The opinion
Case: 26-50183 Document: 160-1 Page: 1 Date Filed: 07/02/2026
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 26-50183 FILED
July 2, 2026
____________
Lyle W. Cayce
Ignacio Sosnava Rodriguez, Clerk
Petitioner—Appellee,
versus
Sylvester M. Ortega, in his official capacity as Director of the San
Antonio Field Office of ICE Enforcement and Removal Operations;
Markwayne Mullin, Secretary, U.S. Department of Homeland
Security; Todd Wallace Blanche, Acting U.S. Attorney General;
Department of Homeland Security; DOJ Executive
Office For Immigration Review,
Respondents—Appellants,
consolidated with
_____________
26-50219
_____________
Alejandro Villegas Angel
Petitioner—Appellee,
versus
Markwayne Mullin, Secretary, U.S. Department of Homeland
Security; Todd Wallace Blanche, Acting U.S. Attorney General;
Miguel Vergara, San Antonio Field Office Director for Enforcement and
Case: 26-50183 Document: 160-1 Page: 2 Date Filed: 07/02/2026
Removal; United States Department of Homeland
Security; United States Immigration and Customs
Enforcement; Executive Office for Immigration
Review, Office of the General Counsel,
Respondents—Appellants,
consolidated with
_____________
26-50221
_____________
Miguel Angel Gomez Alvarado,
Petitioner—Appellee,
versus
Miguel Vergara, in his official capacity as the Acting Director of San
Antonio Field Office for U.S. Immigration and Customs Enforcement; Todd
Lyons, in his capacity as the Acting Director for the U.S. Immigration and
Customs Enforcement; Markwayne Mullin, Secretary, U.S.
Department of Homeland Security,
Respondents—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 1:26-CV-273, 1:26-CV-384,
1:26-CV-309
______________________________
Before Southwick, Graves, and Wilson, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
2
Case: 26-50183 Document: 160-1 Page: 3 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
Various federal immigration officials challenge on appeal the grant of
writs of habeas corpus to three aliens who each have resided in the United
States for over a decade. Each had entered this country without inspection
and had never been authorized to remain. The district court judges granted
the writs after concluding that each alien was being detained in violation of
the Due Process Clause. Each alien was released from custody, and the
Government was prohibited from detaining them again without a hearing to
determine their individual dangerousness or risk of flight. Nothing in the
orders, however, interfered with the removal proceedings themselves. The
three appeals have been consolidated for decision.
As unadmitted aliens, appellees are subject by statute to mandatory
detention without bond. See Buenrostro-Mendez v. Bondi, 166 F.4th 494, 506
(5th Cir. 2026); 8 U.S.C. § 1225(b)(2)(A). They assert that their detention
violates the Fifth Amendment. In each case, the district court agreed.
The Fifth Amendment provides: “No person shall . . . be deprived of
life, liberty, or property, without due process of law.” U.S. Const. amend.
V. In 2001, the Supreme Court stated that the Due Process Clause protects
“all ‘persons’ within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v.
Davis, 533 U.S. 678, 693–94 (2001). It is part of the historic majesty of this
long-ago founding charter that it makes no exceptions in providing basic
rights to those within our boundaries, including a right to be heard when
personal liberty is taken. These three aliens, who many years ago entered this
country without inspection and have been residing here for years, who have
no criminal history, and who, as far as we have been informed, have not yet
been subject to a removal order, would today have been detained by
immigration authorities for an unreasonable time absent the district courts’
intervention. If they were still detained without any removal order having
3
Case: 26-50183 Document: 160-1 Page: 4 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
been entered, they would be entitled to a bond hearing now. We AFFIRM
the district courts’ granting writs of habeas corpus.1
We understand the recent interpretation in Buenrostro-Mendez that
detention is mandatory for anyone who entered this country without
authorization is creating enormous difficulties in district courts. Thousands
of immigration detainees are filing applications for writs of habeas corpus in
United States district courts. Our resolution of this case requires the
executive branch to provide bond hearings through its own procedures. That
shifts the location of the burden, but it leaves its size unaffected.
Nonetheless, the answer to those difficulties cannot include ignoring the
Constitution. We acknowledge our able colleague in dissent is alert to that
requirement but finds no constitutional violation here.
STATUTORY BACKGROUND
Our law has long drawn a line between those “who may enter the
country and [those] who may stay here after entering.” Jennings v. Rodriguez,
583 U.S. 281, 286 (2018). That distinction results in two different categories:
excludable aliens, those “outside the United States seeking admission,” and
deportable aliens, those already “physically in the United States.” See
Landon v. Plasencia, 459 U.S. 21, 25–26 (1982). Consistent with that
distinction, the Department of Homeland Security had, until recently,
treated two statutory provisions regarding the detention and removal of
aliens as separately governing aliens in those two categories: 8 U.S.C. § 1225
and 8 U.S.C. § 1226. See Jennings, 583 U.S. at 287–89.
_____________________
1
Judge Graves would require a hearing for a detainee sooner than the 90 days
set out in this opinion, as his separate opinion explains. He therefore concurs in this
opinion’s conclusion that a hearing must occur by 90 days after detention, even if
improperly late in his view.
4
Case: 26-50183 Document: 160-1 Page: 5 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
Congress significantly revised the nation’s immigration laws in
passing the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, 110 Stat. 3009–585 (“IIRIRA”). The key statutes we will apply,
Sections 1225 and 1226, were among the revisions found in IIRIRA.
Section 1225 governs the inspection and detention of arriving aliens.
“An alien present in the United States who has not been admitted” is
“deemed for purposes of this chapter an applicant for admission.”
8 U.S.C. § 1225(a)(1). Admission requires “the lawful entry of the alien into
the United States after inspection and authorization by an immigration
officer.” Id. § 1101(a)(13)(A). With limited exceptions not applicable here,
Section 1225 requires that “in the case of an alien who is an applicant for
admission, if the examining immigration officer determines that an alien
seeking admission is not clearly and beyond a doubt entitled to be admitted,
the alien shall be detained” for a removal proceeding. Id. § 1225(b)(2)(A).
Section 1226 applies to the apprehension and detention of removable
aliens. Most aliens arrested under Section 1226 may be released on bond or
conditional parole while a determination of their removability is ongoing. See
id. § 1226(a)(2). Certain criminal aliens, including those charged with
violent felonies, must be detained without bond. Id. § 1226(c).
From 1996 until 2025, the Department of Homeland Security applied
Section 1226(a) to the detention of unadmitted resident aliens, like those
here, who were awaiting a decision on removal. See Buenrostro-Mendez, 166
F.4th at 500, 506. Under Section 1226(a), detention is not mandatory; prior
to the Government’s changing its position in 2025, “the Government ha[d],
for twenty-nine years, allowed illegal resident aliens . . . to seek release on
bond under § 1226(a).” Id. at 506. That view fit within Section 1226(a)’s
grant of discretionary authority to the Attorney General to release a
noncriminal alien arrested inside the country on bond pending a decision on
5
Case: 26-50183 Document: 160-1 Page: 6 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
whether the alien was to be removed. Nielsen v. Preap, 586 U.S. 392, 397
(2019); 8 U.S.C. § 1226(a)(2).
Agency regulation standardized this discretion. A Department of
Homeland Security officer undertook the initial determination on bond,
considering whether the alien “would not pose a danger to property or
persons, and that the alien is likely to appear for any future proceeding.” 8
C.F.R. § 1236.1(c)(8). The Government or alien could then appeal that
decision to an immigration judge, who redetermined whether bond is
warranted, considering “any information that is available to the Immigration
Judge or that is presented to him or her by the alien or the Service.” 8 C.F.R.
§§ 1003.19(d), 1236.1(d)(1). Further appeal was available to the Board of
Immigration Appeals. 8 C.F.R. § 1236.1(d)(3).
As of September 2025, the Department of Homeland Security altered
these practices as to unadmitted resident aliens. See Matter of Yajure
Hurtado, 29 I. & N. Dec. 216, 227–29 (BIA 2025). The BIA concluded the
plain language of Section 1225(b)(2)(A) applied to “aliens unlawfully
entering the United States without inspection” no matter how long the
“alien has avoided apprehension.” Id. at 228. Such aliens remained, the
BIA concluded, “applicants for admission until and unless they are lawfully
inspected and admitted by an immigration officer.” Id. In other words, even
after long physical presence in this country, aliens remain “seeking
admission” and “applicants for admission.” Consequently, the BIA decided
that immigration judges “have no authority to redetermine the custody
conditions of an alien who crossed the border unlawfully without inspection,
even if that alien has avoided apprehension for more than 2 years.” Id.
In February 2026, this court upheld the Government’s interpretation
of the statutory provisions. Buenrostro-Mendez, 166 F.4th at 508. The three
aliens before us go beyond statutory text to present a constitutional claim.
6
Case: 26-50183 Document: 160-1 Page: 7 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
They do not contest their removal in this appeal. Instead, they contend that
those detained under Section 1225(b)(A) are entitled by the Constitution to
a hearing at some point to determine the justification for their detention. The
issue affects far more individuals than the three individuals in this case. The
Department of Homeland Security has detained thousands of resident aliens
under Section 1225(b)(2)(A) without bond.
FACTUAL AND PROCEDURAL BACKGROUND
The backgrounds of the three aliens before us, Ignacio Sosnava
Rodriguez, Alejandro Villegas Angel, and Miguel Angel Gomez Alvarado,
bear relevant similarities. They each illegally entered this country more than
a decade ago. They have been long-time residents of the United States, with
no criminal history, and are fathers of United States citizens. They each have
applied or assert they intend to apply for cancellation of removal under 8
U.S.C. § 1229b(b)(1), which permits the Attorney General to cancel the
removal of certain aliens, on the basis that removal would “result in
exceptional and extremely unusual hardship” to a child who is a United
States citizen. We provide a few additional individual details.
Ignacio Sosnava Rodriguez, a citizen of Mexico, entered the United
States in 2004, evading inspection. On December 23, 2025, he was stopped
in Elgin, Texas, for a problem with his vehicle light. Texas state police called
U.S. Customs and Immigration Enforcement (“ICE”) to the traffic stop,
and an ICE officer detained Sosnava Rodriguez.
Alejandro Villegas Angel, a citizen of Mexico, entered the United
States in 2011, and he also evaded inspection. On February 10, 2026, he was
stopped in Lockhart, Texas, for driving without a license. Upon being
identified, he was transferred to ICE custody.
Miguel Angel Gomez Alvarado, a citizen of Honduras, entered the
United States in 2012, also without inspection. On November 13, 2025,
7
Case: 26-50183 Document: 160-1 Page: 8 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
Alvarado was detained by ICE after the agency was called to a traffic stop in
Florence, Texas.
All three men filed an application for a writ of habeas corpus in the
United States District Court for the Western District of Texas. See 28 U.S.C.
§ 2241. The three applications were considered by two different district
court judges. In each case, the district court determined that the applicant
could raise a Fifth Amendment challenge to his mandatory detention without
bond and applied the procedural due process factors set out by the Supreme
Court case Mathews v. Eldridge, 424 U.S. 319 (1975). The courts concluded
that the detentions violated the Due Process Clause and ordered the
immediate release of each alien.2
The Government timely appealed from each order. This court
granted the Government’s motion to consolidate the three appeals for
expedited consideration.
DISCUSSION
The Government insists there were three errors in the district courts’
interpretation of the Due Process Clause: (1) because the three aliens had not
been statutorily “admitted,” they are not entitled to due process; (2) the
statutory structure of Section 1225(b)(2)(A) forecloses any claim of
procedural due process; and (3) even if the aliens could invoke the
Constitution’s protections, they have no right to a bond hearing.
The problem with the first two arguments is that even though the BIA
reinterpreted the meaning of statutory language, the Constitution has not
changed. As we will explain, statutory admission status does not decide when
_____________________
2
Ignacio Sosnava Rodriguez was released from custody on February 27, 2026.
Alejandro Villegas Angel and Miguel Angel Gomez Alvarado were released from custody
on March 5, 2026.
8
Case: 26-50183 Document: 160-1 Page: 9 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
aliens gain due process rights. The Constitution, after all, is supreme, with
statutes’ needing to conform to its dictates, not the Constitution to statutes.
We are left to consider what rights aliens such as these three have under the
Constitution.
I. Entitlement to Due Process
For over a century, aliens’ entitlement to due process has been
governed by physical presence within the United States. See Wong Wing v.
United States, 163 U.S. 228, 238 (1896). “‘[A]ll persons within the territory
of the United States,’ including aliens unlawfully present, may invoke the
Fifth and Sixth Amendments to challenge actions of the Federal
Government.” Plyler v. Doe, 457 U.S. 202, 212 (1982) (quoting Wong Wing,
163 U.S. at 238). Meanwhile, “an alien on the threshold of initial entry stands
on a different footing” than “aliens who have . . . passed through our gates.”
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). An
alien’s “right to enter the United States depends on the congressional will.”
Id. at 216. This “territorial theme,” the idea that physical presence in the
country is key, has been omnipresent in immigration jurisprudence. See
Plyler, 457 U.S. at 212. As a preview, we mention the Government’s
argument that recent United States Supreme Court caselaw has discarded
such protections.
An early twentieth-century Supreme Court opinion, Yamataya v.
Fisher (The Japanese Immigrant Case), 189 U.S. 86 (1903), provides an
example of this constitutional distinction. Four days after Kaoru Yamataya,
a Japanese citizen, entered the United States, an immigration inspector
concluded she had arrived in the country illegally because she was likely to
become a public charge, a class of aliens excluded from entry by then-existing
law. Yamataya, 189 U.S. at 94. The Secretary of the Treasury issued a
warrant for her deportation. Id. Yamataya filed for a writ of habeas corpus,
9
Case: 26-50183 Document: 160-1 Page: 10 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
asserting that the inspector’s investigation had been inadequate and that she
had no opportunity to contest her deportation. Id.
The Supreme Court began by recognizing Congress’s nearly
unlimited power over the exclusion of aliens from the country, i.e.,
preventing entry, explaining that Congress could both enact a regulatory
scheme for exclusion and “commit the enforcement of such provisions,
conditions, and regulations exclusively to executive officers, without judicial
intervention.” Id. at 97. Yamataya’s case, according to the Court, presented
a different question: “What was the extent of the authority of the executive
officers of the government over the petitioner after she landed?” Id. at 99.
The Court rejected the argument “that administrative officers, when
executing the provisions of a statute involving the liberty of persons, [could]
disregard the fundamental principles that inhere in ‘due process of law’ as
understood at the time of the adoption of the Constitution.”3 Id. at 100.
Immigration authorities did not have the “arbitrary power” to “take[] into
custody and deport[]” an alien “who has entered the country, and ha[d]
become subject in all respects to its jurisdiction, and a part of its population
although alleged to be illegally here” without providing them “all
opportunity to be heard upon the questions involving his right to be and
remain in the United States.” Id. at 101. No such power could exist “where
the principles involved in due process of law are recognized.” Id.
_____________________
3
The Yamataya Court left open the question of whether an alien could “rightfully
invoke the due process clause of the Constitution who has entered the country
clandestinely, and who has been here for too brief a period to have become, in any real
sense, a part of our population.” 189 U.S. at 100 (emphasis added). As discussed in the
succeeding pages, the Supreme Court has answered this question by tempering the physical
presence rule into something more flexible than a strict inside-or-outside the country
binary.
