By Bobbi-Jeanne Misick and Mukta Joshi | Originally published by Mississippi Today
Audio articles are automated for accessibility. Humans wrote and edited the story; however, this audio has not been reviewed for accuracy and may contain errors. Read more about how we use AI to increase access to our reporting.
NEW ORLEANS — Immigrants who enter the United States without appointments with immigration officials can be detained indefinitely and are not entitled to bond hearings, regardless of how long they have lived in the country, the 5th U.S. Circuit Court of Appeals ruled Friday.
The 10-7 decision was issued in the case of three immigrant fathers in Texas who were detained without bond. It applies to immigrants who have already entered the U.S., as well as those who will enter in the future, and it has far-reaching implications for the more than 20,000 people held indefinitely in detention centers in Texas, Louisiana and Mississippi – the states in the appeals court district.
Rebecca Cassler, an attorney at the American Immigration Council, who represented the three men, said the ruling is “an affront to the U.S. Constitution.”
“The principle at stake here is simple: if the government wants to detain someone, it has to explain why depriving them of their liberty is necessary. And anyone who is detained has the right to ask a judge for review of that detention,” Cassler said. “Instead, this ruling allows the government to lock people up when detention plainly serves no purpose, and without any way to challenge it.”
Texas, Louisiana and Mississippi hold more than 40% of all ICE detainees by average daily population, making the 5th Circuit the largest jurisdiction for people challenging their confinement as unconstitutional. So far, it continues to be one of only two circuits to have upheld the Trump administration’s mandatory detention policy.
The Supreme Court has agreed to take up a similar case from the 8th Circuit Court of Appeals, which will allow for precedent to be set regarding bond eligibility and indefinite detention for immigrants in removal proceedings. That case is expected to go before the justices early next year.
The 5th Circuit reversed an earlier decision by a panel of three of its own judges, which had granted bond to immigrants in detention after 90 days. The new ruling says people in ICE detention have no constitutional right to due process.
In the majority opinion issued Friday, Judge Cory Todd Wilson wrote that immigrants who have been in the U.S. a long time are still “applicants for admission” and therefore are subject to mandatory detention without bond.
The seven judges who dissented agreed that constitutional rights, including the right to liberty, are available to all people present in the United States. Judge Leslie H. Southwick wrote in dissent, “statutory admission status does not decide when aliens gain due process rights. The Constitution, after all, is supreme, with statutes’ needing to conform to its dictates, not the Constitution to statutes.”
James Percival, general counsel for the Department of Homeland Security, praised the majority’s ruling.
“Big win in the Fifth Circuit on mandatory detention for illegal aliens, a principle codified in 1996 legislation but ignored by the deep state for decades,” Percival said Friday.
The three-judge panel had ruled in July that the Trump administration’s policy of denying certain due process rights to immigrants who entered the United States without formal appointments with immigration officials, no matter how long they had resided in the country, was unconstitutional. The panel ruled that the government must hold bond hearings for immigrants arrested within the U.S. within 90 days of their detention.
However, 10 days later, and with no official prompting from the federal government, the entire court decided to re-consider the case. The announcement of the hearing paused the relief that the panel of judges had granted to the three men. The 5th Circuit is generally regarded as one of the most conservative in the nation.
In 2025, constitutional petitions by immigrants pleading to be released began inundating federal courts across the country, after the Trump administration stopped a long practice of providing bond hearings to those who had lived in the U.S. for years. To date, more than 80,000 such petitions have been filed nationally. About a quarter of these have been filed within the 5th Circuit.
Federal district courts in Texas, Louisiana and Mississippi will continue to have the power to grant habeas corpus petitions on a discretionary basis, but Friday’s ruling “would foreclose nearly all of those petitions from being granted on constitutional grounds,” Cassler said.
Until the Trump administration ramped up its immigration crackdown in 2025, federal courts for decades had distinguished between people arrested at the U.S. border and those who had built lives in the country. The latter would automatically receive bond hearings, which would allow an immigration judge to decide whether the person was dangerous or posed a flight risk.
Then Trump’s second presidential term began and ICE detention populations exploded. In August, ICE boasted that it had broken its own record of the number of people it had arrested, as populations inside detention facilities across the South swell, triggering complaints of crowding. Andrei Zykov, a detainee at the Adams County Correctional Center in Mississippi, said Thursday that the facility designed to hold 2,200 people has been holding more than 2,600 for weeks, based on the number of meals kitchen workers were asked to prepare.
The 5th Circuit’s latest decision has effectively sealed the path for hundreds of them who hoped to be released while immigration judges decided whether they could remain in the U.S.
Attorneys for American Immigration Council and the National Immigration Project, who represent the three men, argue that the case, as well as the issue of habeas corpus, is about personal liberty, a constitutional right that they say is granted to all people within the United States.
The government continues to argue that immigrants who entered the country without those formal appointments, which is called entering without inspection, are not entitled to certain constitutional rights no matter how long they have lived in the U.S., because their very presence in the country is unlawful.
Illegally entering the U.S. is, in most cases, a misdemeanor. Cassler said the government is trying to rob immigrant detainees of rights that are guaranteed even to violent criminals.
“When people murder someone and they’re put on trial for it, the government’s interests are at their strongest,” Cassler said. “They want to protect the community. They want to make sure that that person doesn’t go kill someone else. And even in those cases, that person has very robust rights to due process with regard to their pretrial custody. Violating the law doesn’t take away your constitutional rights.”
Robert Stewart of Verite News contributed reporting.
