No Automatic Bond Hearings for Unadmitted Noncitizens: Due Process Under § 1225(b)(2)(A)

1. Introduction

The Fifth Circuit holds that noncitizens who entered the United States without lawful admission do not acquire a constitutional entitlement to individualized bond hearings merely because they have lived in the country for many years. When detention is authorized by 8 U.S.C. § 1225(b)(2)(A), neither dangerousness nor flight risk must ordinarily be established through an individual hearing before detention pending removal proceedings may continue.

The decision also rejects a fixed constitutional timetable for bond hearings. According to the majority, continued or renewed detention does not violate due process simply because time passes, provided removal remains a viable prospect and detention continues to serve its immigration purpose. The court nevertheless preserves questions involving punitive detention, sham proceedings, removal that is no longer realistically attainable, and other grounds not presented by these petitioners.

The central dispute concerns the relationship between two established propositions: Congress has exceptionally broad authority over immigration, but noncitizens within the United States are protected by the Fifth Amendment. The majority treats lawful admission status as decisive to the process required here. The dissents maintain that long-term residence and freedom from physical confinement require an independent constitutional assessment that Congress cannot displace through statutory classification.

2. Background and Procedural History

The petitioners

All three conceded that they were “applicants for admission” within the governing statutory framework. They did not principally challenge that classification. Instead, they argued that detention without hearings on their individual dangerousness and flight risk violated procedural due process.

The district courts agreed. Applying Mathews v. Eldridge, they ordered release and prohibited renewed detention unless the government first provided the prescribed bond hearings.

A divided appellate panel affirmed and announced that a bond hearing was constitutionally required within, at most, ninety days. Although two petitioners had received relief before that period elapsed, the panel relied on the detention they hypothetically would have experienced by the time of its decision. That panel opinion, Sosnava Rodriguez v. Ortega, was vacated when the court ordered rehearing en banc.

The en banc court reversed the district court judgments, vacated the habeas relief, and directed that its mandate issue immediately. Ten judges supported the judgment, with Judge Richman concurring only in the judgment; seven judges dissented.

3. The Statutory Framework

Admission, rather than physical entry

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, or IIRIRA, replaced an earlier framework that often distinguished between people stopped at a port of entry and those who had already entered the country. Under the majority’s interpretation, the modern distinction instead turns on lawful admission.

• Section 1225(a)(1): A noncitizen present in the United States who has not been admitted is deemed an “applicant for admission.”
• Section 1101(a)(13)(A): “Admission” means lawful entry after inspection and authorization by an immigration officer.
• Section 1225(b)(2)(A): An applicant not clearly and beyond doubt entitled to admission “shall be detained” for removal proceedings.
• Section 1226(a): Provides a different detention framework, including discretionary release on bond, for noncitizens within its coverage.
• Section 1231(a): Governs detention following a removal order and therefore raises questions distinct from detention while removal proceedings remain pending.

For decades after IIRIRA, immigration authorities generally treated people apprehended in the interior as eligible for discretionary detention and bond consideration under § 1226(a). DHS changed its interpretation in July 2025, concluding that people who had never been lawfully admitted were subject to § 1225(b)(2)(A), regardless of where they were apprehended. Under that interpretation, release depends on discretionary immigration parole rather than an ordinary bond determination.

The Fifth Circuit had already approved this statutory interpretation in Buenrostro-Mendez v. Bondi. The present decision addresses the constitutional consequences of that interpretation rather than establishing the underlying statutory classification anew.

This distinction matters: a statute’s failure to provide bond hearings does not, by itself, answer whether the Constitution requires them. The majority supplies separate constitutional reasons for answering that question negatively.

4. Summary of the Court’s Decision

The majority’s reasoning proceeds through several independent or alternative grounds:

1. Admission-related process: Because the petitioners were never lawfully admitted, the majority concludes that they cannot demand additional admission-related procedures beyond those Congress supplied.
2. No procedural entitlement to immaterial hearings: Even assuming additional procedural protections are available, dangerousness and flight risk are not statutory prerequisites to detention under § 1225(b)(2)(A). Hearings on those subjects therefore would not correct an erroneous application of that provision.
3. No fundamental right to release pending removal: The majority characterizes the asserted substantive right narrowly—as freedom from custody pending removal proceedings—and finds no deeply rooted historical basis for it.
4. Rational justification: Mandatory detention rationally advances the legitimate objective of ensuring that people remain available for removal if ordered removed.
5. No unconstitutional detention on this record: The petitioners’ relatively short periods of confinement did not resemble detention where removal has become unattainable.
6. No automatic temporal trigger: The majority rejects the vacated panel’s ninety-day hearing requirement and declines to impose another fixed deadline.

