By Claire Whitcomb
NEW ORLEANS — A divided federal appeals court ruled Friday that immigrants who entered the country without being admitted have no constitutional right to a bond hearing while they fight deportation. The decision widens a split among the circuits that the U.S. Supreme Court has already agreed to take up, in a case brought against the head of Immigration and Customs Enforcement’s Buffalo Field Office.
The full 5th U.S. Circuit Court of Appeals voted 10-7 in Sosnava Rodriguez v. Vergara, reversing three Texas district court orders that had freed immigrants from ICE custody.
“We now conclude that Petitioners were not entitled to individual hearings on their dangerousness or flight risk before they could be lawfully detained by immigration authorities pending their removal proceedings,” Judge Cory T. Wilson wrote for the majority. “Moreover, the duration of Petitioners’ detention presented no constitutional issues warranting habeas relief.”
Three men, three traffic stops
The case grew out of the arrests of three men by Texas state troopers during routine traffic stops between November 2025 and February 2026, The Texas Tribune reported. All three had lived in the U.S. for at least 14 years, had worked and had U.S.-citizen children. The troopers turned them over to ICE, which held them without a hearing before a judge.
Federal district judges later ruled that detaining Ignacio Sosnava Rodriguez, Miguel Angel Gomez Alvarado and Alejandro Villegas Angel without a chance at bond violated due process, and the men were released. A three-judge panel had largely agreed and imposed a rule requiring such hearings, but the full court ordered the case reheard on its own motion.
The Trump administration appealed. It argues that 8 U.S.C. § 1225(b)(2)(A), part of 1996 immigration law, requires that people present in the country without admission be held until their cases end. The administration adopted that policy in July 2025.
Judge Wilson wrote that immigrants who were never lawfully admitted are entitled only to the process Congress provides, and that detainees who want release “can do so at any moment by agreeing to leave the country,” the Tribune reported.
Judge Andrew Oldham concurred. “Because 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,” he wrote.
Judge James C. Ho, in another concurrence, opened: “A nation ceases to be a nation if it can’t protect its borders.”
“An impenetrable wall”
Judge Leslie H. Southwick, joined by Judges Carl Stewart, James Graves, Stephen Higginson, Dana Douglas and Irma Carrillo Ramirez, wrote the principal dissent. Judge Catharina Haynes also dissented.
“With respect, I conclude this court has constructed an impenetrable wall between the Constitution and these long-term residents, a wall not designed, recognized, or even suggested by the Supreme Court,” Judge Southwick wrote.
Judge Douglas wrote separately that “the majority opinion detonates the core of the Due Process Clause.” In a footnote she listed decisions from other circuits that have gone the other way, including the 2nd Circuit’s ruling in Barbosa da Cunha v. Freden, which arose from western New York.
The administration welcomed the decision. “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,” James Percival, general counsel of the Department of Homeland Security, said in a statement the department provided to The Buffalo Chronicle. Percival first posted the remark on social media, the Tribune reported.
Lawyers for the men said the ruling strips immigrants in Texas, Louisiana and Mississippi of a basic protection. “The right to due process is a fundamental constitutional protection, and it is meant to protect every person in this country,” said Rebecca Cassler, a senior litigation attorney at the American Immigration Council who argued the case. “Because of today’s decision, that right is hollow for immigrants in Texas, Louisiana, and Mississippi.”
Gracie Willis, an attorney with the National Immigration Project, called the decision “an affront to due process, as the 5th Circuit rejecting due process.” She told the Tribune her group has not decided whether to seek Supreme Court review.
The Buffalo case headed to the Supreme Court
The Supreme Court may settle the statutory question first. On Oct. 1 the justices granted review in Rhoney v. Barbosa da Cunha, No. 26-104. The petitioner is Philip L. Rhoney, acting director of ICE’s Buffalo Field Office, whose territory includes the Buffalo Federal Detention Facility in Batavia.
The government appealed a 2nd Circuit decision issued April 28, 2026, which held that people living in the country without admission are not subject to mandatory detention under that provision. The question presented is “whether 8 U.S.C. 1225(b)(2)(A) mandates the detention pending removal proceedings of aliens who, like respondent, are present in the United States without having been admitted.”
The respondent, Ricardo Aparecido Barbosa da Cunha, is represented by the American Civil Liberties Union Foundation and the Northwest Immigrant Rights Project, according to the docket. The Solicitor General’s office asked for more time to file its brief on Oct. 16. The court has not set an argument date.
The two cases address related but distinct questions. The 5th Circuit had already read the statute to require detention in an earlier case, Buenrostro-Mendez v. Bondi, which Judge Southwick called “the minority position among the circuits.” Friday’s ruling goes further and says the Constitution does not require a bond hearing either.
That leaves detainees in federal custody in Batavia and elsewhere in the 2nd Circuit under different rules than people held in Texas, at least until the justices rule.
The department’s statement did not address how ICE is handling bond hearing requests from detainees in the 2nd Circuit, including at the Batavia facility, or how many people are held there.
Updated October 25, 2026: This story was updated to include comment from the Department of Homeland Security.
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