Ninety Days. One Bond Hearing.
A Split Court Reins In ICE.
On July 2, 2026, a divided panel of the U.S. Court of Appeals for the Fifth Circuit ruled that Immigration and Customs Enforcement cannot hold a migrant longer than 90 days without a bond hearing. The vote was 2-1. The reasoning was the Fifth Amendment’s Due Process Clause — the guarantee that no person shall be deprived of liberty without a fair chance to be heard.
The case belonged to three men — two Mexican citizens and one Honduran — pulled over by Texas state troopers on routine traffic stops between November 2025 and February 2026. Each had lived in the United States for at least 14 years, worked the whole time, and has U.S.-citizen children. Each was held without a hearing under the Trump administration’s year-old mandatory-detention policy. All three have now been released.
Here is the wrinkle that makes this more than a headline: a different panel of the same court reached the opposite conclusion nine weeks earlier. One appellate court, two answers, a Trump appointee in furious dissent — and a fast track to the Supreme Court.
- 2-1panel voteSouthwick and Graves over Wilson — Fifth Circuit opinion, July 2, 2026
- 90daysmaximum ICE detention before a bond hearing is required — majority opinion
- 3statesTexas, Louisiana, Mississippi — the Fifth Circuit's reach
- 47,000+petitionshabeas filings in the policy's first 13 months — Texas Tribune
The holding is narrower than the reaction suggests. The panel did not order anyone freed on demand, did not declare the underlying detentions illegal, and did not touch the government’s power to deport. It set one procedural floor: after 90 days, the government must justify itself to a judge.
“Our only requirement is that a hearing must be held within 90 days of the commencement of detention and that at the hearing, the Government must articulate an individualized justification for further detention without bond.”
Judge Leslie H. Southwick, majority opinion · Fifth Circuit · July 2, 2026
At that hearing, the burden is on the government. It must show the detained person is a danger to the community and a flight risk — or, in the majority’s words, “assert another justification” for holding an unadmitted noncitizen without bond. The 90-day mark is not a release date. It is a checkpoint at which indefinite becomes reviewable.
The ruling reaches every ICE detainee held under the mandatory-detention policy within the Fifth Circuit — Texas, Louisiana, and Mississippi — the busiest detention corridor in the country. The Texas Tribune, citing court filings, reported that the policy generated more than 47,000 habeas corpus petitions in its first 13 months, with roughly 5,000 rulings so far siding with detainees on due-process grounds. This decision hands those petitioners an appellate precedent.
On an accountability site, the panel is the story. The opinion was written by Judge Leslie H. Southwick, appointed to the Fifth Circuit by President George W. Bush (R) and confirmed in 2007. He was joined by Judge James E. Graves Jr., appointed by President Barack Obama (D) in 2011. The dissent came from Judge Cory T. Wilson, appointed by President Donald Trump (R) in 2020.
That lineup matters because it resists the reflex. This was not a panel of Democratic appointees hijacking immigration enforcement. The author is a Republican appointee on one of the most conservative circuits in the federal system. The dissenter is the Trump appointee. When a Bush-appointed judge on the Fifth Circuit reads a due-process limit into a detention statute, the argument is no longer that only “activist liberal judges” stand in the way — it is a genuine split over how far the executive branch can run detention without a courtroom.
The three consolidated cases carry the names of the men who brought them: Sosnava Rodriguez v. Ortega (No. 26-50183), Angel v. Mullin (No. 26-50219), and Gomez Alvarado v. Vergara (No. 26-50221). The middle caption names the current Secretary of Homeland Security, Markwayne Mullin (R), sworn in this spring — a reminder of how fresh this policy fight is.
Ignacio Sosnava Rodriguez, Miguel Angel Gomez Alvarado, and Alejandro Villegas Angel were not apprehended at the border. They were stopped by Texas state troopers on ordinary traffic stops between November 2025 and February 2026, then handed to ICE. All three had entered the country illegally more than a decade ago. All three, per the record, had lived in the United States at least 14 years, held jobs the entire time, and are parents of American citizens.
None of that makes their presence lawful, and the panel did not pretend otherwise. What it changed is procedure. Each man had petitioned for habeas corpus, arguing that being held with no chance to seek bond violated the Fifth Amendment. District judges agreed and ordered them released. The Trump administration appealed those releases — and it is those government appeals the Fifth Circuit rejected on July 2.
“It is part of the historic majesty of this long-ago founding charter that it makes no exceptions in providing basic rights to those within our boundaries, including a right to be heard when personal liberty is taken.”
Judge Leslie H. Southwick, majority opinion · citing Zadvydas v. Davis (2001)
Southwick anchored the ruling in Zadvydas v. Davis, the 2001 Supreme Court decision holding that the Due Process Clause protects everyone physically present in the country, lawfully or not. Applied here, the majority wrote, that means a noncitizen cannot simply be warehoused: absent judicial review, the three men “would today have been detained by immigration authorities for an unreasonable time.”
