Drafted in collaboration with RAICES and Texas Civil Rights Project

I. Background

Immigration detention in the United States operates at the intersection of statutory authority and constitutional limits. While the Immigration and Nationality Act (INA) provides the government with broad detention powers, these powers are not unlimited, and habeas corpus remains a critical mechanism to challenge unlawful confinement. Recent decisions, including Buenrostro-Mendez v. Bondi, have narrowed certain statutory avenues for release, but they do not eliminate constitutional protections. Procedural due process-ensuring that detainees receive individualized review and meaningful hearings-continues to provide a viable path for challenging detention under 8 U.S.C. § 1225. Understanding this legal landscape is essential for advocates seeking to safeguard liberty while navigating evolving Fifth Circuit precedent.

II. Life After Buenrostro: Procedural Due Process

Although the statutory path to release in Yajure Hurtado habeas cases is foreclosed for the time being due to the Fifth Circuit’s decision in Buenrostro, there is still a viable path forward: procedural due process. Buenrostro does not address, and therefore does not foreclose, the argument that an immigrant detained under 8 U.S.C. § 1225 is entitled to a bond hearing at the beginning of their case, or to release, as a matter of constitutional law. Nor does it diminish the long-standing role of habeas corpus as a foundational mechanism for challenging unlawful executive detention. All persons within the United States possess a cognizable, protectable liberty interest in freedom from physical restraint in the most basic constitutional sense, and habeas corpus remains the fundamental instrument for safeguarding that liberty by ensuring immigration detention is not arbitrary, unlawful, or inconsistent with due process. In line with this principle, multiple federal courts in the Fifth Circuit have granted habeas relief on procedural due process grounds notwithstanding the statutory limitations addressed in Buenrostro.

Mathews v. Eldridge Procedural Due Process Analysis

To determine whether a civil detention violates a detainee’s due process rights, courts apply the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Those factors are: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335, 96 S.Ct. 893; see also Hernandez-Fernandez v. Lyons, 2025 WL 2976923 at *8 (W.D. Tex. Oct. 21, 2025).

1. Private Interest

“‘The interest in being free from physical detention’ is ‘the most elemental of liberty interests.’” Martinez v. Noem, No. 5:25-CV-01007-JKP, 2025 WL 2598379, at *2 (W.D. Tex. Sept. 8, 2025) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004)). Federal courts in Texas have found that noncitizens have a protected liberty interest in their freedom, regardless of citizenship status, when they have spent time living, working, or supporting a family in the interior of the United States. See, e.g., Lopez Miranda v. Flores, No. EP-25-CV-584-KC, 2025 WL 3901908, at *3 (W.D. Tex. Dec. 10, 2025); Chinchilla v. De Anda-Ybarra, No. EP-25-CV-00548-DB, 2025 WL 3645178 (W.D. Tex. Dec. 16, 2025) (finding noncitizen has protectable liberty interest because he was “living in the United States for over four years and attends his local church”); Hernandez-Fernandez, 2025 WL 2976923 at *9 (“Because he spent nearly three years at liberty in the United States, [petitioner] possesses a cognizable interest in his freedom from detention.”).

2. Risk of Erroneous Deprivation

The government’s refusal to provide bond hearings creates a high risk of erroneous deprivation, since the process afforded in removal proceedings does “not ameliorate the risk that [a petitioner] will be erroneously deprived of his liberty while his removability is assessed.” See Rojas v. Noem, 2025 WL 3038262 at *3-*4. Bond hearings that “conduct individualized custody determinations considering flight risk and dangerousness” are the precise “type of proceeding that would give [a noncitizen] an opportunity to be heard and to receive a meaningful assessment of whether he is dangerous or likely to abscond.” Id. at *4.

