On Friday, the full Fifth U.S. Circuit Court of Appeals ruled 10-7 that immigrants who entered illegally and were never admitted can be held without a bond hearing while their removal cases proceed. The ruling covers Texas, Louisiana and Mississippi. I think the court read the law correctly. Detention without bond is defensible only when the hearing that follows arrives quickly, and the system built to deliver those hearings is short of judges.
I studied criminal justice and constitutional law at Northeastern, and as an expert witness, I’ve been deposed and have testified in state and federal courts. I read this opinion twice, once as a citizen and once as someone who has watched what a process is supposed to produce.
The case, Sosnava Rodriguez v. Ortega, involved three men who had lived here since 2011, since 2012 and for more than 22 years without ever being admitted. Judge Cory Wilson wrote for the majority that the Constitution entitles them to no “additional proceedings beyond what Congress has provided” before they are detained pending removal. Congress did write the rule. Federal law treats anyone present without admission as an applicant for admission, and an applicant who isn’t clearly and beyond a doubt entitled to enter “shall be detained” for removal proceedings.
A bond hearing asks whether a person is a flight risk or a danger to the community while the case proceeds. The removal case, where a judge decides whether the person may stay, goes on separately. The majority also declined to say when detention without a hearing becomes unconstitutional. The Supreme Court has agreed to review the statutory question, after the 5th and 8th Circuits sided with the administration and most other appeals courts to rule went the other way.
The Supreme Court has been here before. In 2003, Chief Justice William Rehnquist wrote that detention during removal proceedings “is a constitutionally permissible part of that process.” Congress had evidence that more than 20 percent of released deportable criminal aliens skipped their hearings. Justice Antonin Scalia, dissenting in a 2001 case, rejected a claimed right to release into the country for a person with a final removal order. “There is no such constitutional right,” he wrote.
The no-show problem is real. In fiscal 2025, immigration judges issued 485,456 removal orders, and 306,557 of them, about 63 percent, came in absentia. DHS records show about 2.1 million final removal orders, 1.9 million of them executable, as of September. The administration’s January 2025 executive order directs enforcement against all removable immigrants, which puts more weight on every courtroom and every detention bed.
Anyone who has coached youth sports knows success comes from clear rules, easy reminders and a coach who follows up. Seinfeld fans remember the rental-car agent who took the reservation and couldn’t hold it. Washington took the reservation. The immigration courts had 557 permanent judges at the end of the first quarter of fiscal 2026, down 178 from the fiscal 2024 peak of 735, and the backlog has only recently dipped below 3.5 million cases. By my arithmetic, that’s roughly 6,000 cases per judge, though the two figures come from different dates. The agency asked for up to 600 military lawyers to serve as temporary judges and had appointed 52 as of March. Rehnquist’s opinion rested on detentions that lasted roughly a month and a half in most cases. That was 2003.
Critics have a fair argument. Judge Dana Douglas, in dissent, warned that “unchecked, executive authority to arrest and detain, indefinitely, echoes fearfully from history.” The Supreme Court has held that the Due Process Clause applies to everyone in the United States, whether their presence is lawful or unlawful. Before ordering someone removed in absentia, a judge must find clear, unequivocal and convincing evidence of notice, and a person who never received notice can reopen the case at any time. One study found 15 percent of such orders from 2008 to 2018 were later rescinded. I’d add that Demore involved immigrants with criminal convictions, and one of the three men here has lived in this country for more than two decades.
Congress should legislate the answer. Lawmakers, not judges, should settle the statute and put a clock on no-bond detention. The earlier 2-1 panel picked 90 days, and Congress can pick its own number. The Supreme Court has used a clock before. In Zadvydas, it treated six months as the presumptively reasonable period for holding someone with a final removal order, so a legislated limit for the earlier stage would have precedent behind it. Then fund the judges to meet it. Every extra week a detainee waits for a hearing is a week taxpayers pay for a bed and nobody can say why. Make notice work too. The statute puts the burden on immigrants to keep a current address on file, and every landlord and bank expects the same. As of July, DHS had issued more than 103,000 fines totaling more than $84 billion to people who stayed after removal orders and had reportedly collected only $1.2 million. In private credit, we call a loan you can’t collect a gift.
In Rudd’s translation of De Legibus, Cicero says the safety of the people shall be the highest law. A republic honors that by holding people who may disappear and honors its own laws by deciding their cases quickly. The 5th Circuit supplied the authority. Competence is the harder part, and government has a thin record there. Without judges, a clock and working notice, a legal victory becomes another line item nobody can find.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He writes about issues in finance, constitutional law, national security, human nature, and public policy.