The 9th Circuit Court of Appeals may have dealt the Trump administration a blow on Friday with its National Guard decision, but the full 5th Circuit handed the administration a solid win in its ongoing battle over immigration enforcement, ruling that certain illegal aliens may be detained during deportation proceedings without first receiving individualized bond hearings.
And given that the Supreme Court has already agreed to hear a closely related dispute, this could be setting the stage for one heck of a legal showdown.
In a sweeping, 159-page decision, the 5th Circuit reversed three federal district court rulings that had ordered the release of illegal aliens detained by Immigration and Customs Enforcement (ICE), finding that the Fifth Amendment does not entitle them to bond hearings merely because they've lived in the United States for years.
The 10-7 decision also rejected an earlier three-judge panel's requirement that such hearings occur within 90 days of detention.
How We Got Here
The case involves three men from Mexico and Honduras who entered the United States illegally and had lived here for approximately 14 to 22 years. All were detained following traffic stops, and two of the three have American-citizen children.
Federal district judges ordered their release after concluding that continued detention without hearings to determine whether they posed a danger or flight risk violated their constitutional rights. A divided 5th Circuit panel initially agreed. But the full court took the unusual step of ordering rehearing on its own initiative.
To understand Friday's ruling, there's an important distinction in federal immigration law to bear in mind: One provision generally allows immigration officials to detain certain aliens while their removal cases proceed, but also permits their release on bond. Another requires the detention of aliens classified as applicants for admission — generally without bond eligibility.
For years, immigration authorities generally applied the first provision to illegal aliens apprehended inside the country. However, in July 2025, DHS changed its interpretation, concluding that people who entered illegally and were never formally admitted fall under the mandatory-detention provision, regardless of how long they've lived here.
The 5th Circuit previously upheld that interpretation. But Friday's question was different: Even if the statute requires detention, does the Constitution nevertheless require individualized bond hearings?
The Majority Says No
Writing for the majority, Judge Cory Wilson (Trump) emphasized Congress' broad constitutional authority to establish immigration rules. The court acknowledged that illegal aliens are protected by the Fifth Amendment's Due Process Clause, but concluded that those protections do not entitle the particular individuals involved to bond hearings.
The reasoning? Congress made detention mandatory based on their immigration status. Whether an individual poses a danger or flight risk doesn't change that statutory requirement. In other words, the majority determined that the Constitution doesn't require a hearing to establish facts that wouldn't legally change the detention decision anyway.
The court also rejected the notion that detention automatically becomes unconstitutional after 90 days, although it did leave open the possibility of constitutional challenges involving excessive delays, improper detention purposes, or circumstances where removal is no longer realistically possible.
The majority vacated the district courts' orders granting relief and directed its mandate to issue immediately.
And Then Come the Separate Opinions...
This being the 5th Circuit, the majority opinion was hardly the final word.
Judge James Ho (Trump), in a pointed concurrence, framed the dispute as a question of national sovereignty and Congress's authority to control immigration. (And, not to be a total law nerd, but if I could marry a concurrence, this would probably be the one.)
Ho sharply criticized the dissenters' conception of constitutional liberty, arguing that it would effectively reward people for circumventing immigration laws:
According to our dissenting colleagues, however, illegal aliens have not only a de facto constitutional right to remain in our country unlawfully, but an incentive to make this their home. That’s because, to quote the principal dissent, once an alien has “acquired a domicil or residence” in America, it no longer matters that they are breaking the law to be here—their detention becomes an offense to “‘liberty’ . . . at its core,” and an affront to freedom “at its most basic,” namely, “freedom from physical restraint.” Post, at 101, 102, 115 (Southwick, J., dissenting). So they must have “the power of locomotion” and the right to roam freely “to whatsoever place one’s own inclination may direct.” Id. at 102, 103 (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 130 (1769)).
Alas, such passion for liberty has been lacking when U.S. citizens have been detained for expressing opinions disfavored by government officials. See, e.g., Villarreal v. City of Laredo, 134 F.4th 273 (5th Cir. 2025), reaff’g 94 F.4th 374 (5th Cir. 2024); Gonzalez v. Trevino, 60 F.4th 906 (5th Cir. 2023); see also Mayfield v. Butler Snow, L.L.P., 78 F.4th 796 (5th Cir. 2023).
My point is not to relitigate those cases, but to contrast the dissent’s votes in those cases with its views today. It’s to point out that liberty wasn’t favored for citizens who seek to vindicate their constitutional rights—but it’s cherished for illegal aliens who seek to violate our national sovereignty.
