Full 5th Circuit Rules 10-7 That the Constitution Does Not Require Bond Hearings for Immigrants Held Under Trump Detention Policy
The ruling covers Texas, Louisiana and Mississippi, while the Supreme Court separately decides whether federal immigration law itself requires the hearings.
Three men, one 10-7 vote
On Friday, Oct. 23, 2026, the full 5th U.S. Circuit Court of Appeals voted 10-7 against three men held by immigration agents. Each had lived in the U.S. for about 14 to 22 years. ICE detained them after traffic stops[3]. The court held that the Constitution does not require a bond hearing for people held under the Trump administration's mandatory detention policy[1][2].
A bond hearing is short. An immigration judge asks whether a detained person is likely to flee or is a danger. If not, the judge can set bail. The person goes home while the deportation case plays out.
Judge Cory Wilson wrote the majority opinion. Judge Leslie Southwick wrote the main dissent, joined by five other judges. Judge Dana Douglas wrote a separate dissent[1][2]. The ruling covers Texas, Louisiana and Mississippi. It reverses lower-court orders that had granted hearings or release to the three men[3][9].
Two laws, one policy
The fight starts with a choice between two sections of immigration law. Before July 2025, most people arrested inside the country were held under 8 U.S.C. § 1226. That section lets detainees ask for bond[6].
The Department of Homeland Security (DHS) now takes a different view. It treats anyone who entered without inspection as an "applicant for admission" under § 1225(b)(2)(A). That section says such people "shall be detained." DHS applies it even if the person crossed decades ago[5][6].
Supporters of the policy point to what they see as a flaw in the old practice. Someone who showed up at a port of entry could be held without bond. Someone who crossed illegally and avoided capture could ask for release. In their view, that rewarded breaking the law. The administration also says it is following the plain text of the statute, not inventing a rule[6].
Two tracks, two courts
A detainee can try to win a bond hearing in two ways. One is the statute: the argument that § 1226, not § 1225, governs. The other is the Constitution: the argument that due process requires a hearing no matter what the statute says.
Friday's ruling closed the constitutional route in the 5th Circuit[1]. The statutory route is before the Supreme Court. On Oct. 1, the Court agreed to hear Rhoney v. Barbosa da Cunha. It will decide only what the statute means, not what the Constitution requires[1][7].
The appeals courts are split on that question. The 5th and 8th Circuits accept the government's reading. The 2nd, 6th, 7th, 9th, 10th and 11th reject it[7][11]. Arguments are expected early next year, with a decision by late June[7].
Ricardo Aparecido Barbosa da Cunha, the man at the center of that case, is a Brazilian national. He had lived in the U.S. for about two decades when he was arrested in Norwood, Massachusetts, in September 2025. Sources differ on whether he arrived around 2004[6] or 2005[12]. He had applied for asylum and had a work permit[12].
The majority's case: who decides
Judge Wilson framed the case as a question of who gets to decide. The Constitution, he wrote, gives Congress broad power over immigration. Congress may set rules for noncitizens that would not be acceptable for citizens[8].
Congress made detention mandatory without regard to danger or flight risk. So, the majority says, judges may not add hearings the statute leaves out[3]. The administration also cites the Supreme Court's 2018 decision in Jennings v. Rodriguez. There, the Court declined to read bond-hearing requirements into mandatory detention laws[13][2].
Wilson also addressed the detainees' interest in freedom from physical restraint. In "the most abstract sense," he wrote, they can end their detention "at any moment by agreeing to leave the country"[1]. The majority held that detained immigrants have no constitutional right to court proceedings beyond what Congress provided[1]. DHS's general counsel called the result a "big win in the 5th Circuit on mandatory detention for illegal aliens"[1].
The dissent's case: presence, not paperwork
Judge Southwick argued from long-standing Supreme Court precedent. In his account, a person's "presence and residence" in the country, not formal "admission," is what earns due process. He wrote that the majority had built "an impenetrable wall between the Constitution and these long-term residents"[8]. Mandatory detention touches the most basic liberty there is, he argued, so the government must show a legitimate reason to hold a specific person[2].
