When the Fifth Circuit decided Buenrostro-Mendez v. Bondi earlier this year, many immigration practitioners concluded that the debate over bond hearings for noncitizens who entered the United States without inspection had effectively come to an end.
The court held that individuals who entered without inspection remain “applicants for admission” under the Immigration and Nationality Act regardless of how long they have lived in this country and therefore are subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A). As a practical matter, the decision eliminated statutory bond hearings for thousands of longtime residents detained throughout Texas, Louisiana and Mississippi.
The opinion, however, resolved only part of the problem.
Once Buenrostro-Mendez established that immigration judges lacked statutory authority to reconsider custody, a more fundamental question immediately followed. If Congress has mandated detention and immigration judges cannot conduct bond hearings under the statute, how long may the government constitutionally continue to detain someone without individualized review?
On July 2, the Fifth Circuit answered that question in Sosnava-Rodriguez v. Ortega. The court held that although Congress may require mandatory detention under § 1225(b)(2)(A), the Due Process Clause prohibits detention beyond 90 days without an individualized custody hearing.
Some early commentary has treated Sosnava-Rodriguez as though it softened or retreated from Buenrostro-Mendez. I think that misunderstands the relationship between the two decisions.
The Fifth Circuit did not retreat from Buenrostro-Mendez; it explained what Buenrostro-Mendez necessarily implied once statutory bond authority disappeared. The decisions address different questions, rely on different sources of authority and together establish a coherent framework for mandatory immigration detention in the Fifth Circuit. Buenrostro-Mendez answers the statutory question. Sosnava-Rodriguez answers the constitutional one.
Viewed in that light, Buenrostro-Mendez almost guaranteed that Sosnava-Rodriguez would follow. Once the statutory path to an individualized custody determination disappeared, the constitutional issue became unavoidable. The Fifth Circuit could either conclude that Congress had authorized potentially years of mandatory civil detention without any meaningful opportunity for review, or it could determine when due process requires an individualized hearing. The panel chose the latter.
The significance of Sosnava-Rodriguez, therefore, extends well beyond the adoption of a 90-day benchmark. The opinion explains how Congress’ broad authority over immigration coexists with the judiciary’s independent responsibility to enforce the Constitution. That is why I suspect its long-term importance may ultimately exceed that of Buenrostro-Mendez itself.
More Than Another Bond Decision
Most lawyers understandably focused first on the practical effect of Sosnava-Rodriguez. Immigration judges who previously lacked authority to revisit custody will now be required to conduct individualized hearings once detention exceeds 90 days. That alone will alter detention practice throughout the Fifth Circuit.
The opinion, however, deserves to be read more broadly.
The court accepted every significant statutory premise advanced by the government. It accepted Congress’s decision to mandate detention for applicants for admission. It accepted the Board of Immigration Appeals’ interpretation in Matter of Yajure-Hurtado that individuals who entered without inspection remain applicants for admission regardless of how long they have lived in the United States. It also accepted its own recent conclusion in Buenrostro-Mendez that immigration judges possess no statutory authority to conduct bond hearings for those detainees.
None of those conclusions, however, answered the constitutional question before the court.
Congress undoubtedly possesses broad authority to regulate immigration and to prescribe when detention is mandatory. The executive branch likewise possesses substantial discretion in administering those statutes. Neither branch, however, determines the scope of the Fifth Amendment. Constitutional limits remain the responsibility of the Judiciary, even in an area where Congress’s authority is at its apex.
That distinction explains why Sosnava-Rodriguez complements rather than conflicts with Buenrostro-Mendez. The court did not invalidate § 1225(b)(2)(A), nor did it create a statutory right to bond that Congress withheld. Instead, it recognized that prolonged civil detention eventually implicates constitutional protections that cannot be resolved simply by pointing to the text of the Immigration and Nationality Act. The statute answers who is subject to detention. The Constitution answers how long that detention may continue without meaningful procedural safeguards.
That analytical framework is also consistent with the United States Supreme Court’s decision in Jennings v. Rodriguez. In Jennings, the Court rejected the Ninth Circuit’s attempt to read periodic bond hearings into the immigration detention statutes through the doctrine of constitutional avoidance. The Fifth Circuit did not repeat that mistake. Rather than rewriting the statute, it accepted Congress’s detention scheme exactly as written and addressed the constitutional question directly. Whether the Supreme Court ultimately agrees with the Fifth Circuit’s analysis remains to be seen, but the panel carefully avoided the statutory reasoning that Jennings rejected.