3. Government’s Interest

Regardless of the government’s purported interest in enforcing its interpretation of the immigration detention statutes, a habeas petitioner’s “constitutional interest in his liberty exists above and apart from the INA.” Rojas, 2025 WL 3038262 at *4 (citing A.A.R.P. v. Trump, 605 U.S. 91, 94 (2025) (“[T]he Fifth Amendment entitles aliens to due process of law in the context of removal proceedings.”)). Further, while the government “has an interest in ensuring that noncitizens appear for their removal hearings and do not pose a danger to the community,” such interest “would be squarely addressed through a bond hearing.” Id. (citing Martinez v. Noem, 2025 WL 2598379 at *4 (W.D. Tex. Sep. 8, 2025)).

Fifth Circuit Precedent on Procedural Due Process

Federal courts in the Fifth Circuit have repeatedly granted release on procedural due process grounds. Here is a list of a few helpful cases to reference in drafting a procedural due process argument:

● Hassen v. Noem, 3:26-cv-00048-DB (W.D. Tex. Feb. 9, 2026)1

● Clemente Ceballos v. Garite, 3:26-cv-00312-DB (W.D. Tex. Feb 10, 2026)2

● Santiago v. Noem, 2025 WL 2792588 (W.D. Tex. Oct. 2, 2025)

● Hernandez-Fernandez v. Lyons, 2025 WL 2976923 (W.D. Tex. Oct. 21, 2025)

● Parada-Hernandez v. Johnson, 2025 WL 3465958 (N.D. Tex. Oct. 29, 2025), report and recommendation adopted, 2025 WL 3463682 (N.D. Tex. Dec. 2, 2025)

● Rojas v. Noem, 2025 WL 3038262 (W.D. Tex. Oct. 30, 2025)

● De Leon Hernandez v. Bondi, 2025 WL 3217037 (W.D. La. Nov. 18, 2025)

● Chinchilla v. De Anda-Ybarra, 2025 WL 3645178 (W.D. Tex. Dec. 16, 2025)

● Vieira v. De Anda-Ybarra, 2025 WL 2937880 (W.D. Tex. Oct. 16, 2025)

● Cruz-Reyes v. Bondi, (S.D. Tex. Feb. 3, 2026)

● Singh v. Taylor, 2026 WL 360913 (W.D. Tex. Feb. 9, 2026)

● Aguila v. Warden, ERO El Paso Camp East Montana, (W.D. Tex. Feb. 9, 2026)

1 Granting habeas relief after acknowledging the Fifth Circuit’s precedential decision in Buenrostro-Mendez v. Bondi and noting the case “does not change the case’s outcome on procedural due process grounds.”

2 Same as footnote 1.

 

III. Preserving the Statutory Claim

Advocates should also consider briefly raising the statutory argument rejected by Buenrostro in order to preserve that argument. Given that the same issue is pending before various courts of appeals, there is a possibility that either the en banc Fifth Circuit or the Supreme Court may address the issue and stay or reject the panel’s conclusion. Preserving the statutory claim will maximize your client’s ability to benefit from any such decision.

At the same time, lawyers have a duty of candor to the court that requires disclosure of controlling, adverse authority. See Tex. Disciplinary R. Prof’l Conduct 3.3(a)(4); ABA Model R. Prof’l Conduct 3.3(a)(2). However, arguments raised only in footnotes are often deemed waived. See, e.g., White Glove Staffing, Inc. v. Methodist Hosps. of Dallas, 947 F.3d 301, 308 (5th Cir. 2020). Accordingly, advocates who choose to preserve the statutory argument should state that the government has misinterpreted the statute, expressly acknowledge that Buenrostro adversely decided the issue, and clearly note that the argument is raised solely to preserve further review.

 

IV. Conclusion

Although Buenrostro forecloses a statutory basis for release in the Fifth Circuit for now, it leaves untouched the constitutional limits on immigration detention. Procedural due process remains a viable and effective ground for habeas relief, as reflected in numerous recent decisions within the Fifth Circuit. Practitioners should continue to advance due process claims under Mathews v. Eldridge while preserving statutory arguments for further appellate review. Habeas corpus remains the central mechanism for ensuring that immigration detention complies with the Constitution.