The U.S. Court of Appeals for the 11th Circuit issued a split opinion this week in Alvarez v. Warden, where the court rejected a Trump II interpretation of the mandatory detention provision in section 235(b)(2)(A) of the Immigration and Nationality Act (INA) as applying to all aliens who have not been admitted to the United States, including illegal entrants who have lived here for years. As Judge Barbara Lagoa noted in dissent, however, “The majority’s objection is not that Congress hid the authority” to detain all those aliens, “but that the authority granted is too large”.
A Brief Recap
The 11th Circuit majority in Alvarez joined the Second Circuit in its recent opinion in Cunha v. Freden in nixing the Trump II “mass detention” policy. That puts the 11th Circuit and its northern sister court at odds with both the Fifth and Eighth Circuits, each of which has blessed the policy, setting the matter up for ultimate Supreme Court review.
Having written about those opinions and this issue at length elsewhere, I’ll skip over the finer points to a brief recap of the issues.
In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress revamped how the INA applies to aliens at the borders and the ports, as well as in the United States, setting the stage for this showdown.
Prior to 1996, the process by which aliens were expelled or deported from the United States depended solely on whether those aliens had “entered” (legally or otherwise) or hadn’t entered, under what was known as the “entry doctrine”.
Aliens stopped at the ports or who failed to make an entry “free from official restraint” were placed into exclusion proceedings, where they received only limit due process, bore the burden of showing they should be admitted and weren’t inadmissible, and could not seek release from an immigration judge.
Aliens who made an entry — again, through admission at the ports or by crossing the border illegally and evading Border Patrol — were placed into “deportation” proceedings where they received more expansive rights, the government bore the burden of proving they were deportable, and they could seek release from an immigration judge on bond.
The entry doctrine was costly and time-consuming, triggering massive battles over tiny issues to determine whether aliens had “entered” or not, so Congress in IIRIRA scrapped it and replaced it with a process in which the question of how the government processed those aliens instead depended on whether they had been formally “admitted” as defined in section 101(a)(13)(A) of the INA or not.
The Inspection Protocol
Congress implemented this change by amending section 235 of the INA to create what I have referred to as the “inspection protocol”, which begins, at paragraph (a)(1) as follows:
An 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) shall be deemed for purposes of this chapter an applicant for admission.
The emphasis is added to highlight how this definition applies.
Most covered by this definition crossed the border illegally, specifically to avoid having to seek admission at the designated ports of entry, but Congress (ignoring whatever those aliens really intended) “deemed” them “applicants for admission”, as if they were standing in front of an inspector at the ports, documents in hand.
Section 235(b)(1) of the INA permits the government to subject applicants for admission stopped at the borders and the ports without proper documents (and at the executive’s discretion, who had crossed illegally but were here for less than two years) to “expedited removal”, meaning the government could expel them without placing them in removal proceedings before an immigration judge under section 240 of the INA.
“Could expel them”, that is, unless they expressed a fear of return and demonstrated a “credible fear” of persecution, in which case they were to be placed into section 240 removal proceedings to seek asylum.
In its 2018 opinion in Jennings v. Rodriguez, the Supreme Court made clear that aliens who had been subject to expedited removal were also subject to mandatory detention until they were granted protection or deported, even if they were subsequently placed into section 240 proceedings, resolving an issue disputed for years.
The Well-Gnawed Section 235(b)(2)(A) of the INA
“Other aliens” who were applicants for admission were, under IIRIRA, to be processed under section 235(b)(2) of the INA, which begins, at subparagraph (A), as follows:
Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal proceeding under section 240 of the INA]. [Emphasis added.]
Subparagraph (B) excludes from the scope of section 235(b)(2)(A) “crewmen”, “stowaways”, and aliens subject to expedited removal, while subparagraph (C) permits DHS to send applicants for admission stopped while crossing from Canada or Mexico back across the border to await removal proceedings, in lieu of detention.
Until early 2025, no administration applied the detention mandate in section 235(b)(2)(A) to “applicants for admission” who crossed the border illegally, evaded inspection, and resettled in the interior. Instead, those aliens were permitted to seek bond from DHS and the immigration court under section 236(a) of the INA.
In 2025, however, the Trump II DHS concluded that, regardless of how long an illegal entrant remained at large in this country, the alien remained subject to mandatory detention under section 235(b)(2)(A) of the INA and could not be released.
In its September opinion in Matter of Yajure Hurtado, the Board of Immigration Appeals (BIA), the administrative tribunal that independently interprets the INA for the attorney general, concluded DHS was correct in its interpretation, and held immigration judges could not grant bond to illegal entrants.
Thousands of detained aliens then filed petitions for habeas corpus with various district courts, seeking release from immigration detention and arguing section 235(b)(2) only mandates detention of alien “applicants for admission” stopped at the borders and ports, not to those found in the interior.
And more than 370 district court judges, and now the Second and the 11th circuits, agreed with those aliens.
At their heart, all those decisions focused on the two highlighted phrases in section 235(b)(2)(A) of the INA above, that is “applicant for admission” and “alien seeking admission”, concluding the second phrase describes a subset of the first, and only mandates detention of aliens who are “seeking admission” at the ports and borders — not in the interior.
By this point, the analyses run thousands of pages, making 235(b)(2)(A) likely the most gnawed-over provision of the act.
Alvarez
Which brings me to Alvarez, where the majority reached that exact conclusion.
My analysis could end there, except to highlight portions of both the majority and the dissent to show that the issue is not as cut and dried as most may suggest.
