Fifth Circuit Detention Decision

In Buenrostro-Mendez v. Bondi, No. 25-20496 (5th Cir. Feb. 6, 2026), a panel (Jones, Duncan, and in dissent Douglas) of the Fifth Circuit Court of Appeals ruled that aliens who entered the United States without inspection (EWI entrants) are not eligible for bond. The ruling is in agreement with the Board of Immigration Appeal's (BIA) decision in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025).

Under the Trump Administration's assertions, anyone who has entered the United States without inspection (EWI) is subject to civil immigration detention without the possibility of bond. Historically, the relevant provision of the Immigration and Nationality Act, Section 235(b)(2) (or 8 U.S.C. § 1225(b)(2)), has been interpreted to only apply to aliens who are seeking admission at ports of entry.

In dissent, Judge Dana M. Douglas stated that the "government's proposed reading of the statute would mean that, for purposes of immigration detention, the border is now everywhere."

While the Fifth Circuit is the first court of appeals to handle this legal question, appeals remain pending in other circuits. In the Third Circuit, those cases include: Rivera Zumba v. Bondi, 2025 WL 2753496 (D.N.J., Sept. 26, 2025) and Bethancourt Soto v. Soto, 2025 WL 2976572 (D.N.J. October 22, 2025).

The Fifth Circuit's decision in Buenrostro-Mendez v. Bondi relies on statutory interpretation, specifically whether Buenrostro-Mendez' immigration detention violated the INA. The Fifth Circuit said no. Yet, people who have entered the United States without inspection may still bring as applied constitutional claims that mandatory detention violates their rights to due process.

Expect the issue to arrive at the Supreme Court.