United States Court of Appeals

for the Fifth Circuit

No. 22-10260

Summary Calendar

David Wekesa, 

Petitioner—Appellant,

versus

United States Attorney; United States Department of 

Homeland Security; Immigration and Customs 

Enforcement; Warden, Eden Detention Center, 

Respondents—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:21-CV-46

Before Smith, Dennis, and Southwick, Circuit Judges.

Leslie H. Southwick, Circuit Judge:*

David Wekesa appeals the district court’s dismissal of his 28 U.S.C. 

§ 2241 petition challenging his continued detention pursuant to 8 U.S.C. 

§ 1226(c). He has also filed a motion for an emergency temporary restraining 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 22, 2022

Lyle W. Cayce

Clerk

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order. Wekesa argues that, while originally lawful, his continued detention 

without an individualized bond hearing violates his due process rights.

A district court has subject matter jurisdiction to hear an alien’s 

Section 2241 petition challenging the lawfulness of his or her detention. See 

Demore v. Kim, 538 U.S. 510, 517 (2003). In the context of a Section 2241 

petition, this court reviews the district court’s determinations of law de novo

and its findings of facts for clear error. Tran v. Mukasey, 515 F.3d 478, 481 

(5th Cir. 2008).

Section 1226(c) provides that the Attorney General shall detain aliens 

who are inadmissible or removable based on having committed certain 

criminal offenses. § 1226(c)(1). Any alien detained under Section 1226(c)(1) 

may be released only if the alien’s release is necessary for witness-protection 

purposes, and (2) the Attorney General is satisfied that the alien does not 

pose a danger to persons or property and that the alien is likely to appear for 

scheduled proceedings. § 1226(c)(2). In Jennings v. Rodriguez, 138 S. Ct. 

830, 846 (2018), the Supreme Court stated that the language of the statute 

“reinforces the conclusion that aliens detained under its authority are not 

entitled to be released under any circumstances other than those expressly 

recognized by the statute.” The Court held that “§ 1226(c) mandates 

detention of any alien falling within its scope and that detention may end 

prior to the conclusion of removal proceedings ‘only if’ the alien is released 

for witness-protection purposes.” Id. at 847. 

Because Wekesa does not meet the statutory requirements for release 

under Section 1226(c)(2), the district court did not err by denying Wekesa’s 

Section 2241 petition. His motion for an emergency temporary restraining 

order is also denied.

AFFIRMED; MOTION DENIED.

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James L. Dennis, Circuit Judge, dissenting:

With respect to my learned colleagues in the majority, I disagree that 

Wekesa’s prolonged detention—he has been held for almost two-and-a-half 

years—without a bond hearing does not violate the Fifth Amendment’s 

guarantee of due process. The authority the majority relies on for its decision, 

Jennings v. Rodriguez, 138 S. Ct. 830, 846–47 (2018), held only that the 

statute providing the Government’s detention authority, 8 U.S.C. § 1226(c), 

does not require periodic bond hearings. It expressly left open the question 

Wekesa raises, which is whether the Constitution does. See id. at 851 

(“Because the Court of Appeals erroneously concluded that periodic bond 

hearings are required under the immigration provisions at issue here, it had 

no occasion to consider respondents’ constitutional arguments . . . 

Consistent with our role as ‘a court of review, not of first view,’ we do not 

reach those arguments.”) (internal citation removed); Rodriguez v. Marin, 

909 F.3d 252, 255 (9th Cir. 2018) (noting on remand that the Supreme Court 

“declined to reach the constitutional question”). With respect, the 

majority’s observation that, per Jennings, § 1226(c) mandates detention 

without bail is apropos of nothing Wekesa argues. Neither does Demore v. 

Kim, 538 U.S. 510 (2003), foreclose Wekesa’s claim. That case held only that 

a “brief period” of detention under § 1226(c)—three months in that case—

without a judicial determination of dangerousness or flight risk did not violate 

the Fifth Amendment. Id. at 513. In short, the majority cites no relevant 

authority, and makes no convincing argument, for its summary rejection of 

Wekesa’s claim.

I would instead hold that Wekesa’s prolonged detention without a 

bond hearing implicates due process protections and must be analyzed 

further. The Fifth Amendment guarantees that all “persons”—citizens and 

non-citizens alike—shall not be deprived of liberty without due process of 

law. U.S. Const. amend V; Zadvydas v. Davis, 533 U.S. 678, 693 (2001).

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To detain someone without bail is to deprive them of liberty. Id. at 690. And 

to detain someone with no hearing on whether they are eligible for bail is to 

do without process. I would thus follow the reasoning of the Supreme Court 

in Zadvydas and hold that the Constitution does impose limits on the length 

of time the Government may detain a noncitizen without a bond hearing. See

id. at 690 (“A statute permitting indefinite detention of an alien would raise 

a serious constitutional problem.”).1 Because the district court here appears 

to have concluded that the Due Process Clause did not apply to Wekesa’s 

detention at all,2 I would vacate and remand for the court to apply the Fifth 

Amendment and determine in the first instance whether Wekesa’s prolonged 

detention violates the Due Process Clause.

I respectfully dissent.

1 I note that this would also align our circuit with the federal courts, including two 

of our sister circuits which have addressed the issue. See German Santos v. Warden Pike 

Cnty. Corr. Facility, 965 F.3d 203, 206 (3d Cir. 2020); Reid v. Donelan, 17 F.4th 1, 7 (1st Cir. 

2021) (“[W]e adhere to the notion that ‘the Due Process Clause imposes some form of 

‘reasonableness’ limitation upon the duration of detention’[.]”); Muse v. Sessions, 409 F. 

Supp. 3d 707, 712–15 (D. Minn. 2018).

2 The district court’s brief single-page order contained no analysis or independent 

findings. It simply stated that “based on the facts and the law” in the Government’s brief, 

Wekesa’s petition was denied. According to that brief, neither the Constitution nor § 

1226(c) entitle Wekesa to relief.

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