Two judges on the United States Court of Appeals for the Fifth Circuit, a court dominated by MAGA Republicans, just handed the Trump administration broad authority to lock up millions of immigrants — provided that it can get those immigrants to Texas, Louisiana, or Mississippi.
In the short term, the Fifth Circuit’s decision in Buenrostro-Mendez v. Bondi is likely to accelerate the Trump administration’s already-common practice of taking people arrested in Minnesota and other places, and moving them to Texas where their lawsuits seeking release will be heard by the Trump-aligned Fifth Circuit.
Should the Supreme Court embrace the Fifth Circuit’s reading of federal law, moreover, it will mean that virtually any person captured by federal immigration enforcement will be locked in a detention facility for months or longer, regardless of their ties to the United States or, in many cases, the merits of their claim that they are lawfully entitled to remain in this country.
Buenrostro-Mendez turns on two provisions of federal law, one of which applies to non-citizens who are “seeking admission” to the United States, and another which applies to the “apprehension and detention of aliens” within the US interior. The first provision says that many immigrants seeking admission at the border must be held in a detention facility while the legal proceedings that will determine whether they may enter are pending. The later provision, meanwhile, typically permits immigrants who are arrested inside the US to be released on bond.
For nearly 30 years, after these provisions became law in 1996, every presidential administration including the first Trump administration read immigration law to call for mandatory detention only for certain immigrants “seeking admission” at the border, because that’s what the law actually says. But last July, the Trump administration announced that all immigrants who are found in the United States without being lawfully admitted at the border will be automatically detained.
Since then, the overwhelming majority of federal judges have rejected this new reading of the statute. According to Politico’s Kyle Cheney, “at least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.” These judges are spread throughout the country, and many of the judges who rejected the administration’s novel reading of the statute are Republicans.
Many of these cases arise out of President Donald Trump’s occupation of Minneapolis, where federal courts have rejected Trump’s reading of immigration law and ordered immigrants detained without bond to be released.
Nevertheless, in Buenrostro-Mendez, two Fifth Circuit judges adopted the minority view, concluding that the government must detain all undocumented immigrants found anywhere in the country. The author of the Fifth Circuit’s opinion, Judge Edith Jones, is a former general counsel to the Texas Republican Party who once ruled that a man could be executed despite the fact that his lawyer slept through much of his trial.
It remains to be seen whether the Supreme Court, which has a 6-3 Republican majority, will accept Jones’s outlier position. But even if the justices ultimately decide to reverse Jones, it matters a great deal how quickly they do so. Twice during the Biden administration, after an outlier judge ordered the government to take a harsher approach to immigrants, the Supreme Court sat on the case for nearly an entire year before ultimately reversing the lower court’s decision. The lower court’s decision remained in effect for that entire time.
If the Supreme Court takes a similar approach in Buenrostro-Mendez, that will allow ICE to round up immigrants and ship them to Texas, where they will be locked up pursuant to Jones’s decision, for as long as that decision is in effect.
What does the law actually say about immigrants arrested within the US interior?
Federal immigration law includes one provision (Section 1225, Title 8 of the US Code) which applies to noncitizens arriving at the US border, and a separate provision (Section 1226) which applies to immigrants apprehended within the United States. The latter provision allows immigrants inside the US to be released from detention while their immigration cases are proceeding, sometimes after paying a bond, while the former provision does not.
Section 1225 provides that “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained” pending an immigration proceeding. Because this statute only applies to “an alien seeking admission,” the overwhelming majority of judges have concluded that its call for mandatory detention only applies to, well, immigrants who are seeking to be admitted to the United States.
It does not apply to immigrants who are already in the United States, even if those immigrants are not lawfully present.
Jones’s opinion, meanwhile, tries to get around the law’s reference to “an alien seeking admission” by analogizing this case to a high school senior applying for admission to a college.
Her argument has two parts. First, she notes that the statute defines the term “an alien who is an applicant for admission,” to include immigrants that are present in the United States without going through the legal admissions process. She then argues that the separate term at issue in Buenrostro-Mendez — the words “an alien seeking admission” — should also be read to have the same definition.
