Why It Matters
A growing circuit split over federal immigration law could determine whether millions of migrants living in the U.S. without lawful admission can be detained indefinitely without access to bond hearings.
A circuit split has developed in the federal courts of appeals over whether § 1225(b)(2)(A) applies strictly to noncitizens actively seeking legal admission at the border or whether it also covers noncitizens present anywhere in the U.S. who have not been lawfully admitted. A Congressional Research Service report examines whether the statute requires mandatory detention only for migrants actively seeking entry at the border or for anyone present in the U.S. without lawful admission, including long-term residents.
On July 8, 2025, U.S. Immigration and Customs Enforcement (ICE) issued interim guidance declaring that all unadmitted noncitizens are subject to mandatory detention under § 1225(b)(2)(A) and are no longer eligible for bond hearings. Seven federal appeals courts have since rejected the administration's interpretation, while the Fifth and Eighth Circuits have sided with the government.
The executive branch has petitioned the Supreme Court to review decisions from the Second and Sixth Circuits rejecting the Department of Homeland Security's interpretation, while the noncitizen petitioners in the Fifth Circuit case have also asked the Supreme Court to review that decision. For Congress, competing bills reflect starkly different visions of detention authority.
The Big Picture
The dispute centers on 8 U.S.C. § 1225(b)(2)(A), which mandates detention of "applicants for admission" who are "seeking admission" and are not clearly entitled to entry. For nearly three decades, the Department of Homeland Security (DHS) and its predecessor agency treated arriving noncitizens at ports of entry as subject to mandatory detention without bond hearings, while noncitizens present in the interior without lawful admission generally remained eligible for discretionary detention and bond hearings under a separate statute. Federal appeals courts rejecting the administration's interpretation have pointed to this longstanding executive branch practice in support of the narrower reading.
On July 8, 2025, ICE issued interim guidance reversing this longstanding practice and directing that noncitizens who entered the U.S. without inspection are subject to mandatory detention under § 1225(b)(2)(A), even if they have lived in the country for years. Customs and Border Protection (CBP) subsequently issued similar guidance. Under the new interpretation, both arriving noncitizens and noncitizens present in the U.S. without having been admitted may not be released from ICE custody through a bond hearing, although DHS retains parole authority.
The Board of Immigration Appeals (BIA) upheld the government's position on Sept. 5, 2025, in Matter of Yajure Hurtado, a precedential decision involving a Venezuelan national who entered the U.S. without inspection in November 2022. The BIA held that immigration judges lack authority to hear bond requests or grant bond to noncitizens present in the U.S. without admission.
Seven federal appeals courts have rejected the administration's interpretation. The Second Circuit interpreted "seeking admission" to refer to noncitizens presently pursuing lawful entry into the U.S., while other circuits have similarly concluded that § 1225(b)(2)(A) does not extend to people arrested in the interior after entering without inspection. The First, Second, Sixth, Seventh, Ninth, Tenth and Eleventh Circuits have rejected the government's position, while the Fifth and Eighth Circuits have accepted it, creating a legal patchwork in which detention rules vary by jurisdiction.
The executive branch counters that the statute's text supports its interpretation, arguing that every "applicant for admission" is necessarily "seeking admission." The government maintains that Congress intended its 1996 immigration overhaul to reduce disparities between noncitizens who presented themselves for inspection and those who entered without inspection. The Fifth and Eighth Circuits have adopted that interpretation.
The administration has also argued in litigation that unadmitted noncitizens should be treated like people seeking initial entry for constitutional purposes, meaning their due process protections are limited to the procedures Congress provides. Courts rejecting the government's interpretation have disagreed with extending that principle to long-term residents who entered without inspection, citing Supreme Court precedent recognizing due process protections for people who have entered the country, regardless of whether their presence is lawful.
The Bottom Line
As of Sept. 3, the executive branch has petitioned the Supreme Court to review the Second and Sixth Circuit decisions, while the noncitizen petitioners in the Fifth Circuit case have asked the Court to review that decision. The Supreme Court has not yet resolved the circuit split.
If the administration's broad interpretation of § 1225(b)(2)(A) is upheld, millions of unadmitted noncitizens present in the U.S., including long-term residents, could become subject to mandatory detention without statutory bond hearings. The Second Circuit described the government's interpretation as potentially creating the broadest mass-detention-without-bond mandate in U.S. history for millions of noncitizens.
Congress has proposed competing legislation. H.R. 7190 would remove DHS's immigration detention authority, while the Dignity for Detained Immigrants Act would eliminate mandatory detention language from § 1225(b)(2)(A) and generally require prompt custody determinations and bond hearings. By contrast, the Detention Authority Clarification Act, S. 4593, would expressly make applicants for admission present in the U.S. without admission subject to mandatory detention, aligning federal law with the administration's interpretation.
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