{"database": "openregs", "table": "crs_reports", "rows": [["LSB11438", "Mandatory Detention During Removal Proceedings: Circuit Split", "2026-06-09T04:00:00Z", "2026-06-10T12:23:04Z", "Active", "Posts", "Hillel R. Smith", "Immigrant Removal, Immigration Judges, Immigration Law, Unauthorized Foreign Nationals, Immigrant Detention, Immigration Enforcement & Removal", "The Department of Homeland Security (DHS) may arrest and detain aliens for immigration status violations that render them removable. While the agency generally has discretion to release aliens from custody during the pendency of their removal proceedings, some categories of aliens must be detained. Under 8 U.S.C. \u00a7 1225(b)(2)(A), if an immigration officer determines that an individual is an \u201capplicant for admission\u201d who is \u201cseeking admission\u201d into the United States and is \u201cnot clearly and beyond a doubt entitled to be admitted,\u201d the alien \u201cshall be detained\u201d during the removal proceedings. Federal statute expressly states that aliens who are either arriving in the United States or present in the country without lawful admission shall be treated as \u201capplicants for admission,\u201d but federal law does not define \u201cseeking admission.\u201d\nIn 2025, it was reported that the Trump Administration issued interim guidance determining that unlawfully present aliens found in the United States\u2014including some who may have been present in the country for several years\u2014are subject to mandatory detention under \u00a7 1225(b)(2)(A). This interpretation has resulted in numerous legal challenges by aliens present in the United States without having been admitted, who have been detained and, as a result of the interim guidance, are no longer eligible for a custody determination or release during their removal proceedings before an immigration judge. They argue that they are not subject to mandatory detention under \u00a7 1225(b)(2)(A) because they were not actively \u201cseeking admission\u201d into the United States. In the ensuing litigation, there has been a growing circuit split in the federal courts of appeals over whether \u00a7 1225(b)(2)(A) applies strictly to aliens actively seeking legal admission at the border or whether it also covers aliens present anywhere in the United States who have not been lawfully admitted.\nStatutory Background\nThe current statutory framework governing the detention of aliens placed in removal proceedings was established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Generally, under 8 U.S.C. \u00a7 1226(a), DHS has the discretion to detain an alien pending the outcome of removal proceedings or it may release the alien on bond or the alien\u2019s own recognizance subject to specified conditions (\u201cconditional parole\u201d). In this circumstance, if the agency determines that the alien will remain detained, the alien may request review of the custody determination at a bond hearing before an immigration judge. \nSome categories of aliens generally must be detained during their proceedings with no opportunity for a bond hearing. These include at least some \u201capplicants for admission\u201d whom the government seeks to remove. The phrase \u201capplicants for admission\u201d is defined at 8 U.S.C. \u00a7 1225(a)(1) to cover \u201c[a]n alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters).\u201d Under \u00a7 1225(b)(1)(B)(iii)(IV), an \u201capplicant for admission\u201d who is subject to an expedited removal process before an immigration officer generally must be detained pending a final determination of removability. A separate provision addresses detention of applicants for admission who are not placed in expedited removal. Under \u00a7 1225(b)(2)(A), if the examining immigration officer determines that \u201can alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained\u201d (emphasis added) and placed in removal proceedings before an immigration judge under 8 U.S.C. \u00a7 1229a.\nAlthough applicants for admission must be detained during the expedited removal process or during the duration of removal proceedings, \u00a7 1182(d)(5)(A) provides that, except in certain cases, the Secretary of DHS \u201cmay . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States\u201d (emphasis added). In Jennings v. Rodriguez, the Supreme Court construed \u00a7\u00a7 1225(b)(1) and (b)(2)(A) as \u201cmandat[ing] detention of applicants for admission until certain proceedings have concluded,\u201d and the Court explained that the \u201cexpress exception\u201d for parole \u201cimplies that there are no other circumstances under which aliens detained under \u00a7 1225(b) may be released.