Take the Fifth

Designated for publication

• Hershey v. Bossier City, 21-30754, appeal from W.D. La.
  • per curiam (Richman, Dennis, Ho, on panel; but Ho, J., writing separately with respect to the issuance of the mandate) (panel originally orally argued); municipal liability, qualified immunity, en banc, mandate
  • Order vacating order withholding issuance of mandate from October 7, 2025, opinion (“per curiam” Dennis, Richman, Ho; Ho, J., concurring; Dennis, J., dissenting in part; Richman, J., dissenting in part; Dennis and Ho reversing dismissal of Monell claim; and Richman and Ho affirming qualified immunity dismissal of officer defendants; full effect of three opinions in per curiam result affirming qualified immunity dismissal of police officers for enforcement of leaflet-distribution prohibition, reversing dismissal of municipal liability claim against city). The final (?) opinion in this cycle, which started with the panel opinion; proceeded to the December 18, 2025, opinion denying en banc rehearing (voting against rehearing: Elrod, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Ho, Douglas, Ramirez, JJ.; voting for rehearing: Jones, Smith, Richman, Duncan, Engelhardt, Oldham, Wilson, JJ.); Ho, J., concurring in denial of rehearing; Oldham, J., dissenting from denial of rehearing (joined by Jones, Smith, Richman, Duncan, Engelhardt, Wilson, JJ.)); then the January 13, 2026, denial of panel rehearing (per curiam (Richman, Ho; Dennis on panel but not participating in this order) (oral argument at the merits stage), Ho, J., dissenting from denial of panel rehearing)).
  • Judge Ho wrote a separate opinion “respecting the issuance of the mandate”: “Our en banc court has issued a series of regrettable rulings that should deeply trouble every person of faith. See Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011); Villarreal v. City of Laredo, 94 F.4th 374 (5th Cir. 2024); Villarreal v. City of Laredo, 134 F.4th 273 (5th Cir. 2025). Those rulings disregarded the Supreme Court’s precedents in Hope v. Pelzer, 536 U.S. 730 (2002), and Taylor v. Riojas, 592 U.S. 7 (2020), and instead held that government officials are entitled to qualified immunity—no matter how extreme, egregious, or obvious the violation of religious liberty—unless there is a factually identical decision already on the books establishing the violation. The nation’s leading religious liberty organizations have voiced their strong objections to our precedents, and I’ve expressed my own objections as well. See, e.g., Villarreal, 94 F.4th at 409 (Ho, J., dissenting); McMurry v. Weaver, 142 F.4th 292, 304–07 (5th Cir. 2025) (Ho, J., concurring); Hershey v. Bossier City, 156 F.4th 555, 557, 558–60 (5th Cir. 2025) (Ho, J., concurring). So it was striking when members of the court who voted for these rulings in Morgan and Villarreal suddenly announced that they would welcome an opportunity to revisit and reconsider those precedents. See Hershey v. Bossier City, _ F.4th , 2025 WL 3684338 (5th Cir. Dec. 18, 2025). Naturally, Richard Hershey took the en banc dissental at its word, and jumped at the chance to brief the religious liberty and qualified immunity issues that the dissental purportedly invited him to present. Yet the court today has now denied his request. So we’ve now declined multiple opportunities to do what was promised. Hershey sought leave to file a petition for rehearing en banc. But that’s been denied. Members of the court can also seek rehearing sua sponte—as I did. But that was denied, too. See Hershey v. Bossier City, F.4th _, 2026 WL 98116 (5th Cir. Jan. 13, 2026). I regret that things have come to this. The judiciary possesses neither the sword nor the purse. All we have is our word.”

