Margarito Castanon Nava v. U.S. Department of Homeland Security

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 25-3050

MARGARITO CASTAÑON-NAVA, et al.,

Plaintiffs-Appellees,

v.

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:18-cv-3757 — Jeffrey I. Cummings, Judge.

____________________

ARGUED FEBRUARY 3, 2026 — DECIDED MAY 5, 2026

____________________

Before KIRSCH, LEE, and PRYOR, Circuit Judges.

LEE, Circuit Judge. In 2018, Plaintiffs filed this suit against

the Department of Homeland Security and the U.S. Immigra-

tion and Customs Enforcement (“Defendants”), alleging that

they violated 8 U.S.C. § 1357(a)(2) by arresting noncitizens

without reason to believe that they were likely to escape be-

fore warrants could be obtained. To resolve the lawsuit, in

2022, Defendants and Plaintiffs entered into a Consent Decree

that was negotiated over the course of two different

2 No. 25-3050

administrations. In it, Defendants agreed, among other

things, to comply with § 1357(a)(2) when making warrantless

arrests and issue a “Broadcast Statement of Policy” affirming

“the underlying laws and policies applicable to all arrests ef-

fected under 8 U.S.C. § 1357(a)(2).” Dkt. 155-1 at 5, 6, 17. 1

In exchange, Defendants obtained a dismissal with preju-

dice and release of all related claims, “avoid[ing] the substan-

tial expense, inconvenience, and distraction of further pro-

tracted litigation ... and finally put[ting] to rest and termi-

nat[ing]” the action. Id. at 2. Defendants do not challenge the

validity of the original Consent Decree or the authority of the

district court to enter it.

Instead, Defendants appeal two orders the district court

entered on October 7, 2025, and November 13, 2025. As to the

former, Defendants object to the district court’s decision to ex-

tend the Consent Decree by 118 days due to Defendants’ sub-

stantial noncompliance with its terms. As to the latter, De-

fendants take issue with the district court’s order that they re-

lease 13 class members, as well as approximately 200 addi-

tional individuals, whose arrests (in the district court’s

words) “potentially” violated § 1357(a)(2). 2

In December 2025, Defendants filed a motion to stay the

orders pending appeal, which we denied in part and granted

in part. See Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161

F.4th 1048 (7th Cir. 2025). After the benefit of full briefing and

1 “Dkt.” refers to the docket number in the district court record.

2 At oral argument on February 3, 2026, Plaintiffs’ counsel represented

that the number of potential class members is now “fewer than 200.” Oral

Argument at 21:29.

No. 25-3050 3

oral argument, we now affirm the October 7 order’s 118-day

extension of the Consent Decree and affirm in part and re-

verse in part the November 13 order.

I. Background

In 2018, Plaintiffs filed this class action against the Depart-

ment of Homeland Security (“DHS”), Immigration and Cus-

toms Enforcement (“ICE”), and various federal officials, alleg-

ing that they were arresting noncitizens without a warrant in

violation of 8 U.S.C. § 1357(a)(2). This provision provides, in

relevant part:

Any officer or employee of the Service authorized un-

der regulations prescribed by the Attorney General

shall have power without warrant ... to arrest any alien

in the United States, if he has reason to believe that the

alien so arrested is in the United States in violation of

[any law or regulation made in pursuance of law reg-

ulating the admission, exclusion, expulsion, or re-

moval of aliens] and is likely to escape before a warrant

can be obtained for his arrest.

After several years of discovery and motion practice, the

parties negotiated a settlement and signed the Consent Decree

on November 29, 2021. On February 8, 2022, the district court

granted final approval of the agreement, entered the Consent

Decree, and certified the following class pursuant to Federal

Rule of Civil Procedure 23(e): “All current and future persons

arrested without a warrant for a civil violation of U.S. immi-

gration laws within the area of responsibility of the ICE Chi-

cago Field Office.” Dkt. 158 at 4.

As part of the Consent Decree, Defendants agreed to issue

a “Broadcast Statement of Policy” to all ICE officers affirming

4 No. 25-3050

ICE’s obligations under § 1357(a)(2). Dkt. 155-1 at 6–7, 17–19.

Defendants also agreed to adopt or amend training materials

to ensure compliance with § 1357(a)(2) and maintain records

documenting warrantless arrests. Id. at 7–8.

The Consent Decree also laid out how the parties would

address any future claims that Defendants had violated the

terms of the Consent Decree. For example, in those instances

where Plaintiffs believe that Defendants have arrested and de-

tained an individual in violation of § 1357(a)(2), they can raise

the issue with Defendants and file a motion to enforce if the

parties are unable to agree upon a resolution. Id. at 10–11. Fur-

thermore, if Plaintiffs come to believe that Defendants have

repeatedly and materially violated the Consent Decree, they

can file a motion, after conferring with Defendants, and seek

appropriate equitable relief from the court. Id. at 11. 3

Under its terms, the Consent Decree was scheduled to ex-

pire on May 12, 2025, three years after its effective date. How-

ever, the parties agreed that it would only terminate on that

date “absent a pending motion to enforce its terms.” Id. at 5.

3 Release comports with the remedy provided when someone is ar-

rested in violation of federal law. See Arias v. Rogers, 676 F.2d 1139, 1142

(7th Cir. 1982) (“If the petitioners had been arrested illegally by [immigra-

tion] officers and carted off to jail and the [agency] had made no move to

begin deportation proceedings, the petitioners would have been entitled

to obtain their freedom through a habeas corpus proceeding because their

detention would have violated the Fourth Amendment, which forbids

‘unreasonable ... seizures,’ including arrests, of persons whether or not

they are citizens; and the immigration laws, specifically 8 U.S.C.

§ 1357(a)(2).”).

No. 25-3050 5

A. October 7 Order

On March 13, 2025, Plaintiffs filed a motion to enforce the

Consent Decree, asserting that ICE had arrested 26 individu-

als in violation of § 1357(a)(2) and the Consent Decree. Dkt.

164.

On April 14, 2025, Plaintiffs also filed a motion to modify

the Consent Decree pursuant to Rule 60(b)(5). Dkt. 177. In it,

Plaintiffs argued that an extension of the Consent Decree by

an additional three years was warranted given Defendants’

repeated and material noncompliance with the Consent De-

cree.

While both motions were pending, a senior DHS official

issued an email on June 11, 2025, unilaterally declaring that

ICE’s obligations under the Consent Decree were terminated:

Despite a pending motion to enforce the settlement

agreement and motion to extend the settlement agree-

ment, it remains terminated. Accordingly, I hereby re-

scind the May 27, 2022, Castañon-Nava Settlement Ob-

ligation statement of policy.

