February 10, 2026, by Morgan E. Granoff, Esq.
There is an argument that exists that undocumented immigrants in the U.S.A. who entered illegally and were being detained without an immigration bond could apply to the Federal Court in the location where they were being detained in for a Habeas Corups. In their Federal Court, immigrants would seek to get an Order that allowed them to get a bond hearing to get a bond in the immigration Courts.
“Before 1996, the detention provisions in the Immigration and Nationality Act (INA) distinguished between aliens who presented at a port of entry and those who evaded inspection. Matter of Yajure Hurtado, 29 I. & N. Dec. 216, 222–24 (BIA 2025); see also Hing Sum v. Holder, 602 F.3d 1092, 1100 (9th Cir. 2010); 8 U.S.C. §§ 1225(a), 1251(a) (1994). Aliens who arrived at a port of entry were subject to mandatory detention until the conclusion of the exclusion process and could not request release on bond. Id. at 223. In contrast, aliens who evaded inspection and were apprehended months or years later could seek release on bond pending deportation proceedings. Id. In this and other ways, the statute thus afforded greater procedural and substantive rights to aliens who bypassed entry procedures. See H.R. Rep. No. 104-469, pt. 1, at 225 (1996) (“[I]llegal aliens who have entered the United States without inspection gain equities and privileges in immigration proceedings that are not available to aliens who present themselves for inspection.”).” Victor Buenrostro-Mendez, v. Bondi, U.S. Attorney General, Case No. 25-20496.
But even with that, in the past, ICE could receive a Motion for bond hearing, and would decide if that immigrant could be let out on bond or parole, and could give them an ICE Parole. This Parole essentially would be a release without bond. The immigrant could even be put in immigration proceedings, where they were sometimes able to apply for bond hearing to get bond out of ICE custody. Some cases were being turned down for jurisdictional issues, but immigrants generally had a shot at the apple to get a bond hearing in front of an immigration judge and present their case. At their bond hearings, sometimes they were told that the judge had no jurisdiction to hear their bond, but sometimes immigrants were getting bond via parole, it really depended on the circumstances.
In immigration Court, an immigrant has two paths. One- they can seek a bond hearing, and two- they have removal court where they can seek asylum, cancelation of removal, or a change in status with an adjustment petition. The Immigrant, or “respondent” had to have a viable claim for asylum/ or cancelation of removal to get a chance at a trial. The immigrant also had to have that case going to get a bond hearing. Once the underlying relief was terminated, the case would close and they’d go into deportation processing, or be processed for release if they won their petition.
Now, since Matter of Yajure Hurtado, 29 I. & N. Dec. 216, 222–24 (BIA 2025) in the Board of Immigration appeals, immigrants were not able to have their bond motions heard. This was a major drawback for asylum seekers or cancelation of removal seekers who were detained because it meant that for the entirety of their immigration proceedings, they had to be detained. Imagine an asylum seeker that does not have a criminal record and has family and ties to the community being detained during the entirety of their proceedings. It made a lot of asylum seekers close their petitions and seek a deportation. Since that decision, Federal Court, Plaintiffs or “Habeas Corpus Petitioners” starting suing the Federal Government for their grievances and to obtain a bond hearing in front of an immigration judge.
Thus, if follows, immigrants were taking to Habeas Corups in doves, because the Federal Courts generally were hearing an argument that distinguished a differences between 8 USC § 1225 and 8 USC § 1226, (detention statutes in the Immigration and Nationality Act), and to top it off, the California Court Case decided on Partial Motion for Summary Judgement in the Ninth Circuit in California that established a nation-wide class of immigrants effected by the Immigration Court’s stance on stopping bond hearings all together. The Maldonado Bautista Class Members (Maldonado Bautista v. Santacruz ) applied to Immigrants who entered the U.S. without Inspection and were subject to Yajure-Hurtado (the BIA case that disallowed immigrants to have bond hearings).