10
Case: 26-50183 Document: 160-1 Page: 11 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
In the intervening nearly five quarters of a century since Yamataya,
the precept that the Due Process Clause protects all persons residing in the
United States has frequently been repeated by the Supreme Court. Once was
in 1953: “It is true that aliens who have once passed through our gates, even
illegally, may be expelled only after proceedings conforming to traditional
standards of fairness encompassed in due process of law.” Mezei, 345 U.S.
at 212. In 1976, the Court reminded us: “There are literally millions of aliens
within the jurisdiction of the United States. The Fifth Amendment, as well
as the Fourteenth Amendment, protects every one of these persons from
deprivation of life, liberty, or property without due process of law.” Mathews
v. Diaz, 426 U.S. 67, 77 (1976). The Court repeated itself again in 1982:
“Aliens, even aliens whose presence in this country is unlawful, have long
been recognized as ‘persons’ guaranteed due process of law by the Fifth and
Fourteenth Amendments.” Plyler, 457 U.S. at 210. We have already referred
to the Court’s statement in 2001 that the Due Process Clause protects “all
‘persons’ within the United States, including aliens, whether their presence
here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at
693–94.
The Plyler Court, affirming the Fifth Circuit’s application of the Equal
Protection Clause to illegal aliens residing in the United States, explained the
rationale for the physical-presence rule in a series of footnotes. The Court
agreed with an early writer’s conclusion that “no plausible distinction with
respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between
resident aliens whose entry into the United States was lawful, and resident
aliens whose entry was unlawful.” Plyler, 457 U.S. at 211 n.10 (citing
Clement L. Bouvé, A Treatise on the Laws Governing
Exclusion and Expulsion of Aliens in the United States
425–427 (1912)).
11
Case: 26-50183 Document: 160-1 Page: 12 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
Another source of authority was Justice Field’s separate opinion
in Wong Wing:
The term “person,” used in the Fifth Amendment, is broad
enough to include any and every human being within the
jurisdiction of the republic. A resident, alien born, is entitled
to the same protection under the laws that a citizen is entitled
to. He owes obedience to the laws of the country in which he
is domiciled, and, as a consequence, he is entitled to the equal
protection of those laws.
Id. at 212 n.11 (quoting Wong Wing, 163 U.S. at 242–43 (Field, J.,
concurring in part and dissenting in part)).4
In the latest of the long line of cases addressing this question, the
Supreme Court considered whether a Sri Lankan national, Vijayakumar
Thuraissigiam, who was detained almost immediately after his unauthorized
entry — he had walked 25 yards into the United States from Mexico — could
invoke the Due Process Clause to contest the handling of his asylum
proceedings. DHS v. Thuraissigiam, 591 U.S. 103, 114–15 (2020). The Court
began by restating the axiom that “aliens who have established connections
in this country have due process rights in deportation proceedings,” but
“alien[s] at the threshold of initial entry” do not. Id. at 107.
Applying the “century-old rule regarding the due process rights of an
alien seeking initial entry,” the Court considered whether Thuraissigiam
_____________________
4
Justice Fields’s opinion echoed James Madison in his Report on the
Virginia Resolutions. Madison, criticizing the Alien and Sedition Acts, wrote:
“[I]t does not follow, because aliens are not parties to the Constitution, as citizens are
parties to it, that, whilst they actually conform to it, they have no right to its protection.
Aliens are not more parties to the laws than they are parties to the Constitution; yet it will
not be disputed that, as they owe, on one hand, a temporary obedience, they are entitled,
in return, to their protection and advantage.”4 The Debates in the Several
State Conventions on the Adoption of the Federal Constitution
556 (Jonathan Elliot 2d. ed 1836).
12
Case: 26-50183 Document: 160-1 Page: 13 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
was, by law, still “on the threshold” even if he had in fact “set foot on U.S.
soil.” Id. at 139–140 (quoting Mezei, 345 U.S. at 212). The Court held that
“an alien who is detained shortly after unlawful entry cannot be said to have
‘effected an entry’” into the country. Id. at 140 (quoting Zadvydas, 533 U.S.
at 693). The Court concluded that Thuraissigiam was entitled only to the
process that Congress had provided, not the independent guarantees of our
Constitution. Id. at 138–39. Thuraissigiam did not alter the long-standing
dichotomy between the due process rights of aliens at the border and aliens
within the country; Thuraissigiam applied existing law to a new factual
situation. The issue was not statutory “admission,” but physical entry
beyond a de minimis distance.
Quite to the contrary, the Government insists the proper rule to be
drawn from Thuraissigiam — and, indeed, it argues this has been the rule for
more than a century — is that “for aliens who never ‘been admitted into the
country pursuant to law, the decisions of executive and administrative
officers, acting within the powers expressly conferred by Congress, are due
process of law.’” That language is a quote from Thuraissigiam, which was
quoting Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892). The
Government omits the preceding clause that changes the meaning of the
selected language. The full quote from Thursaissigiam is as follows:
[A]s to “foreigners who have never been naturalized, nor
acquired any domicil or residence within the United States, nor
even been admitted into the country pursuant to law,” “the
decisions of executive or administrative officers, acting within
powers expressly conferred by Congress, are due process of
law.”
Thuraissigiam, 591 U.S. at 138 (quoting Nishimura Ekiu, 142 U.S. at 660). As
we already quoted, the Thuraissigiam Court earlier in its opinion confirmed
the distinction between those “aliens who have established connections in
13
Case: 26-50183 Document: 160-1 Page: 14 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
this country” and those who have not. Id. at 107. To assert that
Thuraissigiam actually eliminates such rights for those with an established
presence is not credible. The Court’s holding confirms the continuing
relevance of a physical presence requirement, distinguishing those who have
“acquired any domicil or residence within the United States” from those
who have not. Id. at 138. Statutory “admission” and its limitations do not
eliminate these long-standing constitutional distinctions. Certainly, the
Nishimura Ekiu Court, quoted by Thuraissigiam, included “nor even been
admitted into the country pursuant to law” in its list of three ways in which
the alien in that case had not substantiated a meaningful presence in this
country. Quite differently, the three aliens in the case before us fully satisfied
another one of them, namely, maintaining a long-term residence in the
United States.
The Government also contends that caselaw on an exception to the
physical presence rule for aliens paroled into the country supports its
position: “[A]liens who arrive at ports of entry — even those paroled
elsewhere in the country for years pending removal — are ‘treated’ for due
process purposes ‘as if stopped at the border.’” Id. at 139 (quoting Mezei,
345 U.S. at 215). This exception is narrow, avoiding “needless
confinement . . . while administrative proceedings are conducted.” Leng
May Ma v. Barber, 357 U.S. 185, 190 (1958). The parole fiction was intended
to encourage conditional release. Parole is the constitutional equivalent to a
continuation of “detention” at the border, though “enlarg[ing]” the “prison
bounds.” See id. at 189–90.
Such narrow exceptions are inapplicable here. The Thuraissigiam
Court supplied pages of reasoning to support that entering 25 yards into this
country and then being apprehended could be treated as the equivalent of
being stopped at the border. The Government is trying to equate that to the
entry of hundreds of miles and years of residence. Such supposed
14
Case: 26-50183 Document: 160-1 Page: 15 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
equivalence is far more than a convenient legal fiction. It is a complete
fantasy. It also ignores that those who have “acquired any domicil or
residence within the United States” are explicitly among those for whom
decision-making by executive branch officials is not the limit of the process
due them. Thuraissigiam, 591 U.S. at 138 (citation omitted).
Yamataya, Mezei, Mathews, Zadvydas, Plyler, and the other half-dozen
or more cases that could have been cited for the physical presence rule
“remain binding precedent until [the Supreme Court] see[s] fit to reconsider
them, regardless of whether subsequent cases have raised doubts about their
continuing vitality.” See Hohn v. United States, 524 U.S. 236, 252–53 (1998).
The Court “does not normally overturn . . . earlier authority sub silentio.”
Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000). The
Supreme Court did not overrule those cases in Thuraissigiam. Indeed, much
of the analysis was simply to show that alien’s 25-yard entry in the United
States was not enough to qualify him for the protections of such caselaw.
In summary, aliens who arrive at an “international airport” or walk a
dozen steps onto United States soil, are not, by sheer dint of crossing a
boundary line, cloaked in the full protection of the United States
Constitution. See Thuraissigiam, 591 U.S. at 139. The Court’s precedents
have not been an overly rigid, formulaic application of the physical presence
rule. The present case, though, has no such nuances that need addressing.
Entry and residence, not legal admission, dictate the extent of the
Constitution’s application. These aliens have each lived on United States
soil for over a decade, had children in the United States, owed obedience to
the laws of this country, and are, as a result, entitled to the protections of the
Due Process Clause.
15
Case: 26-50183 Document: 160-1 Page: 16 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
II. Due Process Principles
The Government argues that regardless of the caselaw we have just
discussed, what controls here is the lack of any statutory procedural rights for
release from detention for aliens subject to Section 1225(b)(2)(A). The
statute is clear that they “shall be detained for a [removal] proceeding.”
8 U.S.C. § 1225(b)(2)(A). The statutory language “unambiguously provides
for mandatory detention.” Buenrostro-Mendez, 166 F.4th at 502. The
Government insists that this absence of statutory rights means there are no
constitutional ones. At best, that is true when there is no substantive right
independent of the statute. Statutes do not override the Constitution, of
course, so we must continue to enforce substantive constitutional rights
regardless of statutory language.
“[T]he Due Process Clause provides that certain substantive rights
— life, liberty, and property — cannot be deprived except pursuant to
constitutionally adequate procedures.” Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 541 (1985). The Government’s focus on what a statute does
not provide ignores that any “right to due process ‘is conferred, not by
legislative grace, but by constitutional guarantee.’” Id. (quoting Arnett v.
Kennedy, 416 U.S. 134, 167 (1974) (Powell, J., concurring in part)).
The principal support for the Government’s insistence that the
statute controls here is the exceptionally inapt Connecticut Department of
Public Safety v. Doe, 538 U.S. 1 (2003). There, the Court considered a
procedural due process challenge to placement on a public sex offender
registry, certainly not an issue drawing on long-recognized fundamental,
substantive rights. Doe, 538 U.S. at 5. The challenger claimed he had a
liberty interest in his reputation; accordingly, the state law establishing the
registry purportedly violated procedural due process because the state had
failed to provide him with a hearing to disprove his dangerousness. Id. at 5–
16
Case: 26-50183 Document: 160-1 Page: 17 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
7. He expressly disclaimed a substantive due process challenge to the law.
Id. at 8. The Court held that he had no procedural right to a hearing because
“any hearing on current dangerousness [would have been] a bootless
exercise.” Id. at 7–8. It was bootless because the duty to register did not
hinge on dangerousness but solely on a conviction of the offense — all sex
offenders had to be registered. Id.
Moreover, dangerousness also had no relevance to his constitutional
claim, as he did not assert that dangerousness had any bearing on the
Government’s authority to require registration of those convicted of crimes.
Doe had not established the Connecticut statute requiring all sex-offenders,
dangerous or not, to register was “defective” as a “substantive rule of law”
by “conflicting with a provision of the Constitution.” Id. at 7.
Justice Scalia’s concurrence in Doe provides additional clarity.
There, he suggested that “the categorical abrogation of [a] liberty interest by
a validly enacted statute suffices to provide all the process that is ‘due’ . . .
[a]bsent a claim (which respondent ha[d] not made [in Doe]) that the liberty
interest in question is so fundamental as to implicate so-called ‘substantive’
due process.” Id. at 8 (Scalia, J., concurring). His example shows the
principle’s limit: “a state law providing that no one under the age of 16 may
operate a motor vehicle suffices to abrogate that liberty interest.” Id. In
other words, there was no substantive right to a driver’s license. Thus,
setting age limits was not a violation of any rights existing outside the statute,
making the statute’s processes the process that was due.
Justice Scalia earlier explained, writing for the Court, that a
substantive claim of due process is that the Government “cannot deprive
[the claimant] of their asserted liberty interest at all,” while a procedural due
process claim is that the Government cannot “cannot deprive [the claimant]
of their asserted liberty interest . . . on the basis of the procedures it
17
Case: 26-50183 Document: 160-1 Page: 18 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
provides.” Reno v. Flores, 507 U.S. 292, 306 (1993). Described otherwise,
“the substantive issue involves a definition of that protected constitutional
interest, as well as identification of the conditions under which competing
state interests might outweigh it,” while “[t]he procedural issue concerns
the minimum procedures required by the Constitution for determining that
the individual’s liberty interest actually is outweighed in a particular
instance.” Mills v. Rogers, 457 U.S. 291, 299 (1982). It may not always be
evident whether a plaintiff’s claim sounds in substantive or procedural due
process.5 Both possibilities are before us because, unlike in Doe, the three
aliens in this appeal have not renounced any substantive claim.
In sum, Doe did not create a new standard to be met for due process
claims of violations of fundamental rights. Instead, it teaches that when a
statute that abrogates a claimed liberty interest does not substantively violate
the Constitution, the Due Process Clause does not impose any additional
procedural protection. The three aliens before us assert that the deprivation
of their physical liberty without justification substantively violates their right
to liberty from physical constraint enumerated in the Constitution. They
concede there are “conditions under which competing state interests might
outweigh” their Fifth Amendment liberty interest. What they seek is
recognition of a procedural right to prove those conditions do not exist and
_____________________
5
One scholar makes a valid point that “any time a right whose abridgment may be
justified (by, for example, a compelling state interest) is infringed, one could restate the
claim as one that the state failed to provide adequate procedure for determining whether
the conditions were present that rendered the deprivation lawful.” Peter J. Rubin, Square
Pegs and Round Holes: Substantive Due Process, Procedural Due Process, and the Bill of Rights,
103 Colum. L. Rev. 833, 848 (2003). Professor Rubin concluded this doctrinal
distinction is especially hazy in cases of “deprivations of substantive rights that are
provided only contingently, that are defined in terms of process.” Id. Nonetheless, the
briefing of the procedural and substantive rights is sufficient to permit an analysis of both
aspects.
18
Case: 26-50183 Document: 160-1 Page: 19 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
that their right to be at liberty “actually is outweighed in [this] particular
instance.” The necessary corollary of the argument is that without those
procedures their detention under Section 1225(b)(2)(A) violates the Fifth
Amendment. Accordingly, Doe has no application.6
The three district court orders here concluded that the proper analysis
was under procedural due process. For example, in the order as to Alejandro
Villegas Angel, that district court held: “Petitioner is challenging the process
that is due to him before he can be deprived of a protected interest—his
liberty. That is squarely a procedural due process claim. See Mathews v.
Eldridge, 424 U.S. 319, 332–33 (1976).” All three orders identify the right as
the fundamental liberty interest to be free from imprisonment, i.e.,
immigration detention. The briefs of the three aliens also take that position.
We agree that this is a procedural due process claim.
Adjudicating claims like those here is the ordinary function of courts.
Once a plaintiff demonstrates a liberty interest “within the Fourteenth [or
Fifth] Amendment’s protection,” then we must “determine[] ‘what process
is due’ in the particular context.” Smith v. Org. of Foster Fams. for Equal. &
Reform, 431 U.S. 816, 847 (1977).
That determination may not be superseded or eliminated by statute.