Dkt. 193 at 1.

On October 7, 2025, the district court granted the enforce-

ment motion in part, finding that 22 of the 26 individuals

identified in the motion were arrested in violation of the Con-

sent Decree. Because some of the 22 individuals were arrested

pursuant to blank or field-issued I-200 warrants, 4 Defendants

4 A Form I-200, which is entitled “Warrant of Arrest,” is an adminis-

trative arrest warrant issued against noncitizens for civil immigration vi-

olations by an authorized immigration officer. See 8 C.F.R. § 236.1(b)(1)

6 No. 25-3050

argued that those arrests were not warrantless and, thus, fell

outside the scope of the Consent Decree. The district court

disagreed and, because the 22 individuals had already been

released, entered an order awarding fees to Plaintiffs. Defend-

ants do not challenge that relief here.

Instead, what they appeal is the remainder of the October

7 order granting Plaintiffs’ Rule 60(b)(5) request to modify the

Consent Decree by extending it. In short, the district court

found that Defendants had failed to substantially comply

with the Consent Decree. But it concluded that an extension

of 118 days—not three years, as Plaintiffs requested—was the

appropriate remedy. This extension, the court reasoned, was

equal to the number of days between June 11, 2025—the date

that Defendants announced they would stop abiding by the

Consent Decree—and October 7, 2025, the date of the order’s

issuance. Thus, it ordered that the Consent Decree remain in

effect until February 2, 2026. On appeal, Defendants challenge

the 118-day extension. 5

B. November 13 Order

Soon thereafter, on October 20, 2025, Plaintiffs filed a Mo-

tion for Placement of Potential Class Members on Alternatives

to Detention (“ATD motion”). Dkt. 219. The ATD motion was

(regulation governing arrests with I-200 warrant); 8 U.S.C. § 1226 (statute

governing arrest of noncitizens pursuant to warrant).

5 Pursuant to its terms, the Consent Decree remains in effect because

at least one additional motion to enforce remains pending. See Dkts. 372,

382. Furthermore, the parties agree that the district court retains jurisdic-

tion to enforce the Consent Decree for thirty days following Defendants’

certification that they have produced all required records, which has yet

to occur. Dkt. 303 at 56–57.

No. 25-3050 7

filed in response to Defendants’ request for a two-month ex-

tension to produce certain documents Plaintiffs had sought

regarding the arrest of numerous individuals whom Plaintiffs

believed had been arrested in violation of the Consent Decree.

Given the delay, Plaintiffs asked the district court to order De-

fendants to place “each potential class member” arrested

prior to October 7, 2025, on ankle monitors or other alterna-

tives to detention. Dkt. 219-9 at 1. Defendants objected, argu-

ing that release of these “potential” class members contra-

vened the Consent Decree, which permitted release only

when Plaintiffs established that the arrests in question vio-

lated § 1357(a)(2) and the Consent Decree. Dkt. 227.

On November 7, 2025, the parties filed a joint status report,

identifying 46 arrests that the parties agreed violated the Con-

sent Decree. At a hearing on November 12, 2025, the parties

indicated that two additional individuals were no longer in

detention and confirmed 13 class members had been arrested

in violation of the Consent Decree and remained in ICE cus-

tody. Defendants nevertheless opposed their release, assert-

ing for the first time that the 13 individuals, who were ar-

rested without a warrant of any kind, were being detained

pursuant to ICE’s mandatory detention authority under

8 U.S.C. § 1225(b)(2)(A).

On November 13, 2025, the district court ordered the re-

lease of the 13 individuals. It also granted Plaintiffs’ broader

request, noting that “given the number of instances where the

parties have agreed that the rights of the class members were

violated, it stands to reason that a significant number of addi-

tional violations will be uncovered as plaintiffs receive and

analyze the arrest records of the remaining arrestees.” Dkt.

247 at 4. Accordingly, the district court also ordered

8 No. 25-3050

Defendants to release on bond, or other alternatives to deten-

tion, 615 “potential class members,” who were detained but

did not pose a high risk of danger to the public. 6 According to

the parties, that number now stands at around 200. On appeal,

Defendants challenge the November 13 order in its entirety.

II. Discussion

A. The 118-Day Extension

We begin with Defendants’ appeal of the district court’s

decision in its October 7 order to extend the term of the Con-

sent Decree by 118 days.

As a preliminary matter, we conclude (and the parties

agree) that 28 U.S.C. § 1292(a)(1) grants us jurisdiction to re-

view the district court’s ruling. See Motorola, Inc. v. Comput.

Displays Int’l, Inc., 739 F.2d 1149, 1155 (7th Cir. 1984) (holding

that this court has jurisdiction to review orders regarding in-

junctions where the district court “alters the legal relationship

between the parties, whether by ‘modification’ or ‘interpreta-

tion.’”). The parties also agree that the applicable standard of

review is abuse of discretion. See Shakman v. Clerk of Cook

Cnty., 994 F.3d 832, 840 (7th Cir. 2021). Thus, we adopt the

district court’s findings unless “clearly erroneous,” id., keep-

ing in mind that “[a]n error of law is necessarily an abuse of

discretion,” Tsareff v. ManWeb Servs., Inc., 794 F.3d 841, 848

(7th Cir. 2015) (citing Est. of Enoch ex rel. Enoch v. Tienor, 570

F.3d 821, 822 (7th Cir. 2009)).

Here, Defendants do not challenge the district court’s fac-

tual findings justifying the 118-day extension. Instead, they

6 This ruling was stayed pending appeal. See Castañon-Nava, 161 F.4th

at 1064.

No. 25-3050 9

contend that the 118-day extension constitutes an “error of

law” because it contravenes 8 U.S.C. § 1252(f)(1) as well as

“fundamental restrictions on the modification of ‘institutional

reform decrees.’” App. Br. at 26–27. We consider each argu-

ment in turn.

1. Section 1252(f)(1) Does Not Preclude Relief

Defendants contend that 8 U.S.C. § 1252(f)(1) bars the

court from extending the Consent Decree. That statute pro-

vides:

Regardless of the nature of the action or claim or of the

identity of the party or parties bringing the action, no

court (other than the Supreme Court) shall have juris-

diction or authority to enjoin or restrain the operation

of the provisions of part IV of this subchapter [8 U.S.C.

§§ 1221–1232], as amended by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996,

other than with respect to the application of such pro-

visions to an individual alien against whom proceed-

ings under such part have been initiated.

