Update — October 1, 2026
The Supreme Court granted certiorari today in Rhoney v. Barbosa da Cunha, No. 26-104, to resolve whether 8 U.S.C. § 1225(b)(2)(A) mandates detention of noncitizens present in the United States without having been admitted. Arguments are expected in early 2027. The Court will resolve a direct circuit split between the Second Circuit — which held § 1226(a) governs interior arrests of long-term EWI residents and bond hearings are required — and the Fifth and Eighth Circuits, which held the opposite.
The answer, as I argued in my February 7 analysis of Matter of Yajure Hurtado and as the Second Circuit confirmed in the ruling below, is no. The statute requires two distinct conditions — “applicant for admission” and “seeking admission” — and a person who crossed the border two decades ago and now seeks relief from removal satisfies only the first. The Supreme Court will have the final word.
The original analysis below remains current.
Second Circuit: Long-Term Interior Residents Are Not “Seeking Admission” — Bond Hearings Required, Circuit Split Now Open
Cunha v. Freden, No. 25-3141 (2d Cir. April 28, 2026) | Judge Bianco, writing for the panel (Cabranes, Bianco, Nathan, Circuit Judges.)
The Second Circuit ruled on April 28, 2026 that 8 U.S.C. § 1225(b)(2)(A) — the statute the Trump administration weaponized in July 2025 to eliminate bond hearings for everyone who entered without inspection — does not apply to noncitizens who entered without authorization years or decades ago and now live in the interior. Those people fall under 8 U.S.C. § 1226(a). They get a bond hearing. The ruling joins more than 370 district court judges who have rejected the government’s position, and it opens a direct circuit split with the Fifth and Eighth Circuits.
The circuit map now looks like this: the Fifth Circuit (Buenrostro-Mendez v. Bondi, Feb. 2026) and the Eighth Circuit (Avila v. Bondi, 2026) say mandatory detention with no bond. The Second Circuit, plus the Seventh’s preliminary ruling in Castañon-Nava, say § 1226(a) governs and bond hearings are available. Two circuits against millions of long-term residents. The Second Circuit, 370+ district judges, and the Seventh Circuit’s preliminary ruling for them.
Full analysis below.
🧑 The Man Behind the Case
Ricardo Aparecido Barbosa da Cunha came from Brazil around 2004 or 2005. He crossed without inspection. He stayed. He built a life in Norwood, Massachusetts — owns a home, married, raised two U.S. citizen children, filed for asylum in 2016, got a valid work permit, and ran a small construction business. He has never been arrested for or charged with a crime. Not once.
On September 26, 2025, ICE pulled his car over on the way to work and arrested him on an administrative warrant issued under § 1226 of the INA. DHS charged him as inadmissible: present without admission, no documentation. He asked for a bond hearing. The immigration judge said no. The government’s position: his entry without inspection twenty years earlier permanently assigned him to mandatory detention under § 1225(b)(2)(A), with no judicial review of flight risk or dangerousness, for however long his removal case runs. The government itself conceded he posed no danger and no flight risk. That concession did not matter to the government’s theory. It did matter to the Second Circuit.
ℹ️ The Policy Shift That Started This — In July 2025, ICE issued Interim Guidance Regarding Detention Authority for Applicants for Admission, abandoning 28 years of practice under which EWI noncitizens received bond hearings. Two months later, the BIA’s Matter of Yajure Hurtado (September 2025) provided the formal legal framework to justify what ICE had already done. The Cunha habeas petition — filed in the Western District of New York after ICE transferred him to Buffalo — is one of thousands triggered by that policy shift. The Second Circuit’s ruling resolves them for the circuit.
⚖️ The Ruling
Plain Language First
Section 1225(b)(2)(A) requires both “applicant for admission” AND “seeking admission.” Cunha satisfies only the first. He is not seeking admission. Therefore § 1226(a) governs. He gets a bond hearing. That is the whole case.
The Statutory Framework
Section 1225(b)(2)(A) reads: “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.” The government read this as a single, unified mandate: anyone who carries the status of “applicant for admission” — which by § 1225(a)(1) includes every EWI noncitizen — faces mandatory detention with no bond option.
Judge Bianco starts exactly where a rigorous textualist must: with the words Congress actually chose. The sentence contains two distinct phrases doing two distinct pieces of work. “Applicant for admission” is a statutory fiction. Section 1225(a)(1) says such persons “shall be deemed” applicants for admission. “Deem” is a term of legal art that creates a fiction — it treats something as if it were what it is not. Congress manufactured an artificial legal category for people like Cunha: they are called applicants even though they never applied for anything and cannot lawfully apply now. The fiction routes them into removal proceedings. It does not mandate detention.
“Seeking admission” carries no such fiction. Congress did not “deem” anyone to be “seeking admission.” That phrase retains its ordinary meaning — and its ordinary meaning is temporal. “Seeking” is a present participle. The principal verb is “is.” The statute addresses “an alien who is seeking admission.” Right now. Presently. Not in 2004. Cunha crossed without permission two decades ago, has lived here ever since, and seeks asylum and cancellation of removal. He is not requesting lawful entry into the United States.