“[C]ertain substantive rights — life, liberty, and property — cannot be
deprived except pursuant to constitutionally adequate procedures.”
Loudermill, 470 U.S. at 541. Allowing the Due Process Clause to be “defined
_____________________
6
In the 23 years since the Supreme Court decided Doe, no federal appellate court
has ever applied that decision to an immigration case — despite a surfeit of cases addressing
the question of what, if any, protections procedural due process requires under a similar
mandatory detention regime in 28 U.S.C. § 1226(c). See, e.g., Black v. Decker, 103 F.4th
133, 149–59 (2d Cir. 2024), cert. granted sub nom., Genalo v. Black, No. 25-886, 2026 WL
1718025 (U.S. June 15, 2026).
19
Case: 26-50183 Document: 160-1 Page: 20 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
by the procedures provided for its deprivation” would leave the Clause
“reduced to a mere tautology.” Id. The three men before us contend they
have been deprived of their right to liberty without constitutionally adequate
procedures, a violation of the Due Process Clause. We now examine the
procedures for their adequacy.
III. Due Process Right to Contest Immigration Detention
Having concluded that these three aliens are entitled to invoke the
protections of the Due Process Clause, we also must determine what those
protections are. In addressing the Government’s arguments, we return
briefly to our conclusion that this is a procedural due process case.
The Government contends that these claims should be governed by
two Supreme Court cases: Washington v. Glucksberg, 521 U.S. 702 (1997) and
Demore v. Kim, 538 U.S. 510 (2003). Their detention does not, according to
the Government, implicate an already-recognized fundamental right, and
thus, their claimed liberty interest must be tested under the substantive due
process framework laid out in Glucksberg. In addition, the Government
asserts that the Supreme Court’s straightforward statement in a similar case,
“[d]etention during removal proceedings is a constitutionally permissible
part of that process,” Demore, 538 U.S. at 531, supports that there is no
liberty interest to be protected here.
We start with a summary. Glucksberg is inapposite because the aliens
claim here the long-recognized, fundamental right to be free from physical
restraint by the Government. Demore applies, but the Demore Court
concerned removable aliens who had been convicted of crimes; it did not
approve of a per se detention of all aliens pending removal proceedings.
20
Case: 26-50183 Document: 160-1 Page: 21 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
A. Freedom from Government Detention as a Fundamental Right
In Glucksberg, the Supreme Court addressed whether terminally ill
patients possessed a constitutionally guaranteed liberty interest in physician-
assisted suicide. 521 U.S. at 708. That right was, quite obviously, not a
“specific freedom[] protected by the Bill of Rights.” Id. at 720. The Court
announced a test for courts to apply when “break[ing] new ground” by
recognizing a previously unacknowledged liberty interest or right protected
by the Constitution: The asserted right, carefully described, must be “so
deeply rooted in our history and traditions, or so fundamental to our concept
of constitutionally ordered liberty” as to warrant due process protection. Id.
at 720, 727 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125
(1992)).
We do not find it necessary to make that inquiry here. We are clearly
not breaking new ground. The spadework is done; the ground is broken;
indeed, the structure is built: “Freedom from physical restraint [is] a
fundamental right.” Foucha v. Louisiana, 504 U.S. 71, 86 (1992). Aliens, even
those in removal proceedings, may assert that right. See Zadvydas, 533 U.S.
at 690. The right to liberty, as an enumerated right, is not subject to the
Glucksberg inquiry. In Glucksberg, the Court agreed that “‘liberty’ . . .
includes more than the absence of physical restraint.” 521 U.S. at 719. The
Gluckberg inquiry is the means by which the courts must test the outer scope
of that “more.” In this case, though, the three individuals are not claiming
more. They seek only the absence of physical restraint.
The Government nonetheless contends that the detention here
“does not implicate any fundamental rights” because the United States does
not have a history or tradition of bail for aliens during removal proceedings.
Appellants’ Br. at 32. Few of the Supreme Court’s landmark liberty cases
would survive such exacting scrutiny. It would be difficult to argue, for
21
Case: 26-50183 Document: 160-1 Page: 22 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
example, that there is a history or tradition of one found not guilty of a crime
based on insanity’s entitlement to freedom from psychiatric commitment, see
Foucha, 504 U.S. at 80–82, or a right of citizens acting as enemy combatants
to freedom from military custody, see Hamdi v. Rumsfeld, 542 U.S. 507, 532
(2004) (plurality op.). Nonetheless, the Court did not attempt to make any
such showing in Foucha and Hamdi. There was no need to consider history
and tradition because the freedom from physical restraint, in whatever form,
is at the “core of the liberty protected by the Due Process Clause from
arbitrary governmental action.” Foucha, 504 U.S. at 80. That right cannot
be abridged by Congress or this court. It may be limited, but only with
justification.
B. Immigration Detention
“Procedural due process rules are meant to protect persons not from
the deprivation, but from the mistaken or unjustified deprivation of life,
liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). The
Supreme Court has explained that the right to liberty from civil confinement,
in particular, may be infringed only where a “where a special justification . . .
outweighs the ‘individual’s constitutionally protected interest in avoiding
physical restraint.’” Zadvydas, 533 U.S. at 690 (quoting Kansas v. Hendricks,
521 U.S. 346, 356 (1997)). The Supreme Court has singled out
dangerousness and flight risk as special justifications for detention in the
immigration proceedings. See id.
An alien’s right to liberty must also be considered in context. “[I]n
the exercise of its broad power over naturalization and immigration,
Congress regularly makes rules that would be unacceptable if applied to
22
Case: 26-50183 Document: 160-1 Page: 23 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
citizens.”7 Mathews v. Diaz, 426 U.S. 67, 79–80 (1976). “Detention during
removal proceedings is a constitutionally permissible part of that process.”
Demore, 538 U.S. at 531. We are not the first to consider the balance between
these competing principles. The Supreme Court has provided guidance in
several cases including, most notably, Zadvydas and Demore.
In the earlier opinion, the Supreme Court in Zadvydas considered two
habeas challenges by aliens who were detained under 8 U.S.C. § 1231(a)(6).
533 U.S. at 686. Section 1231(a)(6) provides the Attorney General with the
discretion to confine certain removable aliens indefinitely beyond their
removal period. Id. at 686–89. The Court warned that a “statute permitting
indefinite detention of an alien would raise a serious constitutional problem.”
Id. at 690. The Court applied its line of civil detention cases, explaining the
Government must show “a special justification, such as harm-threatening
mental illness, outweighs the ‘individual’s constitutionally protected interest
in avoiding physical restraint.’” Id. (quoting Hendricks, 521 U.S. at 356).
The Court rejected the Government’s supposition that an “alien’s
removable status itself, which bears no relation to a detainee’s
dangerousness” could justify detention. Id. at 691–92. Instead, the Court
_____________________
7
A brief note on the extent of the Congress’s plenary power is necessary. There
is no doubt that “the power to admit or exclude aliens is a sovereign prerogative.” Landon
v. Plasencia, 459 U.S. 21, 32 (1982). But that prerogative is not boundless; there are
“important constitutional limitations.” Zadvydas 533 U.S. 678, 695 (2001).
The Bill of Rights was intended to constrain the federal government’s conduct
even within its areas of prerogative. Before the adoption of the Bill of Rights, Thomas
Jefferson wrote to James Madison, the author of the Due Process Clause, that the
Constitution “forms us into one state as to certain objects, and gives us a legislative and
executive body for these objects.” Letter from Thomas Jefferson to James Madison (Mar.
15, 1789), in 14 The Papers of Thomas Jefferson 660 (Julian P. Boyd ed. 1958).
Jefferson reassured Madison of the virtue of adopting a declaration of rights, that the
Constitution “should therefore guard us against their abuses of power within the f[ie]ld
submitted to them.” Id. The guard that is relevant here is the Fifth Amendment.
23
Case: 26-50183 Document: 160-1 Page: 24 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
considered two other “regulatory goals” of the statute put forward by the
Government: flight risk and dangerousness.8 Id. at 690. “The first
justification — preventing flight — [was] weak or nonexistent where removal
seems a remote possibility at best.” Id. Dangerousness, the Court explained,
only served as a proper justification when “limited to specially dangerous
individuals and subject to strong procedural protections.” Id. at 691. Under
the statute, “the sole procedural protections available to the alien[s]” to
contest their detention were “found in administrative proceedings” when
“[t]he Constitution demands greater procedural protection even for
property.” Id. at 692. The administrative procedures were insufficient to
safeguard the statute from grave constitutional questions. Accordingly, the
Court avoided the constitutional defect by construing Section 1231(a)(6) to
apply only while removal is “reasonably foreseeable.” Id. at 699. Detention
was presumed reasonable for six months. Id. at 701.
Two years later, the Supreme Court again addressed the issue of alien
detention in Demore. The Court reviewed the constitutionality of an alien’s
confinement under 8 U.S.C. § 1226(c), which requires mandatory detention
without bond for certain criminal aliens during the removal process. Demore,
_____________________
8
Dangerousness and flight risk have long been viewed as justifications for
detention in immigration proceedings. See, e.g., Leng May Ma, 357 U.S. at 190 (“Physical
detention of aliens is now the exception, not the rule, and is generally employed only as to
security risks or those likely to abscond.”).
These factors are also used by the Government in determining which deportable
aliens should be released on bond, when bond is permitted. 8 C.F.R. § 1236.1(c)(8)
provides:
Any officer authorized to issue a warrant of arrest may, in the officer’s
discretion, release an alien . . . provided that the alien must demonstrate
to the satisfaction of the officer that such release would not pose a danger
to property or persons, and that the alien is likely to appear for any future
proceeding.
24
Case: 26-50183 Document: 160-1 Page: 25 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
538 U.S. at 517–19.9 Section 1226(c) is the closest statutory analogue to our
current understanding of Section 1225(b)(2)(A), elucidated by this court in
Buenrostro-Mendez.
The Court upheld the alien’s detention under Section 1226(c),
reasoning that Congress could mandate no-bail detention of “a subset of
deportable criminal aliens.” Id. at 521. The Demore Court distinguished
Zadvydas. First, the detention in Demore, unlike in Zadvydas, had a
“reasonable relation” to preventing flight. Id. at 527 (quoting Zadvydas, 533
U.S. at 690). Congress had deemed that detention under 1226(c) “serve[d]
the purpose of preventing deportable criminal aliens from fleeing prior to or
during their removal proceedings” based on “evidence suggesting that
permitting discretionary release of aliens pending their removal hearings
would lead to large numbers of deportable criminal aliens skipping their
hearings and remaining at large in the United States unlawfully.” Id. at 527–
28. The Court concluded that the “evidence Congress had before it . . .
support[ed] the approach it selected.” Id. at 528.
Second, the period of detention at issue in Demore under Section
1226(c) was “of a much shorter duration” than the indefinite and potentially
permanent detention reviewed in Zadvydas. Id. According to statistics
provided by the Government in Demore, detention in the vast majority of
cases under Section 1226(c) lasted then “an average time of 47 days and a
_____________________
9
Kim was the immigrant petitioner for a writ of habeas corpus, while Demore was
the governmental respondent. The shortform for the case should be Kim, but this
precedent is almost universally referred to as Demore. We concede the point.
25
Case: 26-50183 Document: 160-1 Page: 26 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
median of 30 days.”10 Id. We will return to this distinction later, because it
has a significant role in our interpretations.
The Court agreed with the Government that the Due Process Clause
does not always require individualized determinations, such as in bond
hearings, of the reasons for detention. Id. at 528. Congress’s categorical
judgment, supported by evidence, that no-bond detention for the select
criminal aliens was necessary to prevent flight and limit dangerousness
served to provide the necessary justification en masse. See id. at 528.
Importantly, the aliens’ criminal convictions had been “secured following
full procedural protections.” Id. at 525 n.9. The convictions “reflect[ed]
‘personal activity’ that Congress considered relevant to future
dangerousness.” Id.
Demore relied on a 50-year-old precedent, Carlson v. Landon, 342 U.S.
524 (1952), to conclude that individual determinations of dangerousness or
flight are not always required. Id. at 523–26. The Demore Court explained
that Carlson had held “denial of bail was permissible ‘by reference to the
legislative scheme to eradicate the evils of Communist activity.’” Id. at 525
(quoting Carlson, 324 U.S. at 543). We look to Carlson to see how it adds to
our understanding of Demore.
In Carlson, too, the Supreme Court considered the evidence Congress
had before it to be “sufficient to furnish reasonable ground for action against
alien resident Communists.” 342 U.S. at 536. Specifically, “Congress’
understanding of [Communists’] attitude toward the use of force and
violence in such a constitutional democracy as ours to accomplish their
_____________________
10
The Government later acknowledged that these statistics were erroneous. See
Jennings, 583 U.S. at 343 (Breyer, J., dissenting). Nonetheless, the relative brevity of
detention was part of the reasoning in Demore for not requiring a hearing.
26
Case: 26-50183 Document: 160-1 Page: 27 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
political aims.” Id. at 541. The Court acknowledged “[d]etention is
necessarily a part of [the] deportation procedure” because “[o]therwise
aliens arrested for deportation would have opportunities to hurt the United
States during the pendency of deportation proceedings.” Id. at 538.
Therefore, there was no “denial of the due process of the Fifth Amendment
under circumstances where there is reasonable apprehension of hurt from
aliens charged with a philosophy of violence against this Government.” Id.
at 542. Still, the Court cautioned that “[o]f course purpose to injure could not
be imputed generally to all aliens subject to deportation.” Id. at 538 (emphasis
added). The Court stated: “It is quite clear . . . that detention without bond
has been the exception.” Id. at 538 n.31.
In each case, the Supreme Court analyzed the justifications for the
detention regime in question. None of those decisions support either that
no-bail detention is per se constitutional or that Congress may require a vast
category of persons within the United States be confined for lengthy periods
without process. The Supreme Court’s post-Demore decisions buttress our
conclusions. Since 2003, the Court has recognized the existence of as-
applied challenges to Section 1226(c), the statute at issue in Demore. In one
recent case, the Court left open the question of what the Due Process Clause
requires to justify alien detention under Section 1226(c). Jennings, 583 U.S.
at 312 (remanding to the Court of Appeals to address the appellants’
constitutional challenges to Sections 1225(b), 1226(a) and 1226(c)). In
another case interpreting Section 1226(c), the Court elaborated that its
“decision . . . on the meaning of [Section 1226(c)] does not foreclose as-
applied challenges — that is, constitutional challenges to applications of the
statute as we have now read it.” Nielsen v. Preap, 586 U.S. 392, 420 (2019).
Some other circuit courts have taken the Supreme Court at its word,
imposing procedural limits on Section 1226(c). The Second Circuit
“conclude[d] that the Fifth Amendment’s guarantee of due process
27
Case: 26-50183 Document: 160-1 Page: 28 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
precludes a noncitizen’s unreasonably prolonged detention under section
1226(c) without a bond hearing.” Black, 103 F.4th at 159.11 The Sixth Circuit
summarized that when “immigration detention becomes needlessly
prolonged and appears to no longer effectuate the regulatory goals of civil
immigration detention, courts routinely hold that the Due Process Clause
requires an individualized bond hearing to justify a noncitizen’s continued
detention.” Lopez-Campos v. Raycraft, 175 F.4th 713, 732–33 (6th Cir. 2026).
