Introduction

Over the last year, immigration detention litigation has shifted from a niche procedural dispute to a central battleground in removal defense. The flashpoint is DHS’s effort to reclassify broad categories of detained noncitizens—especially long-resident people who entered without inspection (EWI)—as “applicants for admission” subject to mandatory detention under INA § 235(b)(2)(A), 8 U.S.C. § 1225(b)(2)(A), rather than discretionary detention (and routine Immigration Judge bond jurisdiction) under INA § 236(a), 8 U.S.C. § 1226(a).

In Buenrostro-Mendez v. Bondi, Nos. 25-20496 & 25-40701 (5th Cir. Feb. 6, 2026), a divided Fifth Circuit panel effectively endorsed that architecture—validating the government’s no-bond theory in a circuit that already dominates the national detention footprint.

This article does three things. First, it explains why the Fifth Circuit’s endorsement matters beyond the Fifth Circuit. Second, it explains how transfers can shift the controlling law governing bond eligibility and habeas remedies by changing the circuit where a detainee is confined. Third, it maps leading controlling precedents across circuits on the constitutional “backstop” that remains available even when DHS argues detention is statutorily mandatory.

For primer-level refreshers and background, cross-reference relevant MyAttorneyUSA materials, including: (1) MyAttorneyUSA’s analysis of Jennings v. Rodriguez and the post-Jennings framework for statutory vs. constitutional detention challenges; (2) MyAttorneyUSA’s discussion of Matter of Yajure Hurtado and INA § 235(b) detention arguments; and (3) MyAttorneyUSA practice guides on habeas venue/jurisdiction and detention litigation strategy.

The Fifth Circuit’s move: turning interior EWIs into § 1225(b)(2) detainees

A. The classification theory in one sentence

DHS’s key move is categorical: if a noncitizen is “present in the United States” and “has not been admitted,” DHS argues the person is an “applicant for admission,” see INA § 235(a)(1), 8 U.S.C. § 1225(a)(1), and therefore may be detained under INA § 235(b)(2)(A), 8 U.S.C. § 1225(b)(2)(A) (“shall be detained”) while placed in § 240 proceedings.

This theory dramatically narrows the traditional pathway to bond, because immigration courts generally conduct bond hearings under INA § 236(a), 8 U.S.C. § 1226(a). If DHS successfully buckets someone into § 1225(b)(2), the “bond court” model is displaced in favor of a parole-centric model, with release routed through DHS discretion rather than an adversarial custody redetermination hearing.

B. The administrative accelerant: Matter of Yajure Hurtado

The Board’s precedential decision in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (B.I.A. 2025), is widely treated as the doctrinal engine of the no-bond push—both because it frames never-admitted interior detainees as § 1225(b)(2) detainees and because it limits IJ bond jurisdiction on that basis.

For a practice-oriented overview, see MyAttorneyUSA’s coverage on bond eligibility after Matter of Yajure Hurtado and the “§ 235(b) vs. § 236(a)” custody fight.

C. Why the Fifth Circuit endorsement is a big deal

A Fifth Circuit endorsement matters for reasons that have less to do with textual nuance than with institutional effects.

First, the Fifth Circuit is a major detention venue. Even without a formal “rule,” appellate validation in the Fifth Circuit gives DHS a strong litigation posture in a region where detainees from across the country are frequently held.

Second, a Fifth Circuit decision is a force multiplier: it does not just change outcomes in Texas/Louisiana/Mississippi; it changes negotiating leverage everywhere DHS can credibly invoke transfer-driven venue consequences.

Transfers: how moving bodies moves controlling law

Transfers are not merely operational. Even without proof of intent in any particular case, jurisdictional mechanics make the point unavoidable: transfer decisions can change which circuit’s precedent governs a detention challenge.

A. The habeas venue rule that makes geography outcome-determinative

Most detention challenges seeking a bond hearing or release are filed as habeas petitions under 28 U.S.C. § 2241. The Supreme Court’s general rule is that a “core” habeas petition must be filed in the district of confinement against the immediate custodian. Rumsfeld v. Padilla, 542 U.S. 426, 434–47 (2004).

