The U.S. Court of Appeals for the Fifth Circuit, sitting en banc (with all 17 judges taking part) recently issued a major opinion in Sosnava Rodriguez v. Vergara. The 10-judge majority concluded that the Trump administration’s detention without bond of aliens who entered the United States illegally and remained here for years did not violate the Fifth Amendment’s due process clause. It’s a much bigger deal than many may assume, but even though the Supreme Court has agreed to consider the statutory basis of Trump II’s “mass detention” policy for illegal entrants, it won’t be considering the constitutional issues the Fifth Circuit just resolved, with could well linger in other courts for years.
IIRIRA Changes the Law
By way of background, Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the “inspection protocol” in section 235 of the Immigration and Nationality Act (INA), the procedures that govern the admission process by inspectors at the ports of entry, in large part to address glaring disparities in how aliens who came here illegally were treated.
Prior to that amendment, aliens who entered illegally “free of official constraint” and proceeded into the country were placed into “deportation proceedings”, where they had a full range of constitutional rights and, most importantly, could ask an immigration judge (IJ) for release from custody on bond.
Aliens with no apparent right to enter who were stopped attempting to enter at the borders and ports, however, were placed in “exclusion proceedings” at which they had only the rights Congress had given them — which did not include the right to release on bond by an IJ.
To address these disparities and to reverse incentives that encouraged aliens to cross illegally instead of going through lawful ports of entry, Congress in IIRIRA replaced exclusion and deportation proceedings with a single unified “removal proceeding” under section 240 of the INA.
IIRIRA also shifted the focus away from whether aliens had “entered” (legally or illegally) to whether they had been “admitted” to the United States, as defined in the then-new section 101(a)(13)(A) of the INA as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”. (emphasis added.)
Under the IIRIRA amendments to section 235(a)(1) of the INA, 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 skip inspection at the ports and sneak into the interior, and who therefore who have no plans to “apply” for anything.
Pursuant to the IIRIRA changes, applicants for admission are subject to inspection under section 235 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, pursuant to section 235(b)(2) of the act, placed directly into removal proceedings before IJs to determine whether they should be allowed to remain.
Detention Under Section 235(b)(2)(A) of the INA
Section 235(b)(1)(B)(ii) of the INA is clear that aliens subject to expedited removal must be detained even if they pass “credible fear” review and are sent to IJ removal proceedings, but in 2005, almost nine years after IIRIRA, the Board of Immigration Appeals (BIA) — the DOJ tribunal that reviews immigration decisions — held those aliens could seek bond.
In 2018, however, the Supreme Court concluded such aliens were not entitled to release from custody and then-Attorney General William Barr overruled the BIA and ended bond for aliens “transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture”.
Similarly, section 235(b)(2)(A) of the INA states:
[I]n 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 proceeding under section 1229a of this title. [Emphasis added.]
In much the same way the George W. Bush and Obama administrations allowed “credible fear” aliens to seek bond despite section 235(b)(1)(B)(ii) of the INA, DOJ starting in the Clinton administration and then DHS all the way up to Trump II continued the pre-IIRIRA practice of permitting alien “applicants for admission” who entered illegally and were found in the interior to request bond release from IJs.
In July 2025, however, then-Acting ICE Director Todd Lyons issued a memo declaring that aliens who entered illegally and have never been admitted are subject to detention throughout their removal proceedings, until they are either deported or granted some final “relief” from removal that would permit them to remain here lawfully.
Thereafter, the BIA issued a precedent decision in Matter of Yajure-Hurtado adopting that policy and declaring that illegal entrants were not eligible for release on bond.
Because they were now shut out in immigration court, tens of thousands of illegal entrants encountered by ICE in the interior filed petitions for writs of habeas corpus with U.S. district courts across the country, seeking release from immigration custody, and the vast majority of federal courts ordered release.
Buenrostro-Mendez v. Bondi
Not surprisingly, thousands of those habeas petitions were filed in the Fifth Circuit, which has jurisdiction over federal courts in the states of Louisiana, Mississippi, and Texas.