\u201d \nDHS\u2019s Detention Policy and Administrative Guidance\nDHS and its predecessor agency, the Immigration and Naturalization Service, historically took the position that \u201caliens who are present without having been admitted or paroled (formerly referred to as aliens who entered without inspection)\u201d (emphasis added) were detained under the discretionary detention authority of \u00a7 1226(a) and were eligible for bond and bond redetermination during their detention. On the other hand, under the agencies\u2019 long-standing practice, \u201cany arriving alien who appears to the inspecting officer to be inadmissible, and who is placed in removal proceedings . . . shall be detained in accordance with [\u00a7 1225(b)]\u201d without bond hearings. \nReportedly, on July 8, 2025, DHS\u2019s Immigration and Customs Enforcement (ICE) issued interim guidance interpreting \u00a7 1225(b)(2)(A) to cover arriving aliens and aliens present in the United States without having been admitted. The ICE interim guidance has been described as explaining that, because both categories of aliens are considered to be \u201capplicants for admission\u201d under \u00a7 1225(a)(1), both categories are subject to mandatory detention under \u00a7 1225(b) \u201cand may not be released from ICE custody except [under 8 U.S.C. \u00a7 1182(d)(5)] parole.\u201d The guidance specifies that \u201c[f]or custody purposes, these aliens [i.e., aliens present in the United States who have not been admitted] are now treated in the same manner that arriving aliens\u2019 have historically been treated.\u201d Under the guidance, only aliens who are considered to have been admitted into the United States and who are then charged with being deportable under 8 U.S.C. \u00a7 1227 and placed in removal proceedings are eligible for bond hearings under \u00a7 1226(a). The guidance is reportedly applicable unless the described alien is subject to mandatory detention under \u00a7 1226(c), a separate provision that requires the detention during removal proceedings of aliens who commit certain crimes or terrorist offenses. (Although the ICE interim guidance does not appear as of the date of this Sidebar to have been made publicly available on the agency\u2019s website, DHS\u2019s Customs and Border Protection issued similar guidance on July 10, 2025, and July 15, 2025, interpreting \u00a7 1225(b)(2)(A) to cover arriving aliens and aliens present without admission.)\nOn September 5, 2025, the Board of Immigration Appeals (BIA), the highest administrative body responsible for interpreting federal immigration laws, issued a precedential decision in Matter of Yajure Hurtado. In that case, a Venezuelan national who unlawfully entered the United States without inspection in November 2022 (and whose temporary protected status expired on April 2, 2025) was apprehended by immigration officials on April 8, 2025, and detained. He requested a bond hearing before an immigration judge, and the judge determined that he lacked authority under the statute to conduct a bond hearing. The alien challenged the immigration judge\u2019s determination, and the BIA ruled that the immigration judge lacked jurisdiction because aliens present in the United States without having been admitted or inspected and who have been residing in the United States are considered \u201capplicants for admission\u201d subject to mandatory detention under \u00a7 1225(b)(2)(A). The alien conceded that he was an \u201capplicant for admission\u201d for purposes of federal statute, but claimed that, because he had been residing in the United States for nearly three years, he could not be considered as \u201cseeking admission\u201d as the phrase is used in \u00a7 1225(b)(2)(A). The BIA rejected the alien\u2019s contention that he could not be considered to be \u201cseeking admission,\u201d determining that this argument was \u201cnot supported by the plain language\u201d of the statute. The BIA also determined that Congress, in enacting IIRIRA, had intended that aliens who entered without inspection would be treated in a similar manner as aliens initially arriving at U.S. ports of entry and that both classes of aliens would be ineligible for bond hearings. In short, the BIA held, the statutory text is \u201cclear and explicit in requiring mandatory detention of all aliens who are applicants for admission, without regard to how many years the alien has been residing in the United States without lawful status.