A February 10 ProPublica headline reads, “Immigrants Who Say Their Detention Is Illegal Have Filed More Than 18,000 Cases. It’s a Historic High.” The vast majority are “habeas” claims filed in response to a Trump II interpretation of the mandatory detention provisions in section 235(b)(2) of the Immigration and Nationality Act (INA), which bars the release of aliens who entered illegally and settled in the United States. That policy change has been approved by both the Board of Immigration Appeals (BIA) and the Fifth Circuit, but the suits keep coming. Could one state attorney general put the kibosh on them all? The answer may be found in the first bill passed in the current (119th) Congress, the Laken Riley Act.
“Applicants for Admission” under Section 235 of the INA
As I have explained in the past, Congress in 1996 changed the way the INA treats aliens who are arriving or have arrived in the United States, both legally and otherwise.
First, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) eliminated what were known as “exclusion” and “deportation” proceedings to determine whether aliens could remain in the United States in favor of a uniform system of “removal proceedings” under section 240 of the INA.
Second, IIRIRA differentiated between aliens who received more or fewer due process rights by focusing solely on whether those aliens had been “admitted” as defined in section 101(a)(4) of the INA or not.
To implement these new concepts, IIRIRA amended section 235 of the INA to create what I call the “inspection protocol”. That statutory protocol imposes a duty on immigration officers to inspect all aliens they find at the border, ports, or interior who have not been admitted to determine whether they are admissible.
Notably, section 235(a)(1) of the INA states:
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. [Emphasis added.]
As is apparent from a reading of that provision, the term “applicant for admission” doesn’t just apply to aliens at the border or ports “who have not been admitted”; rather, it covers any unadmitted alien, regardless of where and when they are found, including those in the interior.
Mandatory Detention of Applicants for Admission
Under section 235(b)(1) of the INA as amended by IIRIRA, DHS immigration officers can bypass formal removal proceedings (hearings that are presided over by immigration judges to determine removability) for aliens without proper documents and order them removed directly, under a procedure known as “expedited removal”.
Expedited removal, however, only applies to aliens encountered by CBP at the borders and the ports, and (at the executive’s discretion) to a limited class of aliens encountered by immigration officers in the interior who have been present for less than two years.
DHS must place every other inadmissible applicant for admission into section 240 removal proceedings before an immigration judge pursuant to section 235(b)(2)(A) of the INA and — most importantly — must detain them until those removal proceedings are completed.
As that provision states, “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 proceeding under section” 240 of the INA. (Emphasis added.)
Prior to Trump II, however, every president — from Clinton who signed IIRIRA through Trump I to Biden — read that last clause out of section 235(b)(2)(A) of the INA in concluding illegal entrants/applicants for admission encountered in the interior of the United States could be released on bond while in removal proceedings.
On July 15, 2025, however, the Washington Post reported that acting ICE Director Todd Lyons had revisited the eligibility of illegal entrants found in the interior for release pending removal proceedings, and concluded they were subject to mandatory detention.
Matter of Yajure Hurtado and Buenrostro-Mendez v. Bondi
Less than two months later, in early September 2025, the BIA issued a bond opinion in Matter of Yajure Hurtado.
The Board concluded that immigration judges could not release the class of aliens described in the Lyons memo — “aliens who are present in the United States without admission” — on bond “based on the plain language of section 235(b)(2)(A)” of the INA.
The immigration courts are what I refer to as a “top-down organization”, meaning judges must issue decisions in line with the BIA’s opinions.
And when they stopped releasing long-term illegal entrants who were encountered by ICE residing in the United States on bond, aliens began filing “habeas” petitions, asking federal district court judges to order their releases.
As ProPublica reports, trial-level U.S. district courts have been flooded with such claims, and in most of those cases, the judges either ordered those petitioners released or directed immigration judges to hold bond hearings in their cases.
DOJ has appealed a handful of those habeas release orders to the appellate-level federal circuit courts, and in its February 6 opinion in Buenrostro-Mendez v. Bondi, a split three-judge panel of the U.S. Court of Appeals for the Fifth Circuit concluded (among other things) that the Trump II interpretation of the mandatory detention provision in section 235(b)(2)(A) of the INA “better honors the predominant goal in the enactment of IIRIRA” than prior administrations’ applications of that rule.
The Burden on DOJ
The federal judiciary is also supposed to be a top-down organization, with circuit decisions serving as binding precedent within the individual circuits, but nonetheless, certain district court judges in the Fifth Circuit have attempted to “distinguish” their habeas claims from the ones at issue in Buenrostro-Mendez and trial-level federal judges elsewhere have simply ignored it.
That has imposed a crushing burden on DOJ, because even though it is the world’s largest law firm, its lawyers are having to scramble to respond to each new habeas petition.
Section 3 of the Laken Riley Act
Which brings me to Pub. L. 119-1, the Laken Riley Act.
Section 3 in that act, “Enforcement by Attorney General of a State”, was a direct response to the Biden administration’s refusal to comply with the detention mandates in section 235(b) of the INA by releasing applicants for admission encountered by CBP at the Southwest border.
In January 2024, I estimated that under “catch and release” policies implemented by President Biden’s DHS Secretary, Alejandro Mayorkas, 88.5 percent of all aliens encountered by CBP at the Southwest border were released into the United States, in clear and direct violation of the statute.
The states of Texas and Missouri challenged Biden’s border releases in federal court, but in its June 2022 opinion, Biden v. Texas, the Supreme Court held that that the states lacked authority to enforce the detention mandates, or more precisely to force the administration to return aliens it could not detain back across the border to await their removal proceedings.
Section 3(a) of the Laken Riley Act legislatively reversed Biden v. Texas by adding a new paragraph (3) to section 235(b) of the INA.
As amended, section 235(b)(3) of the INA grants state attorneys general (AGs) standing to sue DHS in the federal courts for any “violation of the detention and removal requirements under paragraph (1) or (2)” of section 235(b) of the INA “that harms such State or its residents”.
In other words, under section 235(b)(3) of the INA, as amended by section 3 of the Laken Riley Act, Texas State AG Ken Paxton, Florida State AG James Uthmeier, Kansas State AG Kris Kobach, or any of the 24 other Republican state AGs could sue the Trump administration to force DHS to detain all illegally present “applicants for admission” encountered by the department in the interior.
DOJ would likely welcome such a suit, but even if it opposed litigation on precedential grounds, it would be much easier for the department’s lawyers to litigate one claim as opposed to 18,000 individual ones.
The remedy specified by section 3(a) of the Laken Riley Act for releases in violation of the detention mandate in section 235(b)(2)(A) of the INA is injunctive relief, and if a district court judge in Texas, Florida, Kansas, or elsewhere were to enjoin DHS from releasing such aliens, other district court judges elsewhere would be hard pressed to order them released.
The Underutilized Laken Riley Act
The Laken Riley Act is the most important immigration-related legislation Congress has passed in the last two decades, and yet it’s largely underutilized. State AGs may want to review the act, because it gives them more power than they could have imagined over immigration — and likely the opportunity to shut down 18,000 alien-release cases that are overwhelming DOJ.