Three illegal aliens — from Mexico and Honduras, living in the United States between 14 and 22 years without legal status — asked a federal court to rule that the Constitution entitled them to a hearing before they could be detained for deportation. The full Fifth Circuit Court of Appeals, sitting en banc, voted 10-7 that it doesn't.
That 159-page decision just restructured the legal battlefield for every deportation case in Texas, Louisiana, and Mississippi.
The case is Sosnava Rodriguez v. Ortega and the core question was whether the Fifth Amendment's Due Process Clause requires the government to give individualized bond hearings to people who entered the country illegally and are now in ICE custody awaiting removal. Judge Cory Wilson, a Trump appointee who wrote the majority opinion, was direct: "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."
That distinction — admitted versus unadmitted — is the hinge. Congress wrote Sections 1225 and 1226 of the Immigration and Nationality Act to treat those two categories differently. People who crossed the border illegally and were never formally admitted fall under mandatory detention provisions. The Fifth Circuit just said the Constitution doesn't override that statute.
Judge James Ho, another Trump appointee, wrote a concurrence that's already being quoted more than the majority opinion itself. "Either our Nation has the sovereign power to enforce its borders — or it doesn't," Ho wrote. He called the constitutional claim what it was: an argument that would turn national sovereignty into "a national game of red rover" where anyone who physically crosses gets the same procedural protections as a citizen.
Judge Andrew Oldham, also a Trump appointee, added his own concurrence clarifying that even habeas corpus — the right to challenge detention — doesn't automatically mean the right to be released. Having the ability to ask a court "why am I being held" is not the same as having a right to walk out the door.
The dissenters split 7 deep. Judge Leslie Southwick, a Bush 43 appointee, wrote the lead dissent. Judges Dana Douglas, a Biden appointee, and Stephen Higginson, an Obama appointee, joined. Southwick acknowledged, "Should the Supreme Court eventually determine that this court was wrong as to the statute, then the constitutional issue we address here will have far less significance."
That's a tell. The dissent is already looking past the Fifth Circuit to the Supreme Court, where Rhoney v. Barbosa da Cunha — a case raising the same statutory question — had cert granted on October 1. Constitutional law professor Michael Morley of Florida State University put it in context: "The Fifth Circuit's en banc ruling in Rodriguez today takes the next step by holding that such detention would not violate the U.S. Constitution's Due Process Clause."
The circuit split is now 9-2 — nine circuits have ruled that bond hearings are required, and only the Fifth and Eighth Circuits disagree. That split virtually guarantees the Supreme Court will have to resolve it. Hans von Spakovsky, a senior legal fellow at Advancing American Freedom, said the Fifth Circuit's reasoning gives the government a stronger hand: "I actually think this ruling will help the government in the Rhoney case. I will be surprised if a majority of the Supreme Court disagrees when they ultimately issue a decision."
The Trump administration changed its detention interpretation in July 2025, applying mandatory detention to all illegal aliens in removal proceedings regardless of how long they'd lived in the country. Lower courts blocked it. A three-judge Fifth Circuit panel in July imposed a 90-day limit before bond hearings were required. The full court just erased that limit entirely.
Nine circuits say illegal aliens who've never been admitted to this country have a constitutional right to ask a judge to let them go while their deportation case plays out. The Fifth Circuit, 10-7, says Congress already answered that question. The Supreme Court has the file.
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