\u201d \nFederal Court Litigation and Circuit Split\nDHS\u2019s interpretation of \u00a7 1225(b)(2)(A) as covering aliens present in the United States without admission, and the BIA\u2019s decision upholding that interpretation, has resulted in numerous legal challenges by detained aliens who were denied bond hearings during their removal proceedings before an immigration judge, including some who were in the United States for many years. During the litigation, the government has argued, among other things, that aliens present without admission are covered by \u00a7 1225(b)(2)(A) because, based on the ordinary meaning of that provision, every \u201capplicant for admission\u201d is necessarily \u201cseeking admission,\u201d and that Congress, in enacting IIRIRA, had sought to prevent unlawful entrants from obtaining benefits, including bond determinations, that were unavailable to arriving aliens. \nFederal courts have split on this issue, with the majority rejecting the government\u2019s interpretation of \u00a7 1225(b)(2)(A) and holding that its detention mandate applies only to aliens seeking lawful admission into the United States. In particular, the Second, Sixth, and Eleventh Circuits have held that the provision applies only to aliens who are seeking to enter the United States. On the other hand, the Fifth and Eighth Circuits have sided with the government and interpreted the statute more broadly to also cover those who are present without admission. The Seventh Circuit, in litigation over a consent decree concerning the release of hundreds of persons in immigration detention, fractured on the permissibility of the government\u2019s interpretation.\nThe Second Circuit reasoned that the plain text of \u00a7 1225(b)(2)(A) applies to a person who is both an \u201capplicant for admission\u201d and \u201cseeking admission.\u201d The court interpreted the phrase \u201cseeking admission\u201d to mean that a person is \u201cpresently pursuing lawful entry into the United States.\u201d According to the court, the statute\u2019s reach is thus limited to those who arrive at ports of entry or are encountered at the border shortly after entry. The court also concluded that, based on the statutory context, structure, and history, Congress intended \u00a7 1225(b)(2)(A) to apply only to aliens seeking lawful entry. Further, the court remarked that, even if this provision was ambiguous, \u201cthe fact that the Executive Branch has for nearly three decades acted inconsistently with the newfound interpretation strongly counsels against adopting it.\u201d Alternatively, the court held that rejecting the government\u2019s broad interpretation of the statute was warranted to avoid \u201cthe grave constitutional concerns\u201d it raised by subjecting aliens present in the United States to \u201ccategorical detention without bond\u201d in violation of their right to due process. \nThe Eleventh Circuit, in a divided decision, also addressed the meaning of \u00a7 1225(b)(2)(A). The court explained that, although an alien present without admission is an \u201capplicant for admission\u201d under \u00a7 1225(a)(1), the alien\u2019s detention is justified under \u00a7 1225(b)(2)(A) only if the alien is also \u201cseeking admission.\u201d The court defined \u201dseeking admission\u201d as \u201cthe pursuit of lawful entry . . . after inspection and authorization by an immigration officer.\u201d The court determined that its interpretation of \u00a7 1225(b)(2)(A) was reinforced by \u201cthe broader statutory scheme,\u201d the provision\u2019s legislative history, and \u201cnearly thirty years of unbroken executive practice\u201d that allowed aliens present without admission to seek bond.\nExamining the statutory text of \u00a7 1225(b)(2)(A) and other provisions, a divided Sixth Circuit panel likewise construed the \u201cseeking admission\u201d phrase to mean that the alien \u201cmust actively be in search of lawful entry into the United States via inspection and authorization by an immigration officer.\u201d The court also determined that the government\u2019s \u201cpreviously unbroken 29-year streak\u201d of applying the discretionary detention provisions of \u00a7 1226(a) to aliens present without admission informed the court\u2019s conclusion that \u00a7 1225(b)(2)(A) applied strictly to aliens seeking entry. Additionally, the Sixth Circuit upheld lower courts\u2019 rulings that mandating detention without bond hearings of this category of aliens who are already residing in the United States violates their constitutional right to due process.