As a practical matter, if DHS transfers a detainee from (say) New York to a facility in Texas, two things often follow:

  1. the most straightforward habeas venue becomes a district within the Fifth Circuit; and
  2. any appeal generally runs to the Fifth Circuit.

This is not speculative; it is a structural consequence of Padilla plus a detention system built around transfers.

B. Transfers can also disrupt immigration court venue and counsel access

Separate from federal habeas venue, transfers can change the detained docket, the immigration court location, and counsel’s ability to appear, obtain records, and maintain consistent attorney-client contact. Even when an IJ bond hearing is theoretically available, transfer churn can create delays and procedural friction that functionally increase detention time.

C. Describing “transfer for advantage” without overstating intent

It is fair to observe that DHS has broad transfer authority, that transfers can shift the governing circuit law for habeas, and that the predictable effects of transfers create institutional incentives, regardless of whether any individual transfer was ordered for that purpose.

What is harder to prove—without discovery—is a specific directive or plan to “manufacture Fifth Circuit jurisdiction.” A careful public-facing account focuses on (1) the jurisdiction mechanics (Padilla), (2) observed transfer patterns in particular cases (timing, frequency, effect on pending habeas), and (3) concrete prejudice (lost access to counsel, missed filings, reset proceedings), rather than speculation about internal motives.

Supreme Court constraints: what Jennings closed, what remains open

Any circuit survey must start with the Supreme Court decisions that define the playing field.

A. Jennings is pre-removal-order detention, not post-order detention

Jennings v. Rodriguez, 583 U.S. 281 (2018), is a pre-final-order detention case. It addressed whether courts could interpret the pre-removal detention statutes—8 U.S.C. §§ 1225(b), 1226(a), and 1226(c)—to require periodic bond hearings as a matter of statutory interpretation or constitutional avoidance. The Court rejected the Ninth Circuit’s statutory “read-in” approach and remanded the constitutional questions for further proceedings.

By contrast, post-removal-order detention is governed primarily by INA § 241, 8 U.S.C. § 1231, and the Supreme Court’s principal decisions in that context include Zadvydas v. Davis, 533 U.S. 678 (2001), and Johnson v. Arteaga-Martinez, 596 U.S. 573 (2022).

B. The constitutional lane remains: due process and prolonged detention

Even after Jennings, constitutional challenges remain available, and circuits have developed (or declined to develop) doctrines about when due process requires a bond hearing.

The core analytic template in many post-Jennings cases is procedural due process balancing under Mathews v. Eldridge, 424 U.S. 319 (1976), often paired with the “clear and convincing” evidentiary standard when liberty is at stake, cf. Addington v. Texas, 441 U.S. 418, 424–33 (1979).

C. Supreme Court decisions limiting classwide relief

Two later decisions further shape litigation posture: Johnson v. Arteaga-Martinez, 596 U.S. 573 (2022), and Garland v. Aleman Gonzalez, 596 U.S. 543 (2022). Among other things, they limit certain statutory theories and constrain broad classwide injunctive approaches, pushing many challenges back toward individualized habeas.

The Second Circuit as a foil: strong constitutional backstop and procedural requirements

To see why DHS might prefer Fifth Circuit geography, it helps to contrast with circuits that have clear controlling precedent requiring meaningful process once detention becomes unreasonably prolonged.

A. Mandatory detention under § 1226(c): Black v. Decker

The Second Circuit’s controlling decision is Black v. Decker, 103 F.4th 133 (2d Cir. 2024). The court held that due process prohibits “unreasonably prolonged” detention under 8 U.S.C. § 1226(c) without an individualized bond hearing and approved a framework requiring the government to justify continued detention by clear and convincing evidence at that hearing. Id. at 147–58.

B. Discretionary detention under § 1226(a): Velasco Lopez v. Decker

For § 1226(a) detainees, the Second Circuit requires the government to carry the burden. Velasco Lopez v. Decker, 978 F.3d 842, 852–57 (2d Cir. 2020) (holding due process was violated by procedures placing the burden on the detainee; government must prove by clear and convincing evidence that continued detention is necessary).

