NAHB Amicus Brief Argues for Fair Due Process for Workers

NAHB filed an amicus brief in the Fifth Circuit immigration case Sosnava Rodriguez v. Ortega. The case asks whether a person who entered the United States without official inspection may seek release on bond from a judge while the government considers deportation.

Under the 1996 immigration law known as IIRIRA — and the government’s longstanding interpretation — certain people already living in the United States could seek bond while deportation proceedings were pending. Section 1226 did not guarantee release, but it did provide a constitutionally required hearing before a judge.

More recently, Immigration and Customs Enforcement (ICE) and the Department of Homeland Security have relied on a different provision, Section 1225, to detain people who are already in the United States but were not admitted at the border. Previously, this section generally applied only to people outside the country seeking entry. It requires immigration officers to detain those deemed ineligible to enter until their deportation cases conclude.

How the Case Could Affect NAHB Members

NAHB’s brief argues that the Constitution’s due process protections apply to everyone in the United States. We told the Fifth Circuit that indefinite detention without a judicial hearing creates uncertainty and strains the construction workforce. Workers may fear reporting to work because an immigration arrest could leave them unsure when — or whether — they will see their families again.

Although Sosnava Rodriguez concerns people who entered without inspection, immigration officers are also detaining people who are lawfully in the country, sometimes for extended periods without a hearing or warrant. Under the government’s current interpretation of IIRIRA, even U.S. citizens and permanent residents may remain detained for months while proving in deportation proceedings that they entered legally.

When the government detains immigrant members of a construction crew that also includes citizens, resulting project delays or cancellations can leave citizen workers without jobs.

Illegal immigration must be addressed, but detention without judicial review has harmed residential construction and increased the time and cost required to build homes.

Court Hears Oral Arguments

The full Fifth Circuit agreed to rehear the case after a three-judge panel ruled in July that the people challenging their detention were entitled to a bond hearing. During oral arguments on Sept. 24, 2026, the judges considered the legal protections required and the scope of the government’s immigration authority.

The Fourth Circuit recently ruled in a similar case that people living in the United States after entering without inspection are entitled to a bond hearing. The government has asked the U.S. Supreme Court to review that decision.

With an appeal pending and only a few federal appeals courts divided on the issue raised in Sosnava Rodriguez, the Fifth Circuit may rule soon.