Litigation Watch: Fifth and Eighth Circuits Limit Release Options for Immigrants in Detention

Litigation Watch is a series of blog posts analyzing major federal district court cases related to immigration programs.  Be sure to follow along for important litigation insights from Elevate Justice U.S. Immigration Law.

Written by: Dena Lewerke, Paralegal Intern Spring 2026 and Emily C. Brown, Esq., Founder and Principal Attorney of Elevate Justice U.S. Immigration Law

Breaking News in Immigration Detention

In the span of just two months, two federal appeals courts have issued rulings that significantly narrow the legal options available to immigrants seeking release from detention while their immigration cases proceed. Together, the Fifth Circuit’s decision in Buenrostro-Mendez v. Bondi and the Eighth Circuit’s decision in Herrera Avila v. Bondi represent a meaningful shift in how federal appellate courts are interpreting the mandatory detention provisions of the Immigration and Nationality Act and the consequences for detained immigrants and their families are substantial.

Fifth Circuit: Buenrostro-Mendez v. Bondi

In early February 2026, the United States Court of Appeals for the Fifth Circuit significantly narrowed the legal avenues available to immigrants seeking release from detention. See Buenrostro-Mendez v. Bondi, No. 25-20496, 2026 WL 323330 (5th Cir. Feb. 6, 2026). In Buenrostro-Mendez v. Bondi, the court held that certain noncitizens who entered the United States without inspection may be detained without access to a bond hearing, even when they have lived in the country for years.

The case involved longtime residents arrested by immigration authorities and denied bond hearings while in detention. They filed habeas petitions (a petition filed in federal district court challenging the lawfulness of detention, seeking release) arguing that prolonged detention without an opportunity for release violated both statutory protections and the Constitution. Lower courts initially ordered bond hearings, but the Fifth Circuit reversed, concluding that under the Immigration and Nationality Act, individuals who entered without inspection may still be treated as “applicants for admission” and therefore subject to mandatory detention without bond during removal proceedings.

Eighth Circuit: Herrera Avila v. Bondi

On March 25, 2026, the United States Court of Appeals for the Eighth Circuit reached the same conclusion in Herrera Avila v. Bondi. See Herrera Avila v. Bondi, No. 25-3248, 2026 WL —-- (8th Cir. Mar. 25, 2026).

The subject of the case is a Mexican national who entered the United States without inspection in 2006 and again in 2016. He was arrested during a traffic stop in Minneapolis in August 2025 and placed into removal proceedings. The Department of Homeland Security detained him without bond. He filed a habeas petition challenging his detention, arguing that the government’s position rested on a novel and untested legal interpretation, one that had not been used by the courts or any of the five prior presidential administrations.

A federal district court in Minnesota granted the petition, ordered a bond hearing, and Herrera Avila was subsequently released on bond. The government appealed.

The Eighth Circuit reversed in a 2-1 decision, holding that under 8 U.S.C. § 1225(b)(2)(A), any noncitizen present in the United States who has never been lawfully admitted remains an “applicant for admission” who is “seeking admission,” and is therefore subject to mandatory detention without bond. The majority concluded that the length of time a person has lived in the country does not change their status under the statute.

Judge Ralph R. Erickson dissented, writing that Herrera Avila would have been entitled to a bond hearing under settled law for the entire 29 years prior to his arrest. The dissent characterized the majority’s holding as a dramatic departure from longstanding practice, one that would subject millions of long-term residents to mandatory detention under a statutory interpretation that has no precedent in either judicial decisions or executive enforcement.

Civil Detention and Due Process

Immigration detention is civil—not criminal—in nature, yet individuals may remain confined for months or even years while their cases proceed. A bond hearing has traditionally served as an important due process safeguard, allowing detained individuals to respond to the government’s basis for detention and demonstrate that they are not a flight risk and do not pose a danger to the community.

Congress created different detention frameworks depending on where and how a person is apprehended. Individuals arrested at or near the border are generally detained under provisions that treat them as applicants for admission. By contrast, individuals arrested inside the United States after living in the country for a period of time have historically been placed into removal proceedings under provisions that allow immigration judges to consider release on bond.

