Abstract

The Fifth Circuit’s recent decision in Buenrostro-Mendez v. Bondi held—on statutory grounds—that INA § 235(b)(2)(A) does not itself confer a right to a bond hearing for certain noncitizens detained pending removal proceedings.1 Commentators have portrayed subsequent district-court bond-hearing orders as defiance of circuit law.2 This Article argues the opposite: properly understood, Buenrostro-Mendez leaves constitutional adjudication squarely on the table, and district courts act within their Article III duty when they order individualized custody hearings as a constitutional remedy rather than a statutory entitlement.

The Western District of Texas’s order in Cumbe Lema illustrates the point. It expressly denies statutory relief under Buenrostro-Mendez while granting habeas relief on procedural due process grounds and requiring a prompt IJ bond hearing at which the government must justify continued detention by clear and convincing evidence of dangerousness or flight risk—or release the detainee.3 Building from Jennings v. Rodriguez (statutory interpretation does not supply bond hearings),4 Mathews v. Eldridge (procedural due process balancing),5 and Dep’t of Homeland Sec. v. Thuraissigiam (recognizing due process for noncitizens with “established connections”),6 this Article defends district courts’ authority to require constitutionally adequate process in prolonged civil detention, including allocation of the burden to the government and a clear-and-convincing standard where liberty is at stake.7

Introduction

In mid-2025, DHS began implementing a “new interpretation” of INA § 235(b) that treated large numbers of long-present noncitizens apprehended in the interior as “applicants for admission” subject to mandatory detention without bond. The resulting habeas litigation raised a familiar post-Jennings question in a new posture: if Congress has not provided a bond mechanism (or a court cannot read one in), what does the Constitution require when civil immigration detention becomes prolonged and unreviewed?

The Fifth Circuit’s answer in Buenrostro-Mendez was narrow: as a matter of statutory structure, the government’s reading of the detention provisions was correct, and the district courts’ statutory bond-hearing orders were reversed and remanded.1 But the public debate rapidly became broader. One prominent commentary accuses district judges of “bypassing” binding circuit precedent by continuing to order bond hearings on due process theories—especially for parolees, whom the commentator argues remain legally “at the threshold of initial entry.”2

This Article responds: the “bypass” framing collapses the central distinction Jennings itself insists upon—between (a) statutory entitlement to bond hearings and (b) constitutional minima that constrain civil detention. District courts are not free to invent statutory bond rights after Jennings; but they are obligated to adjudicate constitutional claims the circuit has not resolved and to grant effective habeas relief when unconstitutional detention is shown.

What Buenrostro-Mendez Actually Decided—and What It Did Not

A. The Holding: Statutory Interpretation, Reversal, Remand

The Fifth Circuit held that the government’s detention position under the INA’s text and structure was correct, reversed the district courts, and remanded “for further proceedings consistent with this opinion.”1

B. The Signal: Constitutional Questions Remain Live

Two features matter for downstream litigation.

First, Buenrostro-Mendez is a statutory decision in the Jennings mold: it rejects reading bond hearings into detention statutes by interpretation alone.1 4

Second, the panel reversed and remanded rather than foreclosing constitutional litigation; indeed, the remand posture underscores that further proceedings—potentially including constitutional claims not reached—remain available.1

The “Bypass” Critique Misdescribes What District Courts Are Doing

The “bypass” narrative assumes that Buenrostro-Mendez resolved the due process question. It did not.1 District courts that order custody hearings post-Buenrostro-Mendez can (and should) do so as constitutional remedies, not statutory entitlements.

That is precisely how Cumbe Lema proceeds: Judge Cardone denies statutory relief under Buenrostro-Mendez while granting relief on procedural due process grounds, expressly noting that the Fifth Circuit “did not reach the due process question.”3

Why Procedural Due Process Can Require a Custody Hearing Even When the Statute Does Not

A. Jennings Forecloses Statutory “Reading In,” Not Constitutional Relief

Jennings rejects using constitutional avoidance to manufacture bond-hearing requirements that Congress did not enact.4 But it does not decide whether the Constitution independently requires hearings in prolonged detention—hence the post-Jennings shift from statutory to constitutional litigation.

