The 5th Circuit initially found Trump’s new detention policy denying immigrants a right to a bond hearing regardless of the amount of time they have been in custody to be unconstitutional. Within days of that decision the Court agreed to rehear the case En Blanc (with the full panel of judges) and rescinded their earlier decision.
On October 23, 2026, the 5th Circuit Court of Appeals made a new decision with the full panel of Judges, this time upholding Trump’s policy in Sosnava Rodriguez v. Ortega, 5th Cir., No. 26-50183, opinion 10/23/26. The decision was written by a Trump-appointed Judge who said that because the petitioners were not admitted to the United States they are not entitled to protection under the fifth amendment.
A country where a roaming police force must seek out millions of noncitizens for mandatory detention without meaningful process or recourse to even a rudimentary hearing is a less decent place for people like Petitioners who have led law-abiding lives, committed no crimes, and raised United States citizens
The Judge echoed a point frequently made by Trump administration officials, writing that noncitizens can be released from detention “at any moment by agreeing to leave the country.”
Last year, the Trump administration departed from a practice that existed for three decades, and began to classify noncitizens who have long lived within US borders as “seeking admission,” the same as noncitizens who’d just arrived at the airport and are going through customs. As a result of this legal interpretation they are not eligible for a bond hearing to request they be allowed to fight their case from outside of a jail cell.
A number of Judges in the 5th Circuit dissented in this case. In dissent, Judge Southwick said that while detention can be a valid part of deportation proceedings, there’s no support for the idea that a noncitizen can be locked up indefinitely as they’re case is pending, “however delayed,” with no option for possible release and without regard to whether it is even necessary. Southwick was joined by Douglas and Judges Carl Stewart, James Graves Jr., Stephen Higginson, Irma Carillo Ramirez.
Under longstanding Supreme Court precedent a noncitizen’s “presence and residence” in the country, not their technical “admission” to it, entitles them to due process of law, as Southwick explained in the dissenting opinion.
Judge Douglas also wrote a separate dissent, joined by Stewart, Graves, Higginson, and Ramirez stating that the majority “detonates the core of the Due Process Clause.”
The majority “detonates the core of the Due Process Clause.”
“A country where a roaming police force must seek out millions of noncitizens for mandatory detention without meaningful process or recourse to even a rudimentary hearing is a less decent place for people like Petitioners who have led law-abiding lives, committed no crimes, and raised United States citizens,” she wrote the dissent.