The court does not decide that every detention labeled “immigration detention” is constitutional. It expressly recognizes that other factual disputes or legal grounds could support habeas relief.

5. Precedents Cited and Their Influence

A. Statutory coverage and the absence of a statutory bond right

Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026)

This is the decision’s essential statutory foundation. It held that § 1225 applies to people residing inside the United States who have never been lawfully admitted. It also rejected a statutory entitlement to bond hearings under § 1225(b)(2)(A).

The majority treats that interpretation as settled circuit law and declines invitations to revisit it. Judges Douglas and Higginson regard it as the original error that makes the present constitutional dispute necessary. Their position is not simply that the Constitution requires additional procedures; it is also that § 1226 already supplies the relevant release mechanism for interior arrests.

Jennings v. Rodriguez, 583 U.S. 281 (2018)

Jennings v. Rodriguez rejected interpretations that inserted periodic bond hearings into mandatory detention provisions whose text did not provide them. It also limited constitutional avoidance: courts cannot adopt an implausible statutory reading merely to avoid constitutional difficulty.

The majority invokes that reasoning to reject a judicially created bond requirement and to defend its reading of § 1225 as unambiguous. It also relies on Clark v. Martinez for the proposition that constitutional avoidance operates only where ordinary interpretation leaves more than one permissible construction.

The dissents emphasize a different aspect of Jennings v. Rodriguez: its description of § 1225 as addressing admission at the country’s threshold and § 1226 as addressing detention of people already inside. Crucially, Jennings v. Rodriguez did not itself resolve the constitutional claims now at issue. The present majority therefore extends beyond its statutory holding.

Related statutory authorities

Martinez v. Att'y Gen. and Torres v. Barr support the majority’s explanation that IIRIRA sought to eliminate procedural advantages associated with entering without inspection. Vartelas v. Holder reinforces the importance of “admission” in the post-IIRIRA scheme.

Avila v. Bondi supplies supporting Eighth Circuit authority for applying § 1225 to never-admitted interior residents. In re Yajure Hurtado reflects the Board of Immigration Appeals’ adoption of the government’s revised interpretation; it is administrative authority, not an independent constitutional holding.

B. Admission status, territorial presence, and immigration power

DHS v. Thuraissigiam, 591 U.S. 103 (2020)

This is the majority’s principal constitutional authority. The Supreme Court treated a person apprehended twenty-five yards inside the border shortly after crossing as standing at the threshold of admission. In that setting, the person possessed only the admission-related rights Congress provided.

The Fifth Circuit majority reads the decision as emphasizing legal admission over physical presence. Because these petitioners remained statutory applicants for admission, their many years of residence did not produce a constitutional bond-hearing entitlement.

The dissents identify a significant inferential step. DHS v. Thuraissigiam involved immediate apprehension near the border, not residents of fourteen to twenty-two years. Judge Southwick argues that the Supreme Court’s discussion of an entry not yet effected would have been unnecessary if never-admitted statutory status alone resolved every case. The disagreement is therefore about the permissible reach of the precedent, not whether the Supreme Court’s actual holding binds the Fifth Circuit.

Nishimura Ekiu v. United States, 142 U.S. 651 (1892)

This case supplies the proposition that, for certain people seeking admission, executive decisions made within congressionally delegated authority constitute due process. The majority uses that principle to support statutory sufficiency.

Judge Southwick stresses the full description of the affected class: people who had neither naturalization, domicile or residence, nor lawful admission. Because the present petitioners have substantial residence, he disputes treating the quoted passage as a rule about lawful admission alone. That textual disagreement is central to the opinion’s competing constitutional frameworks.

Landon v. Plasencia, 459 U.S. 21 (1982)

The majority relies on the distinction between initial admission, which is a sovereign privilege, and the altered constitutional position of a person who gains admission and develops permanent-residence ties.

The dissent cautions against equating “admission” in older decisions automatically with IIRIRA’s later technical definition. Its broader point is that Congress can redefine statutory categories but cannot conclusively redefine the Constitution’s protection of people already residing within the country.

