Full Fifth Circuit Rules 10-7 That Immigrants Who Entered Illegally Have No Constitutional Right to Bond Hearings

The full U.S. Court of Appeals for the Fifth Circuit ruled 10-7 on Friday, Oct. 23, that immigrants who entered the country illegally have no constitutional right to a bond hearing while they are held for deportation, upholding the Trump administration's mandatory detention policy, according to Courthouse News Service and The Texas Tribune.

The ruling reverses a three-judge panel that had found the policy unconstitutional as applied to three men who had each lived in the U.S. for more than a decade, Courthouse News reported. The Fifth Circuit covers Texas, Louisiana and Mississippi.

What the Fifth Circuit Majority Said

Judge Cory Wilson, a Trump appointee, wrote for the majority. "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," he wrote, according to Courthouse News.

Wilson also wrote that whether a detained immigrant is a flight risk or a danger to the public is legally irrelevant under the statute, Courthouse News reported. He added that immigrants who want to be free from detention "can do so at any moment by agreeing to leave the country," according to The Texas Tribune.

In a concurring opinion, Judge Andrew Oldham wrote that such immigrants "receive exactly the same due process rights that they would have if they had come through a legal port of entry — which are whatever rights Congress chooses to give them," the Tribune reported.

The case involves three men arrested by Texas state troopers during traffic stops between November 2025 and February 2026 and turned over to Immigration and Customs Enforcement, according to the Tribune. They were later released after federal judges found that holding them without a bond hearing violated their due process rights, and the administration appealed. The mandatory detention policy took effect in July 2025.

The Dissents

Judge Leslie Southwick, a George W. Bush appointee, wrote in a dissent joined by five judges that the government must show a legitimate reason to detain someone. "The majority is saying that these individuals have no fundamental interest in freedom from physical detention because of their illegal presence. I cannot agree," he wrote, according to Courthouse News. The Tribune reported that Southwick said the ruling creates an "impenetrable wall between the Constitution and these long-term residents."

Judge Catharina Haynes would have limited the constitutional holding to "individuals who have resided in this country for more than ten years, have no criminal history and have close American relatives," and Judge Stephen Higginson, an Obama appointee, wrote a separate dissent arguing the policy does not comply with immigration law, Courthouse News reported.

Reaction and What Comes Next

"Big win in the Fifth Circuit on mandatory detention for illegal aliens, a principle codified in 1996 legislation but ignored by the deep state for decades," Department of Homeland Security General Counsel James Percival wrote on X, according to Courthouse News.

Rebecca Cassler of the American Immigration Council, who argued the case, called the ruling "an affront to the U.S. Constitution," Courthouse News reported. A separate Fifth Circuit panel had earlier ruled that the law allows the government to deny bond hearings, a reading that conflicts with rulings from nine other circuits, according to Courthouse News, a split that could send the issue to the Supreme Court.

Image: The Fifth Circuit's courthouse in New Orleans (file photo), by Daniel Hartwig, Wikimedia Commons, CC BY 2.0.

Yossi Schmidt, Founder and Editor-in-Chief, The Digital Free Press

Hold Everyone Accountable.

Sources: Courthouse News Service, "Fifth Circuit rules Trump mandatory detention policy constitutional" (Oct. 23, 2026): https://www.courthousenews.com/fifth-circuit-rules-trump-mandatory-detention-policy-constitutional ; The Texas Tribune, "Immigrants in ICE custody don't have right to bond, court rules" (Oct. 23, 2026): https://www.texastribune.org/2026/10/23/immigration-bond-detention-texas-court-ice-ruling-5th-circuit/