When a Legal Fiction Reaches Its Limits
The government’s principal constitutional argument rested on the legal fiction that has long occupied a central place in immigration law. Because the Immigration and Nationality Act continues to classify individuals who entered without inspection as applicants for admission unless they have been lawfully admitted, the government argued that they remain constitutionally equivalent to someone standing at the border seeking initial entry.
The Fifth Circuit rejected that proposition in one of the opinion’s most memorable passages.
Judge Leslie Southwick acknowledged that legal fictions often serve legitimate statutory purposes. What he rejected was the suggestion that a legal fiction could redefine constitutional reality.
Responding to the government’s effort to equate years of residence inside the United States with an individual stopped immediately after crossing the border, he observed: “The Government is trying to equate that to the entry of hundreds of miles and years of residence. Such supposed equivalence is far more than a convenient legal fiction. It is a complete fantasy.”
The language is striking because appellate courts rarely describe a party’s position in such unequivocal terms. More important, however, is what the passage says about the court’s reasoning.
For more than a century, the Supreme Court has recognized that constitutional protections do not depend exclusively upon formal admission under the immigration laws. Individuals who have established substantial connections to this country occupy a markedly different constitutional position than someone seeking admission for the first time at the border. Years of residence, family relationships, employment and integration into American communities carry constitutional significance independent of the statutory labels Congress employs to administer the immigration system.
The panel therefore relied not on a novel constitutional theory, but on a line of Supreme Court decisions recognizing that freedom from physical restraint lies at the core of the liberty protected by the due process clause. Cases such as Yamataya, Zadvydas, Demore and Plyler all reflect the same underlying principle: Congress enjoys extraordinary authority over immigration, but prolonged civil detention eventually requires meaningful procedural protections.
Constitutional Structure Matters
Read more broadly, Sosnava-Rodriguez is as much a separation-of-powers decision as it is an immigration case.
Congress enacted the detention statute. The executive branch interpreted and implemented it. The Fifth Circuit accepted both. What the court refused to accept was the proposition that either political branch could define the limits of constitutional due process.
Judge Southwick made that point directly when he acknowledged the practical consequences of requiring individualized hearings. There was no dispute that Buenrostro-Mendez had generated significant habeas litigation or that implementing constitutionally required custody hearings would create additional administrative burdens. The court nevertheless concluded that “[t]he answer to those difficulties cannot include ignoring the Constitution.”
That observation reaches well beyond immigration detention. Administrative convenience may influence how constitutional rights are implemented. It has never determined whether those rights exist.
EOIR’s Implementation Challenge
The Fifth Circuit established the constitutional requirement but intentionally declined to prescribe the mechanics. That omission is hardly surprising. Designing hearing procedures, assigning judges and managing dockets are administrative responsibilities that belong to EOIR, not to a court of appeals. The opinion nevertheless leaves the agency with an immediate operational problem: immigration judges who, until now, lacked statutory authority even to consider custody for this class of detainees must now conduct constitutionally required hearings once detention exceeds 90 days.
Although some commentators have predicted that the decision will overwhelm the immigration courts, I am less convinced. EOIR already possesses most of the institutional tools necessary to implement Sosnava-Rodriguez. Immigration judges conduct custody proceedings every day under other provisions of the Immigration and Nationality Act. They routinely assess dangerousness, flight risk, criminal history, family ties, rehabilitation, employment history and prior compliance with court orders. Custody hearings generally require substantially less time than merits hearings, and the agency has become increasingly adept at conducting proceedings remotely.
The larger challenge is likely to be one of coordination rather than judicial capacity. In recent years, EOIR has repeatedly used remote immigration judges to assist courts experiencing unusually heavy caseloads, and there is every reason to expect the agency to employ the same model here. If significant numbers of detainees begin reaching the 90-day threshold, EOIR can centralize scheduling while assigning judges from across the country to conduct hearings by video. Venue, as the Board recently reaffirmed, remains where the respondent is detained, but nothing prevents a judge sitting hundreds or even thousands of miles away from presiding over the proceeding.
Whether that approach proves sufficient will depend upon volume. If the number of constitutionally required hearings remains manageable, EOIR can likely absorb them within existing resources. If, however, the Fifth Circuit’s decision generates thousands of hearings within a relatively short period, the agency may once again find itself balancing finite judicial resources against growing constitutional obligations. The court anticipated that practical reality and answered it succinctly: Administrative inconvenience does not diminish constitutional protections.
The Next Round of Litigation
The next phase of detention litigation is unlikely to focus on whether a hearing is required. Sosnava-Rodriguez answers that question. The more difficult issues concern what happens after the hearing begins.
The opinion deliberately leaves unanswered two questions that may ultimately prove as consequential as the 90-day rule itself. Who bears the burden of proof? What standard of proof governs continued detention?
