One of the key issues in immigration law is whether someone detained for being an undocumented immigrant pending a removal hearing in which that person has statutory grounds upon which they could not be deported, who is detained in the interior of the U.S. rather than at the border, and has long standing ties to the U.S. as a resident of the U.S. is entitled to a bond hearing that evaluates their dangerousness and flight risk.
The second Trump administration has taken the position that an undocumented immigrant who awaits a removal hearing may be detained indefinitely, no matter how long the hearing is delayed, no matter where they were detained or how long they have been in the U.S. or what grounds they have to not be deported, and that these individuals have no right to a bond hearing to give those individuals an opportunity to be released before their removal hearing. (The Trump Administration has also explicitly told private contractors operating immigration detention centers that the conditions of confinement should be cruel, but that is a story for another day.)
Thirty years of prior practice of the Executive Branch, prior to Trump 2.0, under the immigration statute adopted in 1996 and since amended in ways largely immaterial to this question, have held that there is a right to a bond hearing to assess whether someone awaiting a removal hearing is dangerous or a flight risk, while that removal hearing is pending (and at a time when the government has not established before an immigration judge that they are entitled to deport someone). This was also the prevailing practice pre-1996, including in the pre-1907 period which the majority mischaracterizes, as a dissenting opinion notes. As explained at page 136 of the Slip Opinion in a dissenting opinion:
The Government and the majority repeatedly cite the Supreme Court’s footnote in Demore v. Kim, 538 U.S. 510 (2003), that “prior to 1907 there was no provision permitting bail for any aliens during the pendency of their deportation proceedings.” Id. at 523 n.7. That sounds significant, but, prior to 1907 this country simply did not detain persons potentially unlawfully present in the interior except in extraordinary circumstances and under narrowly drafted laws; and, when it did so, the general rule was that bail would be available. See Nash, supra, at 1540–41, 1564–76.4 In other words, the practice of seeking out people unlawfully present in this country in the interior en masse is an invention of modern immigration law. The practice (challenged here) of seeking out persons unlawfully present in this country in the interior and subjecting them to detention without meaningful process or the possibility of bail—that is, to what was long understood to be the statute applicable at ports of entry, § 1225(b)(2)(A), rather than the interior detention statute, § 1226(c)—is a recent invention of the Department of Homeland Security in the last year or so contradicting its almost three decades old practice.
Nine of the eleven numbered geographic circuits of the U.S. Courts of Appeal (ignoring the U.S. Court of Appeals for the Federal Circuit which doesn't have jurisdiction over these cases) have held that there is a right to a bond hearing under the applicable U.S. Supreme Court precedents (admittedly, most of which were decided before the current ultra-conservative majority arose in the U.S. Supreme Court, and the current U.S. Supreme Court often shows little regard for its prior precedents or a lower court near consensus). There does not appear to be a case on point out of the U.S. Court of Appeals for the D.C. Circuit.
So did a 2-1 decision of a three judge panel of the 5th Circuit, and three U.S. District Courts who ruled in favor of the people seeking bond hearings that the government appealed to the 5th Circuit. So did 7 of the 17 judges of the 5th Circuit in a sua sponte review en banc in an 159 page set of majority, concurring, and dissenting opinions announced today of that 2-1 decision in the case of Rodriguez v. Vergara (and two other cases consolidated with it).
Just counting noses in the 5th Circuit who have considered this case (including the trial court judges in these cases), 10 judges ruled that there is a right to a bond hearing and 10 judges ruled that that there was not. It also bears noting that even the current extremely conservative U.S. Supreme Court reverses decisions of the 5th Circuit more than any other U.S. Circuit, generally, in a less conservative direction than its decisions.
The 5th Circuit en banc majority relies heavily on a U.S. Supreme Court case involved sex offender registration for a general principle (a circumstance where dangerousness is a presumptively present in almost every case), which is Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 8 (2003), rather than prior U.S. Supreme Court immigration cases on point, in a very strained analogy.
