Tag Archive for: Sosnava Rodriguez v. Ortega

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.

Cyrus Mehta & Kaitlyn Box*

Beyond Loper Bright: Rodriguez v. Ortega and the Fifth Amendment Limit on Mandatory Immigration Detention

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By Cyrus D. Mehta and Kaitlyn Box*

In its June 28, 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court abolished the long-standing Chevron doctrine. Under this doctrine, courts were required to defer to the government agency’s interpretation of an ambiguous statute. Chief Justice John Roberts, writing for the majority, stated that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires”, but made clear that prior cases decided under the Chevron framework are not automatically overruled. We have discussed Loper Bright at length in prior blogs (here, here, here  and here). 

Loper Bright has proved a powerful tool for challenging the Board of Immigration Appeal (BIA)’s reinterpretation of INA 235(2)(A) and INA 236 to hold that noncitizens who entered without inspection (EWI) are not eligible for bond. On September 5, 2025, the BIA held in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), that a noncitizen respondent who entered the US without inspection and was placed in removal proceedings is not eligible for bond under INA 235(b)(2)(A). This BIA decision was a marked reversal of policy, as bond had been permitted for noncitizens who entered without inspection for three decades, since the passage of the Immigration Act of 1996. The decision also disregarded INA 236(a), which provides for the release on bond of a noncitizen who is not ineligible under the categories prescribed in INA 236(c), which notably excludes respondents who have entered without inspection. Addressing this discrepancy, the BIA stated that “nothing in the statutory text of section 236(c), including the text of the amendments made by the Laken Riley Act, purports to alter or undermine the provisions of section 235(b)(2)(A) of the INA, 8 U.S.C. § 1225(b)(2)(A), requiring that aliens who fall within the definition of the statute ‘shall be detained for a proceeding under section 240’”. 

Aware that a federal court would not give deference to its interpretation of the ambiguity posed by two competing statutory provisions, INA 235(b)(2)(A) and INA 236(c), the BIA invoked Loper Bright to conclude that the language under INA 235(b)(1)(2) is clear and explicit without regard to the contradiction posed in neighboring INA 236(c), stating: “the statutory text of the INA is not ‘doubtful and ambiguous’ but is instead clear and explicit in requiring mandatory detention of all aliens who are applicants for admission, without regard to how many years the alien has been residing in the United States without lawful status. See INA § 235(b)(1), (2), 8 U.S.C. § 1225(b)(1), (2).”

In a previous blog, we discussed Buenrostro-Mendez v. Bondi (5th Cir. 2026) the Fifth Circuit agreed with Yajure Hurtado, holding that noncitizens who entered without inspection are ineligible for bond. The court addressed the statutory discrepancy by stating that “Section 1226(a) undeniably does work independent from § 1225(b)(2)(A) because only § 1226(a) applies to admitted aliens who overstay their visas, become deportable on many different grounds, or were admitted erroneously due to fraud or some other error… Not only does § 1226(c) sweep in deportable aliens in addition to the inadmissible aliens covered by § 1225(b)(2)(A)…it also eliminates the option of parole for those to whom it applies.” In a dissenting opinion, Justice Douglas found that “Combining the ordinary meaning of ‘seeking’ with the statutory definition of ‘admission,’ there is no need to resort to strained analogies with the college admissions process to determine the meaning of key statutory terms governing detention.”

Nonetheless, most district courts outside the Fifth Circuit have not been persuaded and continue to rule in favor of releasing the citizen using their own independent interpretation of the INA under Loper Bright. District court cases that have cited Buenrostro to date have primarily done so to point out that the Fifth Circuit’s holding is an outlier and nonbinding. See, for example,  Aroca v. Mason, Pascual Jose-de-Jose v. Noem,  Carlos Roldan Chang v. Noem. In a New Jersey district court case, Judge Padin wrote in her opinion that the court was “unpersuaded” by the Fifth Circuit’s decision in Buenrostro, reasoning that “the majority’s interpretation risks rendering substantial portions of the statutory scheme superfluous and internally inconsistent”. The Seventh Circuit preliminarily concluded that the U.S. Department of Homeland Security was not likely to prevail on its argument that “§ 1225(b)(2)(A) covers any noncitizen who is unlawfully already in the United States as well as those who present themselves at its borders,” Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 (7th Cir. 2025). The Second Circuit has now reached the same conclusion in Cunha v. Freden, holding that § 1226(a), not § 1225(b)(2)(A), governs the detention of a noncitizen who entered without inspection years earlier and was later arrested in the interior. The Eleventh Circuit likewise rejected the government’s broad reading of § 1225(b)(2)(A) in Alvarez v. Warden, Federal Detention Center Miami, concluding that interior EWI respondents are generally eligible for bond under § 1226(a). These circuit decisions confirm that Buenrostro-Mendez is not the consensus view, but part of a widening circuit split over whether long-resident noncitizens arrested inside the United States can be subjected to mandatory no-bond detention merely because they entered without inspection.   Only a handful of district courts have adopted the reasoning laid out by the Fifth Circuit in Buenrostro. See e.g.  D.M.R.D. v. Andrews and Zhuang v. Bondi.  Even the Fifth Circuit’s decision in Buenrostro-Mendez also does not preclude release based on constitutional grounds. In Buenrostro-Mendez, the Fifth Circuit did not consider whether a noncitizen detained under 8 U.S.C. § 1225 may be constitutionally entitled to a bond hearing at the outset of proceedings, or even to release on constitutional grounds. It also leaves intact habeas corpus as a key mechanism for challenging unlawful prolonged detention.