DOJ appealed a number of district court grants of habeas release to that circuit court, and in February 2026, a divided three-judge panel of the Fifth Circuit issued an opinion in Buenrostro-Mendez v. Bondi, holding that Trump II was correct in its interpretation of section 235(b)(2)(A) of the INA and concluding that:
By eliminating the exclusion/deportation dichotomy, IIRIRA put aliens seeking admission lawfully on equal footing with those who entered without inspection. It seems strange to suggest that Congress would have preserved bond hearings exclusively for unlawful entrants. ... Preserving this distinction is especially odd where the Department of Justice Inspector General found in 1997 that “when aliens are released from custody, nearly 90 percent abscond and are not removed from the United States.”
Sosnava Rodriguez v. Ortega
While that should have answered the question of whether DHS could continue to hold illegal entrants in the Fifth Circuit under section 235(b)(2)(A) mandatory detention, it didn’t, because, notwithstanding the Fifth Circuit’s ruling in Buenrostro-Mendez, district court judges in the circuit began working around the decision and continued granting habeas relief.
More precisely (but also overly simplistically), they concluded that even if section 235(b)(2)(A) 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 grants, and on July 2, a split three-judge panel of the Fifth Circuit in Sosnava Rodriguez v. Ortega affirmed the lower courts’ grants of habeas release, concluding the aliens’ continued detention violated their constitutional rights.
Specifically, the panel found that under the Fifth Amendment, aliens detained under section 235(b)(2)(A) have a right receive individualized hearings on whether they pose a danger and/or a flight risk within 90 days of confinement, even as their removal proceedings are still ongoing — which was odd because the district court had ordered one of the plaintiffs, Mexican national Alejandro Villegas-Angel, released after he had only been detained for three weeks.
The day that opinion was issued, however, an unnamed judge of the court withheld the mandate in those cases and eight days later, the full court vacated the panel opinion and agreed to rehear them en banc.
Due Process Does Not Entitle Illegal Entrants to Proceedings Beyond What Congress Provided
On October 23, the en banc court reversed the panel, with a majority of the judges noting that while “there is no dispute that [those aliens] enjoy the protections of the Fifth Amendment”, the real issue “is what specific process is due for unadmitted aliens pending their removal proceedings”. (Emphasis in the original.)
“The answer to that question”, the majority concluded “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 given that Congress in section 235(b)(2)(A) of the INA gave unadmitted aliens nothing aside from a right to a removal hearing on the question of whether they are “entitled to be admitted” and that neither dangerousness nor flight risk is relevant to that question, they aren’t entitled to bond hearings under the Fifth Amendment.
“Manifestly”, the majority explained, “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”.
But given that the Supreme Court in its 2020 opinion in DHS v. Thuraissigiam (an expedited removal case) indicated that “unadmitted aliens may be limited to the admission procedures that Congress provides”, the majority continued, “district courts here reintroduced the very procedural backwardness Congress sought to resolve in enacting IIRIRA”.
Consequently, the majority held, “Those courts were not free to circumvent Congress and engraft the pre-1996 regime and its perverse incentives back onto IIRIRA by invoking the Due Process Clause.”
Much of the majority’s reasoning is premised on black letter law stretching back to the 19th century that holds: (1) Congress has plenary power to “set the procedures to be followed in determining whether an alien should be admitted”; and (2) that includes the authority to make immigration rules that “would be unacceptable if applied to citizens”.
What is exceptional, however, is how the majority answered a question that’s been hanging out there since IIRIRA was passed three decades ago, which is whether Congress had the authority to use its power to restrict the constitutional rights of aliens who “entered”, but who had never been formally “admitted”.
Note that the pre-IIRIRA “entry doctrine” rules, including the contrast between the rights of aliens in exclusion vs. deportation proceedings, were the product of decades of precedent that held that aliens stopped before they entered had only the due process rights Congress had given them.
In Thuraissigiam, the Supreme Court held that under those precedents, Congress could limit the rights of aliens stopped immediately after entering illegally, because concluding otherwise “would undermine the ‘sovereign prerogative’ of governing admission to this country and create a perverse incentive to enter at an unlawful rather than a lawful location”.
