Full Fifth Circuit rules 10-7 that detained immigrants who entered illegally have no due-process right to bond hearings

The full U.S. Court of Appeals for the Fifth Circuit ruled 10-7 on Friday, Oct. 23, 2026, that three immigrants held without bond while their removal cases proceed had no Fifth Amendment right to hearings on whether they were dangerous or likely to flee. The court reversed three rulings from the federal district court for the Western District of Texas and vacated the orders granting habeas relief. It ordered its mandate to issue “forthwith.”¹

The consolidated appeals, led by No. 26-50183, involve two Mexican nationals and a Honduran national who, according to the opinion, had lived in the U.S. without inspection or admission since at least 2012. Each was taken into Immigration and Customs Enforcement custody after a traffic stop between November 2025 and February 2026, held under 8 U.S.C. § 1225(b)(2)(A) and released after the district courts ruled for them.¹

What the court held

Judge Cory T. Wilson wrote for the court, joined by Chief Judge Elrod and Judges Jones, Smith, Willett, James C. Ho, Duncan, Engelhardt and Andrew S. Oldham. Judge Priscilla Richman, listed with the majority, concurred in the judgment only, according to a footnote; she did not write separately. Ho and Oldham also wrote concurrences.¹

The majority concluded that the three men “have received the process due to unadmitted aliens” and that the length of their detention raised no constitutional problem warranting release. Wilson wrote that the men could end their detention “at any moment by agreeing to leave the country.” The opinion said habeas relief could still be appropriate in other circumstances, including factual disputes over whether a person is covered by the statute.¹

A July panel decision had required bond hearings within 90 days of detention; the full court vacated it and heard argument Sept. 24, the opinion says.¹

The dissents

Judge Leslie H. Southwick, joined by Judges Stewart, Graves, Stephen A. Higginson, Dana M. Douglas and Ramirez, wrote that the majority had built “an impenetrable wall” between the Constitution and long-term residents. Judge Haynes dissented separately, limiting her view to people who have lived in the U.S. more than 10 years, have no criminal history and have close American relatives. Douglas and Higginson also wrote dissents.¹

The Supreme Court

Higginson’s dissent notes that the Supreme Court has agreed to review how Section 1225 applies to people detained inside the country. The Supreme Court docket shows the court granted the government’s petition on Oct. 1 in Rhoney v. Barbosa da Cunha, No. 26-104, an appeal from the Second Circuit.¹² A separate government petition that, per Higginson, squarely raises the due-process question, Putra v. Lopez-Campos, No. 25-1415, from the Sixth Circuit, was distributed for the court’s Sept. 28 conference; its docket lists no ruling on it.¹³

The responses

James Percival, general counsel of the Department of Homeland Security, posted that the decision was a “big win in the Fifth Circuit on mandatory detention for illegal aliens,” The Texas Tribune and Verite News reported.⁴⁵

Rebecca Cassler of the American Immigration Council, who argued for the men, said the right to due process “is a fundamental constitutional protection,” the Tribune reported, and called the ruling “an affront to the U.S. Constitution,” according to Verite News. Gracie Willis of the National Immigration Project, which also represents the men, said her group had not decided whether to appeal to the Supreme Court, the Tribune reported.⁴⁵

What the records do not show

• The opinion does not say how many people are held under the same provision in Texas, Louisiana and Mississippi, the states the Fifth Circuit covers.
• No petition for Supreme Court review of this ruling appeared in the records reviewed as of Oct. 24.
• Verite News reported the related Supreme Court case comes from the Eighth Circuit; the Supreme Court docket for No. 26-104 lists the Second Circuit.⁵²