Tag Archive for: habeas corpus

Cyrus Mehta

The Fifth Circuit Retreats from Due Process in Sosnava Rodriguez v. Ortega

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The Fifth Circuit has now erased the constitutional protection that a divided panel recognized only months ago in Sosnava Rodriguez v. Ortega. On October 23, 2026, the en banc court reversed the district courts and held that three longtime Texas residents who entered without inspection were not entitled to a bond hearing before being detained during their removal proceedings.

The decision is a stark reversal of the panel opinion we discussed in our July 19 blog, “Beyond Loper Bright: Rodriguez v. Ortega and the Fifth Amendment Limit on Mandatory Immigration Detention.” Relying  on the Supreme Court’s recognition that due process protects people physically present in the United States regardless of their immigration status, the panel had held that due process requires bond hearings within 90 days for similarly situated detainees. The full court vacated that ruling and has now rejected its central premise.

What the en banc court held

The majority treated the petitioners, who had entered the United States without inspection, as applicants for admission subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A). It concluded that they had no constitutional right to an individualized bond hearing and that the duration of their detention did not warrant habeas relief. The court therefore reversed the three district court judgments and vacated the writs of habeas corpus.

The practical consequence is severe. In Texas, Louisiana, and Mississippi, a noncitizen whom the government classifies as an applicant for admission because of an entry without inspection may now be detained throughout removal proceedings without an immigration judge ever deciding whether confinement is necessary. The person’s length of residence in the U.S., family ties, lack of criminal history, and ability to establish that he presents neither danger nor flight risk do not trigger a hearing under the en banc majority’s rule.

The majority transforms admission doctrine into a detention rule

Judge Wilson’s majority begins with the petitioners’ concession that they are “applicants for admission” detained under § 1225(b)(2)(A), and then gives that statutory classification sweeping constitutional significance. Relying principally on Department of Homeland Security v. Thuraissigiam, which upheld the limitation on federal court review of expedited removal orders at 8 U.S.C. § 1252(e)(2), the majority reasons that an unadmitted noncitizen may invoke only the procedures Congress has supplied for determining admission. Lengthy residence in the U.S., family and community ties, and arrest deep inside the country do not alter that conclusion. In the majority’s view, formal admission—not physical presence or the strength of a person’s connections to the country—marks the constitutional boundary.

The majority also rejects procedural due process balancing under Mathews v. Eldridge, which would require balancing the private individual’s interest, the government interest, and the likelihood of an erroneous deprivation. Because Congress made detention mandatory under its reading of § 1225(b)(2)(A), it treats dangerousness and flight risk as legally irrelevant. A hearing cannot be constitutionally required, it says, to decide facts that the statute does not make material. That reasoning is circular: the statutory denial of individualized consideration becomes the reason the Constitution cannot require individualized consideration.

On substantive due process, the majority defines the asserted right narrowly—as freedom from immigration custody while removal proceedings remain pending—and finds no deeply rooted historical right of that description. It applies rational-basis review and regards detention as reasonably connected to ensuring a noncitizen’s appearance and effectuating removal. It further limits Zadvydas v. Davis, which emphasized that a noncitizen who has been ordered removed cannot be detained indefinitiely, to post-removal-order detention where removal is no longer realistically attainable, declining to treat six months as a constitutional benchmark during ongoing proceedings. Under the majority’s rule, detention remains permissible so long as it has a nominal endpoint—removal or release—and removal remains a viable prospect.

Judge Ho’s concurrence: a broader theory of political control

Judge Ho’s lengthy concurrence goes further than the majority. It situates the dispute within the political branches’ asserted plenary power over admission and removal and warns against converting due process into a judicial license to revise Congress’s detention choices. Its central move is to characterize detention as an incident of exclusion rather than as an ordinary deprivation of liberty. If a person has never been admitted, the concurrence reasons, continued physical presence cannot generate a constitutional entitlement to remain free while the government decides whether removal will occur.

The concurrence is rhetorically powerful but analytically troubling. It collapses two different questions—whether a person may lawfully remain in the United States and whether the government may imprison that person without proving that detention is necessary. A bond hearing does not confer lawful status, prevent removal, or second-guess Congress’s admissibility rules. It asks only whether incarceration is justified while those rules are administered. Treating that modest procedural safeguard as an intrusion upon sovereign control obscures the liberty interest actually at stake.

Judge Ho’s approach also gives insufficient weight to the traditional role of habeas corpus. Habeas is not a demand for admission; it is the historic mechanism for testing executive custody. A theory that places detention beyond meaningful judicial scrutiny whenever the government invokes the admission fiction risks allowing a statutory label to do what the Suspension Clause and Due Process Clause were designed to prevent: make executive imprisonment effectively self-justifying.

