On Tuesday, I analyzed a Fifth Circuit opinion that allowed DHS to hold aliens who had entered illegally without bond pending the resolution of their removal proceedings in immigration court. Circuit court opinions are binding on the trial-level district court judges in that circuit, but Politico now reports that some Fifth Circuit district court judges are attempting to “bypass” that order by distinguishing it on constitutional grounds. Good luck.
An Extremely Truncated Recap
If you’re suffering insomnia, I recommend my February 10 explanation of the Fifth Circuit’s opinion in Buenrostro-Mendez v. Bondi. The issues all relate to statutory interpretation and history, neither of which can fairly be defined as “heart-thumping”. But here’s an extremely truncated recap to bring you up to speed.
Prior to 1996, reviewing courts concluded that aliens who crossed illegally “free from official restraint” had “entered” the United States, and therefore were entitled to more constitutional rights than those stopped while attempting entry at the borders and ports, under what was known as the “entry doctrine”.
Saliently, an alien who had “entered” was placed into “deportation proceedings” and could seek bond from an immigration judge (IJ), whereas IJs lacked authority to release aliens present in this country but who hadn’t entered and were in “exclusion proceedings”.
As one legal expert has explained, determining which proceedings were appropriate in given cases was “rather time consuming” and “delayed the addressing of the ultimate issues in the cases, i.e. the issues of excludability and eligibility for relief”.
In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), he continued:
Congress sought to simplify things by creating removal proceedings which are applicable to aliens admitted to the United States, aliens applying for admission, and aliens present in the United States without being inspected and admitted. It also made the difference dependent simply on whether the alien had been admitted or not.
Specifically, IIRIRA amended section 235 of the INA to: (1) define all non-admitted aliens as “applicants for admission”; (2) create an “inspection protocol” for immigration officers to follow in determining whether those aliens should be admitted; and (3) procedures to be followed to determine whether they should be expelled.
Section 235(b)(1) of the INA, “expedited removal”, authorized immigration officers to issue removal orders for any applicant for admission who sought entry without proper admission documents or through fraud, without presenting those aliens to an IJ.
If an alien in expedited removal demonstrated a “credible fear of persecution”, however, that process stopped and the alien was placed into “removal proceedings” under section 240 of the INA for an IJ to determine whether the applicant for admission was eligible for humanitarian protection.
Alternatively, immigration officers could process applicants for admission without entry documents (including illegal entrants) the same way they must process other inadmissible aliens, by placing them, pursuant to section 235(b)(2), directly into removal proceedings for an IJ decide whether they should be admitted, or expelled, or granted some immigration benefit or relief that would allow them to remain.
Regardless of whether applicants for admission are subjected to expedited removal or placed directly into section 240 removal proceedings before an IJ, however, section 235(b) of the INA requires those aliens to be detained.
That detention mandate dates to 1903, when it only applied to aliens seeking admission at ports of entry; IIRIRA applied it to all applicants for admission, both those who sought inspection at the ports and those who deliberately avoided the ports when entering illegally.
Despite the IIRIRA amendments to section 235, however, President Clinton (who signed the act) and all subsequent administrations up to Trump II found the detention mandates for illegal alien “applicants for admission” didn’t apply to those who evaded apprehension at the border and were found in the interior.
Such aliens remained eligible to seek release from IJs in section 240 removal proceedings until last July, when acting ICE Director Todd Lyons issued a memo concluding that section 235(b)(2)(A) of the INA bars illegal-alien applicants for admission encountered by his agency in the interior from being released.
Thereafter, the Board of Immigration Appeals (BIA) issued a precedent opinion, Matter of Yajure Hurtado, holding IJs could not grant bond to “aliens who are present in the United States without admission ... based on the plain language of section 235(b)(2)(A) of the” INA.
Section 235(b)(2)(A) of the INA and the Flood of Habeas Claims
The key provision in question, section 235(b)(2)(A) of the INA, states, in pertinent part:
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.]
Thousands of aliens denied IJ detention redeterminations under the Lyons memo and Matter of Yajure Hurtado filed habeas claims with various district court judges seeking either IJ bond reviews or straight-out release from custody, and nearly all of those requests were granted.
Most of those reviewing district court judges relied on some combination of the same three legal conclusions in granting habeas release.
First, by using different terms — “applicant for admission” and “alien seeking admission” in section 235(b)(2)(A) of the INA — Congress intended the detention mandate to only apply to aliens stopped at the border and the ports (“seeking admission”) and not to aliens who had resettled in the interior.
Second, the detention mandate in that provision couldn’t apply to all illegal entrants, because such a reading of the act would improperly render other detention mandates in the INA “surplusage”.
As the late Justice Antonin Scalia explained the “surplusage canon” of statutory interpretation: “If possible, every word and every provision is to be given effect. ... None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.”