“Applicant for admission” = a status Congress created artificially via “deemed.” It has no temporal scope — you can hold it for twenty years. “Seeking admission” = an activity that requires present engagement. The statute demands both. Congress put both phrases in the same sentence for a reason. The government’s reading collapses them into one. The Second Circuit enforces the difference.
The Counter-Arguments, Rejected
§ 1226(a) applies only to visa overstayers. The government argued § 1226(a) covers only previously admitted aliens. The court calls this a rewrite. Section 1226(a) covers “an alien” pending a removal decision. Congress knows how to limit provisions to deportable aliens — it does so repeatedly elsewhere in IIRIRA. It did not do so here.
The Laken Riley Act is irrelevant. The government’s reading renders the Laken Riley Act — signed in January 2025 to mandate detention of EWI noncitizens who commit specified crimes — nearly superfluous for the population it targeted. If all EWI noncitizens were already mandatorily detained under § 1225(b)(2)(A), Congress enacted an entire statute to solve a problem that did not exist.
Jennings v. Rodriguez controls. In Jennings (2018), the Supreme Court described § 1225 as operating “at the Nation’s borders and ports of entry” and § 1226 as applying to “aliens already in the country.” The Second Circuit treats this as authoritative. The government identifies no change in the legal landscape that would justify departing from it.
Thirty years of executive practice and congressional silence. Five administrations — including Trump’s first term — released EWI noncitizens on bond under § 1226(a). The 1997 DOJ regulation stated it explicitly: “despite being applicants for admission, aliens who are present without having been admitted or paroled . . . will be eligible for bond and bond redetermination.” Congress then amended IIRIRA repeatedly without correcting that interpretation.
Constitutional avoidance as the final backstop. Even if the text were ambiguous — and the court insists it is not — the government’s interpretation proposes the broadest mass-detention-without-bond mandate in American history. Mandatory indefinite detention for millions of noncitizens, many with no dangerousness finding and no flight risk, raises severe Fifth Amendment due process concerns under Zadvydas v. Davis and Velasco Lopez v. Decker.
📊 What This Actually Does: The Detention Map
The real-world rule: An EWI noncitizen arrested in the interior on a warrant, not covered by § 1226(c)’s criminal grounds, is entitled to a bond hearing under § 1226(a). “Applicant for admission” status alone does not eliminate judicial review.
| Scenario | 5th & 8th Circuits | 2nd Circuit |
|---|---|---|
| EWI 20+ years ago, no criminal history, U.S. citizen family, interior arrest | Mandatory detention — no bond | § 1226(a) — bond hearing available |
| EWI 5 years ago, no criminal history, interior arrest | Mandatory detention — no bond | § 1226(a) — bond hearing available |
| EWI apprehended at or near the border at time of crossing | § 1225(b)(2)(A) mandatory detention | § 1225(b)(2)(A) mandatory detention |
| EWI + Laken Riley Act qualifying offense | § 1226(c) mandatory detention | § 1226(c) mandatory detention |
| Visa overstay, no criminal history | § 1226(a) — bond available (all agree) | § 1226(a) — bond available |
🗺️ Border, Interior, and the 100-Mile Zone: Three Separate Legal Frameworks
This case exposes a confusion that runs through public debate and some legal arguments alike. Three distinct legal frameworks govern immigration enforcement in the interior. They operate independently. Conflating them is a mistake the government’s own theory invites — and one the Second Circuit firmly rejects.
Framework 1: § 1225(b)(2)(A) — The Border Detention Statute
This is the statute at issue in Cunha. It mandates detention for noncitizens who present at a port of entry or are apprehended “at the threshold of initial entry.” The Second Circuit is explicit: the test is temporal, not geographic. It asks not where someone was arrested on a map, but whether they were apprehended at the moment of crossing. Cunha crossed in 2004 or 2005. ICE arrested him in Norwood, Massachusetts, twenty years later. He was not at the threshold of entry. § 1225(b)(2)(A) does not reach him.
Framework 2: § 1226(a) — The Interior Detention Statute
Section 1226(a) governs the arrest and detention of noncitizens already present in the United States pending a removal decision. Detention is discretionary. The Attorney General may release on bond. An immigration judge reviews the custody determination. This is the statute that governed EWI interior arrests for nearly 30 years across five administrations — until the government reversed that understanding in July 2025. Under the Second Circuit’s holding, it still does.
Framework 3: The 100-Mile Zone (8 C.F.R. § 287.1) — Warrantless Arrest Authority Only
This framework governs a separate question entirely: where ICE may conduct warrantless arrests without a judicial warrant. Within 100 miles of any external U.S. boundary — land borders and ocean coastlines — ICE holds expanded warrantless arrest authority under 8 C.F.R. § 287.1. This has nothing to do with § 1225(b)(2)(A) or bond eligibility. It answers only who ICE can arrest without first obtaining a warrant.
The 100-mile zone covers international land borders and ocean coastlines. New York City, Los Angeles, Miami, Detroit, and Seattle fall within it. Chicago and Minneapolis do not. Lake Michigan has no international boundary — the U.S.-Canada border runs through Lake Superior, Lake Huron, Lake Erie, and Lake Ontario. Chicago sits well beyond 100 miles from any of those. Minneapolis is landlocked, far from any external boundary.