Exceptionally, the majority makes a huge admission at the bottom of page 15: “If our task ended with the ordinary meaning of the two phrases, we would agree that they are synonymous.”
Usually, “the ordinary meaning” of any statute is the end of judicial analysis, and yet the majority then spends the rest of its opinion rejecting that ordinary meaning.
Then there’s this, from page 22: “The Government’s proffered reading [of section 235(b)(2)(A)] would create a binary choice for unadmitted aliens present in the interior: they either seek admission or they voluntarily self-deport.”
Indeed, that is exactly the choice the Trump II policy is offering, but it’s also the deal Congress pitched when it added the inspection protocol to section 235 of the INA.
Next, this, from page 36:
Reading [section 235(b)(2)(A)] to apply to all unadmitted aliens present in the country would shift the center of gravity for detention authority under the INA, transforming an ancillary catchall provision into the statute’s chief detention mechanism, and blurring the line between two different detention pathways.
Indeed it would, but as I explained above, it is clear from the structure of IIRIRA that Congress intended to “shift the center of gravity for detention authority under the INA” from one favoring release of aliens who entered “free from official restraint” under the pre-IIRIRA entry doctrine to one that denied release — specifically to deter aliens from bypassing the ports on the way in.
The Reporting Requirement
Finally, there’s this, from page 50 in the majority opinion:
None of these important revisions, however, suggest Congress also sought to throw out the entry doctrine where federal detention authority was concerned. There is no evidence in the record that Congress anticipated, much less intended, that its revisions of [section 235] would mandate potentially the largest detention operation in the Republic’s history.
Actually, plenty suggests “Congress anticipated that its revisions would mandate the largest detention operation in the Republic’s history”; the majority just never looked for any of it.
When IIRIRA was passed, I was serving as an associate district counsel for the then-INS in San Francisco and tasked with explaining the changes to the other attorneys in the INS’s Western District. Everyone associated with the endeavor, from the attorney general down, understood how it expanded detention because everyone was concerned about where the detention beds would come from.
Ironically, the majority alludes to those concerns on page 51 of its opinion:
Congress was also keenly aware of the limited detention resources available when drafting IIRIRA. In expanding detention for criminal aliens under [section 236(c)], it allocated funding for an additional five hundred beds in detention centers by the end of fiscal year 1997, and also added a special escape hatch for the Attorney General, so that enforcement of [236(c)] could be delayed for up to two years if detention space proved to be insufficient — an escape hatch the Attorney General actually used.
All true, but proving the exact opposite point the majority intended.
What the majority overlooked was section 386 of IIRIRA, which (in subsection (a)) directed the attorney general to expand detention beds to 9,000 by the end of FY 1997 and in subsection 386(b)(1) required the attorney general to submit a report to Congress “every 6 months” that estimated:
the amount of detention space that will be required, during the fiscal year in which the report is submitted and the succeeding fiscal year, to detain ... all excludable or deportable aliens subject to proceedings under ... section 235(b)(2)(A) or 240 of the Immigration and Nationality Act. [Emphasis added.]
If Congress didn’t anticipate the impacts of this change in section 235(b)(2)(A) of the INA on detention, as the majority asserts, why was it concerned enough in IIRIRA itself about the strain on immigration bed space to require the attorney general (now DHS secretary) to file an expected detention report every six months?
To the contrary, the burden should have been on the petitioners in this case to show that Congress didn’t intend to “throw out the entry doctrine” entirely, particularly “where federal detention authority was concerned”.
Which they couldn’t have done, because Congress in IIRIRA wanted the dreaded entry doctrine dead for good.
The Government’s “Strongest Textual Argument”
“In what is perhaps its strongest textual argument”, the majority conceded DOJ cited to the phrase “or otherwise seeking admission” in section 235(a)(3) of the INA, to show that “applicants for admission” are “necessarily a subset of those ‘seeking admission,’ and thus being an applicant for admission satisfies the condition of ‘seeking admission’” in section 235(b)(2)(A).
That provision states: “All aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.”
As noted above, crewmen are one of the classes of aliens excluded from section 235(b)(2)(A), and their specific inclusion in the class of aliens “seeking admission” in section 235(a)(3) suggests that the phrase “seeking admission” in section 235(b)(2)(A) simply replicates the term “applicant for admission” therein, not narrows it.
You can read what Judge Lagoa describes as the “several pages of rebuttal” to that “strongest textual argument” in the majority’s opinion, but let’s just say she didn’t buy that rebuttal, or any of the majority’s strained efforts to ignore the “ordinary meaning” of the two key phrases in section 235(b)(2)(A).
“The Authority Granted Is Too Large”
Judge Lagoa’s dissent aptly summed up what lies at the heart of nearly all of the determinations by the 370-plus federal judges who’ve rejected the Trump II “mass detention” policy for illegal entrants: “The objection is not that Congress hid the authority” to detain all those aliens, “but that the authority granted” by Congress “is too large”.
That’s why, until Trump II, no administration in nearly 30 years had the temerity to comply with Congress’s detention mandate in section 235(b)(2)(A).
Whether Congress’s grant of authority to DHS to detain millions of illegal entrants is “too large” is a political question for Congress and the executive, not a legal one for the courts. Don’t be surprised if the Supreme Court doesn’t agree. As Justice Robert Jackson quipped, the Court isn’t “final because we are infallible, but we are infallible only because we are final”. Finality is what this issue needs.