Jones claims that “it would make no sense” to say that someone seeking admission to a college is no longer seeking admission “as soon as the applicant clicks ‘submit’ on her application.” Similarly, she claims, an immigrant who passively waits in the United States without formally seeking to be admitted lawfully should also be understood as “seeking admission.”
The problem with this argument, however, is that Jones’s hypothetical college applicant has actually taken an affirmative act to “seek” admission to a college: They submitted an application. Jones is correct that some immigrants within the United States are deemed to be “an applicant for admission” by a statutory definition, but that doesn’t mean that those immigrants have actually sought admission. Jones’s analogy only makes sense if you imagine a high school student who, despite the fact that they decided not to apply to the University of Texas, had an application filed against their will because of some state or federal law.
The mandatory detention provision, in other words, doesn’t apply to all immigrants who are defined by law as an “applicant for admission.” It applies only to a subset of those immigrants who are also “seeking admission.”
Jones’s decision encourages ICE to round up immigrants and ship them off to Texas
One reason why the Fifth Circuit’s decision matters so much is that, in Trump v. J.G.G. (2025), a 5-4 Supreme Court concluded that immigrants who claim that they are illegally detained must do so using a process known as “habeas,” and habeas petitions may only be filed in “the district of confinement” — that is, in the specific place where the person challenging their detention is detained.
Even before the Fifth Circuit’s decision in Buenrostro-Mendez, the Trump administration was already flying many immigrants detained in Minnesota to Texas — no doubt because Trump’s lawyers anticipated that the MAGA-friendly judges on this court would do whatever they could to bolster his deportation plans. One consequence of this already-existing practice is that immigration lawyers in Minnesota must race to file a habeas petition while their client is still located in that state, because if ICE succeeds in removing the immigrant to Texas, then the immigrant will lose their ability to seek relief before a nonpartisan bench.
Another consequence is that, when immigrants sent to Texas are later released, ICE often just kicks them out of the Texas detention facility with no way to make their way back home to Minneapolis.
This practice of snatching up immigrants in non-Fifth Circuit states and flying them to Texas is likely to accelerate, at least while Jones’s opinion in Buenrostro-Mendez remains in effect. Under Jones’s decision, once an immigrant crosses into the Fifth Circuit, they effectively lose their right to seek release or demand a bond hearing until their immigration proceeding is resolved.
What the immigrant parties in Buenrostro-Mendez can do now
Procedurally, the immigrant parties in Buenrostro-Mendez have two paths to seek Supreme Court review of Jones’s decision. One is to file a petition asking the justices to give this case a full hearing and formally reverse Jones’s decision, but that process typically takes months or more. If these immigrants were to seek Supreme Court review tomorrow, the Court is unlikely to release its decision until June of 2027 — meaning Jones’s decision would remain in effect for well over a year.
The immigrants could also ask the Supreme Court to temporarily block Jones’s decision on its “shadow docket,” a mix of emergency motions and other matters that the justices often decide without issuing an opinion explaining their conclusions. If the Court ruled in favor of these immigrants on the shadow docket, that would suspend Jones’s decision until the Supreme Court could give the case a full hearing and decide it using its ordinarily much slower process.
But it’s far from clear that these justices would grant shadow docket relief to immigrants detained in Texas, even if they ultimately decide that Jones’s Buenrostro-Mendez decision is wrong. When the Trump administration has sought the Court’s intervention on the shadow docket, the justices typically act with lightning speed — often handing Trump a victory within weeks. But the Court’s Republican majority frequently slow-walks cases brought by pro-immigrant parties.
During the Biden administration, for example, two Trump-appointed judges handed down decisions requiring President Joe Biden to reinstate a Trump-era border policy, and also forbidding the Biden administration to tell ICE officers to focus on immigrants who endangered public safety or national security, and not on undocumented immigrants who were otherwise law-abiding. While the Supreme Court eventually concluded that both of these lower court orders were not supported by law, it sat on both cases for nearly an entire year, effectively allowing these two Trump judges to set federal immigration policy during that year.
So, even if Jones’s decision is eventually rejected by the Supreme Court — and given the overwhelming consensus among federal judges that Jones is wrong, this outcome is fairly likely — the Court’s Republican majority may still hand Trump a significant victory by sitting on its hands.
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