In Defendants’ view, the October 7 order violates

§ 1252(f)(1) because, by extending the Consent Decree, it im-

permissibly restrains the government’s authority to detain

noncitizens under 8 U.S.C. §§ 1225(b) and 1226(a).

a. Waiver

This is not the first time Defendants have raised this objec-

tion. In fact, they made this exact argument before the district

court on at least two separate occasions before agreeing to the

Consent Decree. See Dkt. 27 at 13–14 (opposition to class cer-

tification); Dkt. 66-1 at 14–15 n.5 (motion to dismiss). Then, to

obtain the benefits of settlement, Defendants abandoned the

10 No. 25-3050

argument, thereby waiving it. 7 This is a textbook example of

an “intentional relinquishment of a known right.” Miller v.

Willow Creek Homes, Inc., 249 F.3d 629, 631 (7th Cir. 2001); see

United States v. Armour & Co., 402 U.S. 673, 681 (1971) (“Con-

sent decrees are entered into by parties to a case after careful

negotiation has produced agreement on their precise terms.”).

In response, Defendants argue that a § 1252(f)(1) objection

is unwaivable because it is jurisdictional. But, as the Supreme

Court has held, although it uses the word “jurisdiction,”

§ 1252(f)(1) does not limit a federal court’s subject matter juris-

diction to hear the matter. Biden v. Texas, 597 U.S. 785, 797–801

(2022). The “question whether a court has jurisdiction to grant

a particular remedy,” the Supreme Court observed, “is differ-

ent from the question whether it has subject matter jurisdic-

tion over a particular class of claims.” Id. at 801.

Resisting this conclusion, Defendants assert that “jurisdic-

tion,” as mentioned in § 1252(f)(1), “speaks to ‘a court’s

power,’ and so cannot ‘be forfeited or waived,’” quoting

United States v. Cotton, 535 U.S. 625, 630 (2002). But, even in

Cotton, the Supreme Court was careful to point out that it was

subject matter jurisdiction that could not be waived “because

it involves a court’s power to hear a case.” Id. By contrast,

nothing in § 1252(f)(1) restricts a federal court’s power to ad-

judicate or hear a case. “By its plain terms, and even by its

7 Defendants also failed to raise their § 1252(f)(1) argument in their

opposition to Plaintiffs’ Rule 60(b)(5) motion to modify, thereby waiving

it a second time. See Wheeler v. Hronopoulos, 891 F.3d 1072, 1073 (7th Cir.

2018) (“Failing to bring an argument to the district court means that you

waive that argument on appeal.”) (citing United Cent. Bank v. Davenport

Est. LLC, 815 F.3d 315, 318 (7th Cir. 2016), and Puffer v. Allstate Ins. Co., 675

F.3d 709, 718 (7th Cir. 2012)).

No. 25-3050 11

title, section 1252(f)(1) is nothing more or less than a limit on

injunctive relief.” Biden v. Texas, 597 U.S. at 801 (citation modi-

fied) (emphasis added).

And, while it is true that the Supreme Court did not ex-

pressly decide in Biden v. Texas whether § 1252(f)(1) is wai-

vable, id. at 801 n.4, there is ample reason to believe that it is,

given that objections to similar rules limiting the reach of a

federal court’s power are waivable, see, e.g., Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 584 (1999) (personal jurisdic-

tion is waivable); Hoffman v. Blaski, 363 U.S. 335, 343 (1960)

(“[V]enue, like jurisdiction over the person, may be waived.”);

Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 500 (1923) (equitable

jurisdiction defect is waivable); Sossamon v. Texas, 563 U.S. 277,

284 (2011) (state sovereign immunity is waivable).

Consider the rules governing equitable jurisdiction, per-

haps the closest analogy, which limit a federal court’s power

to grant equitable relief. See Schlesinger v. Councilman, 420 U.S.

738, 753–54 (1975) (“There remains the question of equitable

jurisdiction, a question concerned, not with whether the claim

falls within the limited jurisdiction conferred on the federal

courts, but with whether consistently with the principles gov-

erning equitable relief the court may exercise its remedial

powers”); Guaranty Trust Co. v. York, 326 U.S. 99, 105–06 (1945)

(“[A] plain, adequate and complete remedy at law must be

wanting” for a federal court to exercise its equity powers);

Ruiz v. Bradford Exch, Ltd., 153 F.4th 907, 910 (9th Cir. 2025)

(“The doctrine of ‘equitable jurisdiction’ places limits on the

equitable powers of federal courts.”).

Defendants concede that defects in equitable jurisdiction

are waivable. See Pusey & Jones Co., 261 U.S. at 500 (“[U]nlike

lack of jurisdiction as a federal court ... lack of equity

12 No. 25-3050

jurisdiction (if not objected to by a defendant) may be ignored

by the court, [in certain cases]. And where the defendant has

expressly consented to action by the court, or has failed to ob-

ject seasonably, the objection will be treated as waived.”); Am.

Mills Co. v. Am. Sur. Co. of N.Y., 260 U.S. 360, 363 (1922) (find-

ing that the defendant had waived its adequate-remedy-at-

law objection).

In much the same way, § 1252(f)(1) limits a court’s power

to grant equitable relief (here, in the form of a classwide in-

junction) under certain conditions. Accordingly, as in the case

of equitable jurisdiction, we conclude that any objection based

on § 1252(f)(1) is waivable, and Defendants did so here.

b. The order does not contravene § 1252(f)(1)

That said, even assuming that objections invoking

§ 1252(f)(1) cannot be waived, the 118-day extension of the

Consent Decree does not violate § 1252(f)(1) when it comes to

warrantless arrests. Recall that § 1252(f)(1) only applies to

classwide injunctive relief that “enjoin[s] or restrain[s] the op-

eration of” certain provisions, namely, 8 U.S.C. §§ 1221

through 1232. The Consent Decree, on the other hand, focuses

squarely on § 1357(a)(2) and requires Defendants’ compliance

with it (and no other statute) when making warrantless ar-

rests. Because § 1357(a)(2) is not a covered provision, the ex-

tension of the Consent Decree does not implicate § 1252(f)(1).

Defendants insist that the Consent Decree nonetheless vi-

olates § 1252(f)(1) because it “require[s] the Government to

use its authority under § 1226(a) to ‘arrest’ aliens ‘[o]n a war-

rant’—at least for any alien whose likelihood of escape cannot

be immediately ascertained and documented.” App. Br. at 41.