The dissents better understand the constitutional question

The dissents resist the majority’s attempt to turn the entry fiction into a constitutional eraser. Judge Southwick’s principal dissent, joined by five judges, returns to the Fifth Amendment’s text and the Supreme Court’s recognition in Zadvydas that its protection extends to all persons within the United States, regardless of whether their presence is lawful, unlawful, temporary, or permanent. Thes petitioners at issue were not arriving at the border. They had lived here for many years, raised U.S. citizen children, and were arrested in settled communities. The dissents persuasively argue that Thuraissigiam, involving a recent entrant apprehended near the border who sought additional review of an asylum determination, should not extinguish the liberty interests of longtime residents challenging imprisonment rather than exclusion.

The separate dissents by Judges Haynes, Higginson, and Douglas reinforce different aspects of the same constitutional error. They emphasize that habeas courts have historically examined whether executive detention serves a lawful purpose; that civil confinement cannot become punishment by administrative declaration; and that due process ordinarily demands some opportunity to test whether detention bears a real relationship to danger, flight risk, or removal. Their disagreement with the majority is not about creating an absolute right to release. Rather, they insist on preserving a neutral hearing at which the government must justify continued confinement.

The dissents offer the better argument. The majority permits Congress’s choice of a detention category to determine the scope of the very liberty interest against which that category must be measured. It treats decades of residence as constitutionally meaningless, conflates release from custody with admission into the country, and reduces habeas review to confirming that the government selected the right statutory box. The dissents preserve the more fundamental rule: immigration power is broad, but it does not place executive imprisonment beyond the Constitution.

Moreover, a bond hearing is not an extravagant remedy. It does not guarantee release. It merely allows an immigration judge to consider evidence, evaluate danger and flight risk, and determine whether detention serves a legitimate civil purpose. For the government to imprison a father, worker, or longtime community member while removal proceedings unfold—and never explain to a neutral adjudicator why that imprisonment is necessary—is precisely the kind of arbitrary deprivation the Due Process Clause should forbid.

The advocates’ response

The American Immigration Council and the National Immigration Project condemned the ruling in forceful terms. Rebecca Cassler, senior litigation attorney at the Council, called it “an affront to the U.S. Constitution” and distilled the issue to its core: if the government seeks to deprive a person of liberty, it must explain why detention is necessary, and the detained person must be able to ask a judge to review that decision.

 

When courts degrade the meaning of liberty for some, we all suffer the consequences.

— Rebecca Cassler, American Immigration Council

 

Ellie Norton, supervising attorney at the National Immigration Project, emphasized the human stakes. The case concerns three fathers who had lived in the United States for years and supported U.S. citizen children, yet were separated from their families without a chance to seek release from an immigration judge. She also warned that transfers into detention facilities within the Fifth Circuit may be used to place people under this restrictive rule.

Why the ruling extends beyond immigration detention

The majority’s logic should concern more than just immigration lawyers. Constitutional guarantees are most vulnerable when courts permit the government to place a disfavored group outside their protection. Although the immediate holding governs immigration detention within the Fifth Circuit, its reasoning diminishes the principle that physical liberty may not be taken without a meaningful opportunity to be heard.

The ruling also sharpens a geographic split over the governing detention statute. The Second, Sixth, and Eleventh Circuits have rejected the government’s position and held that longtime residents arrested in the interior after entering without inspection are detained under INA § 236(a), not § 235(b)(2)(A), and therefore may seek bond from an immigration judge. The Seventh Circuit has also indicated that it would reject the government’s interpretation. By contrast, the Fifth and Eighth Circuits have accepted the government’s mandatory-detention theory. The relevant discretionary-bond provision is INA § 236(a); INA § 236(c) concerns mandatory detention for specified criminal and related grounds.

That split creates a powerful incentive for DHS to transfer and detain as many noncitizens who entered without inspection as possible in jurisdictions like Texas, Louisiana, and Mississippi. Once detention is located within the Fifth Circuit, immigration judges will be expected to follow Buenrostro-Mendez and Sosnava Rodriguez and deny bond jurisdiction, even when another circuit might treat the same person as eligible to seek bond under INA § 236(a). Geography may therefore determine whether a detained person ever receives an individualized custody hearing. This forum-shifting strategy compounds the due process problem by allowing the government’s choice of detention site to dictate the governing law and potentially strip people of protections available where they lived or were arrested.