Viewing Zadvydas, Demore, and Carlson together, we discern the
following principles: 1) Congress may provide a categorical justification for
detention; 2) that justification must be provided for a limited subset of aliens
with a reasoned basis; 3) aliens may not be detained for indefinite and
extensive periods of time without an individualized determination; and 4)
aliens may not be indefinitely detained based on illegal entry status alone.
C. Categorical Justification
With those principles in hand, we follow the example of the Supreme
Court in Demore and Carlson and consider whether the “the denial of bail was
permissible ‘by reference to the legislative scheme.’” Demore, 438 U.S. at
525 (quoting Carlson, 342 U.S. at 543).
To start, Section 1225(b)(2)(A) requires the mandatory detention of
all unadmitted aliens. See Buenrostro-Mendez, 166 F.4th at 508. In reaching
that decision, the court examined what Congress indicated were the reasons
for immigration detention. Id. (discussing a House Report).
_____________________
11
On June 15, the Supreme Court granted the Government’s petition for a writ of
certiorari to resolve the question of whether there is a point at which due process requires a
bond hearing under Section 1226(c). Genalo v. Black, No. 25-886, 2026 WL 1718025 (U.S.
June 15, 2026).
28
Case: 26-50183 Document: 160-1 Page: 29 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
One helpful opinion in which Congress’s reasoning was examined was
United States v. Salerno, 481 U.S. 739 (1987). The reasoning was needed
because “the Government’s regulatory interest in community safety can, in
appropriate circumstances, outweigh an individual’s liberty interest.” Salerno,
481 U.S. at 748 (emphasis added). The Court determined that when
Congress enacts a statute requiring civil detention, the statute there being the
Bail Reform Act of 1984, we must “evaluate[]” whether Congress’s
“delineation of the circumstances under which detention will be permitted
satisfies this standard.” Id. at 749, 751. The Supreme Court approved a pre-
trial detention statute that “operate[d] only on individuals who have been
arrested for a specific category of extremely serious offenses.” Id. at
750. Importantly, “Congress specifically found that these individuals are far
more likely to be responsible for dangerous acts in the community after
arrest.” Id. The Court distinguished between Congress’s approach, which
required a “full-blown adversary hearing” on probable cause, and a
hypothetical, impermissible “scattershot attempt” by Congress to
“incapacitate those who are merely suspected of these serious crimes.” Id.
We “evaluate[]” Congress’s “delineation of the circumstances” here
to determine if denial of bail was permissible by “reference to the legislative
scheme.” See id. at 749, 751; Demore, 538 at 525 (citation omitted).
The Government in this case refers us to this court’s earlier finding
that the “predominant goal” in the enactment of the relevant sections of the
IIRIRA was to “put aliens seeking admission lawfully on equal footing with
those who entered without inspection.” Buenrostro-Mendez, 166 F.4th at
508. Even so, the Constitution must also be considered. We have explained
that the Constitution treats aliens residing inside the country differently than
those stopped at or adjacent to the border, including with regards to
detention. Compare Mezei, 345 U.S. at 215–16 (permitting indefinite
detention of aliens at the border pending removal), with Zadvydas, 533 U.S.
29
Case: 26-50183 Document: 160-1 Page: 30 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
at 696 (describing serious constitutional issues with indefinite detention for
aliens ordered removed from within the United States).
A little more about Congressional purposes. As to aliens who have
been convicted of crimes, detention was needed to prevent them “from
fleeing prior to or during their removal proceedings, thus increasing the
chance that, if ordered removed, the aliens will be successfully removed.”
See Demore, 538 U.S. at 528. The Demore Court relied on this justification
and cited substantial evidence before Congress about the frequency of flight
and other problems. Id. at 518–19, 526 (citing House and Senate reports, as
well as other evidence, on the particular risk of criminal aliens).
As to the specific provision relevant here, Section 1225(b)(2)(A),
Congress certainly was aware that noncriminal aliens might flee, too, but the
frequency and the negative effects of such flight, i.e., recidivism, were shown
specifically to exist as to criminal aliens. Mandatory detention was regarded
as a solution to that reality. There was no such connection drawn between
the slight evidence on noncriminal aliens and mandatory detention. Those
like the three aliens here also have not engaged in “personal activity” that
Congress “considered relevant to” dangerousness and flight risk. Demore,
538 U.S. at 525 n.9.
Indeed, insofar as permitting prolonged detention, Section
1225(b)(2)(A) does not compare favorably to the statutory regime considered
in Salerno, nor to the one approved in Demore. Section 1225(b)(2)(A) is not
“narrowly focuse[d] on a particularly acute problem” relating to the
Government’s admittedly weighty interest in the safe, effective operation of
removal orders. See Salerno, 481 U.S. at 750.
In summary, and unlike in Carlson and Demore, the Government has
made no showing that “Congress had before it evidence . . . sufficient to
furnish reasonable ground for [this] action.” See Carlson, 342 U.S. at 536; see
30
Case: 26-50183 Document: 160-1 Page: 31 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
also Lopez-Campos, 175 F.4th at 733–34 (applying a similar rationale to
Section 1226(a)). That does not make this law infirm, but it does at least
mean the Government must show, at some point, that the individual aliens
“present[] an identified and articulable threat to an individual or the
community” or flight risk. See Salerno, 481 U.S. at 751.
Without a categorical justification for their detention, these aliens are
entitled at some point to an individualized determination in the form of a
bond hearing. The Fifth Amendment requires, at minimum, that there must
be some reason for the Government to detain any person. The Supreme
Court still allows for “necessary Executive leeway” before a hearing must be
granted. See Zadvydas, 533 U.S. at 700. We now analyze how much leeway
is permitted.
IV. Procedure Required
Having recognized that the Fifth Amendment protects resident aliens
from unreasoned, indefinite detention, we next consider “the process that is
constitutionally due” before aliens may be deprived of their liberty interests.
Mathews, 424 U.S. at 322–33. Mathews provides three factors to aid in our
review: 1) “the private interest that will be affected by the official action”; 2)
“the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards”; and 3) “the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Id. at 335.
First, the private interest here “is the most elemental of liberty
interests — the interest in being free from physical detention.” Hamdi, 542
U.S. at 529. “It is clear that ‘commitment for any purpose constitutes a
significant deprivation of liberty that requires due process protection.’”
Jones v. United States, 463 U.S. 354, 361 (1983) (quoting Addington v. Texas,
31
Case: 26-50183 Document: 160-1 Page: 32 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
441 U.S. 418, 425 (1979)). These aliens have a cognizable interest in being
free from unjustified physical restraint.
Second, we must weigh the risk of an erroneous deprivation of that
interest through the procedures used. This court has held that Section
1225(b)(2)(A) requires detention of all unadmitted aliens and provides no
opportunity for review of that detention. Buenrostro-Mendez, 166 F.4th at
506. The Supreme Court has held that an alien’s removable status itself,
without more, is not a sufficiently strong special justification under the
Constitution for indefinite detention. Zadvydas, 533 U.S. at 691–92.
Here, as long-time residents of this country with children who are
citizens, there is no evidence that these individuals are a flight risk. We agree
with them that “they all have a particularly strong incentive to appear at their
removal proceedings due to their eligibility to obtain lawful permanent
resident status in those proceedings through cancellation of removal.”
Likewise with dangerousness. They have no criminal background or history
of violence and appear to have each peaceably lived in this country, obedient
to its laws, for over a decade. The Government has provided no evidence
that will change upon a conditional release.
Third, we consider the Government’s interest. “[T]he power to
expel or exclude aliens [is] a fundamental sovereign attribute exercised by the
Government’s political departments.” Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(quoting Mezei, 345 U.S. at 210). We agree with the Government that it has
a powerful interest in the efficient and effective administration of federal
immigration law. See Landon, 459 U.S. at 34. There also is little doubt that
“[d]etention is necessarily a part of [the] deportation procedure.” Carlson,
342 U.S. at 538. Aliens may be “detain[ed] for the brief period necessary for
their removal proceedings.” Demore, 538 U.S. at 513. Justice Kennedy
was the necessary fifth vote for the majority opinion in Demore, but he
32
Case: 26-50183 Document: 160-1 Page: 33 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
elaborated on his agreement with a separate concurring opinion, stating that
after an “unreasonable delay,” we must “inquire whether the detention is
not to facilitate deportation, or to protect against risk of flight or
dangerousness.” Id. at 532 (Kennedy, J., concurring).
Obviously, there are important interests in balance in this case. Our
role is “limited to determining [what] procedures meet the essential standard
of fairness under the Due Process Clause.” Landon, 459 U.S. at 34–35. We
must strike a “reasonable accommodation between legitimate competing
concerns.” See County of Riverside v. McLaughlin, 500 U.S. 44, 57–58 (1991).
We conclude that the Due Process Clause requires the Government to
provide a bond hearing to aliens held under Section 1225(b)(2)(A) within a
reasonable time of detention.
To determine what is reasonable, once again we examine Zadvydas
and Demore.
The Zadvydas Court determined it was “practically necessary to
recognize some presumptively reasonable period of detention.” 12 533 U.S.
at 701. We are bold but required to do the same. The needed presumption
here is for when pre-removal-order, detained aliens who have not been
_____________________
12
The Court gave examples of presumptions for lower courts to apply:
See Cheff v. Schnackenberg, 384 U.S. 373, 379–380, 86 S. Ct. 1523, 16 L. Ed.
2d 629 (1966) (plurality opinion) (adopting rule, based on definition of
“petty offense” in United States Code, that right to jury trial extends to
all cases in which sentence of six months or greater is imposed); County of
Riverside v. McLaughlin, 500 U.S. 44, 56–58, 111 S. Ct. 1661, 114 L. Ed. 2d
49 (1991) (O’Connor, J.) (adopting presumption, based on lower court
estimate of time needed to process arrestee, that 48–hour delay in
probable-cause hearing after arrest is reasonable, hence constitutionally
permissible).
Zadvydas, 533 U.S. at 701.
33
Case: 26-50183 Document: 160-1 Page: 34 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
convicted of any crime become entitled to contest their detention. “‘[D]ue
process is flexible,’ . . . and it ‘calls for such procedural protections as the
particular situation demands.’” Jennings, 583 U.S. at 314 (quoting Morrissey
v. Brewer, 408 U.S. 471, 481 (1972)). The authorities we have discussed give
a range of 90 days to 6 months.
In Zadvydas, the two aliens were subject to removal orders and had
been denied bail on the basis of dangerousness by immigration authorities.
Id. at 684–87. Their detention continued because no country to which they
might be removed would accept them. Id. Some relevant background for the
opinion’s analysis is that Congress had mandated that the Attorney General
“shall detain” every alien subject to a removal order for a 90-day removal
period. 8 U.S.C. § 1231(a)(2)(A). In other words, these are aliens for which
a final decision has been made that they have no right to be in this country.
The Zadvydas Court weighed the Attorney General’s use of an additional
statutory authority to detain aliens determined to be “risk to the community
or unlikely to comply with the order of removal” beyond that 90-day period.
533 U.S. at 682 (quoting 8 U.S.C. § 1231(a)(6)). The Court was not willing
to limit a presumption of reasonableness for detention to the start of that
additional period; it had “reason to believe . . . that Congress previously
doubted the constitutionality of detention for more than six months.” Id. at
701. As detailed above, the Court decided that six months after a removal
order — or three additional months beyond the general mandate — to be the
“period reasonably necessary to secure removal” before a bond hearing
would be required. Id. at 699, 701.
Later, the Demore Court concluded that detention after a removal
order has no obvious end-date, but detention while awaiting a decision on
removal does, i.e., the removal decision. Demore, 538 U.S. at 529. Of course,
the three men seeking release from detention in this case are in the Demore
34
Case: 26-50183 Document: 160-1 Page: 35 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
category of awaiting decisions on removal, but not in the category of having
been convicted of any criminal offense.
We interpret Demore and Zadvydas as consistent with not permitting
interminable detention of aliens either awaiting a decision on removal or in
being removed. See id. at 529 (stating the importance of “a definite
termination point” for detention). In removal proceedings there is a
“theoretical” end point: the entry of a removal order. See Lopez-Campos, 175
F.4th at 734. But we agree with the Sixth Circuit insofar as it held that
“detention without an individualized bond hearing can become
constitutionally impermissible, even if the detention has a theoretical end
point.” Id. We believe that point comes after the passage of a reasonable
time in which the Government may accomplish the initial custody, determine
the individual risk of the alien, and effect removal. Of course, the legitimate
reasons for delay in removal are not necessarily the same as the legitimate
reasons for delay in deciding whether a removal order should be entered.
Nonetheless, an alien’s interests in liberty are largely indistinguishable in
both situations even if the Government’s interests vary.
We are left to determine the length of a presumptively reasonable time
for the Government to determine whether aliens like these three should be
removed. The Demore Court detailed the distinction with Zadvydas by
discussing the Government’s representations on how quickly removal
proceedings reach a decision. The Court relied on the Government’s
briefing that, “in 85% of the cases in which aliens are detained pursuant to
§ 1226(c), removal proceedings are completed in an average time of 47 days
and a median of 30 days.” Demore, 538 U.S. at 529. The remaining cases
took an average of four months. Id. The Court restated the holding of
Zadvydas as “permitting aliens to be detained for several months prior to . . .
a hearing” and noted the vast majority of cases occurred within the 90 days
35
Case: 26-50183 Document: 160-1 Page: 36 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
“considered presumptively valid.” Id. at 529 & n.11. Thus, the approval in
Demore of detention was with this understanding.
Given the absence of any categorical justification for detention, unlike
in Zadvydas (aliens who have been found to be removable) and Demore (aliens
who were convicted of criminal offenses), there is no reason to lengthen the
period of time during which the validity of detention can be presumed.13 We
conclude that the Government may detain aliens under Section
1225(b)(2)(A) for ninety days but no longer without a bond hearing. We
described earlier the manner in which, by regulations, the Government had
_____________________
13
We acknowledge that in both Demore and Zadvydas, six months was another
important period of time. Nonetheless, neither case provides an appropriate analogue to
the detention mandate we are considering.
In Zadvydas, the Court interpreted a statute and not the breadth of the Due Process
Clause. Moreover, the two aliens there had been adjudicated dangerous by immigration
authorities. 533 U.S. at 684–87. One of the aliens had been determined to be a risk, for
example, because “of his former gang membership, the nature of his crime, and his planned
participation in a prison hunger strike.” Id. at 685–86. Both had lengthy criminal records.
Id. at 684–687. In Zadvydas, even the dissent agreed that “[g]iven the undeniable
deprivation of liberty caused by the detention, there might be substantial questions
concerning . . . the adequacy of judicial review in specific cases where it is alleged there is
no justification for concluding an alien is dangerous or a flight risk.” Id. at 725 (KENNEDY,
J., dissenting). That is the question we confront in this case. The dearth of any evidence of
dangerousness here, and the fact that removal proceedings are still ongoing makes Zadvydas
a helpful, but not conclusive, guide.
Demore is more similar. The Demore Court reversed the petitioner’s grant of
habeas relief despite his having “spen[t] six months in INS custody.” 538 U.S. at 510. We
could take our presumption from that six-month figure. For the reasons already expressed,
we conclude the statutory regime here is sharply distinguishable from Section 1226(c).