Judge Douglas wrote separately. "Unchecked, executive authority to arrest and detain, indefinitely, echoes fearfully from history," she wrote[1]. A lawyer for the National Immigration Project said the ruling "opens the door to more people being locked up for no reason"[1].
Lawyers for detainees stress how limited a bond hearing is. It doesn't guarantee release. It only lets a judge check whether someone is dangerous or likely to flee[9].
Why the location matters, and how outlets split
Where people are held raises the stakes. Texas, Louisiana and Mississippi hold more than 40% of ICE's average daily detainee population[10]. Mississippi Today reports more than 20,000 people in detention centers in the circuit[8]. Mandatory detention keeps people in custody for the whole removal case. That makes removal easier and requires more beds[5][8].
If the Supreme Court sides with the government on the statute, the 5th Circuit's constitutional ruling becomes the last word in these three states. If the Court rules against the government, bond hearings return under the statute, whatever the 5th Circuit said[1].
Coverage differed. Reuters, a U.K.-based wire, stayed mostly straight. It separated the constitutional ruling from the Supreme Court's statutory case and quoted both sides[1]. Breitbart's headline said "No 'Get Out of Jail' Card," which treats a hearing as automatic release. RedState's headline quoted a "Red Rover" line that couldn't be found in the available opinion text.
On the left, The New Republic stated "indefinitely" as fact, without attribution. Mississippi Today's headline said detainees have "no due process rights." The ruling is narrower than that. It is about bond hearings[8]. Each side wants one court's answer to be the end of the matter. Neither court has yet answered both questions.
Summary
On Friday, Oct. 23, 2026, the full 5th U.S. Circuit Court of Appeals ruled 10-7 for the Trump administration[1][2]. The court held that the Constitution's Fifth Amendment due process clause does not require bond hearings for immigrants held under the administration's mandatory detention policy[1]. A bond hearing is a short hearing before an immigration judge. The judge decides whether a detained person is likely to flee or is a danger. If not, the judge can set bail and let the person go home while the deportation case goes on. The case involved three men in Texas. They had lived in the U.S. for about 14 to 22 years before ICE detained them after traffic stops[3]. The ruling reverses a July decision by a three-judge panel. That panel had said ICE must hold bond hearings after 90 days of detention[1][4].
The policy began in July 2025[5]. Before then, most people arrested inside the country were held under one section of immigration law, 8 U.S.C. § 1226. That section lets detainees ask for bond[6]. The Department of Homeland Security (DHS) now treats anyone who entered without inspection as an "applicant for admission" under a different section, § 1225(b)(2)(A). That section says such people "shall be detained." This applies even if the person crossed decades ago[6][5]. On Oct. 1, the Supreme Court agreed to decide which section applies, in Rhoney v. Barbosa da Cunha[7]. That case is only about what the statute means, not what the Constitution requires. Friday's ruling covered the constitutional question[1]. Six federal appeals courts have rejected the government's reading of the statute. Two, the 5th and 8th Circuits, have accepted it[6][7].
The core dispute is over who the Constitution protects, and how much. Judge Cory Wilson, a Trump appointee, wrote for the majority. He wrote that the Constitution gives Congress, not courts, broad power over immigration. He added that Congress may set rules for noncitizens that would not be acceptable for citizens[2][8]. Judge Leslie Southwick wrote in dissent that the majority had built "an impenetrable wall between the Constitution and these long-term residents." He argued that a person's "presence and residence" in the country, not formal "admission," is what earns due process[8]. DHS's general counsel called the ruling a "big win." A lawyer for the detainees said it "opens the door to more people being locked up for no reason"[1].