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)

Shaughnessy v. United States ex rel. Mezei illustrates the “entry fiction”: someone physically present at an immigration facility may nevertheless be treated legally as remaining at the border. The majority emphasizes its recognition of broad political-branch authority over exclusion.

The dissents emphasize its contrasting statement that people who have passed through the country’s gates, even illegally, may be expelled only through proceedings meeting traditional standards of fairness. The unresolved question here is whether the petitioners’ statutory applicant status places them on the threshold side of that distinction despite their established residence.

Supporting immigration-power decisions

Mathews v. Diaz serves both sides of the analysis. It confirms that noncitizens receive Fifth Amendment protection, while recognizing that Congress may adopt immigration rules unacceptable if applied to citizens. Fiallo v. Bell, quoting Oceanic Navigation Co. v. Stranahan, and Trump v. Hawaii reinforce judicial deference to the political branches.

Johnson v. Eisentrager and Fong Yue Ting v. United States support the majority’s treatment of constitutional status and sovereign removal authority. Conversely, the dissents invoke Yamataya v. Fisher, Plyler v. Doe, and Chae Chan Ping v. United States to argue that immigration authority remains subject to constitutional constraints.

Judge Higginson also uses Kleindienst v. Mandel and Kaplan v. Tod to preserve the distinction between exclusion at the threshold and governmental confinement of established interior residents. Jean v. Nelson supports his observation that plenary immigration power is constitutionally implied, rather than contained in one express constitutional grant.

C. Procedural due process and the relevance of the proposed hearing

Mathews v. Eldridge, 424 U.S. 319 (1976)

The familiar balancing test considers the private interest, the risk of error and value of additional safeguards, and the government’s interests and administrative burdens.

The district courts emphasized the petitioners’ physical liberty and considered bond hearings valuable protection against unnecessary detention. The majority responds that those courts identified the wrong kind of error. If the statute authorizes detention based on unadmitted status and uncertain entitlement to admission, a hearing about dangerousness or flight risk does not improve the accuracy of that statutory determination.

Logan v. Zimmerman Brush Co. frames the procedural inquiry as one about safeguards for an existing entitlement, while City of Los Angeles v. David confirms the ordinary role of the Mathews v. Eldridge factors.

Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1 (2003)

This supplies the majority’s strongest alternative ground. A convicted sex offender sought a hearing to establish that he was not currently dangerous before being required to register. Because registration depended on conviction rather than current dangerousness, the Supreme Court held that a hearing on dangerousness would establish an immaterial fact.

The majority applies the same logic here: § 1225(b)(2)(A) does not make dangerousness or flight risk conditions of detention. A procedural claim cannot insert those conditions into the statute. If the Constitution forbids Congress from making those matters irrelevant, the majority reasons, that is a challenge to the substantive detention rule.

The dissent accepts the relevance principle but disputes its use as a complete answer. The registrant in Conn. Dep't of Pub. Safety v. Doe disclaimed a substantive challenge; these petitioners question the constitutional adequacy of confinement based on status alone. The case therefore identifies the need to examine the underlying rule, but does not independently establish that rule’s validity.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)

Judge Southwick invokes this decision for the principle that a statute cannot define away the constitutional process required to deprive someone of a protected interest. Once the Constitution protects the interest, the statutory procedure is not necessarily sufficient.

The apparent conflict with Conn. Dep't of Pub. Safety v. Doe turns on the object of the challenge. A hearing need not investigate facts irrelevant under a constitutionally valid rule; but legislation cannot avoid constitutional review merely by omitting a fact that the Constitution requires the government to establish.

Classification and the substantive–procedural boundary

The majority cites Michael H. v. Gerald D. for treating objections to the fit between a legal classification and its policy objective as substantive rather than procedural. Freedom Path, Inc. v. I.R.S. supports its characterization of the petitioners’ position as effectively facial: their argument would require hearings for the entire statutory class.

The dissent relies on Mills v. Rogers and Reno v. Flores to distinguish the substantive conditions justifying confinement from the procedures needed to determine whether those conditions exist in an individual case.

D. Civil immigration detention and constitutional limits

Demore v. Kim, 538 U.S. 510 (2003)

Demore v. Kim upheld mandatory detention under § 1226(c) for a category of noncitizens with specified criminal histories while removal proceedings were pending. It establishes that individualized dangerousness and flight-risk findings are not invariably prerequisites to constitutionally permissible immigration detention.