To summarize, in Demore, the Court described the Section 1226(c) detention
regime as “narrow,” “support[ed]” by “evidence,” and tied to “‘personal activity’ that
Congress considered relevant to future dangerousness.’” Id. at 525–529 & n.9. Section
1225(b)(2)(A) does not have those features. That difference at least leaves open the
propriety of a commensurate difference in “procedural protections [that] the particular
situation demands.’” Jennings, 583 U.S. at 314 (citation omitted). We hold that such a
difference is proper.
36
Case: 26-50183 Document: 160-1 Page: 37 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
made determinations on bond for individual detainees. See 8 C.F.R. §
1236.1(c)(8) (initial decision); 8 C.F.R. § 1003.19(d); 8 C.F.R. § 1236.1(d)(1);
8 C.F.R. § 1236.1(d)(3) (appeals). We are not ordering any particular
process, and it is for the defendants to determine in what manner to provide
such a hearing within those 90 days. Failure to provide timely hearings might
again lead to the involvement of district courts. Our only requirement is that
a hearing must be held within 90 days of the commencement of detention and
that at the hearing, the Government must articulate an individualized
justification for further detention without bond. Two such justifications
already have judicial imprimatur — dangerousness and flight risk — but we
do not reject the possibility that the Government may be able to assert
another justification why an unadmitted alien must be detained.
We agree with the Government that the timing of two of the grants of
habeas in the cases was precipitate but disagree as to the third. One of the
aliens had been detained for about three weeks, one for two months, and the
third for about four months. How should the error of too-early release be
addressed? A key factor is that detention of both individuals was required,
absent judicial intervention, until a removal order was entered. See Matter of
Yajure Hurtado, 29 I. & N. Dec. 216, 228 (BIA 2025). No speculation is
necessary. Further, the district court orders did not stay administrative
proceedings for their removal. Therefore, today, if the orders we are
reviewing had never been issued, these aliens would either have had a
decision made as to their removal or would be detained while removal was
still being considered. If still detained pre-removal, today’s opinion would
require their release unless they had been provided a bond hearing that
denied release.
We have not been informed of any such developments. Regardless,
we see no reason to have any of the three detained again to serve additional
37
Case: 26-50183 Document: 160-1 Page: 38 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
time prior to a removal order. If a removal order has been issued as to any of
these aliens, detention under Section 1225(b)(2)(A) is no longer relevant.
We therefore uphold these three grants of writs of habeas corpus.
To be clear, a bond hearing may determine that the individual alien is
a danger or a flight risk and conclude that continued detention is required.
Further, if a removal order is entered for any alien who has been released
under our ruling, detention will again be required under Section
1231(a)(2)(A). Our decision does not apply to any alien held under Section
1226(c), or under any other statutory provision requiring detention without
bond. In addition, the presumption of reasonableness of detention for ninety
days applies to aliens such as the three before this court, who acknowledge
they are properly being considered for removal.
AFFIRMED.
38
Case: 26-50183 Document: 160-1 Page: 39 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
James E. Graves, Jr., Circuit Judge, specially concurring:
I fully concur with the majority’s decision to affirm the district courts’
habeas grants. I write separately to emphasize that Petitioners were entitled
to due process from the moment the Government sought to deprive them of
their liberty. And while I also concur in setting a 90-day time limit for
hearings, I do so only because a 90-day time limit is better than no limit at all.
In my view, the time limit should be shorter. I would require currently
detained noncitizens to receive a hearing within 30 days of their detention.
And noncitizens who will be detained in the future should receive
pre-deprivation due process.
The real violation here is that Petitioners’ continued detention was
unjustified, not that it was indefinite.1 See Carey v. Piphus, 435 U.S. 247, 259
(1978) (“Procedural due process rules are meant to protect persons not from
the deprivation, but from the mistaken or unjustified deprivation of life,
liberty, or property.” (emphasis added)). Of course, it was also indefinite and
prolonged, which only exacerbated the offense. A six-month detention
without a hearing violates the Constitution and the Supreme Court’s time
limit for reasonableness of detainment. See Zadvydas v. Davis, 533 U.S. 678,
701 (2001) (“[F]or the sake of uniform administration in the federal courts,
we recognize [a six-month] period” after which the government must justify
post-removal-period confinement.). But unjustified detention, whether it is
_____________________
1
I distinguish here detention, which is prolonged physical restraint, from initial
custody or arrest. As the Supreme Court explained it, there is a distinction between taking
a noncitizen into custody and detaining him. For custody, “the Secretary of Homeland
Security [is empowered] to arrest and hold an alien ‘pending a decision on whether the
alien is to be removed from the United States.’” Nielsen v. Preap, 586 U.S. 392, 397 (2019)
(quoting 8 U.S.C. § 1226(a)). Detention is longer and stands in contrast to release on bond:
“[T]he Secretary [has] the discretion either to detain the alien or to release him on bond or
parole.” Id. (emphasis added).
39
Case: 26-50183 Document: 160-1 Page: 40 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
indefinite or not, runs afoul of the Due Process Clause. See Demore v. Kim,
538 U.S. 510, 557 (2003) (Souter, J., concurring in part and dissenting in
part) (“In sum, due process requires a ‘special justification’ for physical
detention that ‘outweighs the individual’s constitutionally protected interest
in avoiding physical restraint’ as well as ‘adequate procedural protections.’”
(quoting Zadvydas, 533 U.S. at 690–91)).
Noncitizens like Petitioners who are held under § 1225(b)(2)(A)
should have their constitutional right vindicated as quickly as possible, and
90 days is an excessively long period of unexplained confinement. They have
not been given any pre-deprivation justification for detention, as is usual
under other statutory immigration provisions. Section 1226(a) is the statute
which, until recently, applied to Petitioners. See Buenrostro-Mendez v. Bondi,
166 F.4th 494, 500 (5th Cir. 2026). “Section 1226(a) sets out the default
rule . . . . [T]he Attorney General ‘may release’ an alien detained under
§ 1226(a) ‘on …bond’ or ‘conditional parole.’” Jennings v. Rodriguez, 583
U.S. 281, 288 (2018) (quoting 8 U.S.C. § 1226(a)). Under that provision, an
immigration officer has the initial authority to decide whether to detain or
release a noncitizen. 8 C.F.R. § 1236.1(c)(8). In the case of a warrantless
arrest, a custody determination must be made within 48 hours. Id. § 287.3(d).
If detained, the noncitizen can appeal to an immigration judge. Id.
§§ 1236.1(d)(1), 1003.19(a). That decision can be appealed to the Board of
Immigration Appeals. 8 C.F.R. § 1003.19(f).
Petitioners, and other similarly situated noncitizens, were not
afforded any due process whatsoever, not even administrative proceedings.
Cf. Zadvydas, 533 U.S. at 692 (“[T]he sole procedural protections available
to the alien are found in administrative proceedings . . . . This Court has
suggested, however, that the Constitution may well preclude granting an
administrative body the unreviewable authority to make determinations
implicating fundamental rights.” (citation modified)). Prolonged detention
40
Case: 26-50183 Document: 160-1 Page: 41 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
without any due process is constitutionally impermissible. As I see it,
prudence dictates that—for noncitizens residing in the interior of the United
States who have already been detained under the new interpretation of
§ 1225(b)(2)(A)—courts must convene a hearing to establish whether the
noncitizen is either dangerous or a flight risk no more than 30 days after their
initial detention.2
I would also hold that, effective immediately, any noncitizens arrested
under the statute must receive the pre-detention due process previously
available under § 1226(a). A pre-deprivation hearing is required under the
Due Process Clause. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985) (“An essential principle of due process is that a deprivation of life,
liberty, or property ‘be preceded by notice and opportunity for hearing
appropriate to the nature of the case.’” (quoting Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 313 (1950))); The Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 569–70 (1972) (“The requirements of
procedural due process apply only to the deprivation of interests
encompassed by the Fourteenth Amendment’s protection of liberty and
property. When protected interests are implicated, the right to some kind of
prior hearing is paramount.”). The lack of pre-deprivation due process may
only be permissible in “extraordinary situations where some valid
governmental interest is at stake that justifies postponing the hearing until
after the event.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971). Even so, a
“full hearing must be available promptly after the temporary deprivation
occurs.” Barry v. Barchi, 443 U.S. 55, 72 (1979) (Brennan, J., concurring
_____________________
2
The district courts in our circuit that have ordered hearings instead of immediate
release have required an even shorter timeline. Gomes v. Garite, No.
EP-25-CV-00663-DCG, 2026 WL 1179617, at *10 (W.D. Tex. Apr. 21, 2026) (ordering a
bond hearing within seven days of the order, with 24-hour notification); Lopez-Arevelo v.
Ripa, 801 F. Supp. 3d 668, 688 (W.D. Tex. 2025) (same).
41
Case: 26-50183 Document: 160-1 Page: 42 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
in part). The Government has not shown that we have an “extraordinary
situation” on our hands that would justify postponing a hearing, especially
considering that pre-detention determinations have been afforded to
noncitizens for years under § 1226(a). And in situations where a noncitizen
is given a hearing and is subsequently detained, they have a right to another
hearing to show that removal proceedings may not be forthcoming and their
detention is indefinite. See Zadvydas, 533 U.S. at 701.
I disagree with the majority’s comment that the timing of two of the
habeas grants was precipitate. “The fundamental requirement of due process
is the opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong
v. Manzo, 380 U.S. 545, 552 (1965)). Because the Government seeks to
deprive noncitizens of their liberty, the “meaningful time” to justify the
deprivation is as soon as possible.
* * *
There is much that could be said about the troubling conditions
noncitizens are currently experiencing, in what amounts to an appalling lack
of humanity shown to our fellow human beings. It bears repeating that
Petitioners, and others in their situation, have lived in the United States for
many years; they started families, raised children, and contributed to their
communities as peaceable members of our society. They were abruptly taken
from their homes and placed in detention centers without explanation or a
timeline for future immigration proceedings. Thousands of others face the
same fate—and the Government’s detention policy has placed great strain
on our courts and immigration system. But procedural due process “yields
less to the times, varies less with conditions, and defers much less to
legislative judgment.” Shaughnessy v. United States ex rel. Mezei, 345 U.S.
206, 224 (1953) (Jackson, J., dissenting). We must be uncompromising in
42
Case: 26-50183 Document: 160-1 Page: 43 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
our consistent administration of procedural fairness, for “[n]o society is free
where government makes one person’s liberty depend upon the arbitrary will
of another.” Id. at 217 (Black, J., dissenting).
43
Case: 26-50183 Document: 160-1 Page: 44 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
Cory T. Wilson, Circuit Judge, dissenting:
I would vacate the district courts’ grants of habeas relief in these cases.
Petitioners were not entitled to challenge their detention under 8 U.S.C.
§ 1225(b)(2)(A) on procedural due process grounds, and even if they were,
the hearings they request are wholly irrelevant to their detention under that
statute. Congress’s decision embodied in § 1225(b)(2)(A) categorically to
detain aliens in Petitioners’ posture pending removal proceedings was
constitutionally sound. And the length of Petitioners’ detention presented
no constitutional defects justifying habeas relief.
Practically speaking, the panel majority frames a stark binary in these
cases: Either we must mandate what will rapidly devolve to immediate
release of alien detainees absent immediate, extra-statutory individualized
bond hearings (on factors and timelines the majority leaves somewhat TBD),
or we risk “ignoring the Constitution.” Ante, at 4. But in its earnestness to
keep Petitioners out of custody, the majority marginalizes the Constitution’s
express grant of plenary authority over immigration matters to Congress—
indeed, Judge Graves would go even further and override not just the
Legislature’s prerogative but also the Executive’s enforcement discretion,
mandating that the Administration ignore § 1225(b)(2)(A) and apply
§ 1226(a). Ante, at 40, 41 (Graves, J., concurring).
At bottom, the panel majority, like the district courts before it, invents
a nebulous rule that has no administrable limits and little consistency with, in
my reading at least, applicable precedent or the Constitution. Today’s
decision deputizes every district court in our circuit to refashion the removal
process as it sees fit, inviting even more chaos into our circuit’s overwhelmed
immigration dockets. And it unleashes this mischief while admitting that,
even under its confected standard, at least two of the three Petitioners’
habeas claims should have been denied by the district courts. But then it
44
Case: 26-50183 Document: 160-1 Page: 45 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
affirms anyway, given the conjecture that Petitioners, by now, would have
been detained for too long. With greatest regard for my esteemed and
thoughtful panel colleagues, I respectfully, but emphatically, dissent.
I.
The statute at the center of this appeal is the product of a lengthy
effort by Congress to curb illegal immigration into the United States. Before
1996, federal immigration law treated aliens differently depending on
whether an alien presented himself at a port of entry or simply entered
illegally into the United States. See, e.g., 8 U.S.C. §§ 1225(a), 1251(a) (1994).
Under this older framework, an alien’s physical entry into the country
controlled what removal proceedings applied and whether an alien would be
detained during those proceedings. See Buenrostro-Mendez v. Bondi, 166
F.4th 494, 498 (5th Cir. 2026). Aliens who arrived at a port of entry were
subject to mandatory detention during their exclusion proceedings, while
aliens who evaded inspection and entered the country illegally were entitled
to request release on bond while deportation proceedings were pending. Id.
Over time, this statutory scheme produced the “unintended and undesirable
consequence” of allowing illegal entrants to “take advantage of . . . greater
procedural and substantive rights afforded in deportation hearings” than
those who properly presented themselves to authorities at a port of entry.
Martinez v. Holder, 693 F.3d 408, 413 n.5 (3d Cir. 2012).
In 1996, Congress passed the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), which “aimed to reduce this
incongruity.” Buenrostro-Mendez, 166 F.4th at 499; see Pub. L. 104-208, 110
Stat. 3009 (Sept. 30, 1996). IIRIRA aimed to “ensure[] that all immigrants
who have not been lawfully admitted, regardless of their physical presence in
the country, are placed on equal footing in removal proceedings under the
INA.” Torres v. Barr, 976 F.3d 918, 928 (9th Cir. 2020) (en banc). To that
45
Case: 26-50183 Document: 160-1 Page: 46 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
end, IIRIRA established one set of removal procedures for aliens who have
been “admitted” to the United States and another for those who have not.
In July 2025, the Department of Homeland Security “revisited its
legal position on detention and release authorities.” Immigr. & Customs
Enf’t, Interim Guidance Regarding Detention Authority for Applications for
Admission (July 8, 2025), https://perma.cc/2V6H-FHVD. The agency
determined that “applicants for admission,” including aliens apprehended
in the interior, “are subject to detention under [8 U.S.C. § 1225(b)(2)(A)]
and may not be released from ICE custody except by [discretionary] parole.”
Id. Thus, unlike “aliens admitted to the United States and chargeable with
deportability,” applicants for admission are not “eligible for a custody
determination and release on recognizance, bond, or other conditions[.]” Id.
This understanding has since been adopted by the Board of Immigration
Appeals. See In re Yajure Hurtado, 29 I. & N. Dec. 216, 228 (B.I.A. 2025).
Earlier this year, our court affirmed that the term “applicants for
admission” under § 1225 extends to aliens residing in the United States who
have never been lawfully admitted to the country. See Buenrostro-Mendez,
166 F.4th at 506–07; see also Avila v. Bondi, 170 F.4th 1128, 1133 (8th Cir.
2026) (same). In Buenrostro-Mendez, this court upheld the mandatory
detention of “applicants for admission” under § 1225(b)(2)(A), noting that
the provision does not “say[] anything whatsoever about bond hearings.”
