Mandatory Detention After Yajure-Hurtado

Habeas Challenges to Mandatory Detention After Matter of Yajure-Hurtado

The question presented in these cases is which detention provision governs a noncitizen who entered the United States without inspection and has since resided in the interior. 8 U.S.C. § 1225 provides that "[a]n alien present in the United States who has not been admitted or who arrives in the United States" is one who "shall be deemed for purposes of this chapter an applicant for admission," and § 1225(b)(2)(A) directs that "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." By contrast, 8 U.S.C. § 1226 confers discretionary authority: "[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States," and the government "may release the alien on" a "bond of at least $1,500" or "conditional parole." The significance of the classification is settled. Jennings v. Rodriguez, 583 U.S. 281 (2018) held that "[r]ead most naturally, §§1225(b)(1) and (b)(2) thus mandate detention of applicants for admission until certain proceedings have concluded," and that "neither §1225(b)(1) nor §1225(b)(2) says anything whatsoever about bond hearings." In Matter of Yajure-Hurtado, 29 I&N Dec. 216 (BIA 2025), the Board of Immigration Appeals concluded that entrants without inspection are detained under § 1225(b) rather than § 1226(a), a ruling that eliminated bond hearings for that population and prompted a substantial number of habeas petitions under 28 U.S.C. § 2241.

Most district courts to consider the question have granted habeas relief. Torres Esparza v. Porter, No. 1:25-cv-00599 (D. Idaho Nov 19, 2025) is representative. The court observed that "Dozens of district courts across the nation—with more each day—have rejected DHS’s expansion of § 1225(b)(2)(A)’s mandatory detention to noncitizens already residing here," and that "[o]nly two courts, as far as the Court is aware, have sided with the government." On exhaustion, the court concluded that "[b]ecause the BIA’s decision in Matter of Yajure Hurtado categorically bars immigration judges from conducting bond hearings for individuals who entered without inspection, waiver of the exhaustion requirement is appropriate." On the merits, it reasoned that the phrase "seeking admission" "cannot reasonably be stretched to encompass someone who entered the country years ago, established a life here, and was living peacefully in Idaho until his arrest," and it stated that "the Court orders Petitioner’s immediate release from custody." Hernandez Santos v. Merrick, No. 5:25-cv-01765 (W.D. Tex. Jan 30, 2026) sets out the administrative background. The court noted that "for nearly three decades, Respondents consistently considered noncitizens present in the United States without having been admitted or paroled as being detained under 8 U.S.C. § 1226(a) and thus entitled to bond hearings," and that "[i]n 2025, Respondents adopted a novel theory that noncitizens who are present in the United States without admission or parole are ineligible for bond hearings." The court joined the decisions holding that "noncitizens who entered the United States without inspection cannot ... be detained under Section 1225(b)(2) because, by definition, they are not ‘seeking admission’ within the meaning of the INA at the time of their detention," and it ordered the petitioner’s release from custody.

The two courts of appeals to reach the question have divided. Margarito Castanon Nava v U.S. Department of Homeland Security, No. 25-3050 (7th Cir. Dec 11, 2025) concluded, at a preliminary stage of the litigation, that "[b]ased upon the text and structure of the two provisions, we believe that Plaintiffs have the better argument on the current record," explaining that although "a noncitizen arrested in the Midwest might qualify as “an alien present in the United States who had not been admitted,”" the "mandatory detention provision upon which Defendants rely, limits its scope to an “applicant for admission” who is “seeking admission.”" The Fifth Circuit reached the opposite conclusion. Buenrostro-Mendez v. Bondi, No. 25-20496 (5th Cir. Feb 6, 2026) held "that the government’s position is correct" and "REVERSE[d] the district courts’ orders to provide petitioners with bond hearings or release them," reasoning that "[j]ust as an applicant to a college seeks admission, an applicant for admission to the United States is “seeking admission” to the same, regardless whether the person actively engages in further affirmative acts to gain admission" and that "[y]ears of consistent practice cannot vindicate an interpretation that is inconsistent with a statute’s plain text." Because the court concluded that "[t]he statute unambiguously provides for mandatory detention," the statutory argument is foreclosed within that circuit. Judge Douglas, dissenting, would have read "“seeking admission”" to "mean[] what it sounds like: actively seeking to enter this country."

Because the two circuits to address the question have reached opposite conclusions on which detention provision governs, the availability of a bond hearing currently depends on the circuit in which the § 2241 petition is filed, and the choice between § 1226(a) and § 1225(b)(2) framing is the dispositive question in most of these petitions. In the decisions granting relief, the statutory analysis has turned on the distinction between the deemed status of an applicant for admission and the present-tense requirement of seeking admission, and courts have generally excused administrative exhaustion as futile because the Board’s categorical position leaves immigration judges without authority to conduct bond hearings. Those decisions have also given weight to the petitioner’s length of residence, arrest in the interior rather than at the border, family and employment ties, and absence of criminal history, and the remedies granted have included both immediate release and orders directing an individualized bond hearing with release as the alternative disposition. Within the Fifth Circuit, the statutory argument is foreclosed, so the remaining claims are constitutional — the court of appeals expressly left unresolved whether prolonged detention without any individualized finding of dangerousness or flight risk is permissible — while the statutory question remains preserved for a possible Supreme Court resolution of the split. Several district courts have also entered orders restricting the transfer of petitioners out of the district during the litigation, although only where a party requested that relief.