On October 23, 2026, a federal appeals court ruled that Immigration and Customs Enforcement (ICE) may detain certain individuals without a bond hearing while their cases are pending. In a 10-7 decision, the entire Fifth Circuit held that individuals who are not lawfully admitted and who have pending immigration hearings are not constitutionally entitled to a bond hearing. The ruling applies in Texas, Louisiana, and Mississippi. The issue is still open and could be before the Supreme Court.
Background
In Feburary 2026, a Fifth Circuit panel upheld ICE’s reading of immigration law, which required detention without a bond hearing. Other federal judges have since found that such a policy constitutes a violation of the detainee’s right to due process. Over the past year, judges have ruled against ICE’s policy of detaining without bond in over 21,150 cases. The Fifth Circuit’s decision now renders that approach invalid, according to the New Republic.
Litigation
Three men who had been in the U.S. for at least 14 years were the subject of the case. In July 2026, a three judge panel ruled in their favor, finding that ICE could not constitutionally detain someone for more than 90 days without a bond hearing. The full Fifth Circuit then took the case en banc and reversed that decision. Reuters points out the importance of this ruling given that Texas and Louisiana have the largest populations of immigration detainees. The court held that an immigrant who is not lawfully admitted is not entitled to any constitutional rights beyond those conferred by Congress.
Next Steps
Despite that ruling, the debate about ICE detention is far from over. The Supreme Court has agreed to take a separate case this month on whether federal immigration law requires bond hearings (that case doesn’t deal with the constitutional issue that the Fifth Circuit has decided). Watch the Supreme Court for any developments on this issue.
As always, ILBSG actively monitors ongoing U.S. immigration news. If you have questions about any U.S. immigration related issue, contact us. Working with an experienced attorney ensures you get the right advice based on the most recent laws. In an ever-evolving immigration policy landscape, it’s particularly critical you get the right advice.