The Event
On Oct. 23, 2026, the full 5th U.S. Circuit Court of Appeals in New Orleans ruled 10-7 that the Fifth Amendment does not require bond hearings for immigrants held under 8 U.S.C. § 1225(b)(2)(A)[1][2]. Judge Cory Wilson wrote the majority opinion. Judge Leslie Southwick wrote a dissent joined by five other judges, and Judge Dana Douglas wrote a separate dissent[1][2]. The court reversed lower-court orders that had granted hearings or release to three men who had lived in the U.S. for about 14 to 22 years[3][9].
Undisputed Facts
- The full 5th Circuit (en banc) ruled 10-7 on Oct. 23, 2026. Judge Cory Wilson wrote the majority opinion and Judge Leslie Southwick wrote the main dissent[2][1].
- The ruling applies in Texas, Louisiana and Mississippi[1]. Those three states hold more than 40% of all ICE detainees by average daily population[10]. Mississippi Today reports more than 20,000 people held in detention centers within the circuit[8].
- DHS's mandatory detention policy began in July 2025. It treats people who entered without inspection as subject to detention without bond, however long ago they arrived[5][6].
- In February 2026 the 5th Circuit adopted the administration's reading of the statute. In July a 2-1 panel ruled that detention beyond 90 days without a bond hearing was unconstitutional[1][4]. On July 10 the full court agreed to rehear the case and vacated the panel ruling. On July 21 it paused the lower-court release orders[3].
- On Oct. 1, 2026, the Supreme Court agreed to hear Rhoney v. Barbosa da Cunha. The question is whether federal law allows mandatory detention without bond hearings for people who entered without inspection and were later arrested inside the country[7][6]. The Court is weighing only the statutory question, not the constitutional one[1].
- The appeals courts are split. The 5th and 8th Circuits back the administration's reading. The 2nd, 6th, 7th, 9th, 10th and 11th Circuits reject it[7][11].
- Ricardo Aparecido Barbosa da Cunha is a Brazilian national. He had lived in the U.S. for about two decades when he was arrested in Norwood, Massachusetts, in September 2025[7]. Sources differ on when he entered: Jurist says around 2004[6] and other reports say 2005[12]. He had applied for asylum and had a work permit[12].
- Arguments in the Supreme Court case are expected early next year. A decision is expected by late June[7].
The Pressure
Strip away the moralizing and blame. What structural realities persist regardless of which narrative wins?
- Two separate legal tracks
- Detainees can win bond hearings in two ways: under the statute or under the Constitution. The Supreme Court is deciding the statute. The 5th Circuit just closed the constitutional route in its three states. So the Supreme Court's ruling will decide how much Friday's ruling matters in practice[1][7].
- Where detainees are held
- Texas, Louisiana and Mississippi hold more than 40% of ICE's average daily detainee population[10]. That makes the 5th Circuit's rules unusually important nationwide.
- Enforcement capacity
- Mandatory detention keeps people in custody for the whole removal case. That makes deportation easier for the government. It also means more detention beds are needed[5][8].
Material realityFor now, people held in Texas, Louisiana and Mississippi under the policy cannot win release by arguing in federal court that the Constitution requires a bond hearing[1][9]. Elsewhere, six circuits have ruled that the statute itself requires a hearing[7]. A Supreme Court decision is expected by late June 2027[7]. Until then, whether a detainee can ask a judge for release depends largely on which circuit the detainee is held in.
Narrative as a weaponDHS and right-leaning outlets present the ruling as Congress's clear law being enforced against "illegal aliens." They describe bond hearings as a loophole or a "get out of jail" card. Immigrant advocates, the dissent and left-leaning outlets focus on long-term residents with families and jobs. They use the word "indefinite" and sometimes stretch the holding to "no due process rights." Both sides tend to blur two separate questions: the narrow constitutional ruling the 5th Circuit made, and the statutory question the Supreme Court will decide. Each side wants readers to treat one court's answer as the end of the matter. Neither court has given a final answer on both questions yet.