The majority generalizes that principle to § 1225(b)(2)(A). Congress may use a categorical detention rule to prevent absconding and preserve the practical effectiveness of removal.

The dissents emphasize the narrower class and supporting evidence in Demore v. Kim, together with its discussion of typically brief detention. Justice Kennedy’s concurrence is particularly important: unreasonable delay could require an individualized inquiry into whether detention still facilitates removal or instead incarcerates for other reasons.

The decisive dispute is whether a definite legal endpoint sufficiently justifies continued confinement, or whether the actual duration and justification of detention must also remain reasonable. The present majority draws a broader rule from Demore v. Kim than the dissents believe its facts and reasoning support.

Zadvydas v. Davis, 533 U.S. 678 (2001)

Zadvydas v. Davis interpreted post-removal-order detention under § 1231(a) to avoid serious constitutional concerns about potentially permanent confinement where removal was not reasonably foreseeable. Its six-month period is a presumption of reasonableness within that framework, not an automatic release deadline.

The majority distinguishes it on three grounds: it concerned detention after removal orders; it involved people the government could not practically remove; and it expressly distinguished people who had not gained initial admission. The present petitioners remained in ongoing proceedings, with removal still attainable.

The dissents rely on its broader principles: physical liberty is central to due process, immigration power has constitutional limits, and confinement must bear a reasonable relationship to its purpose. Their argument does not depend on mechanically transferring its six-month framework to § 1225.

The majority’s conclusion is therefore not that Zadvydas v. Davis has been displaced. It is that its specific statutory solution and constitutional concerns do not require bond hearings in these cases.

Banyee v. Garland, 115 F.4th 928 (8th Cir. 2024)

This decision supports detention exceeding one year while removal remained possible. The majority adopts its emphasis on a definite termination point, while also acknowledging its recognition that excessive delay can raise due process concerns.

It is supporting appellate authority, not a Supreme Court determination that any duration of pre-removal detention is permissible.

Carlson v. Landon, 342 U.S. 524 (1952)

The majority uses this case to demonstrate that immigration detention can rest on legislative judgments without fully individualized findings of future danger. Judge Ho additionally emphasizes detention as a necessary incident of removal.

The dissent points to the particular class involved—alien members of the Communist Party—and to the Court’s reservation of questions involving unusual delay. It also stresses the decision’s statement that detention without bond was exceptional, challenging the suggestion of an unbroken tradition of universal mandatory interior detention.

Wong Wing v. United States, 163 U.S. 228 (1896)

This precedent simultaneously supports detention necessary to accomplish removal and limits punitive confinement. The government may hold people while investigating removability and arranging expulsion, but cannot impose criminal punishment without the constitutionally required criminal process.

Its importance is the distinction between regulatory detention and punishment. The present majority expressly preserves that boundary, notwithstanding its deferential approach to ordinary removal-related custody.

Reno v. Flores, 507 U.S. 292 (1993)

The majority cites its rejection of fully individualized custody determinations and its insistence on precisely identifying the claimed liberty interest. The dissent answers that its juvenile-placement context differed materially from confinement in barred cells: the question there concerned release to particular custodians rather than physical freedom in the same sense asserted here.

E. Fundamental rights and the proper description of liberty

Washington v. Glucksberg, 521 U.S. 702 (1997)

The majority applies the requirement that an asserted unenumerated fundamental right be carefully described and deeply rooted in national history and tradition. It rejects “freedom from physical restraint” as too abstract and instead examines freedom from custody pending removal proceedings.

Finding no historical entitlement to such release, it applies rational-basis review. The dissents reject this starting point: in their view, freedom from governmental confinement is already a recognized core liberty, not a newly proposed right requiring recognition from the beginning.

Dep't of State v. Muñoz, 602 U.S. 899 (2024), and Kerry v. Din, 576 U.S. 86 (2015)

These decisions support carefully identifying the actual immigration-related interest rather than relying on broad formulations such as liberty or marriage. The majority treats opportunities Congress has provided as potentially matters of legislative grace rather than constitutional entitlement.

The dissent’s response is that a visa denial and confinement are materially different deprivations. The claimed interest here is not merely permission to remain in the United States; it is freedom from custody while exercising procedures Congress permits.

The civil-confinement authorities invoked by the dissents

Foucha v. Louisiana, Kansas v. Hendricks, Addington v. Texas, and United States v. Salerno supply the dissent’s framework: civil detention requires a permissible nonpunitive purpose, an adequate connection between confinement and that purpose, and sufficient safeguards.