B. The Controlling Framework Is Mathews, Not Categorical Labels

Procedural due process turns on the Mathews v. Eldridge balancing test: (1) the private interest, (2) the risk of erroneous deprivation and value of added safeguards, and (3) the government’s interests and administrative burdens.5

Applied to prolonged civil immigration detention without a meaningful individualized custody determination, the balance supports at least a prompt bond hearing:

  • Private interest: bodily liberty is at the core of due process.
  • Risk of error: categorical detention rules predictably detain people who are neither dangerous nor flight risks; individualized review reduces that error.
  • Government burden: custody determinations are administratively familiar and already occur in other detention contexts.

C. Burden and Standard of Proof: Why “Clear and Convincing” and Why the Government Bears It

A common objection is that immigration detainees generally bear the burden for release. But due process procedure is not dictated by agency default. Where the state restrains liberty through civil process, the Supreme Court has required heightened proof—“clear and convincing evidence”—as a due process baseline in analogous civil confinement settings.7

That logic is reflected in Cumbe Lema, which orders a bond hearing where “the Government shall bear the burden” by “clear and convincing evidence of dangerousness or flight risk,” or else release under conditions.3

Parole and “Entry Fiction” Do Not Eliminate Procedural Due Process Constraints on Detention

Commentary arguing for categorical “no-bond” outcomes often leans on the “entry fiction”: parole preserves non-admission status, so parolees remain (legally) at the threshold of entry.8) 9 But that move conflates statutory admission doctrine with constitutional constraints on detention procedure.

  1. Thuraissigiam’s distinction cuts toward due process for long-present individuals. The Court reaffirmed that noncitizens with “established connections” have due process rights in removal proceedings, distinguishing that class from persons apprehended at or near entry seeking only minimal review.6
  2. Duarte’s “legal fiction” is about admission status, not a due-process blank check. Duarte explains parole as leaving a person legally unadmitted (a doctrine with real statutory consequences),9 but that proposition does not itself answer what process is constitutionally required when the government physically restrains a person inside the United States for months without meaningful individualized custody review.
  3. The interior-apprehension posture magnifies the due-process stakes. Cumbe Lema involves a petitioner alleged to have lived in the United States for decades before first detention—facts that sharpen the “established connections” inquiry and the procedural due process calculus.10

Why Cumbe Lema Is the Right Model After Buenrostro-Mendez

The strongest defense of post-Buenrostro-Mendez district-court bond-hearing orders is not that § 235(b) quietly contains bond hearings. It is that habeas courts must supply effective relief when detention violates the Constitution.

Cumbe Lema provides a clean template:

  • Concedes the statutory point: no bond hearing entitlement “under the statute,” so statutory relief is denied.3
  • Separately adjudicates due process: explains why Buenrostro-Mendez does not control the due process claim because the panel did not reach it.3
  • Orders a constitutionally structured remedy: a prompt IJ bond hearing with government burden and clear-and-convincing standard, or release under reasonable conditions.3

That approach is not “bypassing.” It is Jennings-compliant constitutional judging.

Conclusion

The “bypass” critique treats Buenrostro-Mendez as if it silently resolved the due process question. But Buenrostro-Mendez is a statutory decision, and district courts remain responsible for unresolved constitutional claims.1 The Cumbe Lema order shows how to respect circuit statutory precedent while vindicating procedural due process: deny statutory relief, decide the constitutional question, and order a narrowly tailored custody-hearing remedy where the government must justify continued civil confinement.3

  1. Buenrostro-Mendez v. Bondi, Nos. 25-20496 & 25-40701, 2026 WL 323330, at *1 (5th Cir. Feb. 6, 2026).
  2. Andrew R. Arthur, District Court Judges ‘Bypass’ Fifth Circuit Mandatory Detention Order, Ctr. for Immigr. Stud. (Feb. 13, 2026).
  3. Order, Cumbe Lema v. De Anda-Ybarra, No. EP-26-CV-249-KC, at 2–3 (W.D. Tex. Feb. 9, 2026), ECF No. 7.
  4. Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
  5. Mathews v. Eldridge, 424 U.S. 319 (1976).
  6. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020).
  7. Addington v. Texas, 441 U.S. 418 (1979).
  8. Andrew R. Arthur, District Court Judges ‘Bypass’ Fifth Circuit Mandatory Detention Order, Ctr. for Immigr. Stud. (Feb. 13, 2026
  9. Duarte v. Mayorkas, 27 F.4th 1044 (5th Cir. 2022).
  10. Order, supra note 3, at 1.