The majority opinion in Sosnava Rodriguez now extends that reasoning in Thuraissigiam to all aliens present without admission, even those first encountered by DHS far away from the border and “who had been living unlawfully in the United States for many years”.
More importantly than simply answering that 30-year-old question (for now), however, is the logic and reasoning the majority brings to its conclusions.
Congress Can Choose to Give Aliens Rights. But It’s Not Obligated to Do So
Including concurrences, the majority’s analysis runs 99 pages, and little of it is wasted.
Judge Andrew Oldham’s (57-page) concurrence, in particular, is a history of both immigration restrictions and habeas, in the latter case harkening back to the 1215 Magna Carta and in the former to British restrictions on French Revolution emigres, taking the reader through hangings (Wyatt’s Rebellion in 1554), a kingly shakedown scheme (Darnel’s Case in 1627), whippings and banishment (Trial of John Lilburn aka: “Freedom John” in 1637), the transportation in chains to England and back of Revolutionary War hero Ethan Allen and several of his “Green Mountain Boys” by the British (1775 to 1778), the imprisonment and release of Indiana “Copperhead Democrat” Lamdin P. Milligan (Ex parte Milligan, 1866), and the electrocution of six Nazi saboteurs (Ex parte Quirin, 1942).
More insightful, however, is Judge Oldham’s careful listing of “eight propositions that the Supreme Court has announced and reaffirmed for centuries”, which combined give Congress the authority to mandate the detention of unadmitted “applicants for admission” in section 235(b)(2)(A), most notably number two: “the Government’s power to detain aliens is a necessary corollary to its power to remove them”.
Congress didn’t give aliens the right to bond until 1907, Judge Oldham argues, and it “can choose, in its legislative prerogative, to give aliens rights. It can create procedural protections, craft a bail system, and even extend legal status to otherwise illegal aliens. But it’s not obligated to do so.”
True, he explained, “once the Government allows an alien to enter the United States through a port of entry, the Constitution guarantees certain minimal procedures before the Government can deport him” under the theory that “once the Government gives someone something, it must comport with minimal due process to take it away”, but the Supreme Court “has also said the Constitution guarantees nothing to ‘aliens who ... entered clandestinely.” (Emphasis in the original.)
“The alien who cheats the system by smuggling himself into the country does not win more rights as a result of his lawbreaking”, Judge Oldham concluded, and “[b]ecause such aliens remain legally unadmitted, they receive exactly the same due process rights that they would have if they had come through a legal port of entry — which are whatever rights Congress chooses to give them.” (Emphasis in the original.)
And as it relates to release from immigration custody, Congress didn’t give them any rights at all.
On to SCOTUS — Maybe
This would be an excellent analysis for the Supreme Court to review and add to (or subtract from), but it may never make it to the “Marble Palace”.
As I reported on October 2, the justices have agreed to hear DOJ’s appeal of the Second Circuit’s opinion in Barbosa da Cunha v. Freden, wherein a three-judge panel affirmed a lower-court order holding that section 235(b)(2)(A) of the INA does not bar the release of illegal entrants first encountered by ICE in the interior.
The Court in that case (now Rhoney v. Barbosa da Cunha) will only be considering whether the statute mandates the detention of illegal entrants found in the interior, however, not whether such detention would be constitutional under the Fifth Amendment.
Consequently, even if the justices agree with Lyons, the BIA in Matter of Yajure Hurtado, and the Fifth Circuit in Buenrostro-Mendez on their interpretations of section 235(b)(2)(A) of the INA, DOJ will be forced to fight constitutional challenges to continued detention, and it could be two years or more until the issues addressed in Sosnava Rodriguez make their way back to SCOTUS.
In 1996, Congress attempted to reverse perverse legal incentives that encouraged aliens with no right to come here legally to cross the border illicitly instead of presenting themselves at the legal ports of entry. And more than 30 years later, the battle over how Congress did so still rages — and likely will for a good long time.