Fifth Circuit's 10-7 Ruling Closes the Constitutional Path to Bond
The full Fifth Circuit ruled on Oct. 23 that three men held without bond have no Fifth Amendment right to a hearing. Whether that matters turns on Rhoney v. Barbosa da Cunha, the Supreme Court case on what the statute itself requires.
The opinion supplies a clock for each man. Alejandro Villegas Angel had been held "just three weeks," Ignacio Sosnava Rodriguez "roughly two months," and Miguel Angel Gomez Alvarado three months before district judges in the Western District of Texas ordered hearings or release. On Friday, Oct. 23, the full U.S. Court of Appeals for the Fifth Circuit ruled, 10-7, that none of the three had a Fifth Amendment right to a bond hearing, and it refused to treat the six-month mark from an older Supreme Court case as "a hard limit on pre-removal detention."
The case is Sosnava Rodriguez v. Vergara, No. 26-50183, consolidated with two others; the 159-page opinion carries seven separate opinions. Judge Cory T. Wilson, a Trump appointee according to Reuters and the Texas Tribune, wrote for the majority. His holding: "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." The court reversed the three district judges, vacated their habeas orders (petitions asking a federal judge to test whether a detention is lawful) and ordered the mandate to issue "FORTHWITH." It also erased a July panel ruling that would have required a hearing within 90 days. On the count, 10 judges voted to reverse, and one of them, Judge Priscilla Richman, concurred in the judgment and wrote separately to limit her agreement.
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The Supreme Court is deciding the statute, not this question
Most headlines stopped at "no right to bond." The sharper fact: this ruling sits on top of a second question the justices have already agreed to take. Layer one is the statute: does 8 U.S.C. § 1225(b)(2)(A) require detention, without bond, of people living in the country who entered without being admitted? Layer two is the Constitution: if it does, may the government hold them without a hearing? The Fifth Circuit answered layer two on Friday. The Supreme Court took layer one on Oct. 1, in Rhoney v. Barbosa da Cunha, No. 26-104, and Reuters reports it is considering only the statute.
The statute says an "applicant for admission" whom an officer finds "not clearly and beyond a doubt entitled to be admitted" "shall be detained" for removal proceedings. Its neighbor, § 1226(a), lets the attorney general detain or release someone arrested on a warrant, with bond "of at least $1,500." Until recently DHS and "many immigration judges" put interior arrests under § 1226(a). DHS guidance dated July 8, 2025 moved people who entered without inspection into § 1225, and the Board of Immigration Appeals adopted that reading in Matter of Yajure Hurtado. A Fifth Circuit panel accepted it on Feb. 6, 2026, in Buenrostro-Mendez v. Bondi, and the Eighth Circuit followed.
The Second Circuit read the statute the other way on April 28, and that is the decision under review. The question the justices agreed to decide asks whether the section "mandates the detention pending removal proceedings of aliens who, like respondent, are present in the United States without having been admitted." The table below takes its list of the nine circuits that disagree with the Fifth from a footnote in Judge Dana Douglas's dissent.
| Reading of § 1225(b)(2)(A) for people living in the U.S. who were never admitted | Circuits |
|---|---|
| Mandatory detention, no bond hearing | Fifth (Texas, Louisiana, Mississippi); Eighth |
| Interior arrests fall under § 1226(a); bond hearing available | First, Second, Third, Fourth, Sixth, Seventh, Ninth, Tenth, Eleventh |
Friday's decision is a constitutional ruling laid over the first row of that table. What it is worth depends on the second layer. If the justices hold that § 1226(a) governs interior arrests, Buenrostro falls and hearings return by statute in Texas, Louisiana and Mississippi. Judge Leslie Southwick, who wrote the lead dissent, said as much:
"Should the Supreme Court eventually determine that this court was wrong as to the statute, then the constitutional issue we address here will have far less significance. It certainly has significance at the moment."
Judge Leslie H. Southwick, dissenting
If the government wins on the statute, the ruling becomes the floor: no court in the circuit could order a hearing on constitutional grounds for someone in the three men's position. The justices have not taken the due-process question itself; the petition that Higginson's dissent calls the one squarely presenting it, Putra v. Lopez-Campos, was filed June 22 and, per his footnote, had not been granted. Judge Stephen Higginson would have paused the constitutional ruling until the Court resolves the "necessarily antecedent statutory question, as it is poised to do." As of Sunday morning, the SCOTUSblog docket for Rhoney shows no argument date. Its last entry is an Oct. 16 motion by the federal parties for more time. Immigration has reached the justices repeatedly this year, including in "Supreme Court clears Trump to end deportation shield for 356,000 migrants", but this case has no calendar yet.
