- The Fifth Circuit upheld mandatory detention authority for noncitizens without bond hearings during deportation proceedings.
- The ruling affects detainees in Texas, Louisiana, and Mississippi regardless of whether they were arrested at the border.
- A full court rehearing is scheduled for September 2026 to determine the finality of these detention policies.
The U.S. Court of Appeals for the Fifth Circuit has allowed the Department of Homeland Security to continue holding many noncitizens without bond while their deportation cases proceed. The ruling covers Texas, Louisiana and Mississippi.
The full court vacated a panel decision that had required bond hearings after 90 days. It also stayed lower-court orders directing hearings or releases, stopping pending releases across the circuit.
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Brett Shumate, the Justice Department’s assistant attorney general, said the full court had made clear that people in removal proceedings have no constitutional right to remain free while their cases continue.
“The full Fifth Circuit has issued an extraordinary precedential order making clear that illegal aliens do not have a constitutional right to roam free in the United States during their removal proceedings.”
James Percival, general counsel of the Department of Homeland Security, said the agency’s position restored what Congress required. He also urged some people to leave voluntarily.
“DHS's change in legal position on illegal alien detention restored the policy set by Congress and rejected a misreading of the law that perpetuated open borders for decades. It's not too late to take a $2,600 check and a free flight home.”
The decision immediately affects thousands of detainees in the three states, which have the country’s largest immigration detention populations. People arrested during traffic stops or other interior enforcement actions may now remain detained until their cases end, without asking an immigration judge to set bond.
The court revived detention authority for people arrested far from the border
The government relies on 8 U.S.C. § 1225(b)(2)(A). That provision says officials “shall” detain applicants for admission who are not clearly entitled to enter while they face removal proceedings.
DHS has applied that rule beyond border arrests. Under the expanded interpretation, people arrested inside the country, including some who have lived there for decades, can be classified as “unadmitted applicants for admission.”
That interpretation drives the current dispute over illegal alien detentions. The issue is not limited to people stopped at ports of entry.
The policy’s legal foundation also came from H.R. 1, the Reconciliation Act of 2025, commonly called the “One Big Beautiful Bill Act.” The measure supplied funding and a legislative framework for expanded detention capacity and interior enforcement.
On July 7, DHS said it “strongly disagrees with the Fifth Circuit panel and is confident in its legal position regarding mandatory detention.” The statement followed the panel’s initial ruling against the government’s position.
A 12-day window for hearings ended when the full court intervened
A three-judge panel ruled July 2 in Sosnava-Rodriguez v. Ortega that holding people for more than 90 days without a bond hearing violated the Constitution. That decision opened a short period in which some detainees could seek hearings.
The full Fifth Circuit vacated the panel ruling on July 14. The 90-day hearing requirement therefore stopped applying in the circuit.
The en banc court then issued a stay on July 21-22. The order reached lower-court directives that had required bond hearings or releases, effectively halting releases that remained pending.
The court did not automatically undo releases granted during the 12-day period between July 2 and July 14. Attorneys have warned that DHS may seek to detain some of those people again under the new precedential stay.
The ruling deepens a split among federal appeals courts
The Fifth and Eighth circuits have largely upheld the government’s authority to impose mandatory detention. The Second, Sixth and Eleventh circuits have reached the opposite conclusion.
Those courts have ruled that people arrested in the interior are entitled to bond hearings under different provisions of the Immigration and Nationality Act. The conflicting approaches leave detention rights dependent in part on the circuit handling the case.
The Fifth Circuit’s approach currently governs federal cases in Texas, Louisiana and Mississippi. Immigration custody decisions can also involve individual facts, procedural posture and other legal claims, so people facing detention should obtain advice from a qualified immigration attorney.
The full court is scheduled to rehear the case en banc in September 2026. That proceeding is expected to be the final step before possible review by the U.S. Supreme Court during its October 2026 term.
This article provides general information and is not legal advice. Consult a qualified immigration attorney about your specific case.
