Divided Fifth Circuit Endorses Mandatory Detention Policy
By James Larsen, Managing Attorney
On February 6, 2026, the U.S. Court of Appeals for the Fifth Circuit issued a decision with immediate and sweeping consequences for immigrants detained in Texas, Louisiana, and Mississippi. In a split ruling, the court held that noncitizens who entered the United States without a visa and are later arrested in the interior are subject to mandatory detention without the possibility of a bond hearing. The decision departs from decades of agency practice, conflicts with rulings in other circuits, and sharply limits access to release while individuals fight their immigration cases—placing renewed pressure on an already strained detention system.
The case, Buenrostro-Mendez v. Bondi, is the latest—and most consequential—expression of a legal theory the government has been advancing aggressively in recent years: that people who crossed the border without inspection are perpetually “seeking admission,” even if they have lived in the United States for decades. Under this theory, such individuals fall under mandatory detention provisions of the Immigration and Nationality Act and are categorically barred from bond hearings before an immigration judge.
A Fifth Circuit panel embraced that view. Writing for the majority, Judge Edith Jones concluded that the statute’s text compels mandatory detention, regardless of the fact that for nearly thirty years the government itself did not read the law that way.
Judge Dana Douglas, in a lengthy and sharply worded dissent, rejected that premise outright. She emphasized what immigration lawyers and judges have long understood: that U.S. immigration law draws a fundamental distinction between people stopped at the border and people arrested inside the country. That distinction is not a technicality—it is the basis for bond hearings, individualized determinations of flight risk and danger, and the basic idea that liberty should not depend on one’s ability to hire a federal habeas lawyer. Her dissent underscored what the majority opinion largely ignores: the human and systemic consequences of replacing immigration court review with prolonged civil detention.
This ruling did not emerge in a vacuum. In September, the Board of Immigration Appeals adopted the same position now blessed by the Fifth Circuit—that individuals who entered without a visa are subject to mandatory detention and are ineligible for bond. For a brief window, some detainees were able to obtain release by filing habeas petitions in federal district courts, with judges ordering bond hearings or outright release. Those cases produced a surge of filings and a rare moment of relief for people otherwise trapped in detention.
The Fifth Circuit’s decision appears to slam that door shut.
While the issue will almost certainly make its way to the Supreme Court—and while other circuits, including the Seventh, have already expressed skepticism or outright rejection of the government’s interpretation—the immediate effect in the Fifth Circuit is unmistakable. If you are detained in Texas, Louisiana, or Mississippi, and you did not arrive with a visa, you are likely not getting a bond hearing. Full stop.
This comes at a moment when detention space is already limited, expensive, and routinely described by the government itself as overburdened. Mandatory detention without bond does not eliminate discretion; it simply shifts it upstream to enforcement agencies and downstream to federal courts. Immigration judges are sidelined, and habeas litigation becomes the only path to freedom—an option unavailable to most detainees because of cost, geography, and time.
The majority insists that this result is dictated by the statute Congress passed. Judge Douglas’s dissent makes the more persuasive case: if Congress truly intended to mandate detention without bond for millions of people living inside the United States—many with U.S. citizen spouses, children, and parents—it would have said so clearly. For nearly three decades, no administration, Republican or Democratic, acted as though it had. The idea that the border is now “everywhere,” as Douglas put it, is not statutory clarity; it is legal revisionism.
Ultimately, this is not a problem courts can fix on their own. The detention provisions at issue trace back to the 1996–1997 immigration laws passed by a deeply partisan Congress in the shadow of the Oklahoma City bombing and amid a national tough-on-crime panic. Those laws dramatically expanded mandatory detention, stripped judges of discretion, and set the stage for precisely the kind of outcome the Fifth Circuit has now endorsed.
If this regime is to change in a durable way, it will not come from creative lawyering or favorable panels alone. It will require Congress to confront—and reverse—the draconian measures it enacted nearly thirty years ago. Until then, in much of the country, the jail door has effectively been welded shut, and release depends less on justice than on jurisdiction.
Immigration law changes rapidly. This article is for informational purposes only, reflects the law as of its publication date, and may be superseded by later changes in the law, regulations or agency policy. It is not legal advice, and reading it does not create an attorney-client relationship.La ley de inmigración cambia rápidamente. Este artículo es solo para fines informativos, refleja la ley a la fecha de su publicación y puede quedar superado por cambios posteriores en la ley, las regulaciones o las políticas de las agencias. No es asesoría legal, y leerlo no crea una relación abogado-cliente.