Note that section 236(a) of the INA allows immigration officers to arrest aliens with administrative warrants, and also authorizes IJs to release aliens detained by DHS on bond or “conditional parole”.
That said, section 236(c) of the INA bars DHS and IJs from releasing certain criminal aliens and national security threats, including — as amended by the Laken Riley Act (LRA) — illegal entrants who have been arrested or convicted for various offenses, including “burglary, theft, [or] shoplifting”.
If section 235(b)(2)(A) mandated the detention of all illegal entrant “applicants for admission”, those district court judges reasoned, section 236(c) wouldn’t specifically bar DHS and IJs from releasing them, and any other interpretation would render that bar surplusage.
Third, as noted, no other president — including Clinton, who signed IIRIRA — had ever interpreted section 235(b)(2)(A) of the INA as mandating the detention of all illegal alien applicants for admission before, so not reading the statute in that matter had the imprimatur of prior policy.
Buenrostro-Mendez v. Bondi
As I explained on February 10, a divided three-judge Fifth Circuit panel assigned DOJ’s appeal from a district court habeas release order in Buenrostro-Mendez considered those arguments and dismissed each.
The circuit held that the statute as read in context mandates detention of illegal entrant applicants for admission; the LRA amendment makes sense given that when it was passed (in late January 2025), DHS read section 235(b)(2)(A) more restrictively than it is now; and as for prior interpretations, “years of consistent practice cannot vindicate an interpretation that is inconsistent with a statute’s plain text” nor does it mean prior administrations “lacked the authority to do more” with respect to detentions.
“Judges May Have Found a Way to Bypass 5th Circuit Ruling”
Which brings me to a February 10 article in D.C. tipsheet Politico headlined “Judges may have found a way to bypass 5th Circuit ruling upholding Trump’s mass detention policy”.
It begins: “Federal judges may have found a workaround to reject the Trump administration’s mass detention policy after an appeals court backed the approach.”
I’ll stop there to note it is not the duty of trial-level district court judges to “find workarounds” to higher-level precedent opinions they don’t like or agree with, and when they do so, they create the appearance they are no longer neutral arbiters but active partisans.
That Politico frames those decisions in such a bloodless manner suggests either: (1) judicial activism is now so de rigueur that it scarcely merits comment; or (2) the outlet agrees with those workarounds.
In any event, that article highlights two post-Buenrostro-Mendez habeas release decisions issued by district court judges in the Fifth Circuit: Cumbe Lema v. Anda-Ybarra and Hassen v. Noem.
Cumbe Lema
Jose Rogelio Cumbe Lema entered illegally “approximately” 37 years ago and was apprehended “for the first time” by DHS in November.
He was detained in El Paso, and filed a Petition for Writ of Habeas Corpus with the U.S. District Court for the Western District of Texas (W.D. Texas), where it was assigned to Judge Kathleen Cardone, who was appointed to the bench by President George W. Bush in 2003.
On February 9, she issued an order directing the government to either provide Cumbe Lima with a bond hearing or release him “under reasonable conditions of supervision” by February 17.
Judge Cardone found that her conclusions with respect to release were “not changed by the Fifth Circuit’s recent decision in Buenrostro-Mendez”, as the circuit court did not resolve the question of whether continued detention of long-time resident illegal entrants “without an opportunity for a meaningful individualized custody determination” violates procedural due process principles.
“In sum”, she held, “Buenrostro-Mendez has no bearing on this Court’s determination of whether Cumbe Lema is being detained in violation of his constitutional right to procedural due process.”
That decision is light on precedential references, with the W.D. Texas opting to instead cite other orders the judge had issued on this subject.
I will note, however, that in Jennings v. Rodriguez — a 2018 Supreme Court opinion that addressed, inter alia, the mandatory detention requirements in section 235(b) of the INA — Justice Alito writing for the majority rejected an interpretation of that statute that relied on the “constitutional avoidance canon” to find aliens subject to detention by statute have a right to periodic bond reviews.
As he explained: “Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems.”
Specifically, Justice Alito noted that both sections 235(b)(1) (which mandates the detention of applicants for admission subject to expedited removal) and 235(b)(2) “provide for detention for a specified period of time”, in the latter case “for a removal proceeding” under section 240 of the INA before an IJ.
Limited detention in that context, the Court concluded, did not render any interpretation of either of those provisions as mandating detention unconstitutional per se.
That is different from the “procedural due process” issue the W.D. Texas identified, but it raises the question whether it is “fundamentally unfair” for an alien to remain detained pending removal proceedings.
That seems like a slim reed to me, though to be fair Buenrostro-Mendez didn’t address the constitutional issue, and perhaps the Fifth Circuit will see it differently than I have if the government appeals Cumbe Lema.
Hassen
Amin Ibrahim Hassen is an Ethiopian national who came to the Calexico (Calif.) port of entry in 2024 and claimed a fear of harm if returned home.
