Detention Without Due Process: The Fifth Circuit Ruling That Should Terrify Everyone

Judges Edith Jones and Kyle Duncan — both Republican appointees — agreed with the government. Their reasoning? If you entered without inspection, you're technically an "applicant for admission" no matter how long you've lived here. It doesn't matter if you've been in the U.S. for fifteen years, own a business, and coach your kid's soccer team. In the eyes of this court, you might as well have been caught climbing a fence yesterday.

The Dissent Gets It Right

Judge Dana Douglas, the lone dissenter, wrote what legal scholars are calling the more constitutionally sound opinion. She pointed to the Supreme Court's own reasoning in Jennings v. Rodriguez (2018), which drew a clear line between border arrivals and interior residents [3]. The majority's interpretation, Douglas warned, "would surprise Congress" by retroactively stripping rights from millions of people who have built lives in this country under the assumption that the law recognized their presence.

And let's talk numbers, because the fear-mongering around this issue depends on you not knowing them. According to DHS's own data, fewer than 14% of the roughly 400,000 people arrested in recent interior enforcement operations had violent criminal records [1]. That means the overwhelming majority — over 340,000 people — are being swept up in a system that was supposedly designed to target dangerous criminals. They're restaurant workers. They're home health aides. They're the people who literally keep entire sectors of the American economy running.

It Gets Worse: The Refugee Memo

As if the Fifth Circuit ruling weren't enough, the administration dropped another bombshell on February 18 — a memo expanding ICE's authority to detain legal refugees who haven't yet obtained green cards after one year of residence [4]. Read that again: legal refugees. People who were vetted, approved, and lawfully admitted to the United States. The administration now says they need to submit to "mandatory re-vetting" or face arrest.

This is the quiet part said loud. The goal isn't just to address undocumented immigration — it's to make every immigrant feel precarious, regardless of their legal status. When even refugees who followed every rule can be hauled in for detention, the message is unmistakable: you are not welcome, and your papers won't save you.

Why This Matters Beyond Immigration

I know some readers — perhaps those who share a certain family resemblance with other contributors to this publication — will shrug and say, "Well, they shouldn't have come here illegally." But due process isn't a reward for good behavior. It's a constitutional floor. The Fifth Amendment doesn't say "no person shall be deprived of liberty without due process of law, unless they're undocumented." It says no person. Period [5].

When we allow the government to strip due process protections from one group, we create the legal architecture to strip them from anyone. Today it's undocumented immigrants. Tomorrow it could be protesters, dissidents, or anyone the government finds inconvenient. The history of civil liberties in this country is the history of understanding that rights are only as strong as their weakest application.

What Solutions Actually Look Like

Here's where I part ways with both the enforcement-at-all-costs crowd and the doom-and-gloom wing. There are real, workable solutions that don't require shredding the Bill of Rights. Congress has already shown it can make progress — the 2026 visa recapture provisions and family protection measures prove that bipartisan immigration legislation is possible when politicians care more about solving problems than winning news cycles [6].

• Fund immigration courts properly — the current backlog is a policy choice, not an inevitability
• Expand legal pathways for work visas, especially in sectors with documented labor shortages
• Implement community-based supervision programs, which have a 99% court appearance rate at a fraction of detention costs
• Pass comprehensive reform that addresses status for long-term residents while modernizing border processing

The 8th Circuit is reportedly leaning toward adopting the Fifth Circuit's reasoning [3]. If it does, a circuit split becomes almost inevitable, and the Supreme Court will have to weigh in. That's the ballgame. In the meantime, every one of us — progressive, conservative, or anywhere in between — should be asking ourselves a simple question: in what kind of country can the government lock someone up and throw away the key without ever seeing a judge? Because right now, we're building that country. And no amount of flag-waving from the peanut gallery can make that okay.