The U.S. Court of Appeals for the Second Circuit recently issued an opinion in Cunha v. Freden, rejecting a Trump II interpretation of section 235(b)(2)(A) of the Immigration and Nationality Act (INA) as barring the release from immigration detention of all illegal entrants in this country, regardless of how long they have resided here. In breaking with Fifth and Eighth Circuit opinions that okayed the Trump II reading of that provision, Cunha tees the issue up for Supreme Court review — which will all come down to a handful of words. Respectfully, the court erred by considering those words in the context of why Congress added them to the act.
The “Inspection Protocol” in Section 235 of the INA
In 1996, Congress overhauled how immigration officers apply the INA to aliens who come illegally.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), enacted in 1996, amended what I refer to as the “inspection protocol” in section 235 of the INA — that is the procedures that govern how immigration officers inspect aliens seeking admission.
Under those amendments, every alien “present in the United States who has not been admitted or who arrives in the United States” is deemed “an applicant for admission”, including those who illegally bypass inspection at the ports and proceed surreptitiously into the interior.
There’s no dispute that under the IIRIRA changes to section 235, applicants for admission are subject to inspection by immigration officers wherever they are found: at the ports; after crossing improperly between the ports; or in the interior of the country, regardless of how long they have been here.
With exceptions, applicants for admission who fail to demonstrate that they are “clearly and beyond a doubt entitled to be admitted” are either immediately removed (“expedited removal” under section 235(b)(1) of the INA) or placed into removal proceedings before immigration judges (“regular removal” under section 235(b)(2) of the INA) to determine whether they should be allowed to remain.
The IIRIRA Detention Mandates, with Exceptions
The dispute that the Trump II detention policy has raised is whether all applicants for admission are subject to mandatory detention, or only the ones stopped by CBP at the borders and the ports.
Section 235(b)(1) of the INA is clear that aliens subject to expedited removal who claim a fear of harm if returned must be detained pending a “credible fear” interview by a USCIS asylum officer and if found to have a credible fear, for a removal proceeding before in immigration judge on the alien’s asylum claim.
The issue at the heart of all of these cases is whether all other alien applicants for admission, the ones who aren’t subject to expedited removal, are subject to mandatory detention as well.
The key provision in the inspection protocol — the one all the analyses focus on, is subparagraph 235(b)(2)(A) of the INA, which states:
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 proceeding under section [240 of the INA; emphasis added].
Subparagraph 235(b)(2)(B) deals with crewmen, stowaways, and aliens subject to expedited removal (each of whom has only limited due process rights, and the latter class covered by section 235(b)(1)), while subparagraph (C) excludes from that detention mandate aliens encountered at a land border and returned to Canada or Mexico to await section 240 removal proceedings.
As an aside, that last exception was the basis for the Trump I “Remain in Mexico” program.
Returning to the main point, DHS under Trump II bucked nearly 30 years of administrative interpretations to conclude that all “applicants for admission” — regardless of where they are when immigration officers find them and how long they have been here — are subject to mandatory detention.
The Board of Immigration Appeals (BIA), the administrative tribunal that independently interprets the INA, concluded in its September 2025 opinion in Matter of Yajure Hurtado that DHS was correct in its reading of this mandatory detention provision as barring immigration judges from releasing any “applicant for admission” — including those who have lived here unlawfully for years — on bond.
District and Circuit Court Reviews
Consequently, illegal entrants in removal proceedings were detained with no hope of bond, and thousands of them filed petitions for habeas corpus at federal district courts throughout the United States.
As the Second Circuit noted in Cunha, as of the middle of February “over 370 district judges across the Nation ... rejected the government’s position”, more than 90 percent of the federal trial-level jurists who considered that policy change — including, critically, the judge in the U.S. District Court for the Western District of New York (W.D. N.Y.) who considered Cunha’s habeas petition.
DOJ appealed that W.D. N.Y. release order to the Second Circuit, leading to the issuance of that court’s recent opinion.
A similar process played out across other district courts, most notably in the Fifth and Eighth Circuits.
In its February opinion in Buenrostro-Mendez v. Bondi, the Fifth Circuit concurred with Trump II in its reading of section 235(b)(2)(A) of the INA, and in April gave a final seal of approval to that interpretation in its en banc opinion in Buenrostro-Mendez v. Blanche.
Similarly, the Eighth Circuit issued a March opinion in Avila v. Bondi, agreeing with Trump II along roughly the same lines as the Fifth Circuit had.
All three of those opinions were issued by divided courts, with certain circuit judges disagreeing with the majority opinions.
Cunha
Which brings me to the Second Circuit’s opinion in Cunha, bucking the circuit-court trend and finding that mandatory detention under section 235(b)(2)(A) off the INA only applies to aliens who are “seeking admission” at the borders and the ports — not to those who evaded apprehension and settled in this country, who are eligible for release on bond under section 236(a) of the INA.
Nearly all the heavy lifting in the Second Circuit’s opinion is done by its conclusion that the phrase “an alien seeking admission” in section 242(b)(2)(A) of the INA that mandatory detention only applies to aliens at the borders and the ports, and not to any other alien who moves to an indeterminate point and remains for an indeterminate period in this country.
That argument was considered and dismissed by both the Fifth and Eighth Circuits, but the Second Circuit believes it is so evident from the language of the provision that the opinion uses the phrase “seeking admission” 71 different times and spends 22 pages discussing it.
What Section 235(b)(2)(A) Is Meant to Do
Once more, and excluding the exceptions for crewmen, stowaways, and aliens subject to expedited removal, here is the text of section 235(b)(2)(A):
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 proceeding under section 1229a of this title.
