Current as of July 28, 2026. This area of law is changing rapidly. Several cases cited below are pending Supreme Court review or en banc rehearing. Do not rely on any circuit’s current position without confirming status with counsel.

When someone is taken into immigration detention, two separate legal questions determine whether they have any right to a bond hearing. The first question is which statute authorizes the detention, because the answer controls what procedural rights are available. The second question is whether detention under the mandatory detention statute becomes unconstitutional when it continues long enough without any individualized review.

Federal courts are currently divided on both questions, and the answers in New Jersey and New York differ significantly from the answers in Texas and much of the South.

Question One: What Statute Authorizes the Detention?

The Statutory Distinction

Not all immigration detention operates under the same legal authority. Under 8 U.S.C. § 1226(a), the government may arrest and detain a noncitizen pending removal proceedings and must provide a bond hearing before an immigration judge. Under 8 U.S.C. § 1226(c), certain noncitizens with criminal convictions are subject to mandatory detention, and no bond hearing is available before an immigration judge.

A separate statute, 8 U.S.C. § 1225(b)(2)(A), governs individuals the government treats as “applicants for admission.” Where this statute applies, the government argues that detention without bond is also authorized. Whether someone who entered the United States without being inspected by an immigration officer is an “applicant for admission” subject to § 1225(b)(2)(A), or a person already present who must be detained under § 1226(a) with access to a bond hearing, has become one of the central disputes in immigration detention litigation in 2026.

The Circuit Split on Question One

The Fifth and Eighth Circuits have sided with the government. The Fifth Circuit held in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. Feb. 6, 2026), that individuals who entered without inspection are applicants for admission subject to § 1225(b)(2)(A), which permits detention without bond. The Eighth Circuit reached the same conclusion in Avila v. Bondi (8th Cir. Mar. 25, 2026).

Three other circuits have ruled the opposite way. The Second Circuit held in Cunha v. Freden, No. 25-3141 (2d Cir. Apr. 28, 2026), that individuals who have established residence in the United States are not applicants for admission and must be detained under § 1226(a), which carries a right to a bond hearing. The Sixth Circuit reached the same conclusion in Lopez-Campos v. Raycraft, No. 25-1965 (6th Cir. May 11, 2026), and the Eleventh Circuit in Hernandez Alvarez v. Warden, Federal Detention Center Miami.

The government has petitioned the Supreme Court for review of the Sixth Circuit’s decision in Lopez-Campos. That petition is pending. The Court has not yet acted on it.

The Fifth Circuit En Banc Development

On July 2, 2026, a Fifth Circuit panel ruled in Sosnava Rodriguez v. Ortega, No. 26-50183, that individuals detained under § 1225(b)(2) must receive a bond hearing within 90 days. On July 10, 2026, the Fifth Circuit granted rehearing en banc and vacated the panel decision. Mandatory detention without bond hearings is back in effect in Texas, Louisiana, and Mississippi pending the en banc ruling, with briefing scheduled to complete in September 2026. The vacatur of the panel decision did not disturb Buenrostro-Mendez, which remains the controlling authority on the statutory question in the Fifth Circuit.

For people detained in New Jersey and New York, the question-one picture is generally more protective given the Second Circuit’s decision in Cunha v. Freden. Whether the Third Circuit would reach the same conclusion as the Second is not yet settled. Detainees in New Jersey who believe they are being held under the wrong statute should consult counsel about their specific detention authority.

Question Two: Does Prolonged Mandatory Detention Under § 1226(c) Require a Bond Hearing?

The Legal Framework After Jennings

Even when the government’s authority to detain under § 1226(c) is not disputed, the Constitution may limit how long that detention can last without any procedural protection. The Supreme Court addressed the statutory side of this in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), which rejected the argument that § 1226(c) contains an implicit six-month time limit after which a bond hearing is automatically required. The Jennings majority held that the statute means what it says: the government may hold covered individuals without a bond hearing.

But Jennings expressly left open the constitutional question: whether the Fifth Amendment’s due process guarantee places its own independent limit on the duration of mandatory detention. That question has produced a separate circuit split.

The Third Circuit: Constitutional Protection for Prolonged Detention

For people detained in New Jersey and Delaware, the governing framework comes from a sequence of Third Circuit decisions.

Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011), held that § 1226(c) implicitly authorizes detention for a reasonable period only, and that unreasonably prolonged detention violates due process. Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015), extended Diop, finding that after roughly one year categorical presumptions of flight risk and dangerousness are no longer constitutionally sufficient and the government must justify continued custody at a bond hearing, bearing the burden by clear and convincing evidence.

When Jennings rejected statutory readings implying time limits, it abrogated the statutory basis on which Diop and Chavez-Alvarez originally rested. The Third Circuit addressed that directly in German Santos v. Warden Pike County Correctional Facility, No. 19-2663, 965 F.3d 203 (3d Cir. July 7, 2020). The court held that Jennings did not undermine the constitutional holding in Diop: because the right to a bond hearing after unreasonably prolonged detention rests on Fifth Amendment due process, not statutory interpretation, it survived Jennings intact. After more than 30 months of detention, the court found that German Santos had a constitutional right to a bond hearing at which the government bore the burden.

The practical rule in the Third Circuit today: mandatory detention under § 1226(c) that extends well beyond one year triggers a constitutional right to a bond hearing. The government bears the burden of justifying continued custody by clear and convincing evidence.

The Second Circuit: Black v. Decker

For people detained in New York, Connecticut, and Vermont, the controlling authority is Black v. Decker (2d Cir. 2024). The Second Circuit held there that due process requires a bond hearing once § 1226(c) detention becomes unreasonably prolonged, with the government bearing a clear and convincing evidence burden. The Second and Third Circuits are aligned on this question.

The Other Side: Fifth and Eighth Circuits

The Fifth and Eighth Circuits have not recognized a constitutional right to a bond hearing for prolonged mandatory detention under § 1226(c). In those circuits, the government may continue § 1226(c) detention without any individualized hearing regardless of how long the detention has lasted.

The Supreme Court’s Pending Case

On June 15, 2026, the Supreme Court granted certiorari in Genalo v. Black, No. 25-886, reviewing the Second Circuit’s Black v. Decker decision on the prolonged § 1226(c) detention question. The grant is limited to the appeal of the petitioner identified as G.M., and the Court has ordered supplemental briefing on mootness. No argument date has been set. Argument is expected in the term beginning October 2026. A ruling would resolve the question-two circuit split and establish a national standard.

What This Means If Your Family Member Is Detained

If someone you know is held in immigration detention in New Jersey or New York, both questions above may determine the legal strategy. Is the government relying on § 1226(c) based on a criminal conviction, or is it invoking § 1225(b)(2)(A) based on an entry without inspection? How long has the detention lasted? Was any bond hearing offered?

The right vehicle for challenging unlawful mandatory detention is generally a federal habeas corpus petition under 28 U.S.C. § 2241, filed in the federal district court where the detained person is held. This is a civil proceeding in Article III federal court, with standards distinct from anything available before an immigration judge.

At Strasser Asatrian LLC, we handle federal habeas corpus petitions in immigration detention cases. If someone you know has been detained for an extended period without a bond hearing, contact us to discuss whether a legal challenge is appropriate.

This article is for informational purposes only and does not constitute legal advice. Immigration law is complex and fact-specific. Please consult an attorney about your individual situation.

The Circuit Split on Mandatory Immigration Detention and Bond Hearings