Key Points

  • The en banc Fifth Circuit held 10-7 that immigrants who were never lawfully admitted are not entitled under the Due Process Clause to bond hearings before detention under 8 U.S.C. § 1225(b)(2)(A) pending removal.
  • The majority held in the alternative that hearings on dangerousness and flight risk would address facts irrelevant under the statute, relying on Connecticut Department of Public Safety v. Doe.
  • The court held that the petitioners' detention of three weeks to three months raised no constitutional defect and that continued or renewed detention does not violate due process so long as removal remains a viable prospect.
  • The court reversed the district courts and vacated the habeas grants to three longtime residents, with the mandate issuing forthwith.
  • Four dissents argued that freedom from physical restraint requires the government to justify detention, noted that the Fifth Circuit is in the minority among circuits, and pointed to the Supreme Court's Oct. 1 grant of certiorari in Rhoney v. Barbosa da Cunha.

The full U.S. Court of Appeals for the Fifth Circuit ruled 10-7 on Oct. 23 that immigrants who entered the United States without inspection have no constitutional right to a bond hearing while the government detains them during their deportation cases, even after years of living in the country.

The en banc court, which heard the case with 17 judges, reversed three federal district court rulings in Texas that had freed three men held by U.S. Immigration and Customs Enforcement. Judge Cory T. Wilson wrote the majority opinion. Judge Priscilla Richman concurred in the judgment, and four judges wrote dissents.

The decision means that, within the Fifth Circuit, an immigrant who was never lawfully admitted cannot invoke the Fifth Amendment's Due Process Clause to obtain a hearing on dangerousness or flight risk before being held for the length of removal proceedings. The majority also held that the government may re-detain people previously released, so long as removal remains a viable prospect. The dissenters wrote that the ruling leaves the Fifth Circuit in the minority among the federal appeals courts, and that the Supreme Court agreed on Oct. 1 to review the underlying statutory question in Rhoney v. Barbosa da Cunha.

The men were detained under 8 U.S.C. § 1225(b)(2)(A), which provides that when an immigration officer determines that an alien seeking admission "is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained" for a removal proceeding. In July 2025, the Department of Homeland Security began applying that provision to people arrested in the interior, whom it had generally treated as eligible for discretionary bond. Earlier this year, in Buenrostro-Mendez v. Bondi, the Fifth Circuit upheld that reading.

Ignacio Sosnava Rodriguez, a Mexican national, has lived in the United States without inspection or admission for more than 22 years. ICE detained him after a traffic stop in December 2025. Alejandro Villegas Angel, also from Mexico, has lived in the country since 2011 and has two U.S.-citizen children. Miguel Angel Gomez Alvarado, a Honduran national, has lived here since 2012 and has one U.S.-citizen child.

Judges Pitman and Ezra of the Western District of Texas granted the men's habeas corpus petitions and barred re-detention without bond hearings. In July, a divided panel affirmed and required such hearings within 90 days of confinement. The full court then ordered rehearing on its own motion, stayed the district court orders and heard argument on Sept. 24.

"Because Petitioners have never been admitted to the United States, due process does not entitle them to additional proceedings beyond what Congress has provided before they may be detained pending removal," Judge Wilson wrote. The majority relied on the Supreme Court's 2020 decision in DHS v. Thuraissigiam, which involved a man caught 25 yards inside the border, for the principle that admission status, not physical presence, determines an alien's procedural rights.

In the alternative, the majority held that the requested hearings would address facts the statute makes irrelevant. It drew on Connecticut Department of Public Safety v. Doe, a 2003 decision rejecting a sex offender's demand for a dangerousness hearing under a registration law that applied regardless of dangerousness. Hearings on the men's family ties, earning potential "or whether they drive American-made automobiles would be just as relevant" to detention under the statute, Judge Wilson wrote. "Which is to say, not relevant at all."

The majority also rejected the men's claim to a fundamental liberty interest, noting that each could end his detention by agreeing to leave the country. "In no other context implicating a core liberty interest does the detainee hold the keys to his confinement," the opinion said. Gomez had been held three months, Sosnava about two months and Villegas three weeks, periods the court said raised no constitutional problem.

Judges James C. Ho and Andrew S. Oldham wrote concurrences. Judge Ho said the petitions sent "the message that the only people who are above the law in our country are the ones who violated our laws to get in." Judge Oldham wrote that "the process Congress chooses to provide is, by definition, all the process an unadmitted alien is due."

Judge Leslie H. Southwick, who wrote the vacated panel opinion, led the principal dissent, joined by five colleagues. "With respect, I conclude this court has constructed an impenetrable wall between the Constitution and these long-term residents, a wall not designed, recognized, or even suggested by the Supreme Court," Judge Southwick wrote. The dissent argued that freedom from physical restraint lies at the core of due process and that the government must justify confinement. "The Constitution does not permit the Government to hold an alien for as long as that decision takes, with no obligation ever to justify continuing confinement," it concluded.

Judge Dana M. Douglas wrote that "the majority opinion detonates the core of the Due Process Clause based on a case about whether sex offenders may be required to publicly register their names under state law." Judge Haynes dissented separately, limiting that dissent to people who "have resided in this country for more than ten years, have no criminal history, and have close American relatives."

Judge Stephen A. Higginson urged the court to overrule Buenrostro-Mendez and read the statutes to avoid the constitutional question. "We should not rush ahead to create a new circuit split while the Supreme Court and Congress are positioned to address threshold statutory questions," Judge Higginson wrote.

Judge Richman's concurrence expressed "no opinion as to whether immigration officials might instead proceed to detain aliens like Petitioners under 8 U.S.C. § 1226, and if so, whether a hearing would be required."

The court ordered its mandate to issue forthwith. According to Judge Higginson's dissent, a certiorari petition in Buenrostro-Mendez remains pending at the Supreme Court, and the justices have not granted review in Putra v. Lopez-Campos, the one petition that squarely presents the due process question.