The Fifth Circuit Court of Appeals has significantly modified its earlier ruling on migrant detention rights, creating what critics describe as a constitutionally troubling compromise position.
The court ruled in February that due process rights simply do not apply to migrants the administration is seeking to remove, allowing the government to detain migrants indefinitely without affording them access to their constitutional protections.
That February decision had sweeping consequences, as detainees arrested across the country were quickly transferred to Fifth Circuit detention centers in Texas, Louisiana, and Mississippi to prevent them from challenging their arrests or detentions.
Now, several months later, the same appellate court has partially walked back that position, determining that some rights do apply to migrants in government detention, but only after an initial rights-free waiting period has elapsed.
The court acknowledged in its revised ruling that its earlier decision in Buenrostro-Mendez was creating severe practical difficulties across the federal court system, with thousands of immigration detainees filing applications for writs of habeas corpus in district courts.
The court stated directly: “We understand the recent interpretation in Buenrostro-Mendez that detention is mandatory for anyone who entered this country without authorization is creating enormous difficulties in district courts.”
The ruling continued: “Our resolution of this case requires the executive branch to provide bond hearings through its own procedures. That shifts the location of the burden, but it leaves its size unaffected.”
The earlier Buenrostro-Mendez decision was overseen by two Fifth Circuit judges, Edith Jones and Kyle Duncan, widely regarded as among the most conservative members of the court, and the different judicial panel handling this case likely contributed to the shift in legal reasoning.
In Buenrostro-Mendez, the court had treated all migrants as effectively equivalent to individuals caught in the act of illegal border crossing, regardless of how long they had actually been present in the United States, weeks, months, or even decades.
This new decision focuses on Fifth Amendment protections rather than the Fourteenth Amendment rights denied in the earlier case, arriving at a conclusion that appears to directly contradict the court’s own prior logic on constitutional protections for migrants.
The practical outcome is that the government may now detain migrants for up to 90 days without providing access to constitutionally guaranteed rights, after which point bond hearings must be made available through executive branch procedures.
Critics argue that permitting any period of rights-free detention is not a genuine legal victory, regardless of whether it represents a marginal improvement over the court’s previous position of indefinite detention without recourse.
The Fifth Circuit’s rulings remain sharply at odds with hundreds of judicial decisions handed down across the rest of the country, where judges have repeatedly ruled against the administration’s treatment of migrants’ constitutional rights.
The geographic reality that the Fifth Circuit oversees states housing multiple ICE detention facilities gives its rulings an outsized practical effect on how immigration enforcement operates nationally, with transfers to those facilities continuing unimpeded.