How Each Side Sees It
Each major actor’s view — how it frames things, its underlying incentive, and how it’s materially affected. Tap a side to read it.
Frames it asThe administration argues that it is following the plain text of the law, not making up a new rule. The statute says a person "present in the United States who has not been admitted" counts as an "applicant for admission." It also says such applicants "shall be detained"[6]. Supporters point to a flaw in the old practice. Someone who showed up at a port of entry could be held without bond. Someone who crossed illegally and avoided capture could ask for release. In their view, that rewarded breaking the law. On the Constitution, they rely on Congress's long-recognized power over immigration. They also point to the Supreme Court's 2018 decision in Jennings v. Rodriguez. In that case the Court refused to read bond-hearing requirements into mandatory detention laws[13][2]. DHS's general counsel called Friday's ruling a "big win in the 5th Circuit on mandatory detention for illegal aliens"[1].
WhyHolding people for the whole length of their case keeps them in custody and ready for removal. That supports the administration's deportation goals[5][1].
Impact on themThe ruling closes off a major constitutional challenge in the region that holds the largest share of ICE detainees[10][1]. Its practical reach still depends on whether the Supreme Court accepts the administration's reading of the statute[1].
Frames it asJudge Wilson's opinion treats the case as a question of who decides. It holds that the Constitution gives Congress, not courts, broad power to set immigration policy. Congress may make rules for noncitizens that would not be acceptable for citizens[8]. Congress made detention mandatory without regard to a person's danger or flight risk. So, the majority says, judges may not add hearings that the statute leaves out[3]. Wilson also wrote that, to the extent petitioners assert a liberty interest in freedom from physical restraint "in the most abstract sense," they can end their detention "at any moment by agreeing to leave the country"[1]. The majority also held that detained immigrants have no constitutional right to court proceedings beyond what Congress provided[1].
WhyJudicial restraint: leaving immigration policy decisions to the elected branches[8].
Impact on themThe ruling binds federal district judges in Texas, Louisiana and Mississippi. It reverses their release orders[1][9].
Frames it asJudge Southwick argued from long-standing Supreme Court precedent. Under that precedent, a noncitizen's "presence and residence" here, not formal "admission," is what earns due process[8]. He wrote that mandatory detention affects the most basic liberty there is: freedom from physical restraint. So the government must show a legitimate reason to lock a specific person up[2]. In a separate dissent, Judge Dana Douglas wrote that "unchecked, executive authority to arrest and detain, indefinitely, echoes fearfully from history"[1]. Lawyers stress how limited a bond hearing is. It does not guarantee release. It only lets a judge check whether a person is a danger or likely to flee[9]. The three men had lived here 14 to 22 years and were detained after traffic stops[3]. A National Immigration Project lawyer said the ruling "opens the door to more people being locked up for no reason"[1].
WhyTo get detainees released while their cases continue, keep families together, and keep a constitutional backstop in place if the Supreme Court sides with the government on the statute[1][3].
Impact on themIf the Supreme Court sides with the government, people held in these three states would have no clear path to ask a judge for release. Mississippi Today describes the result as potentially "indefinite" detention while cases are pending[8][1].
Frames it asMost appeals courts that have looked at the statute say it is illegal to hold people arrested inside the country without a bond hearing. In their reading, § 1226, which allows bond, governs people arrested inside the country, and § 1225 does not[11][7]. The Supreme Court will decide that statutory question, not the constitutional one[1].
WhyTo settle a 6-2 split among the circuits over a policy affecting a very large number of detainees nationwide[7][6].
Impact on themA ruling against the government would bring bond hearings back under the statute, whatever the 5th Circuit decided. A ruling for the government would leave the 5th Circuit's constitutional holding as the last word in these three states[1].
