The 5th Circuit Court of Appeals has ruled that the federal government cannot hold undocumented immigrants for more than 90 days without a bond hearing, rejecting the Trump administration policy that requires immigration agents to hold immigrants until they are deported. The decision affects detention practice across Texas, Louisiana, and Mississippi.
What changed
In a 2-1 ruling, the three-judge panel based in New Orleans said the federal government must explain at court hearings why it believes some undocumented immigrants don’t deserve to be released on bond. The court established a clear deadline: a hearing must be held within 90 days of the commencement of detention and at the hearing, the Government must articulate an individualized basis for continued detention.
The case involved three men arrested during routine traffic stops in Texas who had lived in the country for at least 14 years and had American citizen children. The troopers turned the men over to U.S. Immigration and Customs Enforcement agents who held them in detention without allowing them to see a judge. The men were eventually released from ICE custody after federal judges found that holding them without a chance for a bond hearing violated the men’s due process rights. The Trump administration appealed, arguing that federal immigration law says undocumented immigrants should be held until deportation without bond hearings — a policy it put in place in July 2025.
Why it matters
This ruling directly reverses the July 2025 ICE detention memo and restores a practice that had been standard for nearly three decades before the Trump administration’s reinterpretation. If you represent detained clients in the 5th Circuit jurisdiction, you now have a binding appellate precedent requiring ICE to provide a bond hearing within 90 days—no longer subject to agency discretion to deny hearings based on entry status alone.
The 90-day clock matters for filing strategy: it gives you a firm deadline to challenge continued detention before an immigration judge. Without a hearing by day 90, detention becomes challengeable on constitutional grounds. The court also requires the government to make an individualized showing of flight risk or danger—boilerplate ICE arguments are no longer sufficient.
Note that federal appeals courts remain split on this issue. The Eighth Circuit (covering the Midwest) reached a similar conclusion March 26, 2026, in Herrera Avila v. Bondi, also 2-1, finding the government wins on the detention issue, while the Second Circuit (New York, Connecticut, Vermont) ruled April 28, 2026, in Cunha v. Freden, a 3-0 unanimous opinion, that the government’s reading violates immigration law. The Supreme Court is likely to resolve these splits.
Way forward
- If your client is detained in the 5th Circuit: Demand a bond hearing within 90 days. File a habeas petition or motion to reduce bond under this ruling if ICE does not schedule a hearing.
- Document the detention date: The 90-day clock begins on the date of arrest/commencement of detention. Track this closely for each client.
- Prepare an individualized bond package: Gather evidence of ties to the community, family, employment, and lack of flight risk or danger. ICE must now rebut these with specific facts, not categorical policy.
- Monitor circuit splits: If your client is detained outside the 5th Circuit, research your circuit’s current ruling on the same issue. If your circuit has not yet ruled, cite the 5th Circuit decision as persuasive authority in district court filings.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. Immigration policy can change without notice, and court decisions are subject to appeal or reversal. Always verify the current status of this ruling and applicable law with the primary source linked above and consult a licensed immigration attorney before taking action on behalf of any client. The 5th Circuit decision applies only within the Fifth Circuit’s jurisdiction (Texas, Louisiana, Mississippi); other circuits may have different rules.