Who Determines National Sovereignty?

The liberty principle for this Freedom Friday concerns who determines who enter and who stays in the United States. Numerous court cases have challenged the authority of the Executive Branch to deport immigrants who are in the United States illegally. In his article published at The Daily Signal, Tyler O’Neil reported on a recent court case. 

Almost 90,000 immigrants have tried a legal maneuver to escape detention, but an appeals court ruling just significantly undermined that part of the Left’s anti-deportation strategy.

ProPublica has tracked 89,170 cases in which immigrants filed writs of habeas corpus, challenging the lawfulness of their detention or imprisonment. The scale is extraordinary. Immigrants filed more habeas cases during the first 13 months of President Donald Trump’s second term than during the previous three administrations combined.

The cases aren’t materializing in an institutional vacuum, either. A network of advocacy groups has developed litigation resources, turning habeas corpus into a major front in the fight over Trump’s deportation program.

However, the U.S. Court of Appeals for the 5^th Circuit on Friday ruled that detention without a hearing does not violate the due process rights of immigrants.

“The ACLU and the Left oppose immigration detention because they know it often results in deportation,” Lora Ries, director of The Heritage Foundation’s Border Security and Immigration Center, told the Daily Signal on Tuesday. “The Left opposes deportation because it erodes their political power.”

The Organizational Push

The ACLU maintains a resource page for attorneys challenging immigration detention, including materials specifically addressing detention without bond hearings pending removal proceedings. The ACLU of Maine stated that it is working on habeas cases and that 70 cases had been filed between January 2025 and June 2026, many of which resulted in release.

Rebecca Cassler, senior litigation attorney at the American Immigration Council, argued the 5^th Circuit case. She called the court’s ruling “an affront to the U.S. Constitution” and vowed, “We will continue fighting.”

Ellie Norton, supervising attorney at the National Immigration Project, similarly condemned the ruling. She argued that “this ruling opens the door to more people being locked up for no reason, with devastating consequences for them, their loved ones, and their community.”

James Percival, general counsel at the Department of Homeland Security, called the ruling a “big win,” noting that the principle of detention for illegal aliens was “codified in 1996 legislation but ignored by the deep state for decades.”

The 5^th Circuit Ruling

In the case of Ignacio Sosnava Rodriguez v. Miguel Vergara, three illegal aliens who were detained by immigration authorities pending removal proceedings filed writs of habeas corpus, and the lower courts ordered them released.

A three-judge panel on the U.S. Court of Appeals for the 5^th Circuit initially agreed with lower-court judges, yet the full circuit reheard the case and ruled Friday that the illegal aliens were “not entitled to individual hearings” before they could be lawfully detained pending removal.

The illegal aliens had claimed a right to procedural due process, which they argued requires bond hearings on deportation safety and flight risk before they could be detained.

That framing, however, skips over the question the 5^th Circuit considered decisive: What process has Congress actually afforded illegal aliens who were never admitted into the country?

“Because petitioners have never been admitted to the United States, due process does not entitle them to additional proceedings beyond what Congress has provided before they may be detained pending removal,” Judge Cory T. Wilson wrote in the 10-7 en banc opinion.

While illegal aliens, like American citizens, enjoy the right to due process, Congress has the authority to determine deportation proceedings and did so in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. That law stipulated that illegal aliens “shall be detained.”

“An alien who was not admitted into the U.S. but is later encountered in the U.S. interior is still an ‘applicant for admission’ and, per the IIRIRA, shall be detained,” Ries said. “Furthermore, the court affirmed that the immigration law provides no bond hearing process for such aliens.” The ruling does not eliminate habeas corpus challenges to immigration detention altogether. Rather, it forecloses this constitutional claim to an individualized bond hearing for similarly situated aliens within the 5^th Circuit.

Even so, it sets a strong precedent and may open the door to a Supreme Court ruling clarifying the matter.

Wilson’s opinion noted that illegal aliens may escape detention through one simple expedient: agreeing to leave the country.

“In no other context implicating a core liberty interest does the detainee hold the keys to his own confinement,” the judge noted.

Ries argued that this “is the difference between the U.S. deciding who may come here and who must leave, and the rest of the world deciding who gets to stay in the U.S. This ruling upholds our nation’s sovereignty.”