The Fifth Circuit rules 10 to 7 that detained immigrants have no constitutional right to bond hearings

A federal appeals court ruled on Friday that the Constitution does not require the government to give detained immigrants a chance to argue for release on bond. The Fifth Circuit, sitting in New Orleans with all of its judges taking part, voted 10 to 7. Judge Cory Wilson, a Trump appointee, wrote for the majority that the Fifth Amendment’s due process protections do not require bond hearings for immigration detainees. “To the extent petitioners seek to vindicate a liberty interest to be free from physical restraint in the most abstract sense, they can do so at any moment by agreeing to leave the country,” Wilson wrote.

The decision removes one road to release for detainees held in Texas, Louisiana and Mississippi, the three states the Fifth Circuit covers, and it reverses the court’s own three judge panel. That panel ruled 2 to 1 in July that the government could not constitutionally hold people for more than 90 days without a hearing at which they could argue for bond. In February, the full court had already adopted the administration’s reading of immigration law as requiring mandatory detention for the people covered by the statute.

What Friday’s ruling does not settle is the statutory question. The Supreme Court agreed this month to take a case on whether immigration law requires bond hearings, and it is not considering the constitutional question the Fifth Circuit answered. If the Supreme Court rules that the statute does require hearings, detainees would get them on that ground instead.

The cases have multiplied as Immigration and Customs Enforcement has carried out the administration’s mass deportation program. Detained immigrants across the country have filed suit arguing that their detention without a hearing is unlawful, and lower courts have divided on the answer, which is how the question reached both the Fifth Circuit and the Supreme Court in the same season.