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The Bias Ledger average rating 5
The same story, as framed by outlets across the spectrum, ordered least to most biased. The bias score (1 = straight, 10 = heavily spun) is an AI assessment of that framing — click an outlet to see its track record. The tell is the word choice or omission that reveals the angle.
| Outlet | Vantage | Bias | How they frame it | The tell |
|---|---|---|---|---|
| Reuters | U.K.-based wire, center | 2 | Detained migrants have no constitutional right to bond hearings, US court rules | Mostly straight. It separates the constitutional ruling from the Supreme Court's statutory case. It quotes both DHS and the detainees' lawyers. It does call the result "powered by its conservative majority," a mild framing choice. |
| Washington Examiner | U.S. right | 3 | Appeals court upholds Trump policy of detention without bond hearings | The headline is plain and factual. Its web address says "sides with Trump on indefinite illegal immigrant detention policy," which mixes the right's word choice with the left's "indefinite." |
| Al Jazeera | Qatari state-funded | 4 | US Supreme Court agrees to take up Trump's ICE detention policy | The plain headline is paired with body text describing a policy that covers "millions" of undocumented immigrants. It stresses crossings from "decades ago." |
| Mississippi Today | U.S. center-left nonprofit, regional | 5 | ICE detainees have no due process rights, court says | The headline expands a ruling about bond hearings into "no due process rights" at all. The body is more careful and quotes both the majority and the dissent. |
| Breitbart | U.S. right | 7 | Federal Court Says No 'Get Out of Jail' Card for Illegal Aliens | "Get Out of Jail Card" treats a bond hearing as automatic release. In fact a hearing only lets a judge weigh flight risk and danger. The outlet also uses "illegal aliens" in its own voice. |
| RedState | U.S. right | 7 | 'Not a National Game of Red Rover': 5th Circuit Hands Trump Major ICE Detention Victory | Frames the ruling as a win for Trump. Its headline quote could not be confirmed in the available opinion text. |
| The New Republic | U.S. left | 7 | Federal Judges Rule ICE Can Keep Detaining People Indefinitely | "Indefinitely" is stated as fact, not attributed. Detention under the policy lasts as long as the removal case. The headline also leaves out the pending Supreme Court case on the statute. |
References
- Detained Migrants Have No Constitutional Right to Bond Hearings, US Court Rules — Reuters · U.K.-based commercial wire service, center
- Fifth Circuit rules Trump mandatory detention policy constitutional — Courthouse News Service · U.S. legal-news trade outlet, center
- Defending the Constitutional Right of Longtime Residents to Challenge Their Detention — American Immigration Council · Pro-immigration advocacy group; litigating party's counsel side
- ICE must provide bond hearings within 90 days to detainees awaiting removal decision, appeals court says — Mississippi Today · Nonprofit, foundation-funded regional newsroom, center-left
- US Supreme Court agrees to take up Trump's ICE detention policy — Al Jazeera · Qatari state-funded broadcaster
- US Supreme Court agrees to hear challenge to mandatory immigration detention without bond hearings — JURIST · University of Pittsburgh-affiliated legal news service, center
- Supreme Court to review key part of Trump's immigration policy — CNN · U.S. commercial cable news, center-left
- ICE detainees have no due process rights, court says — Mississippi Today · Nonprofit, foundation-funded regional newsroom, center-left
- SCOTUS Wire post on Fifth Circuit en banc ruling — SCOTUS Wire (X) · Legal-news social media account, unaffiliated
- Immigrants in ICE detention have no due process rights under US Constitution, federal appeals court says — Verite News · Nonprofit New Orleans newsroom, center-left
- Supreme Court grants review of Trump administration's mandatory detention policy for immigrants — PBS NewsHour (Associated Press) · U.S. public broadcaster carrying nonprofit wire copy, center
- Brazilian Man's Traffic Stop Triggers Supreme Court Immigration Fight — Latin Times · U.S. commercial outlet aimed at Latino readers, center-left
- Jennings v. Rodriguez — Legal Information Institute, Cornell Law School · Academic legal reference, nonpartisan