The fight turns on two provisions of the Immigration and Nationality Act. Under 8 U.S.C. § 1226(a), a noncitizen arrested inside the country during removal proceedings may seek release on bond — the interpretation that governed for decades. Under 8 U.S.C. § 1225(b)(2)(A), an “applicant for admission” who cannot show a clear entitlement to enter “shall be detained” — no bond, no hearing.
In July 2025, the Department of Homeland Security issued a memo reclassifying noncitizens already living in the interior — people apprehended years after entering — as “applicants for admission” subject to mandatory detention under § 1225, not the bond-eligible § 1226. In a September 2025 decision, Matter of Yajure Hurtado, the Board of Immigration Appeals — the Justice Department’s own appellate body — adopted that reading, and immigration judges nationwide began ordering detention without bond.
Congress wrote the mandatory-detention statute, and it means what it says. Illegal aliens who never presented for lawful admission are not entitled to bond hearings on their way out of the country. We will keep enforcing the law.
Paraphrased commentary · not a verbatim post
Truth Social · paraphrase of DHS's public position on mandatory detention
The legal novelty is real. As a companion Fifth Circuit opinion put it in February, the interplay of § 1225 and § 1226 “had not been adjudicated until the past few months, when the current Presidential Administration began detaining illegal alien residents… for removal proceedings without bond, rather than bonding and releasing them.” Both sides agree the question is new. They disagree on the answer.
Judge Cory Wilson (R-Trump) dissented, and his objection is the sharpest accountability question in the case: where did the 90 days come from? Not from the statute. Congress wrote “shall be detained,” full stop. The number, Wilson argued, is a judicial invention.
“The majority invents a nebulous rule that has no administrable limits.”
Judge Cory T. Wilson, dissenting · Fifth Circuit · July 2, 2026
Wilson wrote that the majority “marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress” — the long-standing doctrine that the political branches, not judges, set the terms of who is detained and removed. He would have denied release outright, on the ground that the three men, as applicants for admission, are “not entitled to challenge their detention under” the mandatory-detention statute at all.
It is a serious argument, and it is the case the Supreme Court will eventually have to weigh. Ninety days is not written in the U.S. Code. The majority derived it from due-process reasonableness — the same logic Zadvydas used to cap post-removal detention. Whether a court may read that kind of clock into § 1225 is precisely the question a divided judiciary is now fighting over.
Federal law requires the detention of aliens who have not been lawfully admitted. The Department will continue to defend that authority and is prepared to take the question to the Supreme Court.
Nine weeks earlier, a different three-judge panel of the very same court had ruled the opposite way. On February 6, 2026, in Buenrostro-Mendez v. Bondi (consolidated with Padron Covarrubias v. Vergara), Judge Edith H. Jones — appointed by President Ronald Reagan (R) in 1985 — wrote for a divided panel that reversed two district courts and upheld the mandatory-detention reading in full. Jones was joined by Judge Kyle Duncan (R-Trump); Judge Dana Douglas (D-Biden) dissented.
Feb. 6, 2026 — Buenrostro-Mendez v. Bondi: Panel of Jones (R-Reagan), Duncan (R-Trump), Douglas (D-Biden). Held 2-1 that § 1225 requires mandatory detention with no bond hearing. The government won.
July 2, 2026 — Sosnava Rodriguez v. Ortega: Panel of Southwick (R-Bush), Graves (D-Obama), Wilson (R-Trump). Held 2-1 that due process requires a bond hearing within 90 days. The detainees won.
The result: Two panels of the Fifth Circuit, two directly conflicting precedents, decided within one term. That kind of intra-circuit conflict is exactly what triggers en banc review by the full court — or Supreme Court intervention.
The disorder is national, not just local. By early July, four federal appeals courts — the Second, Sixth, Tenth, and Eleventh Circuits — had ruled against the mandatory-detention policy, while the Eighth Circuit and the February Fifth Circuit panel had upheld it. When the circuits divide this cleanly on a live question of federal law, the Supreme Court almost always takes the case.
The Department of Homeland Security said it disagreed with the ruling and remained “confident in its legal position regarding mandatory detention.” The Trump administration has already asked the Supreme Court to step in and resolve the circuit split — a request the July 2 decision only strengthens.
Radical activist judges keep trying to stop the largest deportation operation in American history. We are enforcing the law that Congress passed. This will go to the Supreme Court, and we will WIN.
Paraphrased commentary · not a verbatim post
Truth Social · paraphrase of the President's recurring position on immigration rulings
For now, the practical effect inside the Fifth Circuit is concrete. ICE can still arrest, still detain, and still deport. But in Texas, Louisiana, and Mississippi, the clock is running: hold someone past 90 days and a judge must be given a reason. For a detention system built on the premise that no reason was required, that is a meaningful constraint — and, the dissent would add, a constraint no statute actually wrote.
Appeals court bars mandatory detention for migrants past 90 days without bond hearing.
A Bush appointee wrote it, an Obama appointee joined it, a Trump appointee tore into it, and a Reagan appointee on the same court had already ruled the other way. The Fifth Circuit did not strike down deportation — it put a 90-day clock on detention without a hearing, over a dissent that says no such clock exists in the law. Both opinions are now precedent in the same courthouse. The tie-breaker is nine justices in Washington, and they are almost certainly next.
