Sosnava Rodriguez v. Vergara: The En Banc Fifth Circuit Closes the Due-Process Route to a Bond Hearing
- Citation
- Sosnava Rodriguez v. Vergara, Nos. 26-50183, 26-50219 & 26-50221 (5th Cir. Oct. 23, 2026) (en banc), on rehearing of Sosnava Rodriguez v. Ortega, 180 F.4th 702 (5th Cir.), vacated and reh’g en banc granted, 181 F.4th 608 (5th Cir. 2026)
- Court
- U.S. Court of Appeals for the Fifth Circuit (en banc)
- Decided
- October 23, 2026 (argued September 24, 2026)
- Statute
- 8 U.S.C. § 1225(b)(2)(A); 28 U.S.C. § 2241; Fifth Amendment Due Process Clause
- Holding
- Noncitizens present without admission and detained under § 1225(b)(2)(A) are not entitled, as a matter of due process, to an individualized hearing on dangerousness or flight risk; so long as removal remains a viable prospect, the length of their detention raises no constitutional defect. The district courts’ habeas grants were reversed and vacated, 10–7.
Three men who had lived in the United States without admission for between fourteen and more than twenty-two years were detained by ICE in late 2025 and early 2026, two after traffic stops and one after a police stop for driving without a license. Ignacio Sosnava Rodriguez, a Mexican national, had been in the country for more than twenty-two years. Alejandro Villegas Angel, also from Mexico, had lived here since 2011 and has two U.S.-citizen children. Miguel Angel Gomez Alvarado, a Honduran national, had been here since 2012 and has a U.S.-citizen child. ICE held all three without bond under § 1225(b)(2)(A), the reading of the statute the Fifth Circuit had adopted in Buenrostro-Mendez v. Bondi.
From the district courts to the full court
Each man petitioned for habeas corpus in the Western District of Texas, and each won. The district courts held that detention without any individualized hearing violated the Due Process Clause, ordered the men released, and barred the government from detaining them again without first holding bond hearings. A divided panel affirmed in July 2026, holding that the Fifth Amendment required a hearing on dangerousness and flight risk within, at most, ninety days of detention. The court then ordered rehearing en banc on its own motion, stayed the district-court judgments, and heard argument on September 24, 2026.
The holding
Judge Wilson, writing for the court, reached two conclusions. First, people who have never been lawfully admitted are owed no process concerning their admission beyond what Congress provided in § 1225(b)(2)(A); and even if they were, procedural due process would not require a hearing on dangerousness or flight risk, “factors that are immaterial to Petitioners’ detention under § 1225(b)(2)(A).” Second, the length of detention does not change the answer. Relying on Demore v. Kim and on the Eighth Circuit’s decision in Banyee v. Garland, the court held:
“So long as an alien’s detention pending removal ‘ha[s] a definite termination point’—removal or release—his or her continued confinement without bond hearing does not offend due process.”
The court identified limits. The government may not delay removal merely as a means of punishment; “an issue may arise” if detention continues after removal has become only a remote possibility; and habeas relief may still be appropriate in other circumstances, such as factual questions about whether a person is “clearly and beyond a doubt entitled to be admitted.” But “so long as removal remains a viable prospect, continued detention, or renewed detention in the case of an alien previously released, does not violate due process.”
The separate opinions
Judges Ho, Oldham and Richman wrote concurring opinions; Judge Richman concurred in the judgment. Seven judges dissented. Judge Southwick, joined by Judges Stewart, Graves, Higginson, Douglas and Ramirez, would have held that the Due Process Clause requires a bond hearing, and explained that a decision was needed because of the court’s own statutory holding in Buenrostro-Mendez — which, he noted, is “the minority position among the circuits.” Judge Haynes dissented separately, writing that the analysis “should be limited to people like Petitioners—individuals who have resided in this country for more than ten years, have no criminal history, and have close American relatives.” Judge Douglas, who sat on the Buenrostro-Mendez panel, and Judge Higginson, who examined the statutory question at length, wrote further dissents.
Significance
Within the Fifth Circuit, which covers Texas, Louisiana and Mississippi, long-resident noncitizens who entered without inspection now have neither a statutory nor, while removal remains viable, a constitutional path to a bond hearing. Elsewhere the statutory question has gone the other way in nine circuits, and the Supreme Court has granted certiorari to resolve it in Rhoney v. Barbosa da Cunha. If the Court rejects the Fifth Circuit’s reading of § 1225(b)(2)(A), people in the petitioners’ position will be held under § 1226(a), which provides for bond, and this constitutional holding will matter far less, as Judge Southwick’s dissent observed. If the Court accepts that reading, the due-process question decided here moves to the center.
Filed under Pre-Removal Detention. Published November 8, 2026.