In essence, Defendants complain that, because the Consent

No. 25-3050 13

Decree does not allow them to arrest individuals in violation

of § 1357(a)(2), it requires them to find that authority else-

where. But “[u]nder our system even government must oper-

ate within the law.” Yanish v. Barber, 73 S. Ct. 1105, 1108 (1953).

And, if requiring the government to comply with § 1357(a)(2)

prompts ICE to rely more on I-200 warrants issued under

§ 1226(a), such indirect, collateral effects do not run afoul of

§ 1252(f)(1). See Garland v. Aleman Gonzalez, 596 U.S. 543, 553

n.4 (2022) (observing that “a court may enjoin the unlawful

operation of a provision that is not specified in § 1252(f)(1) even

if that injunction has some collateral effect on the operation of

a covered provision”) (emphasis in original); Texas v. U.S.

Dep’t of Homeland Sec., 123 F.4th 186, 209–11 (5th Cir. 2024)

(§ 1252(f)(1) does not prohibit injunctive relief to remedy vio-

lations of § 1357(a)(3) even if it may have a collateral effect on

the government’s operations under § 1225 and § 1226); Al Otro

Lado v. Exec. Office for Immigr. Rev., 138 F.4th 1102, 1124 (9th

Cir. 2025), cert. granted on other grounds sub nom. Noem v. Al

Otro Lado, No. 25-5, ––– U.S. ––––, 2025 WL 3198572 (U.S. Nov.

17, 2025) (“Our court has repeatedly held that § 1252(f)(1)

does not prohibit an injunction simply because of collateral

effects on a covered provision.”); Gonzalez v. U.S. Immigr. &

Customs Enf’t, 975 F.3d 788, 812–15 (9th Cir. 2020) (Section

1252(f)(1) does not apply to classwide relief grounded in

§ 1357(d) because it “is not located in Part IV, and thus

§ 1252(f)(1)’s limitations do not apply.”).

To press their case, Defendants rely on N.S. v. Dixon, 141

F.4th 279 (D.C. Cir. 2025), but that case is distinguishable.

There, the district court had concluded that the U.S. Marshals

lacked authority to make civil immigration arrests pursuant

to I-200 warrants. It then permanently enjoined the Marshals

“from arresting and detaining criminal defendants in the

14 No. 25-3050

Superior Court for the District of Columbia for suspected civil

immigration violations.” Id. at 284. The D.C. Circuit agreed

that the Marshals lacked the authority to arrest but reversed

the injunction, reasoning that “[a]n injunction that restrains

the Government from carrying out an arrest and detention of

a criminal defendant pursuant to an I-200 form clearly affects

provisions to which § 1252(f)(1) applies.” Id. at 289. Unlike

N.S., the Consent Decree only addresses warrantless arrests

made pursuant to § 1357(a)(2).

Accordingly, even if Defendants had not waived their ob-

jections under § 1252(f)(1), we hold that the provision does

not bar classwide equitable relief for those arrested without a

warrant under § 1357(a)(2).

As Defendants note, however, the district court’s order

went beyond this. It found (and Defendants do not dispute)

that ICE had implemented a policy of issuing defective I-200

warrants in the field to avoid its obligations under § 1357(a)(2)

and the Consent Decree. 8 But, as the Supreme Court held in

Aleman Gonzalez, § 1252(f)(1) bars an inferior court from issu-

ing classwide injunctive relief that would interfere with ICE’s

operation of § 1226, even if the court believes the manner in

which the government exercised its authority under the pro-

vision (here, via the use of deficient I-200 warrants) is

8 The district court referenced, among other things, an ICE Academy

training presentation which stated, “Officers may also carry a blank form

I-200 for the arrest of each collateral so that an individual flight risk anal-

ysis is not needed.” Dkt. 185-2 at 4.

No. 25-3050 15

unlawful. 596 U.S. at 550–51. 9 Thus, this portion of the district

court’s reasoning was erroneous, and the Consent Decree

does not cover those arrested pursuant to a warrant, defective

or otherwise.

c. The district court did not abuse its discretion

Despite this shortcoming, given the numerous other sys-

temic violations the district court found, we cannot conclude

on this record that the court abused its discretion when par-

tially granting Plaintiffs’ request under Rule 60(b) to extend

the Consent Decree as applied to warrantless arrests.

When seeking to modify a consent decree under Rule

60(b)(5), the movant bears the burden to establish that a sig-

nificant change in circumstances warrants revision. Rufo v. In-

mates of Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992). Such a

change in circumstances may occur where the defendant has

failed to substantially comply with the terms of the decree. See

Kelly v. Wengler, 822 F.3d 1085, 1098 (9th Cir. 2016) (“Under

well established law, substantial violation of a court order

constitutes a significant change in factual circumstances.”). If

the movant makes that showing, we consider “whether the

proposed modification is suitably tailored to the changed cir-

cumstance.” Rufo, 502 U.S. at 383.

9 Plaintiffs’ argument that the relief granted by the Consent Decree is

individualized (although in the context of a class action) also is foreclosed

by Aleman Gonzalez. See 596 U.S. at 554 (“But § 1252(f)(1) refers to ‘an indi-

vidual,’ not ‘individuals.’”). That said, an individual arrested pursuant to

a field-issued I-200 warrant can still challenge the validity of the warrant

in federal court on an individual basis (for example, in a habeas proceed-

ing), but he cannot do so as part of a class action.

16 No. 25-3050

Here, even putting aside the deficient I-200 warrants, the

district court cited multiple instances where Defendants had

failed to comply with the Consent Decree while making war-

rantless arrests. It also relied on the unilateral proclamation

by a DHS senior official on June 11, 2025, that DHS would no

longer comply with the Consent Decree. Although Defend-

ants argue that the district court’s “primary justification” for

the extension was the policy of arresting noncitizens with de-

fective I-200 warrants, the record does not bear this out.

All told, on this record, we cannot say that the district

court abused its discretion when finding that Defendants

failed to substantially comply with their obligations under the

Consent Decree. Nor did it act irrationally when finding that

such violations constituted a significant change in circum-

stances that warranted a modification of the Consent Decree

under Rule 60(b)(5). See Siddiqui v. Nat’l Ass’n of Broad. Emps.

& Technicians, 132 F.4th 530, 532 (7th Cir. 2025) (“A district

court abuses its discretion ‘if it reaches an erroneous conclu-

sion of law ... or reaches a conclusion that no evidence in the

record supports as rational.’”) (quoting In re Stericycle Sec.

Litig., 35 F.4th 555, 559 (7th Cir. 2022)); see also United States v.

