The U.S. Court of Appeals for the Fifth Circuit this week stayed an order from the very same court finding that the Trump administration’s “mass detention” policy for all aliens who had entered illegally was unconstitutional. While the circuit court has yet to dispositively rule on the question, it’s likely foreordained. In any event, the stop after that is the only tribunal that matters – the Supreme Court. Here’s how four Tacoma, Wash., immigration judges’ rereading of the Immigration and Nationality triggered thousands of habeas petitions, and led to a major circuit split.
Congress Overhauls How the Law Treats Illegal Entrants in 1996
In 1996, Congress overhauled how the Immigration and Nationality Act (INA) – and in turn, immigration officers – must handle aliens who come here illegally.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which was enacted that year, amended the “inspection protocol” in section 235 of the INA, that is the procedures that govern the admission process by inspectors at the ports of entry.
Under those amendments, every alien “present in the United States who has not been admitted or who arrives in the United States” is deemed “an applicant for admission”, including those who illegally bypass inspection at the ports and proceed surreptitiously into the interior, and who therefore who have no intention of “applying” for anything.
Pursuant to the IIRIRA changes to section 235, those applicants for admission are subject to inspection by immigration officers wherever they are found: at the ports; after crossing improperly between the ports; or in the interior of the country, regardless of how long they have been here.
With exceptions, applicants for admission who fail to demonstrate they are “clearly and beyond a doubt entitled to be admitted” are either quickly removed (“expedited removal” under section 235(b)(1) of the INA) or placed into removal proceedings before immigration judges (“regular removal” under section 235(b)(2) of the act) to determine whether they should be allowed to remain.
Mandatory Detention for “Applicants for Admission”
Regardless of whether applicants for admission are placed in expedited or regular admission, however, Congress in section 235 of the INA as amended by IIRIRA mandated that they all be detained until they are either admitted or removed.
There are two exceptions to that detention mandate: “parole” under section 212(d)(5)(A) of the INA, a limited authority that permits DHS to release applicants for admission temporarily into the United States “for urgent humanitarian reasons or significant public benefit”; and, for aliens encountered at a land border, return to Canada or Mexico under section 235(b)(2)(C) of the INA to await removal proceedings.
That latter exception was the basis for the Trump I “Remain in Mexico” policy, which was challenged in the courts without resolution before it was terminated at the beginning of the Biden administration and then reinstated at the start of Trump II.
Administrations Refuse to Enforce the Mandate
While that should have seemingly settled the matter – Congress has “plenary power” with respect to immigration, after all, and the executive branch is constitutionally bound to carry out its mandates – every prior administration refused to enforce the detention mandate by pretending it didn’t exist.
Let me explain.
Prior to IIRIRA, immigration judges (IJs) and the then-INS had authority to release aliens who had crossed illegally into the United States “free from official restraint” on bond or their own recognizance, and the sole reason Congress included those detention mandates in section 235(b) was to reverse that practice.
Nonetheless, both INS (and then DHS) and DOJ (which oversees the IJs) continued to release those applicants for admission who were encountered in the interior under the general arrest and release authority in section 236(a) of the INA that applies to other aliens facing removal, even after IIRIRA and throughout the Clinton, George W. Bush, Obama, Trump I, and Biden administrations.
The Tacoma Immigration Court Disagrees
It wasn’t until 2023 – during the Biden administration – that immigration judges in Tacoma took a second look at the statute and concluded that illegal entrants were “applicants for admission” and thus barred from receiving bond under section 235(b)(2)(A) of the INA.
Those facts are clear from the complaint in Rodriguez Vasquez v. Bostock, which an alien plaintiff who was detained within the jurisdiction of the Tacoma Immigration Court filed in the U.S. District Court for the Western District of Washington in March 2025, seeking release on bond.
As that complaint explains:
For at least the past two years, all but one of the IJs at the Tacoma Immigration Court have adopted a practice of denying all requests for release on bond by noncitizens in removal proceedings who entered the United States without inspection, including as to those who have lived here for decades.
. . . .
The Tacoma Immigration Court’s policy of refusing to grant bond requests defies the [INA]. Detention under [section 235(b)(2) of the INA] is limited to recent arrivals to the United States, and does not apply to those who have lived in this country for years.
Moreover, U.S. Immigration and Customs Enforcement (ICE) itself asserts that [section 236(a) of the INA], not [section 235(b)], governs the arrest and detention of noncitizens [sic] who entered without inspection and are later apprehended in the interior.
The Trump II Policy
Thousands of other aliens likely wish Rodriguez Velasquez kept his complaints to himself, because four months after that filing, as the Washington Post reported in May 2026:
ICE announced a major change that mirrors the Tacoma judges’ view, stating that immigrants who have been in the U.S. for years are “applicants for admission” if they didn’t enter the U.S. legally and, as a result, were subject to mandatory detention.