(bold mine)
Ho lays out the stakes:
This case amounts to a clear and stark choice. Either our Nation has the sovereign power to enforce its borders—or it doesn’t. Foreigners can either claim a constitutional right to travel across our country, unrestricted, and regardless of whatever laws Congress may wish to pass—or they can’t. It can be one, or it can be the other. It cannot be both.
And he offered this illustrative observation:
Our country’s sovereignty is not a national game of red rover. Our Constitution does not reward aliens for breaking through our border.
And, to firmly drive the point home, Ho also drew upon his own immigration experience, explaining that he came to the United States as a child and views admission to the country as an exercise of national generosity rather than an entitlement.
Judge Andrew Oldham (Trump), meanwhile, took a decidedly different — and considerably longer — route to the same conclusion.
His extensive concurrence explores centuries of English and American legal history, from Magna Carta to the development of habeas corpus, the legal mechanism allowing people to challenge their detention in court.
Oldham's central distinction is that having the right to challenge detention doesn't necessarily mean having the right to be released.
He illustrates the point with an analogy involving America's pastime: The law establishes the strike zone, while judges serve as umpires. The ability to challenge a call doesn't empower the umpire to rewrite the rules.
And, because this is Judge Oldham, the discussion even includes a footnote about notoriously controversial former Major League Baseball umpire Angel Hernandez.
Yes, really.
And then he lets the district courts, the petitioners, and the dissent have it:
The Government attempted to stop this race to the courthouse. It moved for a “precedential stay” in our court. We granted the stay in a published order on July 21, 2026. Sosnava Rodriguez v. Ortega, No. 26-50183, Dkt. No. 178-1 at 13. But some district courts told us to kick rocks. One district judge replicated an identical footnote in several of his opinions acknowledging the “precedential” stay order from this court. Yet each time, the district court decided to underrule us and forge ahead with granting habeas relief anyway. See, e.g., Jimenez, 2026 WL 2518011, at *1 n.2; Lerma Huipio, 2026 WL 2415270, at *1 n.2; Rosas Garcia, 2026 WL 2519134, at *1n.1. That is deeply problematic. See NIH v. Am. Public Health Ass’n, 145 S.Ct. 2658, 2663 (2025) (Gorsuch, J., concurring in part and dissenting in part). I worry that even today’s decision will not stop this conduct. And the rule of law will suffer as a result.
* * *
It’s an amateurish caricature of originalism to search for a word or phrase in The Federalist Papers, wrench it from context, paste it into a brief or opinion, and declare erudition with a citation from the eighteenth century. But the petitioners’ briefs exude this historically sophomoric energy. They cite this or that quotation from Magna Carta, Coke, and Blackstone and then declare that, voilà, aliens have some freewheeling “core constitutional right to physical liberty” that renders unconstitutional a three-week immigration detention. En Banc Red Br. at 2; see also id. at 2–3 (citing Magna Carta, Coke, and Blackstone). The dissents replicate this category error: They declare “Liberty!”; divorce it entirely from constitutional text and context; and then pretend that this case does not implicate substantive due process.
Yeeowwchh!
The Dissenters Push Back
Judge Leslie Southwick (Bush 43), joined by five colleagues, argued that the majority improperly denies longstanding residents meaningful protection against detention without an opportunity to seek release.
Judge Dana Douglas (Biden) criticized the majority's approach to constitutional liberty, while Judge Stephen Higginson (Obama) challenged the court's underlying interpretation of the immigration statute.
Judge Catharina Haynes (Bush 43) offered a narrower objection, focusing on individuals like these petitioners who have lived here for more than a decade, lack criminal histories, and have close American family ties.
The disagreements are substantial, particularly over how much constitutional protection applies to someone who entered illegally but established a life inside the country.
Enter the Supreme Court
Here's where things get especially interesting.
On October 1, SCOTUS agreed to hear Rhoney v. Barbosa da Cunha, involving the underlying statutory question: Does the mandatory-detention provision apply to illegal aliens already living inside the United States? Numerous other federal appeals courts have interpreted that provision differently from the 5th Circuit.
Now, the Supreme Court isn't directly reviewing Friday's constitutional ruling in the Rhoney case. But if the justices reject the 5th Circuit's interpretation of the statute, that could undermine the foundation of this decision.
For the time being, though, the ruling strengthens the administration's authority to detain this category of illegal aliens without individualized bond hearings in Texas, Louisiana, and Mississippi.
But with the Supreme Court already preparing to address the statutory dispute — and the 5th Circuit's judges having a rather spicy exchange over constitutional liberty — this one's most definitely worth keeping an eye on.
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