Carlberg, 108 F.4th 925, 930 (7th Cir. 2024) (“We will find an

abuse of discretion if there is no evidence in the record on

which the district court could have rationally based its deci-

sion.”) (citation omitted).

Furthermore, the district court’s modification was reason-

able and narrowly tailored to address Defendants’ noncom-

pliance. In fact, the district court rejected Plaintiffs’ request for

a three-year extension and instead extended the Consent De-

cree by only 118 days, the period between June 11, 2025 (the

No. 25-3050 17

date of the DHS email) and October 7, 2025 (the date of the

order’s issuance).

2. Defendants’ Invocation of Horne and Evans

No doubt prompted by our colleague’s prior dissent, De-

fendants argue in the alternative that the 118-day extension

“transgresses fundamental limits on a court’s authority to

modify a consent decree … entered into by former govern-

ment officials.” App. Br. at 38–41; Reply Br. at 15–16. Modify-

ing the Consent Decree in this manner, they posit, disrupts

core principles of separation-of-powers and self-governance,

presumably because the Consent Decree was negotiated over

the course of two prior administrations (although, notably,

this included President Trump’s first term). And, for support,

they cite Horne v. Flores, 557 U.S. 433, 450 (2009), and Evans v.

City of Chicago, 10 F.3d 474, 478 (7th Cir. 1993). But this argu-

ment fails for two principal reasons.

First, like their § 1252(f)(1) argument, Defendants failed to

raise this objection below (indeed, they did not mention it in

their prior appellate briefs either). And it is hornbook law that

a party who does not alert the district court to an issue waives

it for the purposes of appeal. See Williams v. Dieball, 724 F.3d

957, 961 (7th Cir. 2013) (“[A] party who fails to adequately

present an issue to the district court has waived the issue for

purposes of appeal.”) (citation omitted). 10

10 The dissenting opinion would impose upon the district court the

obligation to engage in such an analysis sua sponte. But “[i]n our adversar-

ial system of adjudication, we follow the principle of party presentation,”

where the parties “‘frame the issues for decision,’ while the court serves

as ‘neutral arbiter of matters the parties present.’” Clark v. Sweeney, 607

18 No. 25-3050

Second, one could perhaps imagine dystopian scenarios

where binding political officials to consent decrees negotiated

by their predecessors could lead to abuse (although, as we

have noted before in our prior opinion, a rule that a consent

decree or settlement agreement can never bind future officials

raises its own thorny issue), but both Horne and Evans recog-

nize at least two mechanisms that would ameliorate the risk

of such abuse, both of which apply here.

The first mechanism is Rule 60(b)(5). As the Supreme

Court observed in Horne, that rule allows a governmental

party to seek modification of a consent decree when “apply-

ing it prospectively is no longer equitable.” Fed. R. Civ. P.

60(b)(5); see Horne, 557 U.S. at 452 (“And precisely because fed-

eralism concerns are heightened, a flexible approach to Rule

60(b)(5) relief is critical.”). Indeed, that is precisely what the

state entities did in Horne. See 557 U.S. at 439 (noting that the

school district filed a motion under Rule 60(b)(5) “on the

ground that enforcement of a judgment is ‘no longer equita-

ble’”).

Had Defendants similarly invoked Rule 60(b)(5) and

asked the district court to amend the Consent Decree based

on the government’s new policy initiatives, the district court

would have had the chance to address them and may have

U.S. 7, 9 (2025) (per curiam); see United States v. Page, 123 F.4th 851, 865 (7th

Cir. 2024) (en banc) (“Courts therefore “do not, or should not, sally forth

each day looking for wrongs to right. They wait for cases to come to them,

and when cases arise, courts normally decide only questions presented by

the parties.”) (quoting United States v. Sineneng-Smith, 590 U.S. 371, 376

(2020)).

No. 25-3050 19

fashioned a different approach. But Defendants did not avail

themselves of that opportunity here. 11

The second mechanism to safeguard separation-of-power

and self-governance principles is to ensure that any enforce-

ment of a consent decree is grounded “on the existence of a

substantial claim under federal law.” Evans, 10 F.3d at 480; see

Horne, 557 U.S. at 450. Here, the Consent Decree is squarely

focused on requiring Defendants’ compliance with

§ 1357(a)(2), and Plaintiffs’ request to extend the Consent De-

cree flows directly from Defendants’ failure to carry out this

obligation.

Tellingly, Defendants do not challenge the validity of the

Consent Decree or the authority of the district court to enter

it. Instead, Defendants argue that the district court improp-

erly expanded the scope of the Consent Decree to restrict the

government’s operation under § 1226. But, properly under-

stood, the Consent Decree covers only those individuals who

were arrested without a warrant of any kind (I-200 or other-

wise). And, to the extent that the district court relied on the

government’s unlawful use of I-200 warrants as a basis for the

extension order, this was error for the reasons discussed. That

said, the court’s other justifications were sufficient to support

11 According to Defendants, they had no reason to file a motion to

modify under Rule 60(b)(5) because “the Decree expired on its own terms

no later than October 7.” App. Br. at 40. But this argument contradicts the

plain terms of the Consent Decree, which provides that the decree does

not expire if there was a “pending motion to enforce its terms.” Dkt. 155-

1 at 4. Plaintiffs’ enforcement motion was pending for over six months,

during which time Defendants had every chance to file a Rule 60(b)(5) mo-

tion to raise its concerns and seek appropriate relief.

20 No. 25-3050

its decision under the deferential abuse of discretion stand-

ard.

* * *

For these reasons, we find that the district court did not

abuse its discretion when ordering that the Consent Decree be

extended by 118 days based upon its findings of substantial

noncompliance.

B. November 13 Order

In its November 13 order, the district court required the

release of 13 individuals whom the parties agreed were ar-

rested in violation of the Consent Decree. It also granted

Plaintiffs’ ATD motion and mandated the release of hundreds

of “potential class members” (to use the district court’s

words) so long as Defendants have not designated them to be

high public-safety risks.

On appeal, Defendants contend that this order violates

§ 1252(f)(1) by restricting the government’s ability to detain

noncitizens pursuant to its authority under § 1225(b)(2)(A)

and § 1226(a). Furthermore, in their view, the order contra-

venes the terms of the Consent Decree itself in two ways. First,

Section IV(E)(3)(a) of the Consent Decree precludes the re-

lease “Class Members subject to mandatory detention pursu-

ant to the [INA],” and here, Defendants argue, the individuals

in question are being detained pursuant to DHS’s mandatory

detention authority under § 1225(b)(2)(A). Second, Defend-

ants contend that, to the extent the district court is permitted

to release detained individuals under the Consent Decree at

all, it can only do so after “a determination by the Parties or

the Court ... that [the] Class Member was so arrested contrary

No. 25-3050 21

to the terms of the Agreement,” Dkt. 155-1 at 8. 12 We review

such issues of law de novo. See Holmes v. Godinez, 991 F.3d 775,

780 (7th Cir. 2021).

