OUTRAGEOUS: Obama and Biden Judges on Fourth Circuit Block ICE From Holding Illegal Aliens Without Bond — Compares Trump ICE Detention Policy to Japanese Internment and 1892 Geary Act Targeting Chinese Laborers

by Jim Hᴏft Sep. 10, 2026 10:45 am



“ERO Cross Check 2017” by U.S. Immigration and Customs Enforcement, Public Domain MarkA divided Fourth Circuit panel on Thursday handed the Trump administration another blow in its effort to detain illegal aliens who entered the country without inspection, even those who have been living here for decades, without a bond hearing while their removal cases play out.

The 2-1 ruling in Lopez Garcia v. Guadian is the ninth federal appeals court to reject ICE’s July 2025 reinterpretation of the 1996 immigration law.

The majority was written by Biden appointee Nicole Berner and joined by Obama appointee Barbara Milano Keenan, the same Keenan who last month helped the Fourth Circuit block ICE from arresting illegal aliens hiding in churches. Trump appointee Allison Rushing dissented.

For nearly 30 years, every administration, including Trump’s first term, treated mandatory no-bond detention under INA § 235(b) as applying to recent border crossers and arriving aliens.

People already living inside the United States were generally held under § 236(a) and could ask an immigration judge for bond unless they were a danger, a flight risk, or covered by a crime-based mandatory-detention rule.

In July 2025, ICE issued new guidance saying anyone who entered without inspection is still an “applicant for admission” no matter how many years they have been here. That reading would subject millions of illegal aliens to lockup with no bond hearing while their cases drag on. The Fifth and Eighth Circuits have sided with the government. Nine circuits have now gone the other way.

As The Gateway Pundit previously reported, the Fifth Circuit in February upheld that common-sense reading and later issued an extraordinary order keeping lower-court releases on hold. The notoriously liberal Ninth Circuit went the other direction in July, guaranteeing more habeas petitions, more releases, and more chances for illegal aliens to disappear.

The two illegal aliens at the center of Thursday’s ruling are Oscar Enrique Lopez Garcia and Juan Jose Rivera.

The Fourth Circuit affirmed lower-court orders requiring bond hearings for Oscar Enrique Lopez Garcia, who came from Guatemala as a child in 1996, and Juan Jose Rivera, who left El Salvador in 2005.

Both were arrested in the Washington area in October 2025, held at a Virginia ICE facility with no bond hearing, and later released after immigration judges found they were neither a danger nor a flight risk. Lopez Garcia is married with two U.S.-citizen children. Rivera has no criminal record. The government did not claim either man met the old danger-or-flight standard.

That is the entire point of the policy fight. The administration’s position is that illegal entry itself, not a later crime or a finding of danger, is enough to keep someone detained during removal. Activist judges keep treating long-term illegal presence as a reason to release people instead.

Berner did not stop at the statute. She compared ICE’s position to the “historical stain” of Japanese internment and the 1892 Geary Act targeting Chinese laborers.

“Mass detention of marginalized individuals without due process harkens back to some of the darkest moments in our country’s history,” Berner wrote. “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. We decline to do so.”

The panel also offered a theater analogy: a moviegoer who already snuck inside is not “seeking” to enter; he is asking to stay. That is how they waved away the statutory phrase “seeking admission.”

Rushing, in dissent, refused to play along. She said the statute treats anyone present without admission as an applicant for admission, and an applicant is, by definition, seeking admission. “It’s that simple.”

She added that the majority’s “strong views about what it considers the ‘moral implications’” of no-bond detention do not rewrite the law. Prior administrations leaving power on the table does not make Trump’s decision to use it illegal.

The circuit split is now 9–2 against the administration, with the Fifth and Eighth Circuits standing with ICE. The Fourth Circuit joined the First, Second, Third, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits in ruling against the administration.

https://www.thegatewaypundit.com/202...uit-block-ice/