166 F.4th at 502 (quoting Jennings v. Rodriguez, 583 U.S. 281, 297 (2018)).
This reading harmonizes the treatment of unadmitted aliens regardless of
their entry into the country, best aligns with the statutory text, and “better
honors [the] predominant goal in the enactment of IIRIRA.” Id. at 508.
II.
With this statutory framework and precedent in mind, I turn to
Petitioners’ habeas claims. Petitioners do not dispute that they are
46
Case: 26-50183 Document: 160-1 Page: 47 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
“applicants for admission” and subject to mandatory detention pending their
removal proceedings under § 1225(b)(2)(A). But Petitioners urge that their
detention without a bond hearing during their removal proceedings violates
their rights under the Fifth Amendment’s Due Process Clause, even if
§ 1225(b)(2)(A) does not require any such hearing before imposing
detention. I disagree.
A.
The district courts treated Petitioners’ claims as assertions of a right
to procedural due process, a framing which Petitioners reurge on appeal. A
procedural due process challenge asserts only that “the established state
procedure . . . destroys [a plaintiff’s] entitlement without according him proper
procedural safeguards.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 436
(1982) (emphasis added) (quotation marks omitted). Thus, Petitioners’
procedural due process challenge is not an assertion that Congress lacks the
power to detain illegal aliens such as themselves, but only that the procedure
they received was insufficient to justify that detention.
In assessing Petitioners’ claims, the district courts applied the
balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), which
generally requires consideration of three distinct factors: First,
the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Id. at 335 (citation omitted). The district courts concluded that Petitioners’
liberty interest in physical freedom was profound and that an appreciable risk
of erroneous detention could be negated by bond hearings on Petitioners’
47
Case: 26-50183 Document: 160-1 Page: 48 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
dangerousness and flight risk. Waving aside the Government’s interest in
ensuring prompt removal of illegal aliens following their removal
proceedings, the district courts found that the Mathews factors clearly
favored Petitioners, such that their continued detention absent such bond
hearings was unconstitutional.
At the outset, I readily agree with my panel colleagues that Petitioners
enjoy the protections of the Fifth Amendment. Mathews v. Diaz, 426 U.S.
67, 77 (1976). Judge Southwick’s lead opinion goes to some length to
express this conclusion. Ante, at 8–12. And I agree that certain rights
“cannot be deprived except pursuant to constitutionally adequate
procedures.” Id. at 16 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 541 (1985)). But the issue in this case is not whether Petitioners are
entitled to due process, but what specific process is due for unadmitted aliens
in their removal proceedings—bearing in mind that Congress enjoys “broad
power over naturalization and immigration” and “regularly makes rules that
would be unacceptable if applied to citizens.” Diaz, 426 U.S. at 79–80.
The answer to that question is straightforward: 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. And even granting that such a
challenge is possible, the facts Petitioners seek to prove at their bond hearings
are irrelevant to detention under § 1225(b)(2)(A), such that the absence of
those hearings did not render their detention constitutionally defective. It
was thus error to grant habeas relief on procedural due process grounds.
1.
Aliens seeking admission to the United States have only a limited
ability to challenge their admission process on constitutional grounds. In
D.H.S. v. Thuraissigiam, 591 U.S. 103 (2020), the Supreme Court recognized
48
Case: 26-50183 Document: 160-1 Page: 49 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
that “the Constitution gives [Congress] plenary authority to decide which
aliens to admit and a concomitant . . . power to set the procedures to be
followed in determining whether an alien should be admitted.” Id. at 139.
When “foreigners who have never been naturalized, nor acquired any
domicil or residence within the United States, nor even been admitted into the
country pursuant to law” interact with those procedures, “the decisions of
executive or administrative officers, acting within powers expressly
conferred by Congress, are due process of law.” Id. at 138 (quoting
Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892)) (emphasis added).
The majority hooks on that middle phrase, “nor acquired any domicil
or residence within the United States,” id., to maintain that illegal aliens
“with an established presence” in the country may challenge the admission
process, whereas those turned back at the border may not. Ante, at 14. But
this cabined reading ignores the thrust of the decision, which bears directly
on the scope and operation of § 1225(b)(2)(A). First, the Court clarified that
“an alien who . . . is treated as an ‘applicant for admission’” “has only those
rights regarding admission that Congress has provided by statute.”
Thuraissigiam, 591 U.S. at 140 (quoting 8 U.S.C. § 1225(a)(1)); see also
Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long held that
an alien seeking initial admission to the United States requests a privilege and
has no constitutional rights regarding his application, for the power to admit
or exclude aliens is a sovereign prerogative.”). Regardless of their physical
entry into the nation’s interior, it is undisputed that Petitioners are
“applicants for admission” under § 1225(b)(2)(A) and Thuraissigiam, as our
recent precedent makes clear. See Buenrostro-Mendez, 166 F.4th at 499
(“Following the passage of IIRIRA[,] an alien’s status as an applicant for
admission does not turn on where or how the alien entered the United
States.”); id. at 502 (“The petitioners are deemed, by statute, to be
applicants for admission pending the resolution of removal proceedings.”).
49
Case: 26-50183 Document: 160-1 Page: 50 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
Nevertheless, the majority suggests Thuraissigiam “confirms the
continuing relevance of [the] physical presence requirement, distinguishing
those who have ‘acquired any domicil or residence within the United States’
from those who have not.” Ante, at 14 (quoting Thuraissigiam, 591 U.S. at
138). Not so: Thuraissigiam repeatedly emphasizes that admission status—
not physical presence—determines what procedural rights are available to an
alien. See 591 U.S. at 139 (dismissing presence-based distinctions as
“meaningless”). The Court plainly concluded that an “applicant for
admission,” like an “alien who is detained shortly after unlawful entry[,]
cannot be said to have effected an entry.” Id. at 140 (quotation omitted).
Underscoring this principle, the Court added that “even those [aliens]
paroled elsewhere in the country for years pending removal” must be
“treated for due process purposes as if stopped at the border.” Id. (quotation
omitted); see also Yajure Hurtado, 29 I. & N. Dec. at 228 (“Remaining in the
United States for a lengthy period of time following entry without inspection,
by itself, does not constitute an ‘admission.’”) (citing 8 U.S.C.
§ 1101(a)(13)(A)).
Moreover, Thuraissigiam explains straightforwardly that “the
reason” for historic distinctions based on entry rested on the “plenary
authority” entrusted to Congress in “set[ting] the procedures to be followed
in determining whether an alien should be admitted.” 591 U.S. at 139.
Historically, Congress had made an alien’s entry the touchstone for what
process adhered in removal proceedings. See, e.g., 8 U.S.C. §§ 1225(a),
1251(a) (1994). But since Congress passed IIRIRA, it is an alien’s admission
status, not his physical presence, that determines the content of an alien’s
admission proceedings. See Thuraissigiam, 591 U.S. at 140 (quoting 8 U.S.C.
§ 1225(a)(1)); Vartelas v. Holder, 566 U.S. 257, 262 (2012) (“In IIRIRA,
Congress . . . made ‘admission’ the key word” in deciding what process an
alien received. (citation omitted)). Far from breaking new ground, this
50
Case: 26-50183 Document: 160-1 Page: 51 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
understanding accords with established precedent instructing that only
“once an alien gains admission to our country and begins to develop the ties
that go with permanent residence [does] his constitutional status change[]
accordingly.” Plasencia, 459 U.S. at 32 (citing Johnson v. Eisentrager, 339
U.S. 763, 770 (1950)) (emphasis added). Petitioners have never been
admitted to the United States, so their “constitutional status” with regard to
their admission proceedings has never changed. Id.
The majority insists that such a reading of Thuraissigiam would
implicitly overrule other venerable Supreme Court precedent tying the scope
of an alien’s procedural rights in the removal context to their physical
presence in the country. Ante, at 9–15. But the cases the majority cites as
confirmation of this view are, with greatest respect, uniformly inapt.
First, the majority cites Yamataya v. Fisher, 189 U.S. 86 (1903), for the
proposition that an illegal immigrant must receive “all opportunity to be
heard upon the questions involving his right to be and remain in the United
States[.]” Ante, at 10 (quoting Yamataya, 189 U.S. at 101). But Yamataya
concerns only what due process requires with regard to removability itself.
Petitioners concede that they are not entitled to admission, so Yamataya has
no bearing on whether they may challenge the detention Congress has
prescribed as their removal process is ongoing. To the contrary, Yamataya
cites as a “firmly established” principle that “Congress may . . . establish
regulations for sending out of the country such aliens as come here in
violation of the law [and] commit the enforcement of such provisions,
conditions, and regulations exclusively to executive officers, without judicial
intervention[.]” 189 U.S. at 97. The Yamataya Court concluded that the
statute in question did not “necessarily exclude opportunity [for] the
immigrant to be heard” and thus an additional hearing on the alien’s
removability would remove any constitutional doubt as to her treatment. See
id. at 100–02. By contrast, Congress made clear in § 1225(b)(2)(A) that
51
Case: 26-50183 Document: 160-1 Page: 52 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
applicants for admission, as Petitioners unquestionably are, are to be detained
after an immigration officer “determines that an alien seeking admission is
not clearly and beyond a doubt entitled to be admitted.” 8 U.S.C.
§ 1225(b)(2)(A). Unlike the alien in Yamataya, Petitioners do not challenge
the determination that leads to their detention; they insist instead that
additional hearings must be layered on top of the statute even after their
status as “applicants for admission” is clear. Again, not so. Put plainly,
Petitioners’ due process is § 1225(b)(2)(A), and that statute does not entitle
them to a bond hearing. See Buenrostro-Mendez, 166 F.4th at 502.
Next, the majority cites Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206
(1953), for the notion that “aliens who have once passed through our gates,
even illegally, may be expelled only after proceedings conforming to
traditional standards of fairness encompassed in due process of law.” Id. at
212. True as this may be, nothing in Mezei supports the conclusion that illegal
aliens may not be detained pending removal proceedings absent hearings that
Congress never ordained. Mezei concerned an alien who had resided lawfully
in the United States for twenty-five years but was excluded upon his return
from Eastern Europe, resulting in a lengthy detention as authorities
attempted to deport him. Id. at 208–09. Mezei’s legal presence in the United
States did not afford him any additional rights entitling him to reenter his
adoptive homeland. “For purposes of the immigration laws[,] the legal
incidents of alien’s entry remain unaltered whether he has been here once
before or not. He is an entering alien just the same, and may be excluded if
unqualified for admission under existing immigration laws.” Id. at 213.
Ultimately, the court concluded that Mezei’s continued detention without
hearing was constitutional. Id. at 214–16. The Court reiterated that “the
power to expel or exclude aliens [is] a fundamental sovereign attribute
exercised by [Congress] largely immune from judicial control.” Id. at 210. If
Congress may exclude a returning lawful resident and detain him without
52
Case: 26-50183 Document: 160-1 Page: 53 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
hearing pending his removal, reading Thuraissigiam to respect the will of
Congress and harmonize the treatment of aliens who have never been
lawfully admitted is hardly an inventive or arcane interpretation.
Last, the majority relies on Plyler v. Doe, 457 U.S. 202 (1982), to
express that a “territorial” theme is “omnipresent in immigration
jurisprudence.” Ante, at 9. On the majority’s reading, Plyler commands that
illegal resident aliens and lawful resident aliens must be treated equally for
due process purposes. Id. at 9, 11. But Plyler did not primarily concern due
process, nor did it touch on Congress’s power over removal proceedings at
all. Instead, Plyler contemplated only whether the Equal Protection Clause
required Texas schools to fund the education of the children of illegal aliens.
457 U.S. at 206–09. Accepting that Thuraissigiam constrains the due process
rights of illegal aliens with regard to their removal proceedings does no
damage to Plyler at all.
The Supreme Court “has repeatedly emphasized that ‘over no
conceivable subject is the legislative power of Congress more complete than
it is over’ the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). Yet
by ignoring Thuraissigiam’s instruction that unadmitted aliens are limited to
the admission procedures that Congress provides, the district courts in these
cases, now endorsed by my panel colleagues, reintroduced the very
procedural backwardness that Congress sought to resolve in enacting
IIRIRA. Manifestly, IIRIRA “aimed to reduce [the] incongruity” whereby
“greater procedural and substantive rights” were afforded to “aliens who
bypassed entry procedures” than to those who endeavored to follow lawful
procedures at their initial entry. Buenrostro-Mendez, 166 F.4th at 498–99.
The district courts were not free to arrogate Congress’s prerogative and
simply engraft the pre-1996 regime and the perverse incentives it created
back into IIRIRA by invoking the Due Process Clause. Nor is this court.
53
Case: 26-50183 Document: 160-1 Page: 54 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
In sum, Petitioners concede that they are “applicants for admission”
within the meaning of § 1225, regardless of their lengthy residence in the
country. And because Petitioners have never been lawfully admitted into the
United States, the admission procedures provided by Congress in
§ 1225(b)(2)(A) embody the due process to which they are entitled. See
Thuraissigiam, 591 U.S. at 139–40. That process does not include a bond
hearing. Buenrostro-Mendez, 166 F.4th at 502. Imposing one ultra vires of the
statute, on the basis that Petitioners successfully entered the country by
evading inspection or admission, traverses both Thuraissigiam and the
sovereign choice of Congress to rectify that very asymmetry in IIRIRA. See
Thuraissigiam, 591 U.S. at 139; accord Jennings, 583 U.S. at 303 (The language
of Ҥ 1226(c) reinforces the conclusion that aliens detained under its
authority are not entitled to be released under any circumstances other than
those expressly recognized by the statute.”); Wekesa v. U.S. Att’y, No. 22-
10260, 2022 WL 17175818, at *1 (5th Cir. Nov. 22, 2022) (Southwick, J.)
(detention without bond hearing pending removal under § 1226(c) did not
violate a habeas petitioner’s due process rights).
Irrespective of my sympathy for the plight in which Petitioners find
themselves, I cannot conclude that their detention in accordance with
§ 1225(b)(2)(A), without a bond hearing, offends due process under the
Constitution. Petitioners have received the process that was due to
unadmitted aliens, and granting habeas relief based on the district courts’
contrary conclusion was erroneous.
2.
Even if Petitioners could challenge the process leading to their
detention pending removal, their claims would still fail because procedural
due process does not require bond hearings centered on assessing
dangerousness and flight risk in the context of § 1225(b)(2)(A).
54
Case: 26-50183 Document: 160-1 Page: 55 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
“In Mathews v. Eldridge, the Court set forth [the] factors that normally
determine whether an individual has received the ‘process’ that the
Constitution finds ‘due.’” City of Los Angeles v. David, 538 U.S. 715, 716
(2003). But “[p]laintiffs who assert a right to a hearing under the Due
Process Clause must show that the facts they seek to establish in that hearing
are relevant under the statutory scheme.” Conn. Dep’t of Pub. Safety v. Doe, 538
U.S. 1, 8 (2003) (emphasis added). Here, they are not.
