A legal battle over Trump II’s application of a 1996 mandatory detention requirement for all aliens who entered illegally — even those who have resided here for years — entered a new stage on Friday, when a divided Fifth Circuit panel concluded that under section 235(b) of the Immigration and Nationality Act (INA), DHS can hold such aliens pending removal proceedings without releasing them on bond. Ignore the countless district court habeas corpus decisions saying the opposite: This question is headed to the one tribunal that matters — the Supreme Court.
The “Entry Doctrine”, Section 235(b) of the INA, and IIRIRA
As I have explained in the past, prior to 1996 aliens facing civil immigration action were sorted into two groups, those stopped immediately at the ports of entry and in the process of crossing the border illegally and everybody else, under a judicially crafted principle called the “entry doctrine”.
The former group were subject to “exclusion” proceedings, at which they were accorded only those due process rights Congress provided them, while the latter aliens went into “deportation” proceedings and received a full panoply of constitutional rights.
At the borders and ports, the difference between which aliens went into which proceedings was largely dependent upon whether the alien had entered “free from official constraint”, i.e., without being immediately nabbed or having a government official watching the illicit entry, or not.
Not surprisingly, the entry doctrine was unwieldy, overly complex in its implementation, and subject to intense and needless litigation. To ameliorate these difficulties, in 1996 Congress scrapped it in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).
IIRIRA eliminated exclusion and deportation proceedings in favor of a uniform system of “removal proceedings” in section 240 of the INA, and 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 advance these new concepts, IIRIRA amended section 235 of the INA to create what I call the “inspection protocol”, which 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.]
That definition does not apply only to an alien at the border or a port of entry “who has not been admitted”; rather, it covers any unadmitted alien, regardless of where and when they are found, including those in the interior.
“Expedited Removal” and Section 240 “Removal Proceedings”
Section 235(b)(1) of the INA, as amended by IIRIRA, “expedited removal”, permits DHS immigration officers to bypass section 240 removal proceedings and issue a removal order to any alien they encounter at the ports or border who lacks proper entry documents or seeks admission via fraud, provided the alien hasn’t established a “credible fear” of persecution if removed.
If an alien does show a credible fear of return to the satisfaction of a USCIS asylum officer or an immigration judge, DHS must take the alien out of expedited removal and place the alien into section 240 removal proceedings before an immigration judge, to apply for asylum and associated protections.
Moreover, section 235(b)(1)(A)(iii) of the INA gives the executive branch the option to also subject aliens who entered illegally but are found in the interior within two years of their illicit entries to expedited removal in lieu of section 240 removal proceedings, as well.
Under section 240(b)(2) of the INA, however, any alien who: (1) is not subjected to expedited removal; (2) has not been admitted; and (3) “is not clearly and beyond a doubt entitled to be admitted” must be placed into section 240 removal proceedings before an immigration judge.
Mandatory Detention for Aliens
Regardless, however, of whether an “applicant for admission” is in expedited removal proceedings or is placed directly into section 240 removal proceedings, section 235(b) of the INA requires DHS to detain the alien pending either a final order of removal, or admission, or the granting of a benefit or protection that would allow the alien to remain.
In the nearly 30 years since the INA was amended by IIRIRA, however, various administrations have ignored, in whole or part, the detention mandates in section 235(b) of the act.
For example, in its May 2005 opinion in Matter of X-K-, the Board of Immigration Appeals (BIA) held that applicants for admission who’d been subject to expedited removal, found to have a credible fear, and placed into section 240 removal proceedings before an immigration judge were eligible for release on bond.
In his April 2019 opinion in Matter of M-S-, however, Trump I Attorney General Bill Barr reversed Matter of X-K-, in light of a 2018 Supreme Court opinion that held aliens who had been in expedited removal were subject to detention under section 235(b) until their removal cases had reached their conclusion.
Similarly, a December 2009, Obama-era memo allowed ICE to release applicants for admission who had been in expedited removal but who had been found to have a credible fear on parole pending the completion of section 240 removal proceedings before immigration judges.
More generally, between the passage of IIRIRA in September 1996 and last July, every administration had allowed applicants for admission who were first encountered by immigration officers after living in the interior to seek release, first from DHS and then in “bond proceedings” from an immigration judge, despite the statutory detention mandates for applicants for admission in section 235(b).
The Lyons Memo and Matter of Yajure Hurtado
On July 15, 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 barred from receiving bond.
That article never mentioned the detention mandate in section 235(b)(2), linked to the purported Lyons memo, or offered much legal analysis at all, but in analyzing that report two weeks later, I posited that the IIRIRA amendments were at the heart of the new policy.
My suspicions were verified in early September, when the BIA issued an opinion in Matter of Yajure Hurtado, finding that immigration judges could not release the class of aliens reportedly 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.
“Habeas 700”
The Lyons memo and the BIA opinion in Matter of Yajure Hurtado have resulted in the detention of thousands of illegal entrants and triggered nearly as many applications from aliens to federal district court judges seeking release on habeas — 713 in the U.S. District Court for Minnesota (D. Minn.) alone as of February 5, according to a Center for the American Experiment article headlined “Habeas 700”.
As I have explained in the past, Congress in section 242 of the INA (as also amended by IIRIRA) largely cut trial-level district court judges out of review of immigration-related issues, but the one area of jurisdiction those courts have retained relates to requests for release from DHS custody on habeas.
Nearly all of those habeas applications have been successful, with one law firm claiming “roughly” 97 percent of all alien applicants had managed to secure release from district court judges in the more than 8,000 cases that had been filed since the new policy took effect.
None of that surprises me, for three reasons.