One alien held under that change in policy challenged his detention, and in its September 2025 opinion in Matter of Yajure Hurtado, the Board of Immigration Appeals (“BIA”, the DOJ administrative tribunal that reviews immigration determinations) concluded ICE was correct, and barred immigration judges from ordering the release of applicants for admission.
DHS detentions without bond quickly expanded, and because they were unable to seek bond from IJs and the BIA, thousands of those detained aliens filed habeas petitions seeking release in U.S. district courts nationwide.
Buenrostro-Mendez v. Bondi
One of those habeas petitions was filed in the U.S. District Court for the Southern District of Texas (S.D. Tex.) in Buenrostro-Mendez v. Bondi, and on October 7, 2025, Senior Judge Lee Rosenthal of the S.D. Tex. concluded the BIA was wrong in its interpretation of section 235(b)(2)(A), and ordered the immigration court to grant the alien a bond hearing within two weeks.
Seventeen days later, on October 24, 2025, DOJ filed a timely appeal of Judge Rosenthal’s order with the Fifth Circuit.
On February 6, a three-judge panel of the Fifth Circuit issued a split opinion in Buenrostro-Mendez, with the two judges in the majority finding that the Trump II reading of section 235(b)(2)(A) as mandating the detention of all illegal entrants was not only permissible, but also “better honor[ed] the predominant goal in the enactment of IIRIRA” than prior administrations’ interpretations of that statute.
Additional briefing in the Fifth Circuit followed, including a petition filed by the alien appellee for a rehearing of his claim en banc, that is, by all 17 judges on the circuit court.
On April 9, however, the same three-judge panel issued a separate order, explaining that: “Because no member of the panel or judge in regular active service requested that the court be polled on rehearing en banc ... the petition for rehearing en banc is DENIED.”
Sosnava Rodriguez v. Ortega
That should have been the end of the question of whether DHS could subject illegal entrants detained in the Fifth Circuit to mandatory detention, but it was not.
That’s because, notwithstanding the Fifth Circuit’s ruling in Buenrostro-Mendez, district court judges in the circuit began bypassing the decision, granting detainees’ habeas requests after concluding that even if the statute required applicants for admission to be detained pending the completion of removal proceedings, their continued detention nonetheless violated their Fifth amendment due process rights.
DOJ appealed three of those habeas grants to the Fifth Circuit, and on July 2, a split three-judge panel of that court in Sosnava Rodriguez v. Ortega rejected the government’s appeals and affirmed the lower courts’ grants of release on habeas in those three cases, concluding the aliens’ continued detention violated their constitutional rights.
Circuit Judge Cory T. Wilson, in dissent, made clear his disagreement with the majority opinion:
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 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. [Emphasis added.]
This time, it was DOJ that sought en banc review in Sosnava Rodriguez, as well as a request that the Fifth Circuit stay the opinion in that case pending expedited en banc review, but the court’s brief July 21 order in response suggests the other circuit judges had planned on taking a second look at their two majority colleagues’ conclusions already.
In addition to granting the government’s request for an expedited hearing and a stay of the district court habeas grants at issue, that order states: “IT IS ORDERED that Appellants’ opposed motion to refer this motion to the en banc court is DENIED AS UNNECESSARY.”
That was a “per curiam” order, unsigned but issued in the name of all 17 judges of the Fifth Circuit, including the two who had been in the majority. You can read that however you may choose.
On to SCOTUS (Probably)
Brett Schumate, the Assistant Attorney General in charge of DOJ’s Civil Division (which argued these cases), quickly took to X to summarize the Fifth Circuit’s order in laymen’s terms:
The full Fifth Circuit has issued an extraordinary precedential order making clear that illegal aliens do not have a constitutional right to roam free in the United States during their removal proceedings. pic.twitter.com/oDyMOw1PXg
— Brett Shumate (@AAGShumate) July 22, 2026
Schumate should celebrate while he can, because the issue of whether Trump II’s interpretation of section 235(b)(2)(A) of the INA is consistent with the statute – and if so, whether the statute is constitutional – is almost definitely on its way to the Supreme Court.
As I have noted elsewhere, there is a split amongst the circuits on the first issue, which usually triggers a Supreme Court review, and there are two pending petitions for review on the issue awaiting the justices’ consideration: one in Raycraft v. Lopez-Campos, filed by DOJ in response to a Sixth Circuit opinion rejecting the administration’s interpretation; and the other filed by Buenrostro-Mendez appealing the Fifth Circuit order.
Did four immigration judges in Tacoma circa 2023 know Trump II would agree with their conclusion that the INA requires all illegal entrants to be detained, and thus trigger a legal firestorm and a likely SCOTUS review? Probably not, which raises the question of what else the administration will find in the INA in the time it has left.