President Donald Trump speaks at an event at the General Motors Proving Ground Monday, July 27, 2026, in Milford, Mich. (AP Photo/Paul Sancya).
A Texas federal judge ruled against an immigrant seeking release from Immigration and Customs Enforcement (ICE) detention in the aftermath of an appeals court ruling that reinvigorated the Trump administration's power to indefinitely detain certain noncitizens.
But the same judge who read the writing on the wall also read between the lines of that appellate ruling and offered the failed habeas corpus petitioner some legal advice on how to try again.
Last week, the U.S. Court of Appeals for the 5th Circuit ruled that immigrants who are indefinitely detained have no constitutional right to argue for their release in a bond hearing. That case, however, relied on a distinction within a distinction of immigration law.
Under the ICE policy issued in July 2025, agents are to deny bond to anyone who entered the country without "inspection."
The policy triggered a wave of litigation as tens of thousands of detainees filed petitions for the writ of habeas corpus.
Under the policy, immigrants are to be detained "for the duration of their removal proceedings" unless granted parole, a rarer form of release. In practice, however, the Trump administration has made clear it intends such detentions to be indefinite.
But as the litigation made its way through the court system, two distinct statutes came to govern most of the legal analysis.
Over a year into the policy, judges have largely considered the interplay — and applicability — of those statutes using language sourced from a 2018 U.S. Supreme Court ruling.
The government claims ICE can subject immigrants to mandatory detention under 8 U.S.C. §1225(b), which applies to "aliens seeking entry into the United States."
Immigrant advocates — as well as most judges who have ruled on the matter — have instead turned to 8 U.S.C. §1226(a), which applies to "aliens already present in the United States."
In its recent ruling, the 5th Circuit was able to elide the dispute over which statute controls because the petitioners conceded they were subject to §1225(b) — the petitioners had earlier convinced a panel of the court that constitutional considerations overrode the statute.
Or, in other words, the petitioners challenged their detention "in itself" as a violation of due process — while agreeing with the government on what facts and law controlled their lawsuit. That relatively broad attack on the Trump administration's policy failed.
In a section of the 5th Circuit's ruling, the en banc court mused about when a petitioner might dispute the government's facts.
From the appeals court opinion, at length:
To be clear, we do not dismiss the idea that distinct due process questions might arise if Petitioners' detention no longer served its immigration purpose or if Petitioners' removal proceedings were used as a facade "to incarcerate [them] for other reasons." We do not address those questions here, however. Petitioners have not challenged the duration of their detention as unconstitutional; nor have they asserted that their removal is "no longer practically attainable."
On Wednesday, U.S. District Judge Orlando Garcia, a Bill Clinton appointee, nestled that would-be loophole into a lengthy footnote attached to the terse two-page order denying habeas relief.
The judge says the appeals court "pretermitted the possibility" of later entertaining a due process claim "from applicants for admission who have been detained for exceedingly long periods" who can also "demonstrate" the "other reasons" hinted at by the 5th Circuit.
"The court did not endorse this argument: it merely 'd[id] not dismiss the idea,'" the order reads. "Accordingly, while it is not this Court's place to take that step, Petitioner may wish to consider presenting such an argument to the Fifth Circuit on appeal from this Order."