1. § 1225(b)(2)(A) and § 1226(a)

Defendants first contend that the November 13 order is

barred by § 1252(f)(1). As to those noncitizens who were ar-

rested with defective I-200 warrants, Defendants argue that

the order impermissibly infringes upon their operations un-

der § 1226 in contravention of § 1252(f)(1) and Aleman Gonza-

lez. We believe the government is correct on this score for the

reasons already explained.

As for those individuals who were arrested without any

warrant whatsoever, Defendants insist that the release order

still violates § 1252(f)(1) because the government is detaining

those individuals pursuant to its mandatory detention au-

thority set forth in § 1225(b)(2)(A).

As an initial matter, for the reasons discussed above with

respect to Defendants’ challenge to the October order, there is

a strong argument that Defendants waived this argument as

well when they agreed to the Consent Decree to resolve the

underlying litigation (although they did raise it prior to the

12 Plaintiffs dispute our jurisdiction to review Defendants’ challenges

to the November 13 order. But we have jurisdiction to review the Novem-

ber 13 order under 28 U.S.C. § 1292(a)(1), which confers appellate jurisdic-

tion over injunctions, including post-judgment orders that functionally act

as injunctions when they “substantially and obviously alter the parties’

pre-existing legal relationship.” Jones-El v. Berge, 374 F.3d 541, 543–44 (7th

Cir. 2004) (citation omitted). The district court’s order requiring the release

of hundreds of potential class members satisfies this condition.

22 No. 25-3050

entry of the November 13 order). But the argument fails on

the merits too.

Before getting there, however, my colleagues, citing Ale-

man Gonzalez, 596 U.S. 543, believe that we should not reach

this issue because § 1252(f)(1) proscribes our ability in this

case to assess whether § 1225(2)(A) applies in the first in-

stance. But this, I believe, overreads both the text of

§ 1252(f)(1) and the Supreme Court’s holding in Aleman Gon-

zalez.

Recall that § 1252(f)(1) applies to classwide injunctive re-

lief that “enjoin[s] or restrain[s] the operation of” the enumer-

ated provisions. 8 U.S.C. § 1252(f)(1) (emphasis added). And

Aleman Gonzalez explained that the “‘operation of’ (a thing)

means the functioning of or working of (that thing.)” 596 U.S.

at 549. “Accordingly, the ‘operation of’ the relevant statutes is

best understood to refer to the Government’s efforts to en-

force or implement them.” Id. at 550. Later, in response to the

petitioners’ contention that “operation of” a covered statute

means the lawful operation of it, the Court rejected this argu-

ment and gave a host of linguistic examples from prior cases

to make its point, including the “unlawful operation of a car,”

“improper operation” of “drainage ditches,” “unlawful oper-

ation of a railway,” and “unlawful operation of video poker

machines.” See id. at 552.

In my view, the Supreme Court’s focus on the phrase “op-

eration of,” as well as its definition and illustrations, indicate

that § 1252(f)(1)’s bar of classwide injunctive relief applies to

the manner in which the government chooses to enforce or

implement its authority under the covered provisions, not

whether the provisions apply in the first instance. To use the

Court’s illustrations, § 1252(f)(1) prohibits a lower court’s

No. 25-3050 23

ability to dictate how a defendant operates a car, a drainage

ditch, a railway, or video poker machines, not whether “the

thing” operated is in fact a car, drainage ditch, railway, or

video poker machine. This distinction respects Congress’s in-

tent to grant the government wide discretion in its operations

of the covered provisions while preserving “the province and

duty of the judicial department to say what the law is.” Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 385 (2024) (quoting

Marbury v. Madison, 5 U.S. 137, 177 (1803)). Defendants cannot

insulate themselves by merely arguing ipse dixit that § 1225

applies. See Texas v. DHS, 123 F.4th at 210 (noting that, despite

DHS’s contention that a wire barrier would impede its ability

to detain noncitizens pursuant to its authority under §§ 1225

and 1226, the federal agency defendants were not “the ulti-

mate judges of whether § 1252(f)(1)’s bar applies”). 13

Indeed, the facts in Aleman Gonzalez support this more nu-

anced reading. There, the petitioners, who were detained un-

der 8 U.S.C. § 1231(a)(6), were not challenging the applicabil-

ity of that section; instead, they objected to the government’s

failure to provide them with a bond hearing in its implemen-

tation of § 1231(a)(6). See Aleman Gonzalez, 596 U.S. at 547 (pe-

titioners claimed “that aliens detained under § 1231(a)(6) are

entitled to bond hearings after six months’ detention”). Simi-

larly, in N.S. v. Dixon (the other case on which DHS relies), the

13 Tellingly, Defendants do not point to anything in the record to sup-

port their contention that the individuals in question were in fact arrested

and detained pursuant to § 1225(b)(2)(A) at the time of their arrests. Id. at

210–11 (rejecting DHS’s reliance on § 1252(f)(1) when the factual record

did not support it). They only now argue that it was so.

24 No. 25-3050

plaintiffs were not challenging the applicability of § 1226, ra-

ther they objected to the government’s use of the U.S. Mar-

shals to effectuate civil immigration arrests under § 1226. By

contrast, here, the plaintiffs are not challenging the manner in

which DHS is enforcing or implementing § 1225, they dispute

the applicability of the section at all. Thus, in light of its text

and Aleman Gonzalez, I do not believe that § 1256(f)(1)’s bar on

classwide injunctive relief reaches the type of facial challenge

the plaintiffs bring here. 14 With that, I turn to the dispute at

hand.

The central question is whether § 1225(b)(2)(A) applies to

noncitizens who are unlawfully within the United States as

well as those who present themselves at its borders and ports

of entry. 15 A host of courts have answered in the negative. See

14 The dissenting opinion believes that barring the district court from

impeding DHS’s use of I-200 in its October order is inconsistent with coun-

tenancing the plaintiffs’ challenge to the applicability of § 1225 in the con-

text of the November order. This is not so. The October order rejected the

manner in which the government was operating its authority under § 1226

(i.e., by using faulty I-200 warrants); this falls squarely within the language

of § 1252(f)(1). By contrast, the present question is whether § 1225 applies

here at all.