The Supreme Court may narrow Sosnava’s practical reach

The Supreme Court has agreed to review the statutory question in Rhoney v. Barbosa da Cunha: whether a noncitizen who entered without inspection and was later arrested in the interior is detained under INA § 235(b)(2)(A) or under the discretionary detention provision in INA § 236(a). If the Court agrees with the Second, Sixth, and Eleventh Circuits that § 236(a) governs, the practical impact of Sosnava Rodriguez on this category of detainees would be sharply reduced. They would be statutorily eligible to seek bond from an immigration judge, so courts ordinarily would not need to reach Sosnava’s constitutional holding that an “unadmitted” person detained under § 235(b)(2)(A) has no right to an individualized bond hearing.

Such a Supreme Court ruling would not formally overrule Sosnava. The decision would remain on the books for people properly detained under § 235(b)(2)(A), including those whose statutory classification differs from the longtime interior residents at issue in Barbosa da Cunha. But it would remove the statutory premise on which Sosnava operates for many noncitizens who entered without inspection years earlier: if § 236(a), rather than § 235, supplies the detention authority, their access to bond follows from the statute.

Does Sosnava threaten other immigration habeas cases?

Sosnava should not control a habeas petition brought by a noncitizen who was admitted to the United States merely because the case concerns immigration detention. That category includes not only lawful permanent residents but also people admitted in nonimmigrant status—such as workers, students, visitors, and others—who may later fall out of status, become removable, or be detained while contesting removal. Sosnava’s central reasoning repeatedly turns on the petitioners’ status as never-admitted “applicants for admission,” their detention under § 235(b)(2)(A), and the entry fiction. A person who was inspected and admitted stands on materially different constitutional and statutory ground. Sosnava’s holding therefore should not apply to such a habeas petitioner. Indeed, Zadvydas v. Davis involved admitted resident aliens and confirms that habeas remains available to test statutory and constitutional limits on continued custody.

Still, the government may invoke some of Sosnava’s broader propositions in other detention cases—its narrow framing of the asserted liberty right, its reluctance to use Mathews v. Eldridge to require a hearing on facts the detention statute does not make relevant, and its distinction between pre-removal and post-removal detention. Those propositions could influence prolonged-detention litigation involving LPRs, former nonimmigrants, and other admitted noncitizens detained under INA § 236(c) or other provisions. But these habeas petitioners can argue forcefully that Sosnava is limited by its own rationale: it does not erase the greater due process protections accorded to admitted noncitizens, decide the constitutionality of prolonged detention under § 236(c), or disturb Zadvydas’s recognition that § 2241 habeas is the basic vehicle for challenging unlawful continued custody.

The better reading, therefore, is that Sosnava creates a serious obstacle for constitutional bond claims by people actually governed by § 235(b)(2)(A) in the Fifth Circuit, but it is not a categorical bar to immigration habeas. Its holding should not extend to LPRs, nonimmigrants, former nonimmigrants, or other people who were inspected and admitted. For every future habeas petitioner, the detention statute, admission history, procedural posture, duration of confinement, and relief sought remain critical. Challenges by admitted noncitizens should be framed through the statutory provision that authorizes custody and the Supreme Court precedents applicable to that distinct form of detention.

What comes next

The American Immigration Council and the National Immigration Project have made clear that they will continue the fight. Their forceful response also suggests that they have carefully considered the avenues that may remain after the en banc ruling, although the press release does not identify particular next steps. Those avenues may include seeking further review and continuing to challenge detention through statutory and constitutional arguments in cases presenting different facts and in jurisdictions that have rejected the Fifth Circuit’s approach.

The essential constitutional question remains unchanged: Can the government imprison a person for civil immigration purposes without ever proving to a neutral adjudicator that detention serves a legitimate need? The Fifth Circuit has answered yes for noncitizens who entered without inspection. That answer elevates an entry classification over the Fifth Amendment’s protection of persons and permits liberty to depend on geography. The Constitution should demand more.

This blog is for informational purposes only and does not constitute legal advice.

David Isaacson

Challenges to Expedited Removal Orders Against Returning Nonimmigrants: How Recent Case Law Supports Habeas Petitions Even After Removal

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In 2011, I wrote an article on our firm’s website about how then-recent case law could provide an opportunity for some returning nonimmigrants to challenge, in federal court, the government’s efforts to subject them to expedited removal.  At the time, it seemed as though such a challenge might require a habeas corpus petition to be filed in federal court while the returning nonimmigrant was still detained at the airport by Customs and Border Protection (CBP).  A recent Second Circuit decision in a different context, however, suggests that this is not so.  Rather, even returning nonimmigrants who are only able to contact a lawyer after they have already been removed from the United States may have recourse in federal court.

