5th Circuit Upholds ICE’s Indefinite Immigrant Detention Policy

The legal battle over immigration detention shifted again Friday at the John Minor Wisdom Building in New Orleans, where the U.S. Court of Appeals for the 5th Circuit ruled that immigrants held indefinitely do not have a constitutional right to seek release through an individual bond hearing.

The case stems from a July 2025 policy issued by Immigration and Customs Enforcement (ICE). Breaking with decades of precedent, the agency directed its officers to deny bond to people who entered the country without “inspection.” The policy prompted widespread litigation, with thousands of detainees filing petitions for writs of habeas corpus.

Under the policy, immigrants must remain detained “for the duration of their removal proceedings” unless they receive parole, a less common form of release. In practice, however, the Trump administration has signaled that it intends for many of those detentions to continue indefinitely.

In February, a divided panel of the 5th Circuit concluded that “the government’s position is correct.” A different divided panel then narrowed that ruling in July, separating the government’s statutory authority to detain people from the constitutional rights of those detainees.

The full 5th Circuit has now overturned that panel decision on its own initiative, apparently siding with the government in a 10-7 vote.

“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,” the majority opinion states. “Moreover, the duration of Petitioners’ detention presented no constitutional issues warranting habeas relief.”

The contested ICE policy relies on a long-standing provision of the Immigration and Nationality Act that says certain immigrants “shall be detained for a proceeding.” Historically, that section of the INA has been used primarily for people stopped at the border.

In the months since the policy took effect, judges have wrestled with how two separate federal statutes define the government’s detention powers. Their analysis has also drawn on language from a 2018 U.S. Supreme Court ruling.

The government argues that ICE may impose mandatory detention under 8 U.S.C. §1225(b), a provision covering “aliens seeking entry into the United States.”

Immigrant advocates, along with most judges who have addressed the issue, have instead relied on 8 U.S.C. §1226(a). That statute applies to “aliens already present in the United States.”

District court judges have ruled in more than 15,000 such cases since the administration’s detention surge. In more than 13,000 cases, judges have rejected the position put forward by ICE about its detention authority, according to a Politico rolling analysis of court rulings.

After the 5th Circuit restricted the policy earlier this year, judges in hundreds of cases directed ICE to release detainees.

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In its latest review, however, the 5th Circuit treated the statutory question as resolved and focused solely on the constitutional claims raised by the immigrants.

“There is no dispute that Petitioners enjoy the protections of the Fifth Amendment,” the opinion states. “So the issue in this case is not whether Petitioners are entitled to due process. Rather, the question is what specific process is due for unadmitted aliens pending their removal proceedings.”

The appeals court framed that question against Congress’ “broad power over naturalization and immigration,” noting that lawmakers “regularly make rules that would be unacceptable if applied to citizens.”

The 5th Circuit characterized the answer as clear-cut.

“The answer to that question is straightforward,” the opinion says. “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.”

The central dispute, however, concerns the type of relief the immigrants contend could lead to their release.

“[T]he facts Petitioners seek to prove at their bond hearings are irrelevant to detention under §1225(b)…such that the absence of those hearings did not render their detention constitutionally defective,” the opinion states. “It was thus error to grant habeas relief on procedural due process grounds.”

The ruling elaborates:

Petitioners do not assert that the process they received was insufficient to prove that they are “entitled to be admitted,” and any determinations made at the bond hearings imposed by the district courts would be irrelevant to the lawfulness of Petitioners’ detention…

This mismatch is brought into sharp relief by the fact that neither the district courts, nor the Petitioners, cite any authority indicating the need for individual bond hearings pending removal proceedings.

In other words, the 5th Circuit says a bond hearing would not affect the statutory detention authority, so a bond hearing cannot be a constitutional right.

“Because the notional 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 opinion goes on.

The post ‘No constitutional issues’: 5th Circuit rules in favor of ICE’s indefinite detention policy, says immigrants are subject to rules ‘that would be unacceptable if applied to citizens’ first appeared on Law & Crime.

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