15 Answering this question will resolve DHS’s general contention that

it has the authority to detain Class Members pursuant to its mandatory

detention authority under § 1225(b)(2)(A) as well as its alternative argu-

ment that such mandatory detention places these individuals outside the

scope of the Consent Decree under Section IV(E)(3)(a). On the other hand,

Judge Pryor believes that we need not reach this question because, as ex-

plained in her concurrence, Defendants waived any objection under

§ 1252(f)(1), and the parties upon entering the Consent Decree did not in-

tend Section IV(E)(3) to encompass mandatory detention under

§ 1225(b)(2)—something neither side contemplated until DHS announced

its new interpretation of § 1225(b)(2) on July 10, 2025.

No. 25-3050 25

Barco Mercado v. Francis, 2025 WL 3295903, at *4, app. A

(S.D.N.Y. Nov. 26, 2025) (collecting 350 cases). This reflects the

Supreme Court’s view that § 1225(b) “applies primarily to al-

iens seeking entry into the United States” while § 1226(a) is

the “default rule” for the discretionary detention of nonciti-

zens “already present in the United States,” Jennings v. Rodri-

guez, 583 U.S. 281, 297, 303 (2018); see also Nielsen v. Preap, 586

U.S. 392, 396–97 (2019) (noting that § 1226(a) sets out “the gen-

eral rule” regarding the “arrest and detention” of “aliens pre-

sent in this country” pending a decision on removal). And it

accords with the longstanding distinction in immigration law

“between those aliens who have come to our shores seeking

admission ... and those who are within the United States after

an entry, irrespective of its legality.” Leng May Ma v. Barber,

357 U.S. 185, 187 (1958); see Zadvydas v. Davis, 533 U.S. 678, 693

(2001) (“The distinction between an alien who has effected an

entry into the United States and one who has never entered

runs throughout immigration law.”).

Nevertheless, Defendants insist that the text of

§ 1225(b)(2)(A) subjects to mandatory detention those

noncitizens unlawfully present within the United States as

well as those who arrive at its borders. This construction has

found recent purchase in the Fifth and Eighth Circuits. See

Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026); Avila

v. Bondi, 170 F.4th 1128 (8th Cir. 2025). 16

16 The Second Circuit just issued its decision in Cunha v. Freden, No.

25-3141-pr, — F.4th —, 2026 WL 1146044 (2d Cir. Apr. 28, 2026), disagree-

ing with the Fifth and Eighth Circuits and holding that § 1225(b)(2)(A)

does not authorize the mandatory detention of noncitizens unlawfully re-

siding in the United States. For the reasons explained, I agree.

26 No. 25-3050

Defendants’ interpretation, however, not only fails to take

full account of the statutory language but ignores the relevant

statutory context and background as well as the government’s

own contemporaneous and decades-long understanding of

the statute’s meaning. By contrast, reading § 1225(b)(2)(A) to

apply only to unadmitted noncitizens seeking lawful entry at

our country’s border and ports of entry faithfully adheres to

each word in the statute, its grammatical structure, and statu-

tory context, while accurately reflecting the statute’s historical

background, consistent with the government’s long-standing

understanding and application of it.

a. The Statutory Language

“As always, we start with the text.” Campos-Chavez v. Gar-

land, 602 U.S. 447, 457 (2024) (citing Bartenwerfer v. Buckley, 598

U.S. 69, 74 (2023)). Section 1225(b)(2)(A), which was enacted

as part of The Illegal Immigration Reform and Immigrant Re-

sponsibility Act of 1996 (“IIRIRA”), provides:

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 ad-

mission 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.

8 U.S.C. § 1225(b)(2)(A) (emphases added).

According to Defendants, an “alien who is an applicant for

admission” is necessarily an “alien seeking admission” and,

thus, subject to mandatory detention. Plaintiffs, on the other

hand, believe that “applicants for admission” may be—but

are not necessarily—“alien[s] seeking admission.” Therefore,

No. 25-3050 27

in their view, § 1225(b)(2)(A) applies only to those “applicants

for admission” who are also presently “seeking admission.”

Fortunately, the Act provides some useful clues. It defines

“alien” as “any person not a citizen or national of the United

States.” 8 U.S.C. § 1101(a)(3). And the phrase “applicant for

admission” is specifically defined as “[a]n 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 arri-

val and including an alien who is brought to the United States

after having been interdicted in international or United States

waters).” 8 U.S.C. § 1225(a)(1). Furthermore, “admission” and

“admitted” means “the lawful entry of the alien into the

United States after inspection and authorization by an immi-

gration officer.” 8 U.S.C. § 1101(a)(13)(A).

Based on this, an “applicant for admission” is (1) a noncit-

izen who is already in the United States but who has not ef-

fectuated lawful entry into the country after inspection and

authorization by an immigration officer, or (2) a noncitizen

who arrives at its borders or ports of entry. “Applicant for ad-

mission,” thus, is a status-based definition; it identifies a per-

son by his characteristics (i.e., unlawful presence in the coun-

try or presence at the border).

By contrast, consider the phrase “alien seeking admis-

sion.” Although the Act defines “admission,” it does not de-

fine “seeking,” and when a statute does not define a word or

phrase “in a specialized way” nor “employ a term of art with

long-encrusted connotations in a given field,” we “rely on its

ordinary meaning,” Feliciano v. Dep’t of Transp., 605 U.S. 38, 45

(2025), “at the time Congress enacted the statute,” New Prime

Inc. v. Oliveira, 586 U.S. 105, 113 (2019) (citation modified).

28 No. 25-3050

At the time of the IIRIRA’s passage, prominent dictionar-

ies defined the verb “to seek” to mean: “to resort to”; “to go

to”; “to go in search of”; “look for”; “acquire or gain”; “aim

at”; “to make an attempt,” Merriam-Webster’s Collegiate Dic-

tionary (10th ed. 1994); “to go in search or quest of”; “to try to

find or discover by searching or questioning”; “to try to ob-

tain”; to try or attempt”; “to go to”; “to ask for”; “request”; “to

search or explore”; “to make an inquiry,” Random House

Webster’s Unabridged Dictionary (2d ed. 1997). 17

More to the point, when interpreting a statute, grammati-

cal usage is a useful guide. See Antonin Scalia & Bryan A. Gar-

ner, Reading Law: The Interpretation of Legal Texts 141 (2012)

(“Grammatical usage is one of the means … by which the

sense of a statute is conveyed.”). In § 1225(b)(2)(A), Congress

elected to use the present participle form of “seek” (“seek-

ing”), which typically denotes present action. See Present Par-

ticiple, Merriam-Webster’s Collegiate Dictionary (10th ed.

