President Donald Trump speaks at an event at the General Motors Proving Ground Monday, July 27, 2026, in Milford, Mich. (AP Photo/Paul Sancya).
The New Orleans-based seesaw at the John Minor Wisdom Building went back and forth again on Friday as the U.S. Court of Appeals for the 5th Circuit ruled that immigrants who are indefinitely detained have no constitutional right to argue for their release in a bond hearing.
In July 2025, Immigration and Customs Enforcement (ICE) issued a policy — breaking with decades of precedent — instructing agents to deny bond to anyone who entered the country without “inspection,” triggering a wave of litigation as thousands of detainees filed petitions for a writ of habeas corpus.
Under the policy, immigrants are to be detained “for the duration of their removal proceedings” unless granted parole, a rarer form of release. In practice, however, the Trump administration has made clear it intends such detentions to be indefinite.
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In February, a divided panel on the 5th Circuit determined “the government’s position is correct.” Then, in July, a different divided panel limited that earlier ruling by distinguishing the government’s statutory authority from individuals’ constitutional rights.
Now, the full 5th Circuit, on its own initiative, reversed the panel in an apparent 10-7 vote for the government.
“Petitioners were not entitled to individual hearings on their dangerousness or flight risk before they could be lawfully detained by immigration authorities pending their removal proceedings,” the majority opinion reads. “Moreover, the duration of Petitioners’ detention presented no constitutional issues warranting habeas relief.”
The disputed policy comes from a long-standing section of the Immigration and Nationality Act (INA) that says certain immigrants “shall be detained for a proceeding.” Historically, this section of the INA has applied only to immigrants who are stopped at the border.
Over the intervening months, judges have considered the interplay — and applicability — of two distinct statutes outlining the government’s detention authority, using language from a 2018 U.S. Supreme Court ruling.
The government claims ICE can subject immigrants to mandatory detention under 8 U.S.C. §1225(b), which applies to “aliens seeking entry into the United States.”
Immigrant advocates — as well as most judges who have ruled on the matter — have instead turned to 8 U.S.C. §1226(a), which applies to “aliens already present in the United States.”
District court judges have ruled in more than 15,000 such cases since the administration’s detention surge. In more than 13,000 cases, judges have rejected the position put forward by ICE about its detention authority, according to a Politico rolling analysis of court rulings.
And, since the 5th Circuit limited the policy earlier this year, judges in hundreds of cases have ordered ICE to release detainees.
In its latest consideration of the policy, the 5th Circuit considers the statutory dispute settled and relies only on constitutional arguments.
“There is no dispute that Petitioners enjoy the protections of the Fifth Amendment,” the opinion goes on. “So the issue in this case is not whether Petitioners are entitled to due process. Rather, the question is what specific process is due for unadmitted aliens pending their removal proceedings.”
The appeals court says the proper context for the question is the idea that Congress enjoys “broad power over naturalization and immigration” and “regularly makes rules that would be unacceptable if applied to citizens.”
The 5th Circuit says the decision is an easy call.
“The answer to that question is straightforward,” the opinion continues. “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.”
The rub, however, comes in how the appellate court views the precise form of relief the immigrants say might grant their release.
“[T]he facts Petitioners seek to prove at their bond hearings are irrelevant to detention under §1225(b)…such that the absence of those hearings did not render their detention constitutionally defective,” the opinion goes on. “It was thus error to grant habeas relief on procedural due process grounds.”
The ruling elaborates:
Petitioners do not assert that the process they received was insufficient to prove that they are “entitled to be admitted,” and any determinations made at the bond hearings imposed by the district courts would be irrelevant to the lawfulness of Petitioners’ detention…
This mismatch is brought into sharp relief by the fact that neither the district courts, nor the Petitioners, cite any authority indicating the need for individual bond hearings pending removal proceedings.
In other words, the 5th Circuit says a bond hearing would not affect the statutory detention authority, so a bond hearing cannot be a constitutional right.
“Because the notional hearings would be irrelevant to those determinations, the lack of hearings did not render Petitioners’ detention unconstitutional as a matter of procedural due process,” the opinion goes on.
The post ‘No constitutional issues’: 5th Circuit rules in favor of ICE’s indefinite detention policy, says immigrants are subject to rules ‘that would be unacceptable if applied to citizens’ first appeared on Law & Crime.