One mistake (in my opinion) the Second Circuit and most of those 370-plus district court judges made in interpreting this provision is leaving out the second part of the second clause in that excerpt, and for that reason failed to understand how it works and why Congress inserted that subparagraph into the act.
As I have explained in the past, the IIRIRA amendments to the inspection protocol were a sea change, completely shifting how the law applied to specific aliens.
Prior to IIRIRA, the rights an alien received in immigration court and the standards immigration judges applied were governed exclusively by whether the alien had “entered” — lawfully or unlawfully, “free from official restraint” — or had not made an entry.
Aliens who hadn’t made an “entry” — defined in then-section 101(a)(13) of the INA as “any coming of an alien into the United States, from a foreign port or place or from an outlying possession” — were placed in “exclusion” proceedings under then-section 236 of the INA, received only the rights Congress had given them, and bore the burden in exclusion proceedings of proving they were “not inadmissible under any provision of the” INA.
Aliens who had made an entry (legally or illegally by evading apprehensions), however, were placed into “deportation” proceedings under then-section 242(b) of the INA where they received greater rights and where the government bore the burden under the Supreme Court’s 1966 opinion in Woodby v. INS of establishing “facts supporting deportability by clear, unequivocal, and convincing evidence”.
As a former colleague on the immigration bench has explained, this exclusion vs. deportation dichotomy premised on entry “caused a great deal of litigation over the issue of whether certain aliens were properly placed in exclusion proceedings”, and consequently Congress in IIRIRA:
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.
Post-IIRIRA, admitted aliens are subject to removal if they fall within a “class of deportable aliens” in section 237(a) of the INA, whereas aliens who haven’t been admitted are subject to removal if they fall within one or more of the “classes of aliens ineligible for visas or admission” in section 212(a) of the INA, but removal proceedings for both are identical — except for when they aren’t.
Consistent with the amendments to section 235 of the INA and the pre-1996 standards, Congress in IIRIRA separated the burdens of proof for determining removability based on whether an alien had been admitted and was therefore only removable on section 237(a) grounds or hadn’t been admitted and was removable on section 212(a) grounds.
Under section 240(c)(2) of the INA, an “applicant for admission” has the burden in removal proceedings of establishing “that the alien is clearly and beyond doubt entitled to be admitted and is not inadmissible under” section 212 of the INA, or proving “by clear and convincing evidence, that the alien is lawfully present in the United States pursuant to a prior admission”. (Emphasis added.)
By contrast, and consistent with Woodby, section 240(c)(3) of the INA states DHS “has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable”, and further states: “No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.”
While the burden on the government in proceedings involving admitted aliens is identical to what it had been for aliens in old deportation proceedings, Congress had to create a new standard for establishing the burden on aliens who hadn’t been admitted but were facing removal.
It chose to require that those aliens prove they are “clearly and beyond doubt entitled to be admitted”, and to make that standard workable by both immigration officers (in section 235(b)(2)(A) of the INA) and immigration judges (in section 240(c)(2) of the INA) it used the exact same language.
The Second Circuit and nearly every district court that has rejected the Trump II detention change skips right over that standard to tie “an alien seeking admission” to the class of applicants for admission who “shall be detained” under section 235(b)(2)(A) of the INA.
But if those courts are correct and the only “aliens seeking admission” are those stopped by CBP at the borders and the ports, what standard are immigration officers who find unadmitted aliens away from the borders and ports supposed to apply when they encounter them to determine whether to place them into proceedings?
Section 235(b)(2)(A) of the INA does two interrelated things: (1) it provides a consistent standard for immigration officers to follow in inspecting aliens who haven’t been admitted; and (2) it requires DHS to detain those who cannot carry that burden of proof, which unadmitted aliens must again satisfy in removal proceedings.
Section 235(a)(2) of the INA
To put a pin in it, consider section 235(a)(2) of the INA, which states:
An applicant for admission may be required to state under oath any information sought by an immigration officer regarding the purposes and intentions of the applicant in seeking admission to the United States, including the applicant's intended length of stay and whether the applicant intends to remain permanently or become a United States citizen, and whether the applicant is inadmissible. [Emphasis added.]
The Second Circuit largely ignored this provision, contending it merely “implicitly recogniz[es] that some applicants for admission will not be required to” give statements under oath, and “makes perfect sense as a matter of grammar and logic, even acknowledging that not all applicants for admission are also seeking admission”, but respectfully, again, this analysis fails to comprehend why Congress included it.
Section 235(a)(2) empowers immigration officers, both at the borders and ports and elsewhere, to place alien “applicants for admission” under oath and question them regarding their presence and intentions in this country.
Notably, it’s a felony under 18 U.S.C. § 1546(a) (subject to up to 10 years’ imprisonment) to “knowingly make[] under oath ... any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws”. Non-sworn statements don’t count, so Congress in section 235(a)(2) had to grant immigration officers the authority to place applicants for admission under oath.
Under the Second Circuit’s logic, however, immigration officers cannot place “applicants for admission” under oath under section 235(a)(2) if they are encountered in the interior, but that was plainly not Congress’s intent and would subvert 18 U.S.C. § 1546(a).
And in using the same terms “applicant for admission” and “seeking admission” in sections 235(a)(2) and (b)(2)(A), Congress clearly intended for those two provisions to apply in the same manner.
Circuit Split
Because there is now a “circuit split”, with the Fifth and Eighth Circuits on one side and the Second Circuit on the other, on the question of whether the Trump II mandatory detention policy for illegal entrants encountered in the interior is consistent with section 235(b)(2), the question is primed for Supreme Court review. Trust the “grammar hammers” on the Court to have a field day sorting it out.