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Fifth Circuit Says Gov’t Can Violate Migrants’ Due Process Rights… But Only For 90 Days

Legal Issues

from the rights-aren't-rights-if-they're-delayed dept

Wed, Jul 8th 2026 09:34am -

Tim Cushing

Good news!(?)

It’s good news of sorts, so we’ll go with a qualified "good news!" here. There’s a little table setting that needs to be done to explain why it’s better now than it was before the Fifth Circuit Appeals Court continued ingratiating itself to race-motivated tyranny.

I realize that’s not a great pitch in terms of "good news," but it’s all I have. When Trump first started his race war in the United States, it seemed almost inevitable that courts would shut him down. Trump advisors set goals (I’m looking at you, Stephen Miller/Happy Time Harry) that couldn’t possibly be met without violating rights. No more "worst of the worst." It was just everyone who looked kinda brown.

Trump invoked the Alien Enemies Act, hoping that this would allow him to treat anyone of any foreign nationality the way we treated people of Japanese descent during World War II.

To be fair, courts resisted this argument. And most courts made it extremely clear that this nation has always extended constitutional rights to non-citizens who reside in the US.

But not the Fifth Circuit. The appellate circuit hosting most of Trump’s favorite detention centers ruled in February that those rights simply don’t apply to whoever this administration is seeking to get rid of. According to this decision, the government was well within its rights to detain migrants indefinitely without giving them access to their due process rights.

Consequently (and coupled with Justice Kavanaugh’s blessing of stops based on little more than skin color and/or perceived accent), detainees arrested anywhere else in the country were speedily delivered to detention centers in the Fifth Circuit to ensure they weren’t allowed to challenge their arrests or detentions.

That was February. It’s now July. And for whatever reason, the Fifth Circuit has walked back a bit of its earlier decision. Now, it says some rights apply to migrants detained by the government, but only after a rights-free waiting period.

The decision [PDF] grants the government deference it definitely doesn’t deserve. It does, however, make it clear the Constitution still needs to be respected… but not immediately.

We understand the recent interpretation in Buenrostro-Mendez that detention is mandatory for anyone who entered this country without authorization is creating enormous difficulties in district courts. Thousands of immigration detainees are filing applications for writs of habeas corpus in United States district courts. Our resolution of this case requires the executive branch to provide bond hearings through its own procedures. That shifts the location of the burden, but it leaves its size unaffected. Nonetheless, the answer to those difficulties cannot include ignoring the Constitution.

That’s the court referring to its February decision — the one in which it said the government can detain migrants without bond indefinitely, effectively denying them their 14th Amendment rights. In this case, it shifts to the Fifth Amendment. In doing so, it comes to a conclusion that seems diametrically opposed to its original ruling.

These two sets of rights are almost inseparable in this context. But that’s not the context the Fifth Circuit used to deny this right (over plenty of dissent) in the Buenrostro-Mendez case. In that one, the court pretended there was no difference between detaining people trying to illegally cross the border and detaining people who had already been in this country for weeks, months, years, or decades. It decided any migrant was basically caught in the act of illegal entry and, in doing so, were not entitled to constitutional protections.

In this case, it’s the Fifth Amendment that gets its day in court. And since it’s a different right, the court somehow manages to come to a conclusion that makes a mockery of its original (and fantastical) take on the phrase "upon entry."

It also must be noted that the judges who handled this case weren’t the same ones who handled the previous case. The previous case was overseen by two of the most blatantly right-wing judges in the Fifth Circuit: Edith Jones and Kyle Duncan.

That — more than anything else — most likely explains why the same court has decided migrants have rights, even if it’s not willing to let migrants use them until after some weird, not-supported-by-law probationary period has passed.

After a lot of discussion of earlier cases,...