Jackson v. Indiana supplies the requirement that the nature and duration of confinement bear a reasonable relationship to its purpose. Hamdi v. Rumsfeld illustrates the constitutional importance of physical liberty even when the government invokes exceptional sovereign powers.

Ingraham v. Wright, Troxel v. Granville, and Justice Thomas’s dissent in Obergefell v. Hodges support Judge Southwick’s argument that an already-recognized liberty need not be rediscovered through a newly narrowed historical inquiry. These authorities do not directly decide § 1225 detention; their significance is methodological.

F. Historical habeas decisions and supporting authorities

Judge Oldham’s concurrence distinguishes the mechanism for reviewing custody from the legal rules governing whether custody is lawful. His historical examples include Darnel's Case, Trial of John Lilburn, Ex parte Milligan, and Ex parte Quirin. Their function is to demonstrate that access to habeas does not guarantee release.

Ex parte Bollman, Ex parte Watkins, and Opinion of Justice Wilmot on the Writ of Habeas Corpus support his account of habeas procedure and the circumstances in which a writ issues. Habeas Corpus al Cinque-Ports pur un Borne Imprison La and The Case of the Postnati form part of his English-law account of judicial inquiry and allegiance.

He also draws on conditional-pardon and banishment decisions, including Queen v. Batcheldor, People v. Potter, Kavalin v. White, State v. Smith, Schick v. Reed, Cooper v. Telfair, United States v. Wilson, and Ex parte Wells. These analogies support his argument that liberty could historically be conditioned on departure.

The limitation of that reasoning is important: proving that habeas is a procedural remedy does not itself establish that the Constitution supplies no substantive restriction on detention. Judge Southwick agrees that the writ did not create the substantive right in Ex parte Milligan; he argues that constitutional provisions outside the writ supplied the controlling limit.

The concurrence’s discussion of Jones v. Hendrix, Brown v. Davenport, Edwards v. Vannoy, and Brown v. Allen concerns the distinct development of postconviction habeas. It is historical context, not a holding about the immigration claims before the court.

G. Further authorities defining the dispute’s limits

• Pack v. Yusuff, Brecht v. Abrahamson, and Lowery v. Collins frame de novo appellate review and the requirement that habeas petitioners establish unlawful custody. The court does not apply criminal postconviction deference to these immigration petitions.
• Mansell v. Mansell supports the majority’s refusal to require Congress to assemble a particular legislative evidentiary record. The dissent distinguishes legislative authority to enact a statute from the justification required when government actually confines a person.
• Shillitani v. United States and Turner v. Rogers support the dissent’s answer to the “keys to confinement” argument: a conditional ability to obtain release does not necessarily eliminate the liberty interest or procedural safeguards.
• Nielsen v. Preap is invoked with Jennings v. Rodriguez to show that constitutional challenges to particular applications of mandatory detention remain possible.
• Hohn v. United States supports the dissent’s insistence that existing Supreme Court precedent remains binding until the Supreme Court revisits it. Wash. State Grange v. Wash. State Republican Party supports its objection to deciding broader constitutional questions than the facts require.
• Boumediene v. Bush and Murray's Lessee v. Hoboken Land & Improvement Co. supply historical background concerning habeas, due process, and the law of the land. Pacific Mutual Life Insurance Co. v. Haslip supports Judge Douglas’s historical understanding of due process.
• Chin Yow v. United States concerns additional protection where citizenship is credibly claimed. The decision therefore should not be understood as authorizing detention of citizens under the rule applied to these conceded noncitizens.

6. Legal Reasoning: How the Majority Reaches Its Result

A. Statutory accuracy replaces individualized necessity as the procedural question

The majority’s procedural analysis asks whether the government correctly applied the statutory detention category—not whether confinement is individually necessary to prevent flight or danger. Because the petitioners conceded the relevant classification, the requested bond hearings would not resolve a disputed statutory predicate.

This explains the role of Conn. Dep't of Pub. Safety v. Doe. The majority does not simply balance liberty against administrative convenience and find the latter stronger. It concludes that the proposed additional procedure addresses matters the operative rule does not make relevant.

The constitutional stakes therefore move to the validity of that operative rule. If the government may categorically detain the class, the requested individualized hearings add nothing legally necessary. If the Constitution requires individualized justification after some point, however, statutory irrelevance cannot answer the challenge. The majority’s substantive analysis is consequently essential to its broader position.