The only other U.S. Court of Appeals denying bond hearings is that 8th Circuit (which is also very conservative, although so is the 11th Circuit that went the other way), and the 8th Circuit which also followed a related 5th Circuit precedent, Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), cert. sought and neither granted nor denied at this point, in which the 5th Circuit make a minority interpretation of the relevant immigration statute. See Slip Op. at pg. 100 (in a dissenting opinion). See also Slip. Op. at pg. 141 (in a dissenting opinion) ("On appeal, only this court in Buenrostro-Mendez v. Bondi (and the Eighth Circuit, following us) has accepted the Executive Branch’s statutory arguments for its recent about-face. See 166 F.4th 494, 502–05 (5th Cir. 2026); Avila v. Bondi, 170 F.4th 1128, 1132–36 (8th Cir. 2026).").
The majority’s holding places our court in a minority position among the circuits. See Guerrero Orellana v. Moniz, 188 F.4th 1, 29 (1st Cir. 2026); Barbosa da Cunha v. Freden, 175 F.4th 61, 96 (2d Cir. 2026), cert. granted sub nom. Rhoney v. Barbosa da Cunha, No. 26104, 2026 WL 2942994 (U.S. Oct. 1, 2026); Buele Morocho v. Warden Phila. FDC, No. 261150, 2026 WL 2546223, at *10 (3d Cir. Aug. 28, 2026); Lopez Garcia v. Guadian, No. 257044, 2026 WL 2661092, at *21 (4th Cir. Sept. 10, 2026); Lopez-Campos v. Raycraft, 175 F.4th 713, 735 (6th Cir. 2026); Cirrus Rojas v. Olson, 183 F.4th 909, 931 (7th Cir. 2026); Padilla v. United States Immigr. & Customs Enf’t, No. 24-2801, 2026 WL 2822044, at *19 (9th Cir. Sept. 21, 2026); Santillan Quiroz v. Mullin, 180 F.4th 1226, 1251 (10th Cir. 2026); Hernandez Alvarez v. Warden, Fed. Det. Ctr. Mia., 175 F.4th 1258, 1285 (11th Cir. 2026).
Without today's en banc ruling, the 8th Circuit's ruling in Banyee v. Garland, 115 F.4th 928, 933–34 (8th Cir. 2024) (holding that a lawful resident alien could be detained pending removal for over a year as long as “deportation remain[ed] a possibility”) would have been a solitary outlier.
The circuit by circuit analysis is a little complicated, because all immigrations cases funnel up to the national Board of Immigration Appeals (BIA), which like the courts it reviews is an Article II court of the executive branch that is not judicially independent, and then from there to the U.S. Court of Appeals Circuit in which the case arose at the immigration trial court level. As explained at page 154 of the Slip Opinion:
Article II IJs generally are not bound by Article III district court precedent, just that of courts of appeal. The BIA has stated that it, “as well as Immigration Judges, [is] bound to follow [BIA] precedent, the Attorney General, and the circuit court of appeals with jurisdiction over the geographic region where a case occurs.” Matter of Garcia, 28 I. & N. Dec. 693, 695 (B.I.A. 2023); see Matter of Anselmo, 20 I. & N. Dec. 25, 31 (B.I.A. 1989) (noting that the BIA has permitted intercircuit nonacquiescence, but “has not followed a practice of nonacquiescence in decisions of a circuit court in cases arising within the jurisdiction of that circuit”).
But, habeas corpus review starts in a U.S. District Court (an Article III independent trial court) in a collateral attack on immigration court decisions and proceeds in the usual way to the relevant U.S. Court of Appeals Circuit.
Today's 5th Circuit en banc decision is in my view, clearly wrong under existing precedents, and affects many hundreds of thousands of people in a highly material way. There is little doubt that the U.S. Supreme Court will eventually chime in, and it is not at all clear how it will resolve the issue, since it involves a signature position of the Trump administration which the current U.S. Supreme Court has upheld in all but the most extreme instances of overreach.