Courts have long recognized constitutional limits on prolonged detention. In Zadvydas v. Davis, the Supreme Court held that immigration detention cannot be indefinite, establishing a presumptive six-month limit on post-removal-order detention where removal is not reasonably foreseeable. Later, in Jennings v. Rodriguez, the Court held that detention statutes themselves do not automatically require periodic bond hearings, leaving unresolved the broader constitutional limits on prolonged detention.

A Growing Circuit Divide

The practical reach of the decision extends far beyond the jurisdiction of the Fifth and Eighth Circuits. Immigrants detained in other parts of the country can be and are frequently transferred to facilities within these circuits, meaning that these ruling can affect individuals who were originally arrested in states covered by other circuits.

At the same time, courts in other jurisdictions have continued to allow habeas challenges to immigration detention. Judges across the country, including some appointed during the Trump Administration, have expressed constitutional concerns with prolonged civil detention without meaningful opportunities for release. Notably, the Seventh Circuit has signaled skepticism toward the government’s position, and even in Fifth and Eighth Circuit states, some district judges have continued to grant habeas petitions on due process grounds. As a result, more than 30,000 habeas petitions challenging immigration detention have been filed in federal courts since the start of the current administration, and in many cases, they continue to be granted.    

The Fifth and Eighth Circuits have now aligned on the same broad statutory interpretation: what matters is not where a noncitizen was encountered, but whether they were ever lawfully admitted at all. Under this emerging framework, the long-assumed distinction between border crossers and interior residents is effectively erased. The Seventh Circuit has not yet issued a definitive ruling, and courts in other circuits remain divided.

What States are Located in the The Fifth and Eighth Circuits?

Federal circuit courts have jurisdiction over the federal district courts within their geographic boundaries. Understanding which states fall within the Fifth and Eighth Circuits matters because these rulings directly govern how federal judges in those states must handle habeas petitions challenging immigration detention.

The Fifth Circuit covers Texas, Louisiana, and Mississippi. Because a significant number of ICE detention facilities are located in Texas, one of the most heavily used states for immigration detention nationwide, the Fifth Circuit’s ruling has an outsized practical impact. Immigrants detained in Fifth Circuit facilities who were arrested anywhere in the country may find their habeas petitions governed by this ruling, even if they lived and were originally arrested in a state covered by a more favorable circuit.

The Eighth Circuit covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. While this region hosts fewer large-scale detention facilities than Texas, the ruling is particularly significant given that Herrera Avila himself was arrested in Minneapolis, a major metropolitan area far from the border, illustrating that interior enforcement operations in Midwestern cities are directly within the scope of this decision.

Taken together, these two circuits now cover ten states where federal courts are bound to apply the mandatory detention interpretation. And because ICE routinely transfers detainees across the country based on bed space and logistical factors, a person arrested in a circuit that has not yet adopted this interpretation may nevertheless find themselves detained in a Fifth or Eighth Circuit facility, where their habeas petition would be evaluated under these less favorable standards.

Key Takeaway

For practitioners and detained individuals, the most important practical reality right now is this: jurisdiction matters. Where a person is detained, not just where they were arrested, can determine whether a habeas petition challenging that detention will succeed. Individuals detained in the Fifth or Eighth Circuits now face a significantly higher legal bar.

That said, habeas petitions are still being filed and granted across the country. Courts in circuits that have not adopted the Fifth and Eighth Circuit’s interpretation continue to grant relief on both statutory and constitutional grounds, and even within the Fifth and Eighth Circuits, some district judges have continued to order bond hearings on due process grounds. The legal landscape remains unsettled.

Given the growing disagreement among courts, the issue is widely expected to return to the Supreme Court of the United States. When it does, the Supreme Court may again be asked to resolve a fundamental due process question: how long can the government detain someone in a civil immigration system without a meaningful opportunity to seek release?

This blog post is for informational purposes only and does not constitute legal advice. Immigration enforcement policies change frequently. Consult with a qualified immigration attorney for guidance specific to your situation.