B. The description of the right determines the scrutiny

The majority describes the asserted right as release from custody pending removal proceedings. That narrow description brings the claim within the historical inquiry associated with unenumerated rights. Its conclusion that no fundamental right exists leads to rational-basis review.

The dissents describe the interest as freedom from physical confinement. On that view, the constitutional interest is already established, and the question becomes whether this restraint is adequately justified.

This methodological disagreement largely determines the outcome. Under rational-basis review, the general connection between detention and ensuring eventual removal is sufficient. Under the dissent’s civil-confinement framework, the government must additionally justify the class selected, the actual duration, and the continuing need for custody.

C. Historical statutory silence is not the same as historical practice

The majority relies on the absence of a statutory bail provision before 1907, together with later mandatory detention provisions, to reject a deeply rooted right to release. Judge Oldham develops that argument through English and early American law.

Judge Douglas disputes what follows from that history. Drawing on historical scholarship, she argues that the absence of express statutory bail authority does not establish a tradition of universal no-bond detention: detention itself was narrower, and release occurred through judicial and administrative practice.

The disagreement is thus partly about the historical evidence and partly about the relevant historical category. Border inspection, interior civil detention, wartime exclusion, and conditional pardons do not necessarily establish the same tradition. The majority considers the broader sovereign authority controlling; the dissents demand closer historical comparators.

D. Departure does not mean the same thing as release

The majority reasons that the petitioners can end confinement by agreeing to leave the country. It treats their insistence on remaining free inside the United States while pursuing relief as a narrower, unenumerated interest rather than physical liberty alone.

The dissents respond that release conditioned on abandoning legal claims is not equivalent to unconditional freedom. They identify possible consequences including withdrawal or abandonment of pending relief and a ten-year bar on return after lengthy unlawful presence.

Analytically, the issue is not whether difficult choices are always unconstitutional. It is whether the availability of departure reduces the liberty interest or supplies an adequate justification for confinement. The majority answers in the government’s favor; the dissents insist that justification remains independently necessary.

E. A definite endpoint is not a fixed timetable

The majority treats completion of removal proceedings as a legally definite endpoint even if the calendar date is uncertain. It therefore rejects the argument that the absence of a known release date necessarily makes detention constitutionally indefinite.

That approach differs sharply from the dissent’s concern with actual elapsed time. A proceeding can have a legal endpoint while still being unreasonably delayed. The majority acknowledges potential problems involving excessive delay, punitive purpose, or a detention disconnected from viable removal, but does not establish a test for those circumstances.

Section IV’s broad prospective rule is especially consequential because these petitioners did not expressly challenge detention length as an independent constitutional violation. The majority addresses it because the government requested a ruling and the issue was fully briefed. Judge Douglas views that choice as inconsistent with constitutional restraint.

7. The Separate Opinions

Judge Richman: agreement with the judgment, narrower reasoning

Judge Richman agrees that these petitioners are statutory applicants for admission and that due process did not require a bond or other hearing before their detention under § 1225. She emphasizes that Congress expressly contemplated some people living in the country for more than two years and placed them outside the specified expedited-removal category without necessarily providing bond eligibility under § 1225(b)(2).

She expressly leaves open whether officials might instead proceed under § 1226 and what hearing rights would then follow. Because the petitioners did not challenge detention duration, her concurrence is narrower than the majority’s full prospective analysis. Her vote supports the judgment, not every proposition in the majority opinion.

Judge Ho: sovereignty and political accountability

Judge Ho treats detention as an incident of the sovereign power to exclude and remove. He argues that constitutionalizing release for people who entered unlawfully would undermine that authority.

His reliance on invasion-related executive actions and wartime detention analogies is separate from the majority’s rationale. The court’s holding does not depend on establishing an invasion or invoking the war power.

Other citations in his concurrence serve mainly rhetorical or institutional purposes. Villarreal v. City of Laredo, Gonzalez v. Trevino, and Mayfield v. Butler Snow, L.L.P. support his criticism of perceived inconsistency in protecting liberty. NLRB v. Noel Canning supplies the adverse-possession analogy; Dobbs v. Jackson Women's Health Org. supplies an analogy about returning policy questions to elected representatives. None independently determines the constitutionality of § 1225 detention.

His criticism of Zadvydas v. Davis also does not displace that precedent: he expressly acknowledges that the Fifth Circuit remains bound by it.