The government’s 2025 interior enforcement raids swept through all of these cities. Under the 100-mile zone framework, ICE’s arrest authority in New York and Los Angeles differs from its authority in Chicago and Minneapolis. But under the government’s § 1225(b)(2)(A) theory, the detention consequence is identical everywhere: mandatory, no bond, no hearing. That is precisely what the Second Circuit rejected. Geography of the arrest is irrelevant to the detention question. What matters is when — whether the person was apprehended at the threshold of entry or years later in the interior.
If the Supreme Court adopts the government’s position, the detention consequence collapses all three frameworks into one. A person arrested in Chicago 20 years after crossing — far outside the 100-mile zone, clearly in the interior, clearly under § 1226(a) by any prior understanding — faces the same mandatory detention without bond as someone caught stepping across the Rio Grande. The Second Circuit held that reading defies the statutory text, the structure of IIRIRA, and nearly 30 years of uniform executive practice. Jennings v. Rodriguez (2018) said § 1225 operates “at the Nation’s borders and ports of entry” and § 1226 governs those “already in the country.” That distinction has always been the law. The government now asks the Supreme Court to erase it.
🚨 What the Fifth Circuit Said — And Why It’s Wrong
The Fifth Circuit in Buenrostro-Mendez and the Eighth Circuit in Avila v. Bondi both held that mandatory detention applies. Here is their reasoning, and why the Second Circuit correctly dismantles it.
“Applicant for admission” and “seeking admission” carry the same ordinary English meaning. When a person applies for something, they are seeking it. The majority’s signature move: the college applicant analogy. Just as a college applicant “seeks admission” while her application is pending, an EWI noncitizen “seeks admission” while removal proceedings are pending. Judge Douglas dissented, calling the majority’s reading one that “no one has ever thought” § 1225(b)(2)(A) means — because it does not mean it.
🏛️ Practice Advisory: What This Means in the Second Circuit
✅ EWI Interior Arrests — Connecticut, New York, Vermont
In Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 (7th Cir. 2025), the Seventh Circuit — on a stay-motion review — preliminarily reached the same conclusion as the Second Circuit. The court said that while a noncitizen “arrested in the Midwest” might qualify as an “alien present in the United States who had not been admitted” under § 1225(a)(1), the mandatory detention provision limits its scope to an “applicant for admission” who is “seeking admission” — and a Midwest interior arrest does not satisfy that second requirement.
The limit: This is a preliminary ruling on a stay motion, not a full merits decision. Use Castañon-Nava as strong persuasive authority in habeas petitions — pair it with Cunha as the circuit court holding — but preserve the argument fully in anticipation of the Seventh Circuit’s eventual merits decision.
Once a client moves to a detention facility in Texas, Louisiana, or Mississippi (5th Cir.) or the Eighth Circuit states, that circuit’s mandatory-detention precedent governs. ICE has used transfers aggressively to forum-shop adverse habeas cases. If you receive any indication of a transfer — file that day. The window can close in hours.
In the Fifth and Eighth Circuits, mandatory detention is currently the law. Everywhere else, district court habeas petitions under 28 U.S.C. § 2241 remain viable and are winning at a rate that dwarfs the government’s wins. File on: (1) § 1226(a) governs — Cunha is now primary authority; (2) prolonged detention without individualized review violates due process under Zadvydas; (3) no individualized dangerousness finding renders continued detention constitutionally deficient under Velasco Lopez. The Second Circuit’s 61-page opinion is your brief appendix.
🔢 What To Do Now
🏁 Conclusion
The Second Circuit got this right. It read two phrases appearing in the same sentence of the same statute, gave both phrases independent meaning, followed the Supreme Court’s own description of the statutory architecture in Jennings, honored 30 years of executive practice across five administrations, and refused to impose the largest mass-detention mandate in American history through an interpretation that 370+ district judges have rejected. The ruling is careful, rigorous, and correct.
The Fifth and Eighth Circuits arrived at a result that treats the Laken Riley Act as essentially superfluous, punishes EWI residents more harshly than visa overstayers with identical equities, and gives ICE the power to lock up millions based on a decades-old fact about how someone crossed a border — with no individualized assessment, no judicial review, and no end date. That is not what Congress wrote. That is not what five administrations understood. And it is not what the Fifth Amendment permits.
The Supreme Court granted cert on October 1, 2026. The weight of textual argument runs decisively for the Second Circuit: the surplusage canon, the temporal distinction between noun and present participle, Jennings‘s own description of the statutory scheme, the Laken Riley Act’s implicit concession that non-criminal EWI noncitizens were eligible for bond, and the constitutional avoidance canon all point the same direction. The question is whether there are five votes. There should be.
⚖️ THE BOTTOM LINE
An EWI noncitizen living in the interior is not “seeking admission.” She is seeking to stay.
Section 1226(a) governs her detention. She gets a bond hearing. That is what the statute says, what thirty years of executive practice reflected, and what the Second Circuit now holds as circuit law.
