Full Fifth Circuit Rules 10-7 That Immigrants Who Entered Illegally Have No Constitutional Right to a Bond Hearing

The full U.S. Court of Appeals for the Fifth Circuit ruled 10-7 on Friday, Oct. 23, that immigrants who entered the country illegally and were never formally admitted have no constitutional right to an individualized bond hearing while their removal cases are pending. That holds even if they have lived here for years or decades.

The 159-page opinion, written by Trump appointee Judge Cory Wilson, reverses three orders from federal district courts in the Western District of Texas that had released the detainees.

The three men at the center

The petitioners are three men from Mexico and Honduras who entered illegally and had lived in the United States for roughly 14 to 22 years. All were detained after traffic stops. Two have American-citizen children. Judge Catharina Haynes noted in her dissent that they have no criminal history.

The district judges ordered them released after concluding that holding them without a hearing on dangerousness or flight risk violated due process. A divided three-judge Fifth Circuit panel agreed on July 2 and required a hearing within 90 days of detention.

The full court then took the case up on its own initiative, heard arguments Sept. 24, and reversed. The majority also threw out the panel's 90-day requirement.

What the majority held

Wilson acknowledged that people here illegally are protected by the Fifth Amendment's Due Process Clause. He concluded the protection does not extend to what these men wanted.

"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," he wrote.

He also wrote that whether a detainee is a flight risk or a danger is legally irrelevant to whether the statute permits detention. On the argument that long detention creates its own constitutional problem, Wilson wrote that "to the extent petitioners seek to vindicate a liberty interest," they could end their detention by agreeing to leave the country.

The ruling covers Texas, Louisiana and Mississippi, which hold some of the largest immigration detention populations in the country.

The dissents

Judge Leslie Southwick, a George W. Bush appointee, wrote a dissent joined by five other judges. "The majority is saying that these individuals have no fundamental interest in freedom from physical detention because of their illegal presence. I cannot agree," he wrote.

Haynes, also a Bush appointee, agreed with the "basic points" of that dissent but would confine the holding to people "who have resided in this country for more than ten years, have no criminal history and have close American relatives."

Judge Stephen Higginson, an Obama appointee, wrote a separate dissent joined by five judges. He argued that an earlier Fifth Circuit panel's statutory ruling was wrong and that the mandatory-detention policy does not comply with immigration law.

Rebecca Cassler of the American Immigration Council, who represents the three men, called the decision "an affront to the U.S. Constitution."

Department of Homeland Security General Counsel James Percival called it a "big win" on a principle "codified in 1996 legislation but ignored by the deep state for decades."

The statute fight underneath

There are two competing provisions. Section 1225 of the Immigration and Nationality Act mandates detention of "applicants for admission," generally without bond. Section 1226 allows detention but also permits release on bond.

For roughly three decades, immigration authorities generally applied Section 1226 to people arrested inside the country. In July 2025, DHS changed course and began treating anyone who entered without inspection as subject to mandatory detention under Section 1225, no matter how long they have lived here.

A separate Fifth Circuit panel upheld that reading. The Eighth Circuit has too. Nine other circuits have ruled that Section 1226 applies, a 9-2 split.

Friday's decision answered a different question: even if the statute requires detention, does the Constitution demand a bond hearing? The majority said no.

The Supreme Court case that could change the picture

The justices are set to hear Rhoney v. Barbosa da Cunha this term. It comes from the Second Circuit and concerns Barbosa da Cunha, a Brazilian national who entered illegally about two decades ago and was detained in 2025.

The question there is whether the mandatory-detention provision applies to longtime residents arrested inside the country at all.

If the Court sides with the Second Circuit, Barbosa da Cunha would have a path to seek bond. That reasoning would likely reach the three men in the Fifth Circuit case too. It would remove the need to decide whether due process requires a hearing, and Friday's constitutional holding would lose much of its practical force.

If the Court sides with the administration on the statute, the Fifth Circuit's due-process holding would stand on firmer ground. The justices could also address the constitutional issue separately. The Court has not yet announced when it will hear Rhoney.