Petitions for Habeas Corpus to release illegal aliens from detention, or at least grant them bond hearings, have overwhelmed the federal courts, with most district court judges who have ruled on the subject siding with the detained aliens. It was the practice of prior administration from both parties to grant bond hearings. But is it a legal requirement?
A ruling by the 5th Circuit Court of Appeals, which covers critical border state Texas, has rejected the argument that a bond hearing and release is required by law. To the contrary, it held that the applicable legislation passed by congress does not require such bond hearings or release. That prior administrations did not exercise their full powers of detention under the law did not mean the present Trump administration could not do so, the court ruled.
From the fairly dense statutory analysis in the 2-1 majority opinion:
The statutory interpretation issue posed by these alien petitioners is novel but not recondite. The petitioners concede that they are deemed to be “applicants for admission,” i.e., “alien[s] present within the United States who ha[ve] not been admitted” by lawful means. 8 USC §§ 1225(a)(1), 1101(a)(13)(A) (definition of admission). Each of them entered illegally many years ago. As such, the government contends, because neither petitioner showed himself to be “clearly and beyond a doubt entitled to be admitted,” he “shall be detained” pending his removal proceeding. 8 U.S.C. § 1225(b)(2)(A). The petitioners counter that, despite falling squarely within § 1225, they are nonetheless eligible for discretionary release on bond during removal proceedings. Section 1226(a)(2), they contend, applies to them precisely because they did not “seek [lawful] admission” according to § 1225. 8 U.S.C. § 1226(a)(2). These provisions were framed by the IIRIRA immigration reform legislation in 1996, Pub. L. 104-208, 110 Stat. 3009 (1996), but their interrelation had not been adjudicated until the past few months, when the current Presidential Administration began detaining illegal alien residents, like the petitioners here, for removal proceedings without bond, rather than bonding and releasing them.After reviewing carefully the relevant provisions and structure of the Immigration and Naturalization Act, the statutory history, and Congressional intent, we conclude that the government’s position is correct. We REVERSE the district courts’ orders to provide petitioners with bond hearings or release them and REMAND for further proceedings consistent with this opinion.***Since DHS began to detain unadmitted aliens under § 1225(b)(2)(A), well over a thousand aliens have filed habeas corpus petitions seeking bond hearings. In most of these cases, the district court found in favor of the petitioner. See Barco Mercado v. Francis, No. 25-cv-6582, — F. Supp. 3d —-, 2025 WL 3295903, at *13 (S.D.N.Y. Nov. 26, 2025) (listing 350 decisions that found for the habeas petitioner).4 ….Finding no persuasive support either from the text of § 1225 or Jennings, the petitioners turn to the government’s longstanding practice. They point out that the government has, for twenty-nine years, allowed illegal resident aliens, those present without having been admitted, to seek release on bond under § 1226(a) instead of detaining them pursuant to § 1225(b)(2)(A). While that is true, the government’s past practice has little to do with the statute’s text. The text says what it says, regardless of the decisions of prior Administrations. Years of consistent practice cannot vindicate an interpretation that is inconsistent with a statute’s plain text. See, e.g., Pereira v. Sessions, 585 U.S. 198, 204, 138 S. Ct. 2105, 2111 (2018)….In any event, that prior Administrations decided to use less than their full enforcement authority under § 1225(b)(2)(A) does not mean they lacked the authority to do more…. In contrast to past administrations, the current Administration has chosen to exercise a greater portion of its authority by treating applicants for admission under the provision designed to apply to them.
The reactions to the ruling reflect how impactful it will be.
It’s worth noting that no other Court of Appeals has ruled on this issue yet. If another appeals court rules to the contrary, that will set up a circuit split that virtually guarantees SCOTUS will take the case. But even without that, it may get there sooner if the illegal aliens try to take this case to SCOTUS.
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