Fifth Circuit rules Trump can detain illegal immigrants without bond hearings

En banc ruling is a major victory for the administration's immigration enforcement; dissent argues detention violates fundamental liberty.

By LineZotpaper AI staff

Published23 October 2026

Updated24 October 2026

Read Time2 min

Sources4 outlets

A divided federal appeals court on Friday ruled that the Trump administration may detain certain illegal immigrants indefinitely without bond hearings while their deportation cases proceed, handing the White House a significant legal victory on a core immigration policy.

The full 17-member 5th U.S. Circuit Court of Appeals, sitting en banc, held that the Fifth Amendment does not require bond hearings for three men who entered the United States unlawfully and were never legally admitted. The Trump administration had argued that mandatory detention without hearings was necessary to enforce immigration laws.

The vote was 10-7, though one judge concurred only in the judgment. In a concurring opinion, Judge Ho wrote: "A nation ceases to be a nation if it can't protect its borders. Congress has chosen to police our borders by detaining illegal aliens found in our country pending their removal proceedings."

Judge Southwick, leading the dissent, argued that once an alien has "acquired a domicil or residence" in the United States, detention becomes an affront to "liberty at its core" and that illegal aliens retain the "power of locomotion", the right to move freely. His dissent cited 18th-century legal commentator William Blackstone and was joined by all six Democratic-appointed judges on the court.

Judge Oldham, writing separately, reportedly compared modern immigration detention to the Tower of London's secret imprisonment.

The policy now appears poised for potential review by the Supreme Court.

Analysis

Why This Matters

The ruling affirms that the government can hold certain unlawful entrants for the duration of removal proceedings without individualized bond hearings, a practice critics call indefinite detention.
The decision deepens the existing legal split and increases the likelihood of Supreme Court review, which could produce a binding national precedent on immigration detention.
It also underscores the razor-thin ideological balance of the 5th Circuit, where a single judge's defection can determine major immigration cases.

Background

The case involves three men who entered the United States without lawful admission. The Trump administration's mandatory detention policy, grounded in 8 U.S.C. § 1225(b)(2)(A), directs that such individuals be detained pending removal. Lower courts had ordered bond hearings for some detainees, prompting the government to seek en banc review. The 5th Circuit, covering Texas, Louisiana, and Mississippi, has become a frequent battleground over executive immigration authority.

Key Perspectives

Majority (per Judge Ho): Congress has the power to detain illegal aliens pending removal, and the Fifth Amendment does not grant them a right to bond hearings. Dissent (per Judge Southwick, joined by six Democratic appointees): Denying bond hearings to long-term residents violates the core right to liberty, including freedom from physical restraint and the power of locomotion. Commentator Josh Blackman (Reason): The administration made a mistake in allowing Judge Southwick, who wrote the dissenting opinion, to pick his own replacement, as his views on alien rights could shift the court's balance further.

What to Watch

Whether the Trump administration petitions the Supreme Court for certiorari or waits for a cross-petition from the detainees.
How the Senate processes the nomination of Todd Butler, the judge Southwick selected, given the new criticism from conservative legal commentators.
Whether other circuits adopt a different standard on mandatory detention, increasing pressure on the Supreme Court to intervene.

Sources

Trump administration can hold immigrants in ICE custody without bond, court rules · Texas Tribune
Why Would Trump Make A Deal With A Judge Who Ruled Illegal Aliens Have A Right To "Locomotion" In The United States? · Reason Magazine
Appeals court sides with Trump on indefinite illegal immigrant detention policy · Washington Examiner
Immigrants in ICE detention have no due process rights under US Constitution, federal appeals court says · Mississippi Today

Checked

10 claims in this story checked against 2 sources: 6 supported.

Show each claim

Partly supportedThe Fifth Circuit ruled that Trump can detain illegal immigrants without bond hearings.Washington Examiner: “An appeals court on Friday ruled the Trump administration can continue detaining certain illegal immigrants without giving them bond hearings”
Not in the sourcesThe Trump administration argued that mandatory detention without hearings was necessary to enforce immigration laws.
Partly supportedThe vote was 10-7, with one judge concurring only in the judgment.Reason Magazine: “The vote was ostensibly 10-7, although the vote is better characterized as to 9-8. Judge Richman only concurred in judgment.”
Partly supportedSouthwick said detention affronted “liberty at its core” and that illegal aliens retain the “power of locomotion.”Reason Magazine: “their detention becomes an offense to "'liberty' . . . at its core," and an affront to freedom "at its most basic," namely, "freedom from physical restraint." ... So they must have "the power of locomotion"”
SupportedThe court ruled Friday that the administration may detain certain immigrants without bond hearings while their immigration cases proceed.Washington Examiner: “An appeals court on Friday ruled the Trump administration can continue detaining certain illegal immigrants without giving them bond hearings while their immigration cases move through court.”
SupportedHo wrote, “A nation ceases to be a nation if it can't protect its borders. Congress has chosen to police our borders by detaining illegal aliens found in our country pending their removal proceedings.”Reason Magazine: “A nation ceases to be a nation if it can't protect its borders. Congress has chosen to police our borders by detaining illegal aliens found in our country pending their removal proceedings.”
SupportedThe dissent was joined by all six Democratic-appointed judges on the court.Reason Magazine: “Judge Southwick's dissent was joined by Judges Stewart, Graves, Higginson, Douglas, and Ramirez--all of the Democrat-appointed judges on the court.”
SupportedOldham compared modern immigration detention to secret imprisonment in the Tower of London.Reason Magazine: “Would Butler compare, as Judge Oldham noted, "modern-day immigration detention to the Tower of London, where English monarchs would 'secretly hurry[a man] to gaol, where his sufferings are unknown and forgotten,'”
SupportedThe policy appears poised for Supreme Court review.Washington Examiner: “Trump’s mandatory detention policy appears poised for Supreme Court review”
SupportedSouthwick’s dissent cited 18th-century legal commentator William Blackstone.Reason Magazine: “Id. at 102, 103 (quoting 1 William Blackstone, Commentaries on the Laws of England 130 (1769)).”