Contrary to my panel colleagues’ take (the district courts altogether
marginalized the case), Doe illustrates this principle well. In Doe, a convicted
sex offender asserted a right to a hearing on his individual dangerousness
before being forced to register as a sex offender. Id. at 6. The Court rejected
his challenge, holding that the respondent’s dangerousness was “of no
consequence” to the statute, which required registration of all convicted sex
offenders without reference to individual dangerousness. Id. at 7; see also
Duarte v. City of Lewisville, 858 F.3d 348, 352 (5th Cir. 2017) (rejecting a
procedural due process challenge where a showing of dangerousness was “of
no consequence” to proscription under a zoning ordinance (quoting Doe, 538
U.S. at 7)). Justice Scalia’s concurrence in Doe elucidates that many statutes,
by their nature, may only be challenged on the grounds of substantive, rather
than procedural, due process:
[E]ven if the requirements of [a] law implicate a liberty
interest[,] the categorical abrogation of that liberty interest by
a validly enacted statute suffices to provide all the process that
is “due”—just as a state law providing that no one under the
age of 16 may operate a motor vehicle suffices to abrogate that
liberty interest. Absent a claim . . . that the liberty interest in
question is so fundamental as to implicate so-called
“substantive” due process, a properly enacted law can eliminate
it. That is ultimately why, as the Court’s opinion
demonstrates, a convicted sex offender has no more right to
additional “process” enabling him to establish that he is not
55
Case: 26-50183 Document: 160-1 Page: 56 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
dangerous than . . . a 15-year-old has a right to “process”
enabling him to establish that he is a safe driver.
Doe, 538 U.S. at 8–9 (Scalia, J., concurring) (emphasis added); see also id.
at 8 (majority opinion) (Doe’s claim was a substantive due process claim
“recast in procedural due process terms.” (quotation omitted)).
While the statutory scheme considered in Doe differs from the
immigration law at issue here, Doe highlights the problem with Petitioners’
claims. Just as the statute in Doe mandated registration for sex offenders
without any hearing on individual dangerousness, 8 U.S.C. § 1225(b)(2)(A)
mandates detention for “an applicant for admission, if the examining
immigration officer determines that [the alien] is not clearly and beyond a
doubt entitled to be admitted,” with no reference to an alien’s individual
dangerousness or flight risk. An alien is either “clearly and beyond a doubt
entitled to be admitted” or not. If not, he may be detained pending removal
proceedings. Id.; see also Buenrostro-Mendez, 166 F.4th at 502. Petitioners do
not assert that the process they received was insufficient to prove that they
are “entitled to be admitted”; thus, any determinations made at the bond
hearings imposed by the district courts would be irrelevant to the lawfulness
of Petitioners’ detention under § 1225(b)(2)(A). See Buenrostro-Mendez, 166
F.4th at 502; accord Jennings, 583 U.S. at 307–12 (concluding that the text of
§ 1225 cannot be read to require bond hearings on the propriety of release).
The majority distinguishes Doe by reasoning that “[d]angerousness
. . . had no relevance to [Doe’s] constitutional claim, as he did not assert that
dangerousness had any bearing on the Government’s authority to require
registration of those convicted of crimes.” Ante, at 17. This observation
misses the point twice over. First, a challenge to the Government’s authority
to detain Petitioners on the basis of their illegal presence, without reference
to the procedure offered, is a substantive due process challenge, not a
56
Case: 26-50183 Document: 160-1 Page: 57 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
procedural one. Second, if dangerousness was irrelevant to Doe’s
constitutional claims under the Connecticut law at issue in his case, it is
equally irrelevant to Petitioners’ procedural due process claim under
§ 1225(b)(2)(A). If illegal aliens may be constitutionally detained pending
their removal proceedings under § 1225(b)(2)(A), the only relevant inquiry
is whether Petitioners are “entitled to be admitted” or not.
In weighing the Mathews factors, Doe indicates what the proper result
should be. Granting that § 1225(b)(2)(A) deprives the Petitioners of an
important liberty interest, there is no risk of “erroneous deprivation” of that
interest that would be cured by hearings on dangerousness or flight risk.
Neither factor has any bearing on whether Petitioners are “entitled to be
admitted.” 8 U.S.C. § 1225(b)(2)(A); Mathews, 424 U.S. at 335. Indeed,
hearings on Petitioners’ family connections in the United States, or their
earning potential, or whether they drive American-made automobiles would
be just as relevant to whether they may be detained under § 1225(b)(2)(A).
Which is to say not relevant at all. The majority’s Mathews analysis, like the
district courts’, ignores this disconnect entirely. Ante, at 31–33.
This mismatch is brought into sharp relief by the fact that neither the
majority, nor the district courts, nor the Petitioners cite any authority
indicating the need for individual bond hearings pending removal
proceedings, much less under § 1225(b)(2)(A) in particular. At most, the
panel majority offers that limiting aliens’ dangerousness or flight risk is a
central justification for detention. Ante, at 22–31. But they cite no authority
suggesting the Government may only detain aliens pending removal when
such risks are established via individual hearings. Indeed, the Supreme Court
has repeatedly made clear that Congress may mandate detention for certain
classes of alien without individual determinations of the type Petitioners seek.
See Demore v. Kim, 538 U.S. 510, 513 n.1, 518, 525–28 (2003); see also id. at
523, 525 (“[T]his Court has recognized detention during deportation
57
Case: 26-50183 Document: 160-1 Page: 58 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
proceedings as a constitutionally valid aspect of the deportation process,”
even where “[t]here [is] no ‘individualized finding’ of likely future
dangerousness[.]” (quoting Carlson v. Landon, 342 U.S. 524, 543 (1952)
(citation modified)); Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (rejecting
the call for “fully individualized custody determinations”).
The majority reduces Doe’s holding to the proposition “that when a
statute that abrogates a claimed liberty interest does not substantively violate
the Constitution, the Due Process Clause does not impose any additional
procedural protection.” Ante, at 18. In other words, per the majority, Doe
has no currency here because the physical liberty interest asserted by
Petitioners is more fundamental than Doe’s reputational interest. Id. at 16–
18.
This reading blurs the distinction between procedural and substantive
challenges and cannot cure the problem with Petitioners’ claims. True
enough, Doe does not answer whether Congress may categorically detain
aliens pending removal as a matter of substantive due process, but the
majority ignores the clear import of Doe—that procedural “due process does
not entitle [Petitioners] to a hearing to establish a fact that is not material
under [the] statute.” 538 U.S. at 7. And while the significance of Petitioners’
liberty interest might be germane in weighing what procedural due process
requires, see Mathews, 424 U.S. at 335, hearings irrelevant to the function of
§ 1225(b)(2)(A) are not constitutionally required, even if the statute
impinges on a liberty interest. See Doe, 538 U.S. at 8–9 (Scalia, J.,
concurring).
At bottom, the district courts erred in their Mathews analysis by failing
to address how bond hearings on dangerousness or flight risk could be
relevant to Petitioners’ classification as “applicants for admission,” which
Petitioners do not contest, and their resultant detention under
58
Case: 26-50183 Document: 160-1 Page: 59 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
§ 1225(b)(2)(A). Because the proposed hearings would be irrelevant to those
determinations, the lack of hearings did not render Petitioners’ detention
unconstitutional as a matter of procedural due process. The district courts
erred in granting habeas relief based on the denial of process not due.
B.
Because the district courts’ conclusion that procedural due process
entitled Petitioners to additional hearings was erroneous, this court could
reverse and vacate the grants of habeas on the basis of that error alone.
However, because Petitioners’ challenges “call[] into question not the
adequacy of procedures [employed] but . . . the adequacy of the ‘fit’ between
the classification and the policy that the classification serves,” their claims
“must ultimately be analyzed . . . as a matter of substantive due process.”
Michael H. v. Gerald D., 491 U.S. 110, 121 (1989) (plurality opinion).
Petitioners concede that they are “applicants for admission,” and
thus are subject to mandatory detention under § 1225(b)(2)(A). They
nonetheless assert that Congress may not detain them without individualized
findings on their dangerousness and flight risk. 1 Put differently, Petitioners’
procedural due process claims largely collapse into substantive due process
_____________________
1
I hasten to add that Petitioners do not explain how their situations differ from
those of other aliens detainable under § 1225(b)(2)(A). So, if Petitioners may only be
detained after the Government proves their individual dangerousness or flight risk, then all
aliens detained under the statute would be entitled to individualized hearings on those
considerations, even though the statutory text attaches no weight to either factor. The
majority insists that its ruling today “does not make [§ 1225(b)(2)(A)] infirm,” even
though its holding expressly requires that judicially imposed standards must be tacked on
to the text of the statute before it may be lawfully enforced. Ante, at 31. It should be clear
that Petitioners’ substantive due process claim, now approved by my panel colleagues, is
tantamount to a facial challenge to § 1225(b)(2)(A), not an as-applied challenge based on
their own treatment. See Freedom Path, Inc. v. I.R.S., 913 F.3d 503, 508 (5th Cir. 2019)
(“[A] facial challenge to a statute considers only the text of the statute itself, not its
application to the particular circumstances of an individual.” (quotation omitted)).
59
Case: 26-50183 Document: 160-1 Page: 60 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
because they assert a right to procedure that is absent from the statutory text.
To prevail on a substantive due process claim, Petitioners must show (1) that
they have a protected interest in freedom from custody even after conceding
that they are not entitled to admission to the United States; and (2) Congress
may not categorically detain them on the basis of their unadmitted status.
1.
As a threshold matter, I am unconvinced that Petitioners may assert
an unqualified interest in physical liberty as my panel colleagues describe it.
Ante, at 20. The Supreme Court has instructed that analyzing substantive
due process claims requires a “careful description of the asserted
fundamental liberty interest.” Washington v. Glucksberg, 521 U.S. 702, 720–
21 (1997) (quotation omitted).2 Petitioners concede that they have no right
to admission, and thus a more precise description of the right they assert is
the right to freedom from custody pending removal proceedings. Cf. Dep’t
of State v. Muñoz, 602 U.S. 899, 909–11 (2024) (recasting a petitioner’s
asserted “right to liberty” or “right to marriage” as a narrower right to the
admission of a noncitizen spouse). On this view, Petitioners thus seek to
vindicate what is an unenumerated right. And “[i]dentifying unenumerated
rights carries a serious risk of judicial overreach,” meriting “utmost care
whenever [courts] are asked to break new ground in this field.” Id. at 910.
“Our Nation’s history, legal traditions, and practices . . . provide the crucial
guideposts for responsible decisionmaking that direct and restrain our
_____________________
2
The panel majority dismisses Glucksberg as inapposite, concluding that because a
straightforward physical liberty interest is involved, no further analysis of the substantive
due process right itself is necessary. Ante, at 20, 21. This will be news to Petitioners, who
lead their substantive due process argument with Glucksberg. In my estimation, there is no
way to avoid the conclusion that Petitioners’ claims are ultimately “a substantive challenge
to [8 U.S.C. § 1225(b)(2)(A)] recast in ‘procedural due process’ terms.” Doe, 538 U.S. at
8 (cleaned up).
60
Case: 26-50183 Document: 160-1 Page: 61 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
exposition of the Due Process Clause.” Glucksberg, 521 U.S. at 721
(quotation omitted).
Any assertion of a fundamental right to freedom from custody pending
removal proceedings fails. “[P]rior to 1907 there was no provision permitting
bail for any aliens during the pendency of their deportation proceedings.”
Demore, 538 U.S. at 523 n.7 (citing Immigration Act of 1907, Pub. L. 59-96,
34 Stat. 898, 905 (Feb. 20, 1907)). Similarly, the 1952 amendments
establishing the modern alien inspection process required detention pending
inquiries into an alien’s admissibility, with no provision for bond hearings or
release on bail. See Immigration & Nationality Act of 1952, Pub. L. 82-414,
66 Stat. 163, 198–99 (June 27, 1952). And even where release on bail was
permitted for some excludable aliens prior to IIRIRA, the availability of
release was entrusted to the discretion of the Attorney General. See id. at
202; 8 U.S.C. § 1252(a)(1) (1994). Thus, any right to seek release pending
removal proceedings is not “objectively, deeply rooted in this Nation’s
history and tradition” and cannot be a substantive due process right.
Glucksberg, 521 U.S. at 721; accord Muñoz, 602 U.S. at 910 (holding that a
citizen had no substantive due process right to the admission of a noncitizen
spouse as such protections had never been consistently offered by federal
immigration law).
Petitioners proffer little persuasive evidence to the contrary. At most,
they assert that pre-adjudication release by federal courts or immigration
authorities has historically existed in practice, even if the right to seek release
was not formally encoded in federal law. See Lindsay Nash, Resurrecting
Immigration Releases, 135 Yale L.J. 1533, 1586–90 (2026). But even
granting that release was afforded to some immigrants at agency discretion,
federal immigration law explicitly addressing aliens who have never lawfully
entered the country has consistently required detention pending removal.
See 66 Stat. at 198–99 (Immigration & Nationality Act of 1952); 110 Stat.
61
Case: 26-50183 Document: 160-1 Page: 62 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
3009-582 (IIRIRA). And even if federal legal tradition and practice could
be viewed to imply a consistent right of those aliens to request release on
bond, Congress would retain “plenary authority to decide which aliens to
admit and . . . to set the procedures to be followed in determining whether an
alien should be admitted[.]” Thuraissigiam, 591 U.S. at 139. In other words,
even if Congress intermittently granted unadmitted aliens a right to seek
release, “such solicitude is ‘a matter of legislative grace rather than
fundamental right,’” Muñoz, 602 U.S. at 916 (quoting Kerry v. Din, 576 U.S.
86, 97 (2015)), and Congress could reform the admission process—as
IIRIRA did—without affecting an unadmitted alien’s fundamental rights.
If Petitioners have no substantive due process right to freedom from
custody pending removal proceedings, their detention is subject only to
rational-basis review. Glucksberg, 521 U.S. at 728. Under this standard,
detention pursuant to § 1225(b)(2)(A) is permissible so long as it is
“rationally related to legitimate government interests.” Id.
Petitioners’ detention easily clears this bar. Congress enjoys “broad
power over naturalization and immigration” and “regularly makes rules that
would be unacceptable if applied to citizens.” Diaz, 426 U.S. at 79–80. More
pointedly, “[d]etention during removal proceedings is a constitutionally
permissible part of that process,” and “the Government may constitutionally
detain deportable aliens during the limited period necessary for their removal
proceedings.” Demore, 538 U.S. at 526, 531. As the Supreme Court long ago
noted, “deportation proceedings ‘would be in vain if those accused could not
be held in custody pending the inquiry into their true character.’” Id. at 523
(quoting Wong Wing v. United States, 163 U.S. 228, 235 (1896)). Petitioners’
detention pending removal proceedings did not violate any substantive due
process right, and habeas relief is inappropriate under such a theory.
62
Case: 26-50183 Document: 160-1 Page: 63 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
2.
Assuming arguendo that Petitioners may seek to vindicate an
unqualified interest in physical liberty, even after conceding that they are not
entitled to lawful admission into the country, Petitioners would need to
demonstrate that the substantive determinations leading to detention under
§ 1225(b)(2)(A) are inadequate to justify detention “at all, no matter what
process is provided.” Flores, 507 U.S. at 302. Such a claim must fail.
The panel majority leans on Zadvydas v. Davis, 533 U.S. 678 (2001),
for the conclusion that “dangerousness and flight risk [are] special
justifications for detention in[] immigration proceedings.” Ante, at 22.