First, because they lack general jurisdiction over immigration matters, few district court judges have any experience in the field and therefore are likely to rely on more stringent criminal-law release theories in weighing continued detention.
Second (and respectfully), the federal judiciary as a whole has become more politicized over the past decade-plus for reasons I explained in November, and consequently many federal judges are sympathetic to aliens’ requests for release from immigration detention.
Third, as noted, IIRIRA first imposed detention mandates on all alien “applicants for admission” in September 1996, but for the better part of three decades, immigration authorities either failed or refused to implement them.
Changing a long-held policy that favors release — even one with little or no support in statute — is more legally difficult than implementing the same policy ab initio directly after the statute was written, especially since up until the passage of the Laken Riley Act (LRA) in January 2025, no third party (not even a state) had standing to challenge a DHS decision to release aliens, only to decisions to detain them.
Section 3(a) of the LRA explicitly authorized state attorneys general to sue DHS for injunctive relief to block the department from releasing aliens subject to detention under section 235(b)(2) of the INA, and if that authority had existed at the time the Clinton administration first implemented IIRIRA, some state likely would have sought federal review of a release policy at the time.
Following the passage of the LRA, however, DHS now risks being sued (in habeas) if it fails to release an illegal entrant or (under LRA) if it fails to detain that same alien — a legal dilemma that few in the media or public office appear to appreciate let alone comprehend.
Buenrostro-Mendez v. Bondi
Which brings me to an opinion issued by a divided three-judge panel of the Fifth Circuit on February 6 in Buenrostro-Mendez v. Bondi.
The petitioners are two Mexican nationals, Victor Buenrostro-Mendez and Jose Padron Covarrubias, both of whom entered illegally, the former in 2009 and the latter in 2001.
Both were encountered by DHS in 2025, and upon inspection the department concluded that neither had been admitted.
After they were placed into removal proceedings, each asked their respective immigration judges for release on bond, which was denied under the detention mandate in section 235(b)(2)(A) of the INA. Both denials were affirmed by the BIA, likely under Matter of Yajure Hurtado.
Each subsequently filed a habeas petition, Covarrubias in July and Buenrostro-Mendez in August, asking the district court for either release from immigration detention or to order a bond hearing under the general release provisions of section 236(a) of the INA.
The district court ordered bond hearings in each case, and notwithstanding the fact that each was subsequently released, DOJ appealed those district court orders.
Both aliens concede they are applicants for admission as defined in section 235(a)(1) of the INA and neither disputed they would be subject to mandatory detention if section 235(b)(2)(A) applied to them; their argument was that, under the language of the statute, that provision did not apply.
Section 235(b)(2)(A) reads, 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” removal proceedings under section 240 of the INA (emphasis added).
In essence, their argument was that the detention mandate only applies to an alien who is: (1) an applicant for admission”; and (2) “seeking admission” at the border or a port of entry. Because they had traveled into the interior and settled here, they contended, they are no longer “seeking admission”, even if they remain applicants for admission.
Two judges on the three-judge panel rejected that interpretation, concluding (among other things) that if Congress had meant the detention mandate to only apply to aliens stopped at the border or a port, it would have used the more precise term “arriving alien” as it did three other times in section 235 of the INA.
Next, the petitioners argued that mandating the detention of all inadmissible “applicants for admission” renders portions of section 236 of the INA (which governs arrests on administrative warrants and the release of aliens pending removal proceedings generally) superfluous, a point I examined in analyzing Matter of Yajure Hurtado in September.
The most significant redundancy is between section 235(b)(2)(A) and section 236(c)(1)(E)(ii), the latter of which bars the release of illegal entrants who have committed certain criminal acts, including burglary, theft, shoplifting, “or any crime that results in death or serious bodily injury to another person”.
That latter provision was added by the Laken Riley Act, which as the majority in Buenrostro-Mendez noted, “Congress passed ... at a time when the Executive was still declining to exercise its full enforcement authority under” section 235(b)(2)(A) of the INA.
“Accordingly,” the majority concluded, the LRA “did have a substantial effect when passed insofar as it required the detention without bond or parole of certain aliens the administration was then treating as bond-eligible”, but it only appears superfluous now that the Lyons memo is in effect.
The Fifth Circuit further held that nearly three decades of more restrictive interpretations of section 235(b)(2)(A) didn’t make much difference, because first, “years of consistent practice cannot vindicate an interpretation that is inconsistent with a statute’s plain text” and second, “that prior Administrations decided to use less than their full enforcement authority under” that provision “does not mean they lacked the authority to do more”.
Finally, the Fifth Circuit observed, the government’s current interpretation of section 235(b)(2)(A) “better honors the predominant goal in the enactment of IIRIRA” because:
By eliminating the exclusion/deportation dichotomy, IIRIRA put aliens seeking admission lawfully on equal footing with those who entered without inspection. It seems strange to suggest that Congress would have preserved bond hearings exclusively for unlawful entrants. ... Preserving this distinction is especially odd where the Department of Justice Inspector General found in 1997 that “when aliens are released from custody, nearly 90 percent abscond and are not removed from the United States.”
On to the Supreme Court
The two district-court habeas orders consolidated in Buenrostro-Mendez are not the only ones DOJ is challenging on circuit-court appeal, and given the novelty of DHS’s current interpretation of the illegal-entrant detention mandate in section 235(b)(2)(A) and the consistency of prior interpretations to the contrary, some circuit court will likely rule against the government.
That will set up a “circuit split” the justices will be called upon to resolve.
Does the INA as amended nearly 30 years ago require DHS to detain every illegal entrant it encounters, regardless of where they are found or how long they have been living here? Only the Supreme Court can say for certain, and the sooner the justices do so, the better it will be for everyone involved.