Why this matters for the § 1225(b)(2) fight: DHS’s reclassification strategy is designed to push cases out of § 1226(a) (where Velasco Lopez governs) and into § 1225(b)(2) (where DHS argues there is no IJ bond jurisdiction in the first place).

Other circuits: the controlling precedent landscape on prolonged detention

What follows is not an exhaustive inventory of every detention case. It is a practical survey of the most “controlling” appellate landmarks that (a) district courts typically treat as binding on prolonged detention, and (b) practitioners can cite as a “floor” for what due process requires.

A. First Circuit: no bright line, but habeas remains the vehicle (Reid v. Donelan)

The First Circuit rejected a categorical entitlement to a bond hearing after six months, emphasizing individualized reasonableness challenges via habeas. Reid v. Donelan, 17 F.4th 1, 7–17 (1st Cir. 2021). The First Circuit’s posture is important: it does not offer a clean clock-based rule, but it recognizes that prolonged detention disputes must be litigated as individualized constitutional claims, not statutory “read-ins.”

Practical implication: in the First Circuit, a fact-intensive “reasonableness” inquiry is more likely than an automatic hearing timeline.

B. Third Circuit: due process right to a bond hearing once detention becomes unreasonable (German Santos)

The Third Circuit’s controlling post-Jennings prolonged detention case is German Santos v. Warden Pike County Correctional Facility, 965 F.3d 203, 210–18 (3d Cir. 2020). The court held that when § 1226(c) detention becomes unreasonable, due process requires a bond hearing, and the government must justify continued detention by clear and convincing evidence. Id. at 213–15.

The Third Circuit has also emphasized that reasonableness is a fact-dependent inquiry and has provided multi-factor guidance in prior cases (often cited alongside German Santos) for assessing when detention crosses the constitutional line.

C. Ninth Circuit: strong procedural protections at prolonged-detention bond hearings (Singh v. Holder)

The Ninth Circuit is distinctive because it has long required robust procedures once a prolonged-detention hearing is required. Singh v. Holder, 638 F.3d 1196, 1203–05 (9th Cir. 2011) (holding the government bears the burden by clear and convincing evidence at prolonged-detention bond hearings and requiring an adequate record).

Post-Jennings, many Ninth Circuit disputes turn on whether and when due process requires a hearing in a particular posture; however, Singh remains widely cited for what procedures must look like once the hearing is constitutionally compelled.

D. Sixth Circuit: older “reasonable period” logic exists, but post-Jennings viability is more limited (Ly v. Hansen)

The Sixth Circuit’s frequently cited decision is Ly v. Hansen, 351 F.3d 263, 269–72 (6th Cir. 2003), which framed mandatory detention as constitutionally permissible only for a reasonable period. However, because Jennings rejected statutory “reasonableness” read-ins to the detention statutes, Ly’s statutory logic is often treated as less directly controlling today than circuits that have explicitly built post-Jennings constitutional frameworks (e.g., Second and Third).

Practical implication: Ly can support constitutional arguments, but courts often demand a post-Jennings constitutional articulation rather than a pre-Jennings statutory one.

E. Eleventh Circuit: favorable precedent was vacated; doctrine is less settled (Sopo)

The Eleventh Circuit’s earlier favorable prolonged-detention opinion was vacated as moot, leaving no durable controlling rule of the same clarity as Black or German Santos. Sopo v. U.S. Att’y Gen., 890 F.3d 952, 953–54 (11th Cir. 2018) (dismissing as moot and vacating prior opinion).

Practical implication: detention challenges in the Eleventh Circuit more often hinge on district-court doctrine and fact-specific due process analysis rather than a single controlling circuit test.

F. Eighth Circuit: significant headwinds (illustrative restrictive approach)

The Eighth Circuit has been described in recent commentary as taking a restrictive view of any constitutional entitlement to a bond hearing during prolonged mandatory detention, emphasizing that so long as removal remains possible, due process may not require a bond hearing. In that circuit, the most current authority should be confirmed for the specific statutory bucket—§ 1226(c) vs. § 1225(b) vs. § 1231—because posture can be outcome-determinative.