Surveying Supreme Court precedent, the majority discerns that “‘an alien’s
removable status[,] which bears no relation to [his] dangerousness’ [cannot]
justify detention.” Id. at 23 (quoting Zadvydas, 533 U.S. at 691–92). Thus,
reasons the majority, Congress cannot categorically require no-bail detention
for aliens without sufficient evidentiary support suggesting that certain
categories of aliens present either a danger to the community or a flight risk.
Id. at 23–28. The majority then concludes that Congress has not met this
evidentiary burden with regard to unadmitted aliens generally, and that these
attributes may not be imputed to Petitioners absent individualized hearings.
Id. at 28–31.
The majority’s surmise that aliens may not be detained based on their
illegal entry status alone is in tension with the Supreme Court’s
“longstanding view that the Government may constitutionally detain
deportable aliens during the limited period necessary for their removal
proceedings.” Demore, 538 U.S. at 526; see id. at 511 (“Detention during
[deportation] proceedings is . . . constitutionally valid.”); id. at 528
(Detention pending removal proceedings “necessarily serves the purpose of
preventing [aliens] from fleeing prior to or during their removal proceedings,
63
Case: 26-50183 Document: 160-1 Page: 64 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
thus increasing the chance that, if ordered removed, the aliens will be
successfully removed.”); see also Monsalvo v. Bondi, 604 U.S. 712, 714 (2025)
(“Often, the government may detain and deport an individual after properly
determining he is unlawfully present in the country.”). And the cases cited
by the majority supply no straightforward support for their position.
In Zadvydas, the Court merely stated that “indefinite detention” of a
lawfully present removable alien might present constitutional difficulties if
the alien’s ultimate removal was infeasible. 533 U.S. at 690–92. That is not
the situation before us, as I discuss shortly. Likewise, Carlson considered
lawful resident aliens whose Communist activism rendered them deportable,
and the Court there merely stated that “purpose to injure [i.e.,
dangerousness] could not be imputed generally to all aliens subject to
deportation.” Carlson, 342 U.S. at 538. This observation has no bearing on
whether illegal aliens may be detained pending their removal proceedings.
The majority caps its discussion of caselaw by referencing United States v.
Salerno, 481 U.S. 739 (1987), to conclude that “the Government must show,
at some point, that the individual aliens ‘present[] an identified and
articulable threat to an individual or the community’ or flight risk.” Ante, at
31 (quoting Salerno, 481 U.S. at 751). True, Salerno upheld the
Government’s ability to detain criminal arrestees before trial after a hearing
on dangerousness—but that holding in no way answers whether illegal aliens
may be detained pending removal.
Even if removability alone does not justify detention, I cannot agree
with the panel majority’s determination that Congress may only detain “a
limited subset of aliens [where justified by] a reasoned basis.” Ante, at 28.
Congress either has the power categorically to require detention of illegal
aliens, or it does not. While colorable arguments can surely be made on either
side of that question, “[t]he question of the constitutionality of an action
taken by Congress does not depend on recitals of the power which it
64
Case: 26-50183 Document: 160-1 Page: 65 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
undertakes to exercise.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519,
570 (2012) (quotation omitted). Yet the majority’s approach expands and
contracts Congress’s power over immigration proceedings based on the
adequacy—in the majority’s estimation—of Congress’s legislative findings.
Ante, at 28–31. Thus, at the same time it rests on the maxim that the
Constitution may not be overruled by statute, the panel majority allows
legislative history to outrank Congress’s constitutionally enumerated power
over immigration. See id. at 30.
And were Congress required to provide a “reasoned basis” to justify
its enactment of the detention provision of § 1225(b)(2)(A) based on the
danger or flight risk that illegal aliens collectively presented, the legislative
record offers ample support for Congress’s policy decision. Contemporary
congressional findings uniformly suggested that illegal aliens frequently
evaded removal when prematurely released from custody. See H.R. Rep.
No. 104-469, at 122 (1995) (“[M]any aliens simply fail to appear for their
deportation hearing. . . . 27 percent of deportation proceedings are closed
because aliens fail to appear for their hearings. The ‘no-show’ rate can
exceed 50 percent in venues such as New York, Los Angeles, and Miami.”);
id. at 159 (Alien absences “impair[] the ability of the government to
secure . . . deportation orders[.]”); Removal of Criminal and Illegal Aliens:
Hearing Before the Subcomm. on Immigr. and Claims of the House Comm. on the
Judiciary, 104th Cong., at 4 (Mar. 23, 1995) (Statement of T. Alexander
Aleinikoff, General Counsel, Immigr. & Naturalization Serv.) (“In the past,
far too many deportable aliens absconded with little or no consequence.”).
A 1996 DOJ report examining immigration decisions in major U.S. cities
found that “when aliens are released from custody, nearly 90 percent
abscond and are not removed from the United States.” 62 Fed. Reg. 10312,
10323 (Mar. 6, 1997) (citing Rep. No. I-96-03, Immigration and Naturalization
65
Case: 26-50183 Document: 160-1 Page: 66 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
Service Deportation of Aliens after Final Orders Have Been Issued, Dep’t of
Just., Off. of the Inspector Gen. (Mar. 1996)).
The majority grapples with none of this, but nonetheless dismisses any
evidence before Congress as “slight.” Ante, at 30; see also id. at 30–31
(“[T]he Government has made no showing that Congress had before it
evidence sufficient to furnish reasonable ground for” mandatory detention.
(cleaned up)). To the contrary, Congress’s choice in IIRIRA to require
detention and prevent illegal aliens from skirting their removal proceedings
was firmly supported by the evidence in 1996 and remains a rational policy
today.3
The only remaining thing to address is whether the Constitution limits
the duration of Petitioners’ detention. In Zadvydas, the Supreme Court
suggested (without holding) that the Constitution may set limits on the
permissible length of an alien’s detention after he is ordered removed. Id. at
690–99. And while Zadvydas indicates that post-removal order detention
may not continue indefinitely, the opinion expresses no such reservations
regarding detention pending removal proceedings, which has been squarely
held to be “a constitutionally permissible part of [the removal] process.”
Demore, 538 U.S. at 531; see also Zadvydas, 533 U.S. at 701 (“[A]n alien may
be held in confinement until it has been determined that there is no significant
_____________________
3
As our court observed earlier this year, the problem of illegal aliens ducking their
removal proceedings “exists today at a much larger scale.” Buenrostro-Mendez, 166 F.4th
at 508; see also Holly Straut-Eppsteiner, FY2023 Immigration Court Data: Case Outcomes,
Cong. Rsch. Serv. (Feb. 7, 2024) (finding that nearly 70% of deportation orders were
in cases in which the alien failed to appear at their removal proceedings altogether); Mark
Metcalf, U.S. Immigration Courts & Aliens Who Disappear Before Trial, Ctr. for
Immigr. Stud. (Jan. 24, 2019) (observing that “American immigration courts
consistently have the highest failure to appear (FTA) rates of any state or federal courts in
the country” and that of “1,320,000 [released aliens who] received deportation orders, 75
percent of them (993,593) [were] for failure to appear.” ).
66
Case: 26-50183 Document: 160-1 Page: 67 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
likelihood of removal in the reasonably foreseeable future.”). The Zadvydas
Court considered a different provision of the INA, 8 U.S.C. § 1231(a), and
concluded that the statute could not authorize unlimited detention. 533 U.S.
at 698–99. By contrast, the Court has not read § 1225(b)(2)(A) to impose
temporal limits on detention while an alien’s removal proceedings are
ongoing. See Jennings, 583 U.S. at 297–303 (distinguishing § 1225(b)(2)(A)
from the statute at issue in Zadvydas).
The majority repeatedly refers to the constitutional problems that
“indefinite” or “interminable” detention of illegal aliens like Petitioners
would present. See Ante, at 23, 25, 28, 29, 30, 31, 32, 35. There is just one
problem with this trepidation: No “indefinite” detention is threatened or
even alleged in this case. Petitioners contest the fact of their detention, not
its duration.
Contrast Zadvydas, where the petitioner’s removal was “no longer
practically attainable,” such that continued detention did not serve its
purported immigration purpose. 533 U.S. at 690. Here, Petitioners’ removal
remains “attainable,” and their detention under § 1225(b)(2)(A) is neither
“indefinite” nor “permanent.” Id. at 690–91. Indeed, their detention will
last only for the duration of “a [removal] proceeding under [8 U.S.C.
§] 1229a.” 8 U.S.C. § 1225(b)(2)(A); see also Jennings, 583 U.S. at 297
(“Once [removal] proceedings end, detention under § 1225(b) must end as
well.”). There is no allegation, much less any showing, that eventual removal
is “no longer reasonably foreseeable,” as Zadvydas indicates would create
constitutional problems. 533 U.S. at 699; see also id. at 701 (“[A]n alien may
be held in confinement until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.”). Thus, their
detention still “necessarily serves the purpose of preventing” Petitioners
“from fleeing prior to or during their removal proceedings, thus increasing
67
Case: 26-50183 Document: 160-1 Page: 68 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
the chance that, if ordered removed, [Petitioners] will be successfully
removed.” Demore, 538 U.S. at 528.
Undeterred, the lead opinion goes on to probe “the length of a
presumptively reasonable time for the Government to determine whether
aliens like [Petitioners] should be removed.” Ante, at 35. Looking to Demore
to answer this question, Judge Southwick acknowledges that the
Demore Court reversed the petitioner’s grant of habeas despite his having
spent six months in INS custody. Id. at 36 n.13 (quoting Demore, 538 U.S. at
510). The lead opinion even expresses that “[our court] could take [its]
presumption from that six-month figure.” Id. But after that zig, the lead
opinion zags to scale down the acceptable length of detention without a
hearing to “90 days [following] the commencement of detention[.]” Id. at
37. The basis? Nothing other than the Demore Court’s observation that most
removal proceedings (as of 2003) were completed within 90 days. Id. at 35–
37 (citing Demore, 538 U.S. at 529 & n.9).
The majority’s conclusion ignores the nearest guidance on temporal
limitations to detention, supplied by Zadvydas. There, the Court expressed
plainly that “an alien may be held in confinement until it has been determined
that there is no significant likelihood of removal in the reasonably foreseeable
future.” Zadvydas, 533 U.S. at 701; see also 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.”). No such determination is even hinted at here. More
pointedly, the Zadvydas Court expressed that six months’ detention
following a removal order should be treated as presumptively constitutional.
See 533 U.S. at 701. Even treating that six-month timeframe as a hard limit
on pre-removal detention, Petitioners were not detained anywhere near that
long: Petitioner Gomez was detained for three months; Sosnava, for roughly
two months; and Villegas, just three weeks.
68
Case: 26-50183 Document: 160-1 Page: 69 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
Indeed, even under the majority’s own 90-day standard, the detention
of two of the Petitioners was not unconstitutionally lengthy, as the lead
opinion concedes. See Ante, at 37 (“We agree with the Government that the
timing of two of the grants of habeas in the cases was likely precipitate[.]”).
So, to conclude that Petitioners’ detention was (or would have been)
unreasonably long, the majority substitutes its own standard in lieu of the
limits counseled by the Supreme Court—and goes on to condone grants of
habeas that were premature by the majority’s own invented timeframe.
Though Judge Southwick appears to acknowledge that
Petitioners’ detention was not unconstitutionally lengthy at the time they
received habeas relief, he nonetheless concludes that Petitioners “would
today have been detained by immigration authorities for an unreasonable
time absent the district courts’ intervention.” Ante, at 3 (emphasis added).
His opinion provides no support for this inference. The lead opinion also
asserts that “even if the orders we are reviewing had never been issued, these
aliens would either have had a decision made as to their removal or would be
detained while removal was still being considered,” such that, if still
detained, “today’s opinion would require their release unless they had been
provided a bond hearing[.]” Id. at 37. This is simply a tautology: If
Petitioners had not received habeas relief, anything from removal to lawful
admission could have occurred, or, as the majority conjectures, Petitioners’
removal proceedings might remain pending. We will never know, however,
because the district courts granted habeas prematurely, a mistake the
majority simply excuses. See ante, at 37 (“[W]e see no reason to have any of
[the Petitioners] detained again to serve additional time prior to a removal
order.”). Petitioners have never asserted that their removal is unforeseeable
or that the Government has delayed in prosecuting their cases. In essence,
the panel majority presumes that detention pending removal must be
temporally limited, makes its own judgment as to what that limit is, and then
69
Case: 26-50183 Document: 160-1 Page: 70 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
assumes that Petitioners’ detention would have been unconstitutional under
their own novel standard.
With great respect, such a holding is cut from whole cloth, and it lacks
any meaningful guideposts for district courts to apply. If anything, the
practical result will be the permissive regime sketched by Judge Graves’s
separate concurrence: immediate hearings, or immediate release, and
reading § 1225(b)(2)(A)’s detention requirement out of operable existence.
Ante, at 41-42 (Graves, J., concurring).
I do not dismiss the notion that substantive due process problems
might arise if Petitioners’ detention no longer served its immigration purpose
or if Petitioners’ removal proceedings were being used as a façade “to
incarcerate [them] for other reasons.” Demore, 538 U.S. at 533 (Kennedy,
J., concurring); see also Banyee, 115 F.4th at 934 (suggesting that “dilatory
tactics” in removal proceedings could violate detainees’ due process rights).
Here, however, Petitioners have not challenged the duration of their
detention as unconstitutional, nor have they asserted that their removal is
“no longer practically attainable.” Zadvydas, 533 U.S. at 690. On the record
before us, the length of Petitioners’ detention presents no constitutional
violation warranting habeas relief.
* * *
Petitioners, having never been lawfully admitted to the country, are
not entitled to additional process concerning their admission beyond what
Congress provided in § 1225(b)(2)(A). Even assuming they were, procedural
due process would not entitle them to a bond hearing to assess dangerousness
or flight risk, factors that are immaterial to Petitioners’ detention under
§ 1225(b)(2)(A). Further, Congress had the power to impose mandatory
detention for aliens like Petitioners under § 1225(b)(2)(A), and the relatively
70
Case: 26-50183 Document: 160-1 Page: 71 Date Filed: 07/02/2026
26-50183
c/w Nos. 26-50219, 26-50221
brief duration of their detention presents no constitutional defect requiring
habeas relief to correct it.
None of that is to say that habeas relief would not be appropriate in
circumstances different from these cases, e.g., based on the length of
detention or removal proceedings, or given factual questions relevant to
whether “an alien seeking admission is not clearly and beyond a doubt
entitled to be admitted,” 8 U.S.C. § 1225(b)(2)(A), or based on other legal
grounds not before us. But Petitioners, who are indisputably “applicants for
admission” within the meaning of § 1225, have not established that their
mandatory detention under § 1225(b)(2)(A) violated their rights to due
process. The district courts erred in granting habeas relief on that basis, and
those grants of habeas should be vacated.
I agree with my colleagues that the “answer to [our Nation’s
immigration] difficulties cannot include ignoring the Constitution.” Ante, at
4. By the same token, neither the district courts nor ours is free to ignore the
bedrock principle that the Constitution entrusts broad control over
immigration proceedings to Congress, not the courts. See U.S. Const. art.
I, § 8; Fiallo, 430 U.S. at 792 (“This Court has repeatedly emphasized that
over no conceivable subject is the legislative power of Congress more
complete than it is over the admission of aliens.” (quotation omitted)).
I respectfully dissent.
71