Judge Oldham: habeas is a remedy, not a substantive entitlement

Judge Oldham’s extensive historical concurrence argues that habeas guarantees an opportunity for a neutral judicial assessment of custody, not an automatic right to release. The substantive rules governing that assessment must come from elsewhere.

His stronger claim is that Congress controls those substantive rules for unadmitted noncitizens in the removal context. That proposition—not the basic distinction between remedy and right—is the controversial part of his account.

He considers A.A.R.P. v. Trump and Trump v. J.G.G., which require meaningful opportunity to seek habeas relief, compatible with his approach because access to review does not guarantee success. He also criticizes district court resistance to the appellate stay, citing examples such as Lerma-Huipio v. Mullin and Rosas Garcia v. Blanche, and invokes NIH v. Am. Public Health Ass'n regarding compliance with higher-court rulings. These institutional criticisms are not additional holdings on the merits.

Judge Southwick: restraint must remain justified

The principal dissent agrees that removal-related detention can initially be constitutional without individualized findings. Its disagreement concerns the majority’s rule that a viable prospect of removal generally sustains confinement throughout the proceedings.

Judge Southwick proposes three requirements: a permissible nonpunitive purpose, a demonstrated connection between the person or class and that purpose, and proportionality between confinement and its purpose. He concludes that unreasonable delay eventually requires some additional justification particular to the individual.

He does not renew a fixed ninety-day rule in his en banc dissent. He acknowledges the relatively short detention of two petitioners and expressly leaves the precise temporal boundary unresolved. His position therefore should not be reduced to a demand for an immediate hearing after every immigration arrest.

Judge Haynes: a more limited protected category

Judge Haynes would limit the analysis to people resembling these petitioners: residents of more than ten years, without criminal history, and with close American relatives. Her dissent favors a narrower, circumstances-sensitive protection rather than a rule for every unadmitted person.

Judge Douglas: historical practice and substantive limits

Judge Douglas argues that protection against arbitrary interior detention is deeply rooted and that unreasonably prolonged confinement without a hearing violates substantive due process. She also challenges the majority’s use of historical border detention as evidence about interior detention.

Her separate opinion recognizes overlap between substantive and procedural due process: identifying the conditions that justify confinement and requiring procedures to establish those conditions are closely related inquiries. She regards the majority’s doctrinal classification as obscuring the underlying protection against arbitrary detention.

Judge Higginson: resolve the statutory question first

Judge Higginson would revisit Buenrostro-Mendez v. Bondi, apply § 1226 to interior arrests, and avoid the constitutional controversy. His reliance on Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council expresses the principle that a plausible statutory construction avoiding serious constitutional problems should be preferred.

The majority’s response is that no statutory ambiguity exists. Accordingly, constitutional avoidance cannot do the work Judge Higginson assigns it.

He also distinguishes review of custody from review of removal. Determining whether continued confinement is lawful does not necessarily reconsider whether someone ultimately may remain in the country. His institutional analysis emphasizes that immigration judges are executive-branch adjudicators, while Article III courts independently enforce federal law and constitutional limits.

8. Impact and Unresolved Questions

A. No automatic bond-hearing deadline in the Fifth Circuit

The immediate practical effect is to foreclose claims that § 1225 detention automatically requires a bond hearing after ninety days or another fixed period merely because individualized dangerousness and flight risk have not been assessed. The vacated panel rule has no precedential force.

The judgment also removes the district courts’ specific restrictions on renewed detention of these petitioners. It does not itself constitute a removal order or decide their applications for immigration relief.

B. Long residence does not itself create bond eligibility

Under the majority’s reasoning, years of residence, citizen children, and community ties do not change a person’s conceded classification as an applicant for admission or independently establish the constitutional hearing right asserted here. Those circumstances may matter elsewhere in immigration law; this decision does not make them universally irrelevant.

C. Future litigation will turn on purpose, factual predicates, and actual delay

The opinion preserves potentially important routes for future claims:

• Disputing the factual or legal basis for classification under § 1225.
• Showing that detention no longer advances a genuine immigration purpose.
• Showing that removal is no longer realistically foreseeable.
• Challenging punishment disguised as civil detention.
• Presenting materially different circumstances involving delay or other legal grounds.

The difficulty is that the majority provides no detailed framework for assessing these residual claims. Its broad statement that viable removal permits continued detention may sit uneasily with its reservation concerning excessive delay. Future courts will need to determine when delay itself demonstrates that detention has lost its permissible justification.