As I explained in my 2011 post, Congress has sought to make expedited removal orders, which can be issued by CBP officers at the airport and carry with them a five-year bar on returning to the United States without advance permission, essentially unreviewable in court for most people who are not U.S. citizens, Lawful Permanent Residents, or refugees or asylees. This creates a significant risk of arbitrary and potentially unreviewable enforcement of immigration law.  Problems can arise, for example, when such enforcement is based on an arguably erroneous position taken by a CBP officer regarding the permissible scope of H-1B employment, as in the case of some expedited removal orders issued at Newark Airport that were discussed by Cyrus D. Mehta in January and February 2010.  Absent judicial review, CBP officers and supervisors may have the last word on such questions, whether legally correct or not.

However, the Supreme Court’s 2008 decision in Boumediene v. Bush, 553 U.S. 723 (2008), made clear that under the Suspension Clause of the U.S. Constitution, Congress cannot (unless exercising its authority to suspend the writ of habeas corpus in cases of rebellion or invasion) simply prevent people detained by the United States, even alleged enemy combatants at Guantanamo Bay, from seeking judicial review of their detention through a petition for a writ of habeas corpus.  Thus, even those subjected to expedited removal may be able to turn to habeas corpus to vindicate whatever other rights they have under statute or the Constitution.  The Court of Appeals for the Ninth Circuit recently recognized in its March 2019 decision in Thuraisiggiam v. Department of Homeland Security, for example, that habeas is an available mechanism for asylum-seekers to assert their rights to proper proceedings to determine whether they have a credible fear of persecution.  (The Court of Appeals for the Third Circuit has, in a decision I criticized in a prior blog post, limited the ability to use habeas as a vehicle to assert rights under immigration law in the context of recent entrants with no prior ties to the United States, but even the Third Circuit, in Osorio-Martinez v. Attorney General, recognized the habeas rights of those with somewhat greater ties to the United States, in that case juveniles with approved petitions for Special Immigrant Juvenile status.)

As I also explained in my 2011 post, previously admitted U.S. residents who are returning from a brief trip abroad would retain rights to due process of law under Landon v. Plasencia, 459 U.S. 21 (1982), and so could argue that they were entitled to greater procedural protection than expedited removal provides.  Moreover, residents in this sense need not be restricted to Lawful Permanent Residents, that is, people with “green cards”. The Second Circuit, in its January 2011 decision in Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011), recognized the due process rights of one who had been admitted as a visitor and overstayed the permitted period of admission, so returning resident nonimmigrants who did not overstay should be even more clearly entitled to due process rights.  While it would be difficult for certain categories of nonimmigrants, such as B-1 or B-2 visitors, who need to maintain a foreign residence, to claim returning-resident due process rights without fatally undercutting their own case for readmission, there are many types of nonimmigrants such as H-1B, L-1, E-1, E-2, and O-1 who are not required to maintain a residence abroad which they lack intention to abandon.  If returning to a U.S. residence from a brief trip abroad, such nonimmigrants would appear to have a strong argument that the abbreviated and potentially error-prone procedures of expedited removal did not afford them sufficient due process.

The problem, as a practical matter, was that the legally ideal time to file such a habeas petition seemed to be while one was detained at the airport, and that presents obvious practical difficulties.  As I explained in 2011:

The ideal time to file a habeas petition under the theory outlined in this article would be while the petitioner was detained by CBP pending execution of the expedited removal order.  Whether such a challenge might be possible following execution of an expedited removal order is a subject for further analysis, but it would at least be substantially more difficult.  Classically, a constitutionally protected habeas petition would as a general matter require the petitioner to be in custody at the time the petition was filed, and a petitioner who has already been removed is not in custody, at least in the simplest and most straightforward sense of that term.

CBP often allows those subject to expedited removal proceedings to contact a friend while they are detained, but discourages or prevents them from contacting attorneys, presumably on the basis that an applicant for admission lacks the right to legal representation during initial inspection.  (The chain of logic between the lack of right to representation and a prohibition on speaking to an attorney strikes this author as a bit strained, but that is an issue for another day.)  Therefore, it may be wise for any nonimmigrant who anticipates potential difficulties upon arrival to ensure that the friend or friends whom they would likely attempt to call if detained is in possession of the contact information for an appropriate immigration attorney.  If concerned that CBP might not allow any communication, or that a single attempt to call while detained by CBP might not reach anyone, a more cautious alternative would be to make a plan to check in with such a friend by phone immediately after one’s flight lands, before proceeding into the immigration inspection area and the perhaps broader area in which cellphone use is prohibited, and advise that an appropriate immigration attorney should be contacted if the arriving nonimmigrant is not heard from again within a preset amount of time.

