Fifth Circuit Flips Earlier Ruling, Once Again Declares Migrants Have No Due Process Rights

The Fifth Circuit has shown itself to be especially subservient to the Trump administration since his return to office. And it's certainly not going to rock Trump's mass deportation boat - not when it's sitting right on top of Texas, which contains almost two-thirds of the US-Mexico border, as well as some of ICE's largest detention facilities.

It's been several months of back-and-forth at the Fifth. While it has long been held that migrants living in the US are afforded the same rights as US citizens, the Fifth Circuit has done its best to ignore this. In February of this year, it simply decided - in opposition to hundreds of federal rulings across the nation - that detained migrants could be subjected to indefinite detainment without a bond hearing.

It chose to believe what the DOJ told it to believe: that there was no difference between someone detained illegally crossing a border and someone swept up by ICE's kidnapping squads after living peacefully and productively in the US for months, if not years or decades.

Then in July it pulled back a bit from that precipice. While it couldn't be convinced to fully support rights recognized everywhere else but in the Fifth Circuit, it did at least put a time limit on constitutional rights violations. While most courts have reasonably found that any rights violation begins the moment the right is violated, the Fifth Circuit declared the government could ignore migrants' due process rights immediately... but only for 90 days.

Apparently, that wasn't acceptable for the more far-right cheerleaders on the Fifth Circuit's bench. Less than a week later, the Fifth Circuit announced it would be rehearing this case in front of the whole roster of judges - the sort of thing a court only says when most of those judges disagree with respecting long-held rights.

Sure enough, that's exactly what happened. The en banc hearing has rolled back the already-wrong rights, but only after 90 days" decision handed down during the first week of July. We're back to where we were in February: no due process rights for migrants, no matter how long they've been detained or how long they'd already resided in this country when they were arrested. (h/t Chris Geidner)

The new decision [PDF] simply says migrants don't have any rights, even though this puts the Fifth Circuit in opposition of hundreds of federal courts and tens of thousands of court rulings:

We now conclude that Petitioners were not entitled to individual hearings on their dangerousness or flight risk before they could be lawfully detained by immigration authorities pending their removal proceedings. Moreover, the duration of Petitioners' detention presented no constitutional issues warranting habeas relief.

And while thousands of decisions have made it clear the law this administration has chosen to abuse via an extremely novel interpretation of the phrase applicants for admission" (something that has historically been applied exclusive to people confronted by immigration agents when attempting to cross the border) doesn't actually say what the government wants it to say (that any migrant in the country for whatever length of time is no different than someone apprehended during the act of crossing the border), the Fifth Circuit goes the other way.

Then it shrugs and says that if plaintiffs want this fixed, they should talk to Congress. But Congress has already made it extremely clear that due process rights apply to anyone residing in this county and that the exception only applies to people apprehended while crossing the border. This is the court giving Trump what he wants while pretending Congress is to blame for this sudden, one-circuit-only refusal to recognize migrants' due process rights.

Controlling illegal immigration is, no doubt, an important and controversial issue of public policy. But the Constitution entrusts broad authority to delineate immigration policy, and to design proceedings to effectuate those policy choices, to Congress-not courts.

Bullshit. This ruling is nothing more than cowardice from a majority of Fifth Circuit judges who don't want to cross Trump and are more than willing to blame their own lack of spine on the legislative branch. Also included are 70 pages of concurrences and dissenting opinions. The dissents point out the obvious: the Fifth Circuit is interpreting the law in a way Congress never intended, or even merely hinted at over the past few decades. The concurrences just want to see the rights removed. The worst of those is Judge James Ho, who claims the dissenters are more interested in protecting the rights of migrants than US citizens:

Alas, such passion for liberty has been lacking when U.S. citizens have been detained for expressing opinions disfavored by government officials. See, e.g., Villarreal v. City of Laredo, 134 F.4th 273 (5th Cir. 2025), reaff'g 94 F.4th 374 (5th Cir. 2024); Gonzalez v. Trevino, 60 F.4th 906 (5th Cir. 2023); see also Mayfield v. Butler Snow, L.L.P., 78 F.4th 796 (5th Cir. 2023).

My point is not to relitigate those cases, but to contrast the dissent's votes in those cases with its views today. It's to point out that liberty wasn't favored for citizens who seek to vindicate their constitutional rights-but it's cherished for illegal aliens who seek to violate our national sovereignty.

Only one of the dissenters in this case (Stewart) agreed with the ruling in Villareal - a case in which the majority blessed vindictive prosecution of a police critic. None of the dissenters in this due process case were part of the majority decision that said - again - that it's okay to engage in vindictive prosecution of a government critic (Gonzalez v. Trevino). And James Ho himself heard the final case he cites (Mayfield v. Butler Snow), delivering the blow to constitutional rights himself, which makes it extremely disingenuous for him to call out these judges (who weren't actually part of the hearing panels) for not expressing their dissent at that point in time.

The end result is the same as it was back in July. Texas will be the destination of choice for the Trump administration, which now knows for certain it won't be forced to respect due process rights. And the Fifth will get back to its day-to-day business of being the worst circuit in the nation - a place where constitutional rights (except the 2nd Amendment!) go to die.