\nIn contrast, the Fifth Circuit, in a split decision, held that \u00a7 1225(b)(2)(A) mandates the detention of aliens present without admission. The court rejected the claim that the phrase \u201cseeking admission\u201d refers only to those pursuing lawful entry. The court explained that there is no distinction between \u201capplying for\u201d and \u201cseeking\u201d something, reasoning that \u201c[j]ust as an applicant to a college seeks admission, an applicant for admission to the United States is seeking admission\u2019 to the same, regardless whether the person actively engages in further affirmative acts to gain admission.\u201d The court observed that other \u00a7 1225 provisions use the phrases \u201capplicant for admission\u201d and \u201cseeking admission\u201d synonymously. As for the government\u2019s past detention policy, the court stated that \u201c[y]ears of consistent practice cannot vindicate an interpretation that is inconsistent with a statute\u2019s plain text.\u201d The court also determined that the government\u2019s newer interpretation of \u00a7 1225(b)(2)(A) is consistent with Congress\u2019s intent to \u201cput aliens seeking admission lawfully on equal footing with those who entered without inspection.\u201d\nThe Eighth Circuit, in a split decision, similarly rejected the claim that \u201cseeking admission\u201d under \u00a7 1225(b)(2)(A) requires an \u201caffirmative action\u201d to obtain admission. The court agreed with the Fifth Circuit \u201cthat the ordinary meanings of the phrases applicant for admission\u2019 and seeking admission\u2019 are the same\u201d and that there is no indication in \u00a7 1225(b)(2)(A) or other provisions that \u201cseeking admission\u201d has a separate meaning. In the court\u2019s view, interpreting \u00a7 1225(b)(2)(A) to cover unadmitted aliens in the United States is compatible with Congress\u2019s goal of placing all unadmitted aliens on an \u201cequal footing\u201d during removal proceedings. Like the Fifth Circuit, the court determined that the government\u2019s previous interpretation of the statute did not require construing it in a manner that contradicts its plain meaning.\nLastly, in another case, the Seventh Circuit considered, among other things, a district court\u2019s order requiring the release of certain unlawfully present aliens who were found to have been arrested in violation of a consent decree. In a fractured 2-1 decision, two judges rejected the government\u2019s claim that a federal statute limiting courts\u2019 authority to restrain the government\u2019s ability to engage in certain immigration enforcement actions barred the lower court from issuing the release order because it restrained the government\u2019s ability to detain aliens under \u00a7 1225(b)(2)(A). One judge determined that the government had waived this argument at the time it entered the consent decree. In the alternative, the judge rejected the government\u2019s argument that aliens present without admission are subject to mandatory detention under \u00a7 1225(b)(2)(A), interpreting that provision as covering only those \u201cwho are seeking lawful entry at the border or ports of entry.\u201d The other judge, in a concurring opinion, expressly declined to consider the interpretation of \u00a7 1225(b)(2)(A), reasoning that the government had \u201cintentionally relinquished\u201d this argument by agreeing to the consent decree. \nConsiderations for Congress\nThe extent to which aliens present in the United States without having been admitted are subject to mandatory detention and not entitled to a bond hearing during their removal proceedings under \u00a7 1225(b)(2)(A) continues to be litigated in the federal courts. The circuit split over the scope of the statute\u2019s detention mandate has led some to speculate that the Supreme Court may eventually decide this question. In Jennings v. Rodriguez, the Supreme Court in 2018 held that detention under \u00a7 1225(b)(2)(A) is mandatory \u201cuntil certain proceedings have concluded,\u201d and that covered aliens may be released only under DHS\u2019s parole authority. The Court did not decide whether \u00a7 1225(b)(2)(A) applies strictly to aliens seeking entry into the United States or whether it also covers those who are present without admission, which was a separate issue that was not before the Court. \nThe Jennings Court started its analysis by stating that the process the federal government utilizes to determine who may enter the country and who may stay \u201cgenerally begins at the Nation\u2019s borders and ports of entry, where the Government must determine whether an alien seeking to enter the country is admissible.