated by higher courts” [6].
• CBS reports ICE detained more than 46,000 people for removal in July 2026 [4]. That counts detentions in a month, not the number of people affected by this policy. We found it in one source only.
• The ACLU's Michael Tan, on the 2nd Circuit ruling: “The law is clear: The government can't lock up immigrants like Mr. Barbosa da Cunha without giving them the basic due process of a bond hearing” [7]. That is an advocacy group's view.

We rate the court's statement Unproven. It is a legal and historical judgment, and the court framed it as a conditional (“what would be”) reason to avoid a constitutional question, not as a finding of fact. The “millions” part has support in the court's record; the comparison to all of U.S. history is a judgment we cannot verify. The legal question itself is before the Supreme Court. We make no prediction about how it will rule.

What we still don't know

• When will the Court hear arguments? The docket we read shows no date.
• How many people are currently held without a bond hearing under the policy? No source we read gives that figure.
• How will the Court rule? Nobody knows.

Sources

Book connection: Escaping the Human Zoo, Ring 2 (Government & Law). Courts decide how much power an agency has over a person. We report the dispute, not a side. Found an error? Corrections policy · Submit a claim