The John Minor Wisdom U.S. Court of Appeals Building in New Orleans, where the Fifth Circuit sits. Photo: U.S. General Services Administration (U.S. government work, public domain).
The full appeals court says the Constitution adds nothing to a detention statute that offers no bond, leaving the Supreme Court’s pending case as the only way back to a hearing in Texas, Louisiana and Mississippi.
The full Fifth Circuit ruled on Oct. 23 that immigrants detained after entering the country without inspection have no due process right to a bond hearing, no matter how long they have lived in the United States, closing the constitutional route to Fifth Circuit bond hearings for that group. The decision in Sosnava Rodriguez v. Vergara reverses habeas grants for three men from Mexico and Honduras who had lived here for about 14 to more than 22 years, and it now governs custody in Texas, Louisiana and Mississippi, home to a large share of ICE’s detention beds. Ten judges voted to reverse and seven dissented.
The timing gives it weight. The statutory question is already before the Supreme Court, and if the justices side with the government there, this decision leaves detainees in the Fifth Circuit with no constitutional argument to fall back on. It means detainees nationwide will lose their statutory argument if the Supreme Court sides with the government. However, detainees in other regions could still fallback on a constitutional argument, claiming that the Due Process Clause of the U.S. Constitution requires a hearing if they are locked up for a prolonged period. Because of this recent ruling, the Fifth Circuit has preemptively slammed that constitutional door shut for its specific region. Therefore, while detainees in other parts of the country can still fight using constitutional claims in their own regional courts, detainees in the Fifth Circuit are left with no legal options remaining if the Supreme Court rules on statutory question in favor of the government.
How the case reached the full court
The dispute traces to a policy change in July 2025, when DHS, according to the opinion, revisited its legal position on detention and release authorities. Long-time residents who had entered without inspection began to be treated as “applicants for admission” under 8 U.S.C. 1225(b)(2)(A), a provision that requires detention and offers release only through discretionary parole. Before that, most were held under 8 U.S.C. 1226(a), which allows an immigration judge to set bond.
In February, a Fifth Circuit panel accepted the government’s reading of the statute, Bloomberg Law reported. Detainees then argued that, whatever the statute says, the Fifth Amendment requires an individual hearing. A panel agreed on July 2 and set a 90-day deadline for such hearings. The full court then vacated that decision, heard argument on Sept. 24 and has now rejected the due process claim outright.
Writing for the majority, Judge Cory Wilson held that the three men “were not entitled to individual hearings on their dangerousness or flight risk.” Citing DHS v. Thuraissigiam (2020), he reasoned that people never lawfully admitted have only the process Congress chose to give them. The court confined Zadvydas v. Davis, the 2001 case limiting indefinite detention, to people held after a final removal order, and it rejected the panel’s 90-day rule, finding that detention stays lawful while removal remains attainable. The majority also noted that detainees can end custody “at any moment by agreeing to leave the country,” while acknowledging that doing so means conceding removability and can trigger a 10-year bar on return.
Judge Leslie Southwick wrote the principal dissent, treating freedom from physical restraint as the core of the liberty the Due Process Clause protects. Judges Stephen Higginson and Dana Douglas also wrote dissents. Judge Priscilla Richman concurred only in the judgment.
Who the ruling reaches, and who it leaves alone
The holding covers people who entered without inspection and are held under the mandatory provision. It does not reach people who were inspected and admitted. The opinion itself places visa overstays under Section 1226, the bond-eligible framework, so H-1B workers, students and visitors who fall out of status are not the subject of this case.
Geography magnifies the effect. ICE can transfer detainees between facilities, and Texas and Louisiana hold more ICE detainees than any other states.
| Measure | Figure |
|---|---|
| People in ICE detention nationwide (April 4, 2026) | 60,311 |
| Held in Texas | 17,908 |
| Held in Louisiana | 8,115 |
| Texas and Louisiana combined, share of national total | 43.1% |
| Detainees with no criminal conviction (April 2026) | 70.8% |
Not everyone in those facilities is held under Section 1225(b)(2)(A), so the figures show reach, not a count of people affected. They do help explain why habeas petitions have swamped federal courts.
Rebecca Cassler of the American Immigration Council, an immigrant-rights group that argued the case, called the ruling “an affront to the U.S. Constitution.” The administration’s position, set out in its Supreme Court filings, is that the statute’s plain words cover everyone present without a lawful admission, however long they have been here, and the majority agreed that Congress’s broad power over immigration allows rules for noncitizens that would not be acceptable for citizens.
What the Supreme Court bond case now has to carry
On Oct. 1 the Supreme Court agreed to hear Rhoney v. Barbosa da Cunha, No. 26-104, which asks whether Section 1225(b)(2)(A) reaches people living inside the country at all. SCOTUSblog has reported that argument is expected in early 2027, which would likely mean a decision by the end of the term next summer.
The two cases answer different questions. If the justices read the statute for the detainees, people in the Fifth Circuit move back under Section 1226(a) and get bond hearings regardless of this ruling. If the government wins, the Fifth Circuit has already said the Constitution supplies no fallback, while courts elsewhere may still hear due process claims, leaving the right to a hearing dependent on where ICE holds someone. That divide would make further Supreme Court review likely, and it would sharpen the long-detention complaints the pending case may not resolve.
The court ordered its mandate issued immediately, so the judgment takes effect without the usual wait. District judges in the circuit, some of whom had kept granting release on due process grounds, are now bound by it. That raises the stakes of disputes over which statute a person is held under, because in these three states the label may now settle whether a hearing is possible at all.
This article is for general information and is not legal advice.
Sources
- U.S. Court of Appeals for the Fifth Circuit (en banc), Sosnava Rodriguez v. Vergara, Nos. 26-50183, 26-50219, 26-50221 (Oct. 23, 2026)
- Bloomberg Law, “Trump Migrant Detention Policy Upheld by Full Fifth Circuit” (Oct. 23, 2026)
- American Immigration Council statement (Oct. 23, 2026)
- TRAC, “ICE Detention Is Down from Its Early-2026 Peak” (April 10, 2026)
- Supreme Court docket, Rhoney v. Barbosa da Cunha, No. 26-104
- Petition for a writ of certiorari, Rhoney v. Barbosa da Cunha
- SCOTUSblog, report on the grant of review (Oct. 2026)
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