Given how logistically complicated it would be, particularly for someone who had not expected problems, to arrange the filing of a habeas petition in the brief interval before being detained and put on a return flight, it is perhaps not surprising that no such habeas challenge to an expedited removal order by a returning resident nonimmigrant seems to have made it into court, at least so far as this author is aware.  (There have been a few unsuccessful challenges by other types of nonimmigrants not able to claim returning-resident status.)

A recent decision of the Court of Appeals for the Second Circuit, however, has shed some light on what I referred to in 2011 as a subject for further analysis, namely, whether a habeas petition could be filed after an expedited removal order had already been executed.  The issue arose indirectly in the recent appeal of Ravidath (Ravi) Ragbir, an immigrant-rights activist who brought a habeas petition to prevent his removal on the basis that ICE, in refusing to extend his previously-granted stay of removal, was retaliating against his Constitutionally protected speech critical of ICE activities. In its April 25, 2019 decision in Ragbir v. Homan, the Second Circuit allowed this claim to go forward pursuant to the Suspension Clause of the Constitution.

Because Ragbir’s First Amendment claim regarding the execution of an order of removal would otherwise have been statutorily barred under 8 U.S.C. 1252(g), the Second Circuit needed to address whether it was protected by the Suspension Clause, as in Boumediene.  The government asserted that this was not so because, among other things, Ragbir was purportedly not in custody, having been released from detention after being granted judicial stays of removal.  The Second Circuit disagreed:

If Ragbir were currently in the Government’s physical confinement or had already been deported, that Ragbir would be in custody is obvious.[29] But that he has not been deported is not for a lack of effort on the part of the Government, which detained Ragbir without notice in January 2018 and sent him to Florida, where he was detained for weeks in anticipation of deporting him. Much like in Hensley [v. Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973)], that process was stopped only because Ragbir was released by a writ of habeas corpus issued by the district court in January 2018 (after which the Government told Ragbir to report again on February 10, 2018). Also like in Hensley, Ragbir must continue to report for ICE check-ins, and he remains in this country primarily due to judicial stays of removal, including the one entered by this Court. Moreover, the Government opposed a stay of removal in the district court pending this appeal, and at oral argument, the Government could not represent to this Court that—absent a stay entered by this Court and the stay previously entered in the District of New Jersey—ICE would not deport Ragbir pending resolution of this appeal.

Thus, that Ragbir faces imminent deportation, which necessarily involves a period of detention—and that he must comply, absent judicial intervention, with the Government’s orders “at any time and without a moment’s notice,” Hensley, 411 U.S. at 351—is not in question. That effects a present, substantial curtailment of Ragbir’s liberty. See id.

The Second Circuit expanded on the first sentence of the above in footnote 29 to its decision:

As to the custodial status of a deported individual, the Supreme Court “has repeatedly held” that the writ of habeas corpus is available to aliens excluded from the United States. Cunningham, 371 U.S. at 239-40 (citing Brownell v. Tom We Shung, 352 U.S. 180, 183 (1956); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); United States v. Jung Ah Lung, 124 U.S. 621, 626 (1888)). Although “in those cases each alien was free to go anywhere else in the world,” “[h]is movements . . . [we]re restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion.” Id. (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213 (1953)) (internal quotation marks omitted).

This discussion of the availability of habeas to a deported individual was a key portion of the Second Circuit’s reasoning, not merely dicta.  It was necessary to show that Ragbir would have access to habeas at what one might call both ends of the process, if he were in physical custody prior to deportation or if he had been already deported, in order to conclude that as a logical matter he ought not lose such access to habeas simply because the process had been, by court order, suspended in the middle.

Under the Second Circuit’s decision in Ragbir, then, individuals subjected to expedited-removal orders may pursue habeas petitions even following their removal.  Those returning nonimmigrants who arguably have due process rights, under Plasencia and Galluzzo, to a less summary process than expedited removal, should thus be able to vindicate those rights even if they are unable to contact an attorney until after they have already been removed.  As a practical matter, it may make sense to first reach out to CBP in an effort to get the expedited removal order set aside administratively, but the availability of litigation even after removal is an important development.  If CBP declines to administratively set aside an erroneous expedited removal order, that need not be the end of the story.  Rather, a long-term United States resident nonimmigrant who was refused permission to return to his or her home can seek redress in court.