And… up until most recently, undocumented immigrants who entered the United States illegally but were not apprehended at the border, and lived in the U.S. for +2 years, who were then detained–without obtaining a criminal charge could file a Federal Demand for Habeas Corups under 8 USC § 1226 to gain a shot at freedom & a chance at a bond hearing in front of the Immigration Judge. Some arguments even enlarged the group that this nation-wide class applied to, stating the Habeas Corpus Petition applied to immigrants apprehended at the border released on their own recognizance, and then detained again later without a criminal charge. The argument was being presented in Federal Courts over and over again.
And many immigrants were winning Habeas Corpus petitions, and then applying for bond in the Immigration Court–and winning.
Obviously, the immigrant could not have gotten a criminal charge as their reason for being detained. And a Granted Habeas Petiton allowed for immigrants to obtain a bond hearing.
So, up until recently,
Granted Habeas = Immigration Bond Hearing = Possible Bond from ICE detention.
Habeas was the last resort because a BIA Appeals case closed the avenue for bond, and the Habeas Corups was the light at the end of the tunnel creating a pathway for freedom. Now for immigrants this avenue forecloses in Texas, Mississippi, and Louisianna.
The 5th Circuit Appeal Order shows that route is quickly disappearing. The 5th Circuit finds that “[u]nadmitted aliens apprehended anywhere in the United States are ineligible for release on bond, regardless of how long they have resided inside the United States.” See Victor Buenrostro-Mendez, v. Bondi, U.S. Attorney General, Case No. 25-20496.
What does it mean to be a unadmitted in the U.S.A. and apprehended? That means that the immigrant came through the border and was not given admission. And “[a]n alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival . . .) shall be deemed for purposes of this chapter an applicant for admission. 8 U.S.C. § 1225(a)(1). Aliens who meet that statutory definition qualify as applicants for admission “whether or not [they arrived] at a designated port of arrival.” Victor Buenrostro-Mendez, v. Bondi, U.S. Attorney General, Case No. 25-20496.
Habeas Corpus allowed an Immigration Judge to be forced to decide whether an immigrant who was not admitted was eligible to seek bond out of ICE custody. This pathway provided a concrete chance at freedom for an immigrant who entered the U.S. illegally and was in removal proceedings. Essentially he/she could seek their freedom back whilst in proceedings.
That option is now closed in all courts in the 5th Circuit after February 6, 2026–when the 5th Circuit Appellate Court in the U.S. Federal Court decided this case:
Victor Buenrostro-Mendez, v. Bondi, U.S. Attorney General, Case No. 25-20496.
Because the law defines anyone present in the United States without lawful admission as an applicant for admission, detention is now mandatory under § 1225. Immigration Judges no longer have authority to conduct bond hearings for these individuals, and habeas corpus can no longer be used to obtain one in the Fifth Circuit.
This marks a major shift in immigration detention law.
The Fifth Circuit’s decision reinforces that change and removes a long-standing form of judicial review. As a result, undocumented immigrants who entered the United States illegally and were never admitted now face mandatory detention with no opportunity for bond, even if they have lived in the country for many years.
Thus, the 5th Circuit Court of Appeals of the United States just delivered a blow for Federal Habeas Petitioners who illegally entered the U.S. or have not been admitted.
Now “applicants for admission,” i.e., “alien[s] present within the United States who ha[ve] not been admitted” by lawful means. 8 USC §§ 1225(a)(1), 1101(a)(13)(A)” “shall be detained” pending his removal proceeding. 8 U.S.C. § 1225(b)(2)(A). Victor Buenrostro-Mendez, v. Bondi, U.S. Attorney General, Case No. 25-20496.
The U.S. Court of Appeals for the Fifth Circuit covers three states:
- Texas
- Louisiana
- Mississippi
It reviews decisions from the U.S. District Courts within those states, including:
- The Northern, Southern, Eastern, and Western Districts of Texas
- The Eastern, Middle, and Western Districts of Louisiana
- The Northern and Southern Districts of Mississippi
So if a federal immigration Habeas case comes out of a Texas, Louisiana or Missisippi district court, it goes up to the Fifth Circuit and this case applies.
We’ll just have to see how the other Circuits interpret this. Maybe there will be a split in opinion, leading to the Supreme Court having to take this up on appeal.
Quoted case law from: Victor Buenrostro-Mendez, v. Bondi, U.S. Attorney General, Case No. 25-20496, U.S. 5th District Court
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