Where a bond hearing is still available
Not nationwide. The ruling binds Texas, Louisiana and Mississippi. In the nine circuits in the table's second row, an immigration judge can hold a custody hearing under § 1226(a), and the minimum bond in the statute is $1,500.
Geography is slippery, though. The Texas Tribune reports that the Trump administration has moved many immigrants from other states into Texas detention centers and Higginson's dissent cites a data project describing "a shift in transfers from New York to Louisiana and Texas following this court's Buenrostro-Mendez decision." The circuit where a person is held, not where the person lives, decides which rule applies.
Inside the Fifth Circuit, the ruling reaches only people never admitted. People admitted and later out of status, such as a visa overstay in the opinion's own example, fall under § 1226, which allows bond. And Wilson left some doors open. Habeas relief might be appropriate, he wrote, "based on factual questions relevant to whether 'an alien seeking admission is not clearly and beyond a doubt entitled to be admitted,'" and he did "not dismiss the idea that distinct due process questions might arise" if detention stopped serving its immigration purpose or removal proceedings became a "façade."
Judge Haynes would go further, for a narrower group. She agreed with Southwick's basic points but said the analysis should be limited to people who have lived here more than 10 years, have no criminal history and have close American relatives. She dissented, so that is not the law. For families, the facts that matter are the circuit of detention, whether the person was ever admitted and which statute ICE invoked; a licensed immigration attorney can say which applies, and ICE runs an Online Detainee Locator System at locator.ice.gov.
The 2,000 orders the ruling takes away
The practical change shows up in the Texas district courts. By Politico's analysis of habeas petitions, federal judges in Texas have ordered bond hearings or release for more than 2,000 ICE detainees since the Feb. 6 ruling, and Politico wrote that Friday's decision "cuts off that option." Over the 259 days from Feb. 6 to Oct. 23, that is at least about 54 orders a week. The habeas door was the one still producing releases.
The immigration-court side was already thin. Mobile Pathways, an organization that analyzed Executive Office for Immigration Review data, counted 3,067 bond hearings recorded nationwide in April 2026, the latest month in its source, and 755 in which a judge set a non-zero bond.
The group's own summary is that a person walking into a bond hearing faced roughly a 75% chance of being turned away, for most of the year to that point. Mobile Pathways wrote that after the February Fifth Circuit ruling, immigration judges in Texas and Louisiana "stopped scheduling bond hearings almost immediately after," citing former immigration judge Jeremiah Johnson. That is one organization's reading of government data.
The detained population is the larger backdrop. TRAC reported 65,765 people in ICE detention as of July 11, 2026, its latest retrievable figure, and 46,436 of them, 70.6%, had no criminal conviction. In its fiscal 2026 state table, current as of July 9, Texas shows 16,450 and Louisiana 7,680; TRAC does not say whether those are counts, averages or cumulative totals. Together they are 1.62 times California, Georgia and Florida combined. None of these figures isolates people held under § 1225(b)(2)(A), so none says how many the ruling touches, but they show why a rule for three states carries national weight.
People who were already freed are the open question. The three men's habeas grants, issued Feb. 25, March 2 and March 3 and followed by release, are vacated. Wilson wrote that "continued detention, or renewed detention in the case of an alien previously released, does not violate due process" so long as removal remains a viable prospect. The holding concerns the three petitioners and the legal rule; it does not by itself undo other district judges' orders. As of Sunday morning, none of the reports says whether ICE will re-detain anyone freed by a different judge's order. Judge Andrew Oldham, concurring, wrote that after a July 21 stay some district judges kept granting relief anyway, and that "even today's decision will not stop this conduct."
The majority's best case is about who decides. Wilson, citing Congress's control over admission and the Supreme Court's decision in Demore v. Kim (which upheld detention during removal proceedings without an individualized dangerousness finding), says the facts a bond hearing would examine are "irrelevant to detention under § 1225(b)(2)(A)," and that petitioners claiming a liberty interest "can do so at any moment by agreeing to leave the country." His closing: "Controlling illegal immigration is, no doubt, an important and controversial issue of public policy. But the Constitution entrusts broad authority to delineate immigration policy, and to design proceedings to effectuate those policy choices, to Congress—not courts." DHS general counsel James Percival called it a "Big win in the Fifth Circuit on mandatory detention for illegal aliens," the term is his.
The dissenters' best case is about where the Fifth Amendment stops. Southwick, writing for six judges, said the 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." Douglas said the majority "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." Higginson argued the court never needed to reach the Constitution, given the nine circuits: "Today the majority speaks over that historical consensus."
The tenth vote is the narrowest one. Richman agreed that the Due Process Clause does not require a bond hearing for people held under § 1225, then added: "I express 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." She called those questions "not before the en banc court." The Supreme Court is about to decide the statute that frames them, and as of Sunday morning its docket shows no date for argument.
