Fifth Circuit: 90-Day Limit on Detention Without Bond Hearing for Long-Term Undocumented

For immigration attorneys and due process advocates, this Fifth Circuit ruling reshapes the detention landscape. By mandating bond hearings after 90 days for long-resident undocumented immigrants, the court imposes a constitutional check on executive detention authority. The decision will likely trigger a wave of habeas petitions and bond hearing requests, forcing government lawyers to articulate individualized justifications for continued confinement—potentially overburdening the immigration court system while delivering a procedural victory for noncitizens with substantial U.S. connections.

In a significant due process ruling, the U.S. Court of Appeals for the Fifth Circuit held that illegal immigrants with long-standing ties to the United States cannot be detained for more than 90 days without a bond hearing. The 2-1 decision, authored by Judge Leslie Southwick, directly challenges a 2025 Trump administration policy that sought to mandate detention without bond for all aliens never legally admitted to the country, regardless of their community roots. The case involved three men who had lived in the U.S. for over a decade, fathered American-citizen children, and had no criminal records. They were apprehended after routine traffic stops and faced indefinite detention under the government’s interpretation of the Immigration and Nationality Act. The court found that although Congress may require detention for certain categories of aliens, the Fifth Amendment’s Due Process Clause extends to these long-term residents, requiring an individualized hearing to justify continued confinement.

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The 2-1 decision, authored by Judge Leslie Southwick, directly challenges a 2025 Trump administration policy that sought to mandate detention without bond for all aliens never legally admitted to the country, regardless of their community roots.

The ruling draws a careful constitutional line between new arrivals and those with substantial connections. The majority explicitly distinguished Supreme Court precedents that limited due process for aliens stopped at the border or those with criminal convictions. “Aliens who arrive at an ‘international airport’ or walk a dozen steps onto United States soil, are not, by sheer dint of crossing a boundary line, cloaked in the full protection of the United States Constitution,” the opinion notes, but those who have built lives over many years cannot be denied basic procedural protections. The 90-day trigger mirrors similar bright-line rules in other detention contexts and provides a clear operational benchmark for Immigration and Customs Enforcement (ICE) and the immigration courts.

For the immigration enforcement apparatus, the decision imposes substantial administrative and judicial demands. Homeland Security officials are now required to prepare individualized justifications for each long-term detainee approaching the 90-day mark, likely resulting in a surge of bond hearings across the Fifth Circuit’s jurisdiction of Texas, Louisiana, and Mississippi. This could strain an already backlogged immigration court system, while also prompting ICE to reassess which individuals it targets for mandatory detention rather than alternative monitoring. The ruling may also influence similar litigation in other circuits, creating the potential for a split that invites Supreme Court review.

At the heart of the legal analysis is the balancing of governmental interests in securing borders and effectuating removal against the fundamental liberty interests of individuals who, despite their illegal entry, have become integrated into communities. The court rejected the government’s argument that mere lack of lawful admission extinguishes all due process rights, noting that the Supreme Court has long recognized that even unlawfully present aliens are “persons” within the meaning of the Fifth Amendment. By anchoring the protection to the length of residence and family ties, the decision creates a fact-specific inquiry that may be applied differently across cases, potentially generating new litigation over what constitutes sufficient ties to trigger the 90-day rule.