Habeas After Buenrostro and Avila

On February 6, 2026, the Fifth Circuit issued Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), a split decision with a strong dissent in which the Fifth Circuit sided with DHS and the BIA to determine that all noncitizens who are present in the United States without admission are subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A) during removal proceedings, rather than discretionary detention under § 1226(a). On March 25, 2026, the Eighth Circuit, also in a divided decision, joined the Fifth Circuit in ruling in favor of the government, in Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026). Despite Buenrostro and Avila, habeas options still exist for noncitizens detained in the Fifth and Eighth Circuits who were not admitted into the United States. This practice advisory discusses the habeas claims that remain available in district courts within the Fifth and Eighth Circuits, suggests strategies for dealing with the statutory claim struck down in Buenrostro and Avila, and considers the government’s likely responses to alternative claims.