Federal judges have handed a significant defeat to U.S. Immigration and Customs Enforcement, blocking the agency’s attempt to force members of Congress to give a week’s notice before showing up for facility inspections.
The D.C. Circuit Court of Appeals issued an order on May 8, 2026, denying the government’s emergency motion to stay a lower court ruling. The decision means that, for now, lawmakers can continue to conduct unannounced oversight visits at immigrant detention centers across the country.
The legal battle began when the Department of Homeland Security (DHS) implemented a policy requiring representatives to provide seven days’ notice before arriving for an inspection. DHS argued the rule was necessary to ensure the safety and “smooth functioning” of the facilities, claiming that surprise visits from politicians were “highly disruptive” and strained staffing resources.
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Representative Joe Neguse and a group of fellow lawmakers sued to stop the policy. They pointed to a 2024 spending law which specifically states that federal funds cannot be used to prevent members of Congress from entering detention facilities for oversight purposes. That law also notes that it should not be read to require prior notice from the members themselves.
In a per curiam order, the three-judge panel—consisting of Circuit Judges Pillard, Wilkins, and Rao—ruled that the government failed to meet the “stringent requirements” necessary to put the lower court’s decision on hold while the appeal moves forward.
While the court denied the stay, Judge Neomi Rao issued a concurring opinion that offered a mixed outlook for the future of the case. Rao noted that the government actually has a “strong showing of likelihood of success” on the legal merits because she believes the lawmakers might lack “standing”—the legal right to sue—in federal court.
“The Constitution does not authorize the Judiciary to serve as referee between Congress and the Executive Branch,” Rao wrote, suggesting that such disputes are usually political matters rather than legal ones.
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Despite her skepticism about the lawsuit’s legal standing, Rao agreed to deny the stay because the government couldn’t prove that surprise visits actually caused “irreparable injury.”
The government’s evidence included a declaration from an ICE official claiming that unannounced visits require extra security screening and staff escorts. They also cited a single incident involving the Mayor of Newark and Representative McIver at a facility. However, Rao noted that the government failed to explain how that specific incident was caused by a lack of notice.
Lawmakers, meanwhile, provided the court with several declarations showing that numerous visits have been conducted with less than seven days’ notice since 2019 without any reported security incidents.
For now, the gates remain open. The underlying appeal will continue to move through the court system to determine whether the seven-day notice policy can be permanently reinstated.
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