• Buenrostro-Mendez v. Bondi, 25-20496, c/w Covarrubias v. Vergara, 25-40701, appeal from S.D. Tex.
  • Jones, J. (Jones, Duncan, Douglas) (oral argument), Douglas, J., dissenting; immigration, habeas corpus
  • Reversing district court’s grant of habeas petitions ordering bond hearing or release for immigrant detainees (one of whom had been in the United States for 16 years and the other for 24 years), essentially enabling the Trump administration to hold immigrants in detention without a bond hearing, for as long as their already protracted immigration proceedings take. (See Professor Steve Vladeck’s Substack post analyzing this decision).
  • Judge Jones’s majority opinion begins with the core statutory question at issue: whether non-admitted aliens who entered the United States unlawfully but have lived here for many years are entitled to discretionary bond hearings under 8 U.S.C. § 1226(a), or whether they fall within the mandatory detention provision of § 1225(b)(2)(A) and thus are not eligible for bond while in removal proceedings. The petitioners conceded that they qualify as “applicants for admission” because they were present without lawful admission when apprehended. The government argued that under § 1225(b)(2)(A) these individuals must be detained without the possibility of bond, while the petitioners argued that because they were not “actively seeking admission” at the time, § 1225 did not apply and § 1226(a) should govern. After reviewing the Immigration and Nationality Act’s text, structure, and history, the court sided with the government, concluding that petitioners’ classification as “applicants for admission” inherently includes “seeking admission,” making § 1225(b)(2)(A) the controlling detention provision.
  • In analyzing the statutory language, Judge Jones explained that § 1225(a)(1) broadly deems any alien present in the United States without lawful admission as an “applicant for admission,” and § 1225(b)(2)(A) then mandates detention of such applicants unless they are “clearly and beyond a doubt entitled” to admission. The court rejected the petitioners’ contention that “seeking admission” requires an affirmative, contemporaneous attempt to apply for entry. The majority reasoned that the ordinary meaning of “applicant” and “seeking” overlap such that one deemed an applicant by statute is necessarily seeking admission. Moreover, the structure of the INA — particularly § 1225(a)(3)’s equivalence of applicants and others “seeking admission” for inspection — supported the conclusion that these terms should not be construed to exclude the petitioners.
  • The court also addressed and dismissed arguments about statutory redundancy and congressional intent. Judge Jones held that potential redundancy between the terms “applicant for admission” and “seeking admission” did not justify narrowing § 1225(b)(2)(A), as redundancies are common in legislative drafting and do not outweigh clear statutory text. The majority emphasized that Congress, through the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), intended to unify and simplify detention rules while preserving mandatory detention for applicants not qualified for admission. On that basis, the panel reversed the district courts’ orders requiring bond hearings or release and remanded for proceedings consistent with its interpretation that § 1225(b)(2)(A) governs petitioners’ detention.
  • Judge Douglas dissented. “The majority stakes the largest detention initiative in American history on the possibility that ‘seeking admission’ is like being an ‘applicant for admission,’ in a statute that has never been applied in this way, based on little more than an apparent conviction that Congress must have wanted these noncitizens detained—some of them the spouses, mothers, fathers, and grandparents of American citizens. Straining at a gnat, the majority swallows a camel.”
  • Judge Douglas contends that the majority’s interpretation of 8 U.S.C. § 1225(b)(2)(A) sweeps far beyond established practice by treating all inadmissible noncitizens present in the United States as subject to mandatory detention without any possibility of bond. For Judge Douglas, this change is not grounded in the text or history of the statute: the operative phrase “seeking admission” should be understood in its ordinary sense—aliens actively trying to enter lawfully, not those already interior to the country. Judge Douglas underscores that the majority’s reading effectively expands mandatory detention by executive fiat rather than clear statutory command.
  • Judge Douglas’s textual analysis focuses on statutory structure and the canon against surplusage. She argues that the majority’s reading renders the separate phrase ‘seeking admission’ superfluous and undermines the distinct roles of § 1225 and § 1226, which have historically governed border-entry detention and interior detention, respectively. She contends that if Congress truly meant to subject all inadmissible noncitizens to mandatory detention without bond, it would have said so plainly—“If Congress had wanted the provision to have th[e] effect … it could have said so in words far simpler than those that it wrote.” Judge Douglas also notes that the majority’s view would make key portions of § 1226(c) redundant and ‘a sledgehammer to the statutes Congress wrote,’ highlighting the practical consequences of misreading statutory text.
  • Beyond text, Judge Douglas leans on historical practice and Supreme Court exposition to support his understanding that § 1225 governs aliens at borders while § 1226 governs interior releases. She critiques the majority for discounting ‘unbroken practice’ of treating inadmissible interior noncitizens under § 1226, and points to Supreme Court language recognizing a distinction between aliens seeking admission into the country under § 1225(b) and those already in the country pending the outcome of removal proceedings under § 1226(a). For Judge Douglas, this context is crucial, and her dissent underscores a broader judicial principle: “Congress does not, one might say, hide elephants in mouseholes,” meaning courts should be skeptical of interpretations that attribute sweeping authority to ambiguous statutory phrasing.