Those questions should not be dismissed as procedural details. They may determine the practical significance of the decision.
Traditional custody proceedings under INA § 236(a) generally place the burden on the respondent to establish that release is warranted. Several federal courts considering prolonged civil detention in other contexts, however, have concluded that once detention raises serious constitutional concerns, due process requires the government to justify continued confinement, often by clear and convincing evidence. The Fifth Circuit adopted neither approach.
That restraint was understandable. The case before the court required it to determine whether due process entitled these detainees to an individualized hearing, not to prescribe every procedural rule that hearing must follow. Those questions ordinarily develop through litigation rather than judicial legislation, and I expect they will reach the Board of Immigration Appeals quickly.
Absent further guidance from EOIR or the Board, many immigration judges will almost certainly begin with the procedures they already know. The default inclination will be to allocate the burden to the respondent because that has long been the framework governing custody determinations under the Immigration and Nationality Act. Whether that allocation ultimately satisfies the Fifth Amendment in constitutionally compelled hearings remains an open question, and practitioners would be well advised to preserve every constitutional objection while the law continues to develop.
Practical Implications for Practitioners
For lawyers representing detained noncitizens, Sosnava-Rodriguez changes detention strategy in several important respects.
First, counsel must pay close attention to the detention timeline. The 90-day period is no longer simply another date on the calendar; it marks the point at which the legal analysis changes. Preparation for an individualized custody hearing should begin well before that deadline arrives.
Second, detention advocacy is now likely to include constitutional advocacy. Lawyers should preserve arguments concerning burden allocation, evidentiary standards, procedural adequacy and the sufficiency of the government’s evidence. Those issues were intentionally left unresolved by the Fifth Circuit and will almost certainly shape the next generation of detention litigation.
Finally, attorneys should devote as much attention to developing the custody record as they do to preparing the merits of the removal case. Stable employment, lengthy residence, family relationships, tax compliance, rehabilitation, community involvement and prior compliance with immigration proceedings will remain central considerations regardless of how the burden-of-proof question is ultimately resolved.
Practitioners should also recognize what Sosnava-Rodriguez does not hold. The decision does not invalidate mandatory detention, create a presumption of release after 90 days or suggest that dangerous individuals or genuine flight risks must be released. It requires individualized decision-making, not automatic freedom.
Looking Beyond the Fifth Circuit
Given the constitutional issues involved and the number of detainees potentially affected, further review would not be surprising. Whether through rehearing en banc or a petition for certiorari, the government has strong institutional reasons to seek Supreme Court review.
Regardless of what happens next, Sosnava-Rodriguez is likely to influence detention litigation beyond the Fifth Circuit. The opinion avoids the statutory interpretation rejected by the Supreme Court in Jennings while grounding its holding squarely in the due process clause. That analytical approach gives the decision significance beyond the immediate controversy and provides a roadmap for courts confronting similar questions elsewhere.
Completing the Framework
The enduring contribution of Sosnava-Rodriguez is not simply that it adopted a 90-day benchmark. Its greater significance lies in demonstrating how statutory interpretation and constitutional adjudication operate together rather than in conflict.
Buenrostro-Mendez established that Congress authorized mandatory detention for this class of noncitizens and that immigration judges lacked statutory authority to revisit custody. Sosnava-Rodriguez accepts that statutory framework and asks a different question: Does the Constitution permit mandatory detention to continue indefinitely without individualized review? The two opinions therefore complement one another. One defines the reach of Congress’s statute; the other identifies the constitutional limits on its implementation.
That distinction reflects the ordinary allocation of authority among the three branches of government. Congress determines who is subject to mandatory detention. The executive branch administers that statutory mandate. The judiciary ensures that its application remains consistent with the Constitution. Far from rewriting the immigration laws, the Fifth Circuit performed the role Article III assigns to it.
For years, detention litigation largely turned on questions of statutory authority. Buenrostro-Mendez resolved that debate in the Fifth Circuit. Sosnava-Rodriguez reminds us that when statutory protections disappear, constitutional protections remain.
That may ultimately prove to be the decision’s most lasting contribution. The opinion is not principally about bond hearings. It is about the continuing role of constitutional due process in an area where Congress’s authority is unquestionably broad but not unlimited. The Fifth Circuit has now supplied both halves of the detention framework. Unless the Supreme Court says otherwise, immigration practitioners in Texas, Louisiana and Mississippi will be litigating within that framework for years to come.
Daniel H. Weiss is the founder and managing attorney of Weiss Law, PLLC, a former Principal Deputy Chief Immigration Judge and an adjunct professor of law at SMU Dedman School of Law.