On July 2, 2026, in Sosnava Rodriguez v. Ortega, No. 26-50183 (5th Cir. 2026), a Fifth Circuit panel held that the government may not detain noncitizens under § 1225(b)(2)(A) for more than ninety days without providing them a bond hearing. The case involved three long-term U.S. residents who were detained under 8 U.S.C. § 1225(b)(2)(A) while their removal proceedings remained pending. Although the court accepted, consistent with Buenrostro-Mendez, that § 1225(b)(2)(A) mandates detention for noncitizens who entered without inspection and confers no statutory right to a bond hearing, Rodriguez did not concern Loper Bright or the degree of deference owed to an agency’s statutory interpretation. Rather, the decision turned on a distinct constitutional question: whether continued detention authorized by statute becomes unconstitutional when it deprives a person of liberty without adequate process. The Fifth Circuit framed the issue under the Due Process Clause of the Fifth Amendment, which protects “persons” physically present in the United States, including noncitizens who have lived here for many years. Relying on the Supreme Court’s due process decisions in Zadvydas v. Davis, 533 U.S. 678 (2001), Demore v. Kim, 538 U.S. 510 (2003), and Carlson v. Landon, 342 U.S. 524 (1952), the court reasoned that Congress may authorize categorical detention of certain noncitizens, but only within constitutional limits. Those limits become especially important when detention is prolonged, individualized review is unavailable, and the government has not shown that the person is dangerous or likely to flee. The Fifth Circuit therefore concluded that the Constitution does not permit indefinite or extended detention based on unlawful-entry status alone and that these petitioners could not be detained for more than ninety days without a bond hearing.

This is why Rodriguez should not be understood as another post-Loper Bright statutory-interpretation case. Loper Bright requires courts to exercise independent judgment in construing statutes, but Rodriguez shows that constitutional due process imposes an independent limit even where the government prevails on the statutory question. Indeed, because the holding rested on the Fifth Amendment rather than on statutory ambiguity or agency deference, Rodriguez did not even need to cite Loper Bright. The government cannot avoid the Fifth Amendment merely by arguing that § 1225(b)(2)(A) mandates detention. If detention becomes prolonged and the detainee has no meaningful opportunity to contest dangerousness or flight risk, due process may require an individualized bond hearing. Rodriguez is therefore significant for habeas challenges because it allows petitioners to argue that, even if Buenrostro-Mendez controls the statutory issue within the Fifth Circuit, continued detention without a bond hearing may still violate the Fifth Amendment.

However, on July 10, a majority of the Fifth Circuit voted to rehear Rodriguez en banc, which had the effect of vacating the panel decision. That development should not be overstated. The panel opinion was vacated not because the Fifth Circuit rejected its reasoning, but because the full court agreed to reconsider the case. The en banc court could still affirm the panel’s due process holding, which would make Rodriguez even more powerful as binding Fifth Circuit precedent. Even in its vacated posture, however, the panel decision remains useful. Fifth Circuit precedent confirms that a vacated panel decision may still be cited for its persuasive reasoning. See Cheejati v. Blinken, 106 F.4th 388, 395 (5th Cir. 2024) (explaining that although a prior panel decision had been vacated, the court still found its reasoning persuasive); Munn v. City of Ocean Springs, 763 F.3d 437, 441 (5th Cir. 2014) (treating a vacated decision as persuasive). Thus, while Rodriguez is no longer binding panel precedent pending en banc review, it can still be cited as persuasive authority in challenges to detention beyond ninety days, and it may yet become more authoritative if the full Fifth Circuit affirms the panel’s constitutional analysis.

The en banc court may ultimately adopt Judge Wilson’s dissent in Rodriguez v. Ortega, which concluded that due process does not require a bond hearing for noncitizens detained under § 1225(b)(2)(A). In our view, however, the panel majority’s opinion is better reasoned. It more faithfully reconciles the government’s authority to detain with the Fifth Amendment’s protection against prolonged detention without individualized review, and it is more consistent with the Supreme Court’s guidance in Zadvydas, Demore, and Carlson. The en banc court should therefore reaffirm the panel’s approach rather than adopt the dissent’s narrower view of due process.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.