Fifth Circuit Rules Detained Illegal Aliens Have No Constitutional Right to Bond Hearings

The full U.S. Court of Appeals for the Fifth Circuit ruled Friday that noncitizens who entered the United States illegally are not constitutionally entitled to bond hearings while detained pending removal proceedings, regardless of how long they have lived in the country.

In a 10-7 decision, the New Orleans-based court held that the Fifth Amendment’s due process protections do not require immigration authorities to provide bond hearings assessing dangerousness or flight risk for aliens who have never been lawfully admitted. Writing for the majority, Judge Cory Wilson, a Trump appointee, stated: “Petitioners, having never been lawfully admitted to the country, are not entitled to additional process concerning their admission beyond what Congress provided in § 1225(b)(2)(A). Even assuming they were, procedural due process would not entitle them to a bond hearing to assess dangerousness or flight risk, factors that are immaterial to Petitioners’ detention under § 1225(b)(2)(A). Further, the duration of Petitioners’ detention presents no constitutional defect requiring habeas relief to correct it.”

The case arose from habeas petitions filed by two Mexican citizens and one Honduran who had lived in the United States for years after entering without inspection. Lower courts had ordered bond hearings. A three-judge panel of the Fifth Circuit had previously ruled in the petitioners’ favor, but the full court voted to rehear the case en banc and reversed. Judge Priscilla Richman concurred in the result under a different statutory interpretation. Seven judges dissented. Judge Dana Douglas, a Biden appointee, wrote in dissent that the majority opinion “detonates the core of the Due Process Clause.”

The decision upholds the Trump administration’s policy of treating aliens present in the interior without having been admitted as “applicants for admission” subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A). That provision states that if an examining immigration officer determines an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien “shall be detained” for removal proceedings. The administration adopted this interpretation in July 2025 guidance, reversing nearly three decades of practice under which many long-term illegal aliens arrested in the interior could seek bond under § 1226(a). The Board of Immigration Appeals later adopted the same reading.

The ruling applies in Texas, Louisiana, and Mississippi—states that house some of the nation’s largest numbers of immigration detainees. Department of Homeland Security General Counsel James Percival called it “a big win in the Fifth Circuit on mandatory detention for illegal aliens, a principle codified in 1996 legislation but ignored by the deep state for decades.” The majority noted that noncitizens can end their detention “at any moment by agreeing to leave the country.”

The Fifth Circuit’s decision deepens a circuit split. The Eighth Circuit has also upheld mandatory detention without bond hearings. Nine other circuits—the First, Second, Third, Fourth, Sixth, Seventh, Ninth, Tenth, and Eleventh—have ruled that long-term illegal aliens arrested in the interior are generally entitled to bond hearings under § 1226(a). The Supreme Court granted certiorari on October 1 in Rhoney v. Barbosa da Cunha, a Second Circuit case, to resolve whether aliens present without admission can seek bond or must remain detained until their cases conclude.

Federal district courts in the Fifth Circuit had ordered bond hearings or release for more than 2,000 ICE detainees following the earlier panel decision, according to a Politico analysis of habeas petitions. Friday’s en banc ruling cuts off that avenue within the circuit’s jurisdiction. The administration has described the policy as a core element of its enforcement efforts. The petitioners’ attorneys have not yet publicly commented on the en banc outcome in available reporting.