5th Circuit Upholds ICE Indefinite Detention Policy for Immigrants

The legal battle over immigration detention shifted again Friday at the New Orleans-based U.S. Court of Appeals for the 5th Circuit, which 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) that broke with decades of practice. The directive instructed agents to deny bond to people who entered the country without “inspection,” prompting widespread litigation and thousands of habeas corpus petitions from detained immigrants.

Under the policy, immigrants are supposed to remain in custody “for the duration of their removal proceedings” unless they receive parole, a less common form of release. In practice, the Trump administration has signaled that those proceedings may result in detention lasting indefinitely.

In February, a divided panel of the 5th Circuit sided with the government, concluding that “the government’s position is correct.” A separate divided panel later narrowed that decision in July, separating the government’s statutory authority from the constitutional rights claimed by the detainees.

The full 5th Circuit then took up the matter on its own and overturned the panel decision in what appeared to be a 10-7 vote favoring the government.

“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 disputed policy relies on a long-standing provision of the Immigration and Nationality Act. The law says certain immigrants “shall be detained for a proceeding,” though it has traditionally been applied to people stopped while attempting to enter the country.

In the months since ICE adopted the policy, judges have wrestled with how two separate immigration statutes interact and which one governs detention. Their arguments have also drawn on language from a 2018 U.S. Supreme Court decision.

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 narrowed the policy earlier this year, judges in hundreds of cases directed ICE to release detained immigrants.

In its newest review, however, the 5th Circuit treated the dispute over statutory authority as resolved and focused exclusively on the constitutional questions.

“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 within 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 constitutional question as straightforward.

“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 specific remedy the immigrants argue could lead to their release: a bond hearing.

“[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.