D. Two distinct circuit disagreements

The supplied opinion describes both a statutory disagreement and a constitutional disagreement. They should not be conflated.

The statutory split concerns whether § 1225 or § 1226 governs never-admitted people apprehended in the interior. The dissent identifies decisions including Guerrero Orellana v. Moniz, Barbosa da Cunha v. Freden, Lopez Garcia v. Guadian, Cirrus Rojas v. Olson, Padilla v. United States Immigr. & Customs Enf't, Santillan Quiroz v. Mullin, and Hernandez Alvarez v. Warden, Fed. Det. Ctr. Mia. as rejecting the government’s broad statutory position. The Fifth and Eighth Circuits take the contrary approach.

The more direct constitutional disagreement is illustrated by Buele Morocho v. Warden Phila. FDC and Lopez-Campos v. Raycraft. Importantly, the majority also cites dissents in those cases; those individual judges’ views are not the holdings of their courts.

The supplied text reports Supreme Court review of the antecedent statutory issue in Rhoney v. Barbosa da Cunha. A statutory resolution favoring § 1226 could substantially reduce this decision’s practical reach without answering every constitutional question.

E. Habeas jurisdiction is not abolished

The petitioners lose because their asserted constitutional grounds fail, not because the majority holds that all immigration detention is immune from habeas review. The court expressly preserves other possible grounds for relief.

Likewise, the opinion does not establish rules governing detention conditions, Fourth Amendment challenges to arrests, or the treatment of citizens. Those issues should not be inferred from its rule for conceded noncitizens subject to the particular detention provision.

F. Institutional consequences

The competing statutory interpretations affect which adjudicators bear the workload. If § 1226 applies, immigration judges ordinarily provide the designated bond process. If § 1225 applies without such hearings, constitutional challenges migrate to federal habeas proceedings.

Judge Higginson views that migration as an avoidable source of friction between executive immigration adjudication and Article III review. Judge Oldham instead emphasizes lower courts’ duty to obey circuit precedent. These are different institutional diagnoses of the same expanding detention litigation.

9. Complex Concepts Simplified

Lawful admission

Officially authorized entry after immigration inspection. Under the statute, living in the country for years does not necessarily mean having been legally admitted.

Applicant for admission

A statutory category that, under the Fifth Circuit’s interpretation, includes some people already living inside the United States.

Entry fiction

A legal rule treating certain people as remaining at the border even though they are physically present within United States territory.

Procedural due process

The safeguards government must provide when depriving someone of a protected interest—for example, notice and an opportunity to be heard.

Substantive due process

Limits on what government may do, even if its procedures are accurate and fair. Here, the issue is whether Congress may authorize the particular confinement categorically.

Rational-basis review

A deferential test asking whether the government’s rule rationally advances a legitimate objective.

Habeas corpus

A judicial procedure for testing whether custody is lawful. Access to the procedure does not guarantee release, but it permits enforcement of applicable statutory and constitutional limits.

Bond hearing

A custody proceeding addressing whether release is appropriate, often considering danger and likelihood of appearing for proceedings. A right to a hearing is not a right to release.

Immigration parole

Discretionary permission for release or temporary presence under immigration law. It is distinct from a bond determination and does not itself constitute lawful admission.

Constitutional avoidance

Choosing a plausible statutory interpretation that avoids serious constitutional problems. It does not authorize rewriting clear statutory text.

En banc review

Reconsideration by the full eligible appellate court rather than the ordinary three-judge panel.

Mandate issued forthwith

The appellate judgment takes formal effect without the ordinary delay before issuance of the mandate.

10. Conclusion

The opinion establishes that conceded applicants for admission detained under § 1225(b)(2)(A) do not receive an automatic constitutional right to individualized dangerousness or flight-risk hearings, even after lengthy residence in the United States. It also rejects a fixed hearing deadline while removal remains viable and detention serves its lawful immigration purpose.

Its broader significance lies in the constitutional framework it adopts: admission status, legislative classification, and sovereign removal authority substantially constrain demands for individualized custody review. The dissents counter that physical liberty requires continuing justification independent of statutory labels.

The decision narrows bond-based habeas claims without eliminating judicial review. Its lasting reach will depend on resolution of the antecedent statutory dispute and on how future courts enforce the limits the majority leaves open for detention disconnected from genuine, attainable removal.