Last week, a Trump II policy shift that barred aliens who entered illegally and were arrested in the United States from being released passed another key judicial hurdle when the U.S. Court of Appeals for the Fifth Circuit refused to reconsider a split three-judge panel opinion allowing that change. Ignore the thousands of district court decisions ordering the release of aliens detained under the new policy — for now.
The “Inspection Protocol”
In 1996, Congress revamped how immigration officers treat aliens who come improperly to this country.
The legal immigration process is straightforward: A foreign national seeking to come here permanently (an “immigrant”) or temporarily (a “nonimmigrant”) applies for a visa, receives that visa at a consulate abroad, arrives at a U.S. port of entry and presents that visa to an inspector, and is admitted.
That legal process imposes multiple requirements on both immigrants and nonimmigrants, not the least of which is establishing to the satisfaction of both the consular officer and the inspector that they do not have criminal records that would bar them from being admitted.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), enacted in the fall of 1996, amended what I refer to as the “inspection protocol” in section 235 of the Immigration and Nationality Act (INA), that is the procedures that govern the admission process by inspectors at the ports.
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.
Pursuant to the IIRIRA changes to section 235, those 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 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 Detention Mandate, and the Exceptions
Regardless, under section 235 of the INA as amended by IIRIRA, all applicants for admission must be detained until they are either admitted or removed.
There are two exceptions to that detention mandate: “parole” under section 212(d)(5)(A) of the INA, a limited authority that permits DHS to release applicants for admission temporarily into the United States “for urgent humanitarian reasons or significant public benefit”; and, for aliens encountered at a land border, return to Canada or Mexico under section 235(b)(2)(C) of the INA to await removal proceedings.
That latter exception was the basis for the Trump I “Remain in Mexico” program, which was challenged in the courts without resolution before it was terminated at the beginning of the Biden administration and then reinstated at the start of Trump II.
Various Administrations Ignore the Detention Mandate
Prior to IIRIRA, immigration judges and the then-INS had authority to release aliens who had crossed illegally into the United States “free from official restraint” on bond or their own recognizance, and after enactment of that law, both INS (and then DHS) and DOJ largely ignored Congress’s detention mandates for applicants for admission in section 235 of the INA.
Or perhaps it’s better to say the Clinton, George W. Bush, Obama, Trump I, and Biden administrations ignored that detention mandate, instead releasing applicants for admission who were encountered in the interior under the general arrest and release authority in section 236(a) of the INA that applies to other aliens facing removal.
Trump II Reinterpretation
In 2025, however, DHS under Trump II reviewed the section 235 detention mandates and concluded illegal entrants who are encountered by ICE in the interior aren’t eligible for release after all.
One alien held under that switch in policy challenged his detention, and in its September 2025 opinion in Matter of Yajure Hurtado, the Board of Immigration Appeals (“BIA”, the DOJ administrative tribunal that reviews immigration determinations) concluded that the law meant what it said, and barred immigration judges from ordering the release of applicants for admission.
The Flood of Habeas Petitions
DHS detentions of illegal entrants without bond quickly expanded, and because they were shut out of bond in the immigration courts and before the BIA, thousands of those aliens filed habeas petitions seeking release in U.S. district courts nationwide.
Note that Congress in section 242 of the INA (“Judicial review of orders of removal”) largely removed the jurisdiction of trial-level federal district court judges to consider immigration-related matters, and thus few of them have any expertise on the workings of the act.
But district court judges putatively retain authority to consider habeas petitions filed by aliens seeking release from civil immigration detention, and most of the courts that have received such petitions have ordered DHS to release aliens detained under the Trump II detention policy.
Buenrostro-Mendez v. Bondi
Circuit courts, on the other hand, have primary Article III jurisdiction to review most immigration matters, and on October 24 DOJ filed an appeal with the Fifth Circuit of a district court order directing the federal government to provide a bond hearing to Victor Buenrostro-Mendez, a Mexican national who entered illegally “over a decade” before he was encountered by immigration officers in 2025.
On February 6, a three-judge panel of the Fifth Circuit issued a split opinion in the case, Buenrostro-Mendez v. Bondi, with the two judges in the majority concluding that the Trump II detention policy shift was permissible, and finding that it “better honor[ed] the predominant goal in the enactment of IIRIRA” than prior administrations’ interpretation of section 235 of the INA.
Thereafter, the Eighth Circuit issued yet another split opinion in Avila v. Bondi, with the two-judge majority reaching roughly the same conclusions as the Fifth Circuit in Buenrostro-Mendez.
Denial of the Request for Rehearing En Banc
Additional briefing in the Fifth Circuit followed, including a petition filed by the alien appellees for a rehearing of their claims en banc, that is, by all 17 judges on the circuit court.
Given that the February 6 opinion in Buenrostro-Mendez was split, with one judge dissenting from the majority’s conclusions, an en banc request was reasonable; maybe the appellees just drew a bad panel.
On April 9, however, the same three-judge panel issued a separate order, explaining that: “Because no member of the panel or judge in regular active service requested that the court be polled on rehearing en banc ... the petition for rehearing en banc is DENIED.”
The Next Steps
The Fifth Circuit has jurisdiction over the states of Texas, Louisiana, and Mississippi, and according to the Migration Policy Institute, those three states combined are home to more than two million unauthorized individuals. Most entered illegally.
Assuming they want to go that route, the only remaining option for the appellees in Buenrostro-Mendez (and the only hope for other illegal entrants in the Fifth Circuit seeking release from ICE custody) would be a petition for writ of certiorari with the Supreme Court, which they must file by May 9.
At least four of the nine justices on the High Court must agree to grant certiorari for the case to be heard, and as there is no “circuit split” — that is, no U.S. Court of Appeals has issued an opinion that disagrees with the Fifth and Eighth Circuits on the issue — the prospects for that may be slim.
Given the massive number of habeas petitions flooding district courts elsewhere, however, the justices may be inclined to consider whether the Trump II interpretation of the detention mandates in section 235 of the INA is appropriate, simply to resolve the issue and offer those judges and DOJ some relief.
Stay tuned.
Responding to the Grumblings
In much the same way as immigrants’ advocates have reveled in the thousands of district court orders directing ICE to release illegal entrants since the new policy took effect, many enforcement supporters have grumbled about those trial-level judges interposing themselves in detention decisions.
This is the way that the detention policy shift was always going to play out because this is how our legal system works. As soon as they were precluded by the BIA’s opinion in Matter of Yajure Hurtado from seeking release on bond, countless detained aliens were bound to head to district courts for relief, and myriad district court judges were going to grant it.
Congress created the courts of appeal to review individual federal district court decisions, and the Supreme Court to examine the circuit courts’ opinions on major issues. Our legal process is deliberately slow, but in the case of ICE detentions of illegal entrants, it’s working out in the administration’s favor — for now.