He was subject to expedited removal, found to have a credible fear, placed in removal proceedings, and released on parole (for one year) under section 212(d)(5)(A) of the INA in November 2024.
Hassen’s parole expired more than two months before he was arrested during an ICE call-in on January 9, 2026, in Minnesota, and he ostensibly was transported to Texas.
Five days later, he filed a Petition for Writ of Habeas Corpus with the W.D. Texas, where it was assigned to Senior Judge David Briones, who was nominated for the court by President Clinton in 1994.
On February 9, Judge Briones ordered the government to provide Hassen “with a bond hearing before an immigration judge at which the government shall bear the burden of justifying, by clear and convincing evidence, the dangerousness or flight risk for” his “continued detention”, or alternatively release him “from custody, under reasonable conditions of supervision, during the pendency of their removal proceedings”.
At this point, I will note the trepidation I have in questioning the legal findings of a judge who’s been on the bench for almost as long as I have practiced law. But here goes anyway.
In Jennings, the Court concluded that section 235(b)(1) of the INA mandates the detention of applicants for admission encountered by CBP at the borders and ports, and that the Constitution does not require DHS or IJs to provide them with bond redeterminations while they are in bond proceedings.
And, in Matter of M-A-, then-Attorney General Bill Barr held that aliens like Hassen who were subject to expedited removal, found to have a credible fear, and placed into removal proceedings are not eligible for bond redeterminations under section 236(a) of the INA, following Jennings.
And I will note that nearly 74 years ago, in Carlson v. Landon, the Supreme Court held detained aliens don’t have a constitutional right to be released on bond, and consequently reviewing courts have nearly universally held, “The burden is on the alien to show to the satisfaction of the Immigration Judge that he or she merits release on bond.” (Emphasis added.)
Respectfully, the fact that Hassen was released on parole and free for more than a year doesn’t change that analysis, for two reasons.
First, the parole statute, section 212(d)(5)(A) of the INA, makes clear that parolees once released must, when parole expires, be re-detained, stating in pertinent part that:
when the purposes of such parole shall ... have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. [Emphasis added.]
Hassen was released from detention, and by statute must return to that detention. Moreover, I will further note that it wasn’t current DHS Secretary Kristi Noem who placed temporal limits on the time he could remain free, it was her predecessor, Alejandro Mayorkas.
Second, Mayorkas’s lavish (and extra-statutory) parole policies in part prompted Congress to pass the LRA to curb such abuses.
Section 3(d) of the Laken Riley Act gives state attorneys general standing to file suit in federal courts for injunctive relief to prevent DHS from releasing aliens on any ground other than “for urgent humanitarian reasons or significant public benefit”, neither of which appears to be present in Hassan’s case.
Notwithstanding all that, Judge Briones contended that aliens “who have ‘established connections’ in the United States by virtue of living in the country for a substantial period acquire a liberty interest in being free from government detention without due process of law”.
Regardless of the legal validity of that contention in general, it almost certainly isn’t true in the case of an alien like Hassen who only obtained those “established connections” while on parole.
As the Fifth Circuit explained in its 2022 opinion in Duarte v. Mayorkas:
parole creates something of legal fiction; although a paroled alien is physically allowed to enter the country, the legal status of the alien is the same as if he or she were still being held at the border waiting for his or her application for admission to be granted or denied. [Emphasis added.]
I’ll also note that the Fifth Circuit in Duarte cited the Third Circuit’s 2005 opinion in Zheng v. Gonzales for the proposition that:
Parole is a form of relief from immigration detention; it is not a form of relief from removal proceedings, and when the purposes of parole have been served the parolee must be returned to custody and removal proceedings must continue. [Emphasis added.]
In fact, while the W.D. Texas cites the Supreme Court’s opinion in DHS v. Thuraissigiam for its “established connections” argument, it ignores the rest of what the justices said. Here is the quote in toto:
While aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. [Emphasis added.]
Under the “legal fiction” of parole, Hassen remains “on the threshold of initial entry”, and under that 2020 opinion, he has only the rights Congress has expressly given him under section 235 of the INA, which does not include a right to a bond hearing, let alone one at which the government bears the burden of proof.
Perhaps I am missing something, but Judge Briones’ analysis appears to be at odds not only with the Fifth Circuit’s opinion in Buenrostro-Mendez but also with its decision in Duarte, to say nothing of the Supreme Court’s opinions in Jennings and Thuraissigiam.
Consequently, don’t be surprised if DOJ appeals the W.D. Texas’s order in Hassen, and potentially obtains an even more fulsome analysis than it received in Buenrostro-Mendez.
Workarounds
U.S. district court judges are entrusted to make decisions in the cases they’re assigned. But they’re courts of first impression, not last, and must rule in accordance with circuit and Supreme Court precedent. In so doing, district courts are free to distinguish precedents, but they aren’t free to ignore them — or usually to “bypass” them, either. The distinction can be a very fine line, indeed.