• Gonzalez v. El Centro del Barrio, 25-50092, appeal from W.D. Tex.
  • Haynes, J. (Haynes, Duncan, Ramirez) (oral argument); removal jurisdiction
  • Affirming remand of case removed under the Public Health Services Act and under 28 U.S.C. sec.1442.
  • The court affirmed the district court’s order remanding a class action stemming from a data breach back to Texas state court because the defendant, El Centro Del Barrio d/b/a CentroMed, did not have a valid statutory basis to remove the case. CentroMed, a federally funded community health center, had attempted to remove the case under two statutes: (1) 42 U.S.C. § 233 (which governs removal and immunity for “deemed” Public Health Service (PHS) employees) and (2) the federal officer removal statute (28 U.S.C. § 1442(a)(1)). Under § 233, removal is permitted only if the Attorney General fails to appear and advise the state court within 15 days after notification that the health center is deemed a PHS employee for the specific conduct at issue. Here, the Attorney General timely appeared and notified the court that CentroMed was not deemed a PHS employee with respect to the claims in the case, so § 233 did not authorize removal.
  • The court also rejected CentroMed’s alternative argument that removal was proper under § 1442. Although § 1442 permits certain actions by or against federal officers to be removed to federal court, that statute requires removal within 30 days after receipt of a removable pleading. CentroMed removed the case 37 days after it had been served, which exceeded the statutory deadline, rendering its § 1442 removal untimely.

• Merritt v. Texas Farm Bureau, 24-50127, appeal from W.D. Tex.
  • Duncan, J. (Haynes, Duncan, Ramirez) (oral argument); Fair Labor Standards Act
  • Affirming denial of plaintiff’s post-judgment motion to overturn jury verdict of employer on FLSA overtime claims.
  • The Fifth Circuit affirmed the district court’s judgment in favor of the employer after a jury found that plaintiff Jerry Merritt, though arguably misclassified as an independent contractor and entitled to overtime under the Fair Labor Standards Act, was not owed unpaid overtime because the employer lacked both actual and constructive knowledge that he worked overtime; the court rejected Merritt’s arguments that the employer’s failure to maintain a timekeeping system or permit unlimited work automatically established such knowledge and upheld the district court’s use of the Fifth Circuit pattern jury instruction requiring an employee to notify an employer of extra hours, concluding that there was sufficient evidence for the jury’s verdict and no reversible error in the post-judgment rulings.

Unpublished decisions

• U.S. v. Chong-Aguayo, 25-10546, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming 70-month sentence on conviction of illegal reentry.

• U.S. v. Grant, 25-30008, c.w 25-30009, appeal from W.D. La.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming sentence and revocation of supervised release.

• U.S. v. Polanco-Esquivel, 25-50225, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Harris v. Dobbins, 25-60073, appeal from S.D. Miss.
  • per curiam (Stewart, Graves, Oldham) (oral argument); sec. 1983
  • Affirming dismissal of plaintiff’s sec. 1983 claims against police officers in “a ‘tiny and deeply segregated town’ in Holmes County, Mississippi.”

• Havice v. Bisignano, 25-60287, appeal from S.D. Miss.
  • per curiam (Southwick, Willett, Ho) (no oral argument), social security
  • Affirming the denial of disability benefits.