On July 7, 2026, we reported on an important Fifth Circuit decision addressing prolonged immigration detention. In Sosnava Rodriguez v. Ortega, a three-judge panel held that certain immigrants detained under the government’s asserted “mandatory detention” authority could not be held for more than 90 days without an individualized bond hearing.
There has now been a significant development.
On July 10, 2026, the Fifth Circuit, acting on its own motion, ordered that the case be reheard en banc. This means that the active judges of the Fifth Circuit—not merely the original three-judge panel—will reconsider the case.
The court also expressly vacated the July 2 panel decision.
What Does It Mean That the Decision Was Vacated?
When an appellate decision is vacated, it is no longer binding precedent.
As a result, the July 2 decision currently cannot be relied upon as controlling Fifth Circuit law requiring the government to provide a bond hearing after 90 days of detention.
The Fifth Circuit’s rules state that granting rehearing en banc ordinarily vacates the panel opinion and judgment and stays the court’s mandate. That is exactly what the court ordered in this case.
This is an important change from the circumstances described in our earlier post.
Did the Government Win the Case?
No.
The Fifth Circuit has not issued a new decision holding that prolonged detention without a bond hearing is constitutional. Nor has the en banc court issued a final ruling rejecting the immigrants’ due-process claims.
Instead, the court has placed the case back under review.
The full court will receive additional briefing, hear oral argument, and then decide whether to affirm, modify, or reject the original panel’s reasoning. The Fifth Circuit currently lists the case for en banc rehearing in September 2026.
Until the en banc court issues its decision, the constitutional question remains unresolved.
Is There Still a Right to a Bond Hearing After 90 Days?
There is presently no binding Fifth Circuit rule automatically requiring a bond hearing after 90 days under Sosnava Rodriguez.
The original panel adopted that 90-day standard, but the vacatur removed the panel opinion’s precedential force.
That does not necessarily mean that a person detained for more than 90 days has no legal options. It means that the person cannot presently rely on the vacated panel decision as controlling authority establishing an automatic 90-day entitlement.
Claims challenging prolonged immigration detention may still depend on:
- The length of the person’s detention;
- Whether the person has ever received a meaningful custody hearing;
- Whether the government has presented individualized evidence of danger or flight risk;
- The person’s criminal history or lack of criminal history;
- The person’s family, employment, and community ties;
- Whether removal proceedings or an administrative appeal remain pending;
- The likelihood that detention will continue;
- Medical concerns or other special circumstances; and
- The particular statutory and constitutional basis for detention.
These cases remain highly fact-specific.
What Does This Mean for People Currently Detained by ICE?
Families should understand three important points.
First, the vacated decision no longer provides an automatic basis for demanding a bond hearing after 90 days.
Second, the en banc order does not establish that indefinite or unreasonably prolonged detention is lawful. The Fifth Amendment due-process issue remains before the court.
Third, people who are detained should not assume that nothing can be done. Depending on the circumstances, an attorney may still evaluate possible requests for ICE release or parole, immigration-court custody proceedings, administrative review, or a federal petition for a writ of habeas corpus.
A federal habeas claim ordinarily requires more than stating that a person has been detained for a particular number of days. The claim should address the individual facts showing why continued detention without meaningful review has become constitutionally unreasonable.
What Happens Next?
The Fifth Circuit will establish or complete supplemental briefing and rehear the consolidated cases en banc. After oral argument, the court may:
- Reinstate all or part of the panel’s reasoning;
- Adopt a different standard for determining when a bond hearing is required;
- Reject the constitutional challenge;
- Limit any relief to particular categories of detainees; or
- Resolve the case on another legal ground.
Until that process is complete, the law in this area remains unsettled and continues to change rapidly.
Families Should Obtain an Individual Case Review
Immigration detention law is unusually complex. The applicable law may depend on how the person entered the United States, whether the person was previously released by immigration authorities, the status of removal proceedings, whether there is a final removal order, and which federal court has jurisdiction over the detention facility.
The vacatur of Sosnava Rodriguez makes individualized legal analysis even more important. Families should be cautious about anyone promising that detention beyond 90 days automatically guarantees a bond hearing or release.
We Continue to Represent Detained Immigrants
At the Law Offices of Daniel A. Lorber, PC, we represent detained immigrants in immigration court and in federal habeas corpus proceedings throughout Texas and across the United States.
If you or a loved one is detained by ICE, contact our office promptly so that we can evaluate the detention history, immigration proceedings, possible custody remedies, and any federal constitutional claims.
The law is developing quickly, and delay may affect the legal and practical options available.
This article provides general information and does not constitute legal advice. Every immigration and detention case is different. Reviewing this article does not create an attorney-client relationship.