\u201d The Court stated that under \u00a7 1225, \u201can alien who arrives in the United States,\u2019 or is present\u2019 in this country but has not been admitted,\u2019 is treated as an applicant for admission.\u2019\u201d The Court determined that \u00a7 1225(b)(2) \u201cserves as a catchall provision that applies to all applicants for admission not covered by \u00a7 1225(b)(1).\u201d The Court continued examining the statute and explained that individuals detained under \u00a7 1225(b)(2) must be detained for removal proceedings \u201cif an immigration officer determines that [they are] not clearly and beyond a doubt entitled to be admitted\u2019 into the country.\u201d The Court further explained that \u00a7 1226(a) governs the detention of \u201ccertain aliens already in the country.\u201d\nIn the recent litigation, the Second and Eleventh Circuits interpreted the Supreme Court\u2019s statements as one reason, among others, to conclude that \u00a7 1225(b)(2)(A) applies only to those who are seeking entry. Conversely, the Fifth and Eighth Circuits have viewed these statements as merely a general explanation of the statutory framework that did not address the difference between \u00a7\u00a7 1225(b)(2)(A) and 1226(a), or preclude the possibility that \u00a7 1225(b)(2)(A) could still apply to aliens who are in the United States.\nIn the ongoing litigation, courts have also looked to recent legislation for guidance. In 2025, Congress passed the Laken Riley Act (LRA), which amended \u00a7 1226(c) to require the detention during removal proceedings of aliens who entered unlawfully if they have committed certain crimes. In considering the statutory context, the Second and Eleventh Circuits decided, among other things, that interpreting \u00a7 1225(b)(2)(A) to cover aliens present in the United States without admission would make \u00a7 1226(c), as amended by the LRA, superfluous because aliens who unlawfully enter would already be subject to mandatory detention under \u00a7 1225(b)(2)(A). According to the Fifth and Eighth Circuits, the government\u2019s interpretation of \u00a7 1225(b)(2)(A) does not result in any redundancy despite the overlap in covered populations because \u00a7 1226(c) covers certain aliens who were previously admitted in addition to certain aliens who were not admitted; it makes detained aliens ineligible for parole, which they could otherwise potentially receive under \u00a7 1225(b)(2)(A) detention; and the LRA was enacted at a time when DHS was still detaining most aliens present without admission under \u00a7 1226(a) instead.\nGiven the uncertainty about which categories of aliens are covered by \u00a7 1225(b)(2)(A), Congress may seek to clarify the scope and meaning of that statute. For example, Congress could specify whether the statute\u2019s detention requirement applies only to aliens seeking to lawfully enter the United States or whether it also applies to unadmitted aliens apprehended anywhere in the United States. In the alternative, Congress could consider whether or under what circumstances aliens in removal proceedings may be detained without bond hearings generally. For example, in the 119th Congress, the Dignity for Detained Immigrants Act (H.R. 6397, S. 3702) would, among other things, amend \u00a7 1225(b)(2)(A) by striking the language mandating the detention of applicants for admission during their removal proceedings, and, more generally, it would require prompt custody determinations and bond hearings for any alien detained by DHS. Another introduced bill (H.R. 7190) would remove DHS\u2019s detention authority entirely, including under \u00a7 1225(b)(2)(A). In contrast, the Detention Authority Clarification Act (S. 4593) would clarify that aliens present in the United States without admission are subject to mandatory detention.", "https://www.congress.gov/crs_external_products/LSB/PDF/LSB11438/LSB11438.1.pdf", "https://www.congress.gov/crs_external_products/LSB/HTML/LSB11438.html"]], "columns": ["id", "title", "publish_date", "update_date", "status", "content_type", "authors", "topics", "summary", "pdf_url", "html_url"], "primary_keys": ["id"], "primary_key_values": ["LSB11438"], "units": {}, "query_ms": 0.18995699065271765, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}