How this circuit landscape interacts with the Fifth Circuit’s § 1225(b)(2) theory

The “no-bond” reclassification strategy and transfer dynamics together can function as a jurisdictional lever.

  1. If DHS wins the classification fight (the detainee is in § 1225(b)(2)), bond is often off the table as a statutory matter, and release becomes parole-centric.
  2. If detention becomes prolonged, the best lifeline is often a constitutional habeas claim for an individualized hearing (or release).
  3. Which circuit controls can determine whether that constitutional lifeline is relatively strong (Second/Third/Ninth), mixed (First), unsettled (Eleventh), or hostile/restrictive.

That is why transfers matter even without proving intent: by shifting the site of confinement, DHS can shift the governing precedent that determines whether prolonged detention yields a meaningful hearing and what procedures apply at that hearing.

Practical guidance: building a record that works across circuits

Even though the doctrine varies, the best litigation posture tends to share common components.

A. Identify and litigate the statutory “bucket” early

Before briefing due process, classification should be litigated. When DHS claims § 1225(b)(2), clarity is needed on the legal and factual predicates: admission history, parole history, charging language, and DHS position statements about custody authority.

B. Document prejudice from transfers

Courts respond to concrete facts. A strong record shows the effects on counsel access, evidence gathering, hearing schedules, medical care, and the ability to present a bond or parole package.

C. Frame due process with Mathews factors and individualized facts

Across circuits, the strongest prolonged-detention arguments tend to track Mathews v. Eldridge, 424 U.S. 319 (1976): the private liberty interest, the risk of erroneous deprivation under existing procedures, the value of additional safeguards (a hearing; burden allocation; ability-to-pay consideration; alternatives to detention), and the government’s interests.

D. When a hearing is available, press for clear-and-convincing burden and ability-to-pay findings

Where circuit law supports it (e.g., Second, Third, Ninth), the record should seek: (1) government burden by clear and convincing evidence; (2) explicit findings; (3) consideration of ability to pay; and (4) meaningful alternatives to detention. See, e.g., Black, 103 F.4th at 147–58; Velasco Lopez, 978 F.3d at 852–57; German Santos, 965 F.3d at 213–15; Singh, 638 F.3d at 1203–05.

Practical consequences show up quickly. In many jurisdictions, bond court is the first meaningful opportunity to test the government’s custody claims, develop evidence of community ties, and propose a supervised release plan. If DHS places a detainee in the § 1225(b)(2) category, that forum may be unavailable, and the litigation posture shifts. The release pathway becomes parole under INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A), which is discretionary, case-by-case, and not designed as a routine substitute for an adversarial hearing. Meanwhile, transfer churn can compound detention by scattering records, interrupting attorney access, and forcing re-filings. Those effects are not abstract: they change timelines, costs, and outcomes.

Three practical questions tend to frame early strategy in these cases. First, what statutory bucket is DHS invoking, and is that classification contestable on the facts or the charging posture? Second, what circuit’s precedent will govern a prolonged-detention challenge if detention extends, and how quickly can a record be built to support constitutional relief? Third, what parallel path—parole advocacy, stipulations, prosecutorial discretion, or expedited merits scheduling—can reduce detention risk while litigation unfolds?

In reader terms, the fight is increasingly about process as much as merits. A detainee who once expected a bond hearing in days may now face weeks of motion practice, a parole packet, and federal habeas briefing just to reach a custody review. That shift is why circuit precedent and detention geography have become central in detention advocacy.

Bottom line

The Fifth Circuit’s February 2026 endorsement of DHS’s no-bond architecture is not just another circuit opinion. It is a strategic inflection point in a national detention regime where classification (§ 1225 vs. § 1226) can eliminate bond court, and transfers can shift the governing circuit law that defines the constitutional backstop for prolonged detention.

Even when DHS cannot change the statute, it can change the playing field—by reclassifying custody authority and moving the case into a circuit where the due-process “backstop” is weaker, slower, or less settled.