Habeas in the Fifth Circuit After Buenrostro

On February 6, 2026, the Fifth Circuit issued Buenrostro-Mendez v. Bondi, No. 25-cv-20496, 2026 WL 323330 (5th Cir. Feb. 6, 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 lawful 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). Despite Buenrostro, habeas options still exist for noncitizens detained in the Fifth Circuit who were not legally admitted into the United States. This practice advisory discusses the habeas claims that remain available in district courts within the Fifth Circuit, suggests strategies for dealing with the statutory claim struck down in Buenrostro, and considers the government’s likely responses to alternative claims.