1994) (defining a present participle as “a participle that typi-

cally expresses present action in relation to the time expressed

by the finite verb in its clause and that in English is formed

with the suffix -ing and is used in the formation of the pro-

gressive tenses”). Thus, “seeking admission” denotes “an af-

firmative, present-oriented” action. See, e.g., Aroca v. Mason,

17 The Supreme Court has relied on versions of both Merriam Web-

ster’s Collegiate Dictionary and Random House Webster’s Unabridged

Dictionary in interpreting other provisions of the Act. See Nielsen, 586 U.S.

at 408 (using Merriam-Webster’s Collegiate Dictionary to define terms in

8 U.S.C. § 1226); Scialabba v. Cuellar de Osorio, 573 U.S. 41, 58 (2014) (using

Random House Webster’s Unabridged Dictionary to define terms in

8 U.S.C. § 1553).

No. 25-3050 29

No. 2:26-cv-57, 2026 WL 357872, at *13 (S.D. W. Va. Feb. 9,

2026); see also 8 C.F.R. § 235.1(f)(1) (as applied to “applicants

for admission,” those “seeking admission at a United States

port-of-entry must present whatever documents are re-

quired”).

This is not pedantic hairsplitting. Congress’s use of the

present participle can also be seen in a neighboring provision,

§ 1225(a)(4). It states:

An alien applying for admission may, in the discretion

of the Attorney General and at any time, be permitted

to withdraw the application for admission and depart

immediately from the United States.

8 U.S.C. § 1225(a)(4) (emphasis added).

This section ably demonstrates that Congress’s usage of

grammar is intentional. Congress employs the present parti-

ciple form of a verb when it wants to denote an affirmative

action (here, the affirmative act of applying); otherwise, there

would be no application for the noncitizen to withdraw. 18

Contrary to Defendants’ contention, then, an “applicant

for admission” as defined by Congress is not the same as an

noncitizen who is “seeking admission.” This stands to reason.

A noncitizen can be unlawfully present in the United States

(i.e., an “applicant for admission”) without presently seeking

lawful admission. And, conversely, a noncitizen can “seek” to

18 It also reveals the fallacy of Defendants’ argument because, under

their proffered construction, all aliens who are “applicants for admission”

would qualify as aliens “applying for admission” under § 1225(a)(4) even

if they submit no application at all. This would render § 1225(a)(4) non-

sensical.

30 No. 25-3050

be admitted into the United States without being an “appli-

cant for admission” (say, a lawful permanent resident return-

ing to the United States after a trip to her native country). See

Romero v. Hyde, 795 F. Supp. 3d 271, 283 (D. Mass. 2025). The

two phrases have distinct meanings.

Defendants, as well as the Buenrostro-Mendez and Avila

courts, however, see things differently. Relying heavily on the

“everyday meaning” of “applicant,” they submit the two

phrases must mean the same thing because “[w]hen a person

applies for something, they are necessarily seeking it.”

Buenrostro-Mendez, 166 F.4th at 502; see id. at 503 (rejecting

significance of the grammatical form of “seeking” as it

appears in § 1225(b)(2)(A) on the grounds that “being an

applicant ordinarily entails seeking something, it seems

natural to use the words somewhat interchangeably”); Avila,

170 F.4th at 1134 (agreeing with the Buenrostro-Mendez court

that the “ordinary meanings of the phrases ‘applicant for

admission’ and ‘seeking admission’ are the same.”).

While this reliance on everyday meaning has some super-

ficial appeal, it is Congress’s prerogative to define the phrase

“applicant for admission” as it wishes, and it is Congress’s

definition, not one of our own design, that controls. As the

Supreme Court reminds us, “When a statute includes an ex-

plicit definition, we must follow that definition, even if it var-

ies from that term’s ordinary meaning.” Stenberg v. Carhart,

530 U.S. 914, 942 (2000) (citations omitted). Put another way,

if Congress wanted to include noncitizens who are “seeking

admission” within the definition of “applicant for admission”

it could easily have done so, but “a definition which declares

what a term ‘means’ excludes any meaning that is not stated.”

Id. (citation modified).

No. 25-3050 31

What is more, Defendants’ reading—that all applicants for

admission are necessarily seeking admission—would render

certain words in § 1225(b)(2)(A) surplusage. See Bufkin v. Col-

lins, 604 U.S. 369, 386 (2025) (“We are reluctant to treat statu-

tory terms as surplusage in any setting.”) (quoting TRW Inc.

v. Andrews, 534 U.S. 19, 31 (2001)). Indeed, if Congress had in-

tended Defendants’ interpretation, § 1225(b)(2)(A) would

simply read:

Subject to paragraphs (B) and (C), in the case of an alien

who is an applicant for admission, if the examining im-

migration officer determines that an alien seeking ad-

mission is not clearly and beyond a doubt entitled to

be admitted, the alien shall be detained for a proceed-

ing under section 1229a of this title.

By contrast, reading § 1225(b)(2)(A) to apply to only those

“applicants for admission” who are actively “seeking admis-

sion” allows the two phrases to do independent work.19

Thus, § 1225(b)(2)(A)’s text leads to the conclusion that the

provision applies not to all “applicants for admission” en

masse but only to those “applicants for admission” who are

actively “seeking” lawful admission. Here, there is no evi-

dence that the class members, who were subject to warrant-

less arrest, were doing so. Therefore, on this record, their

19 Conceding this surplusage, Defendants argue that redundancy is

unavoidable under either construction. But this is incorrect. Under Plain-

tiffs’ construction, both “applicant for admission” and “seeking admis-

sion” have independent roles. Section 1225(b)(2)(A) applies to “applicants

for admission” but only those who are “seeking admission.”

32 No. 25-3050

detention cannot be justified by § 1225(b)(2)(A) as Defendants

claim.

But that is not all. The remaining text of § 1225(b)(2)(A)

creates substantial doubt that the provision applies to noncit-

izens, who are within the country, at all. The statute goes on

to state that an alien seeking admission is subject to detention

“if the examining immigration officer determines that [he] is not

clearly and beyond a doubt entitled to be admitted.” 8 U.S.C.

§ 1225(b)(2)(A) (emphasis added). In immigration law par-

lance, “examination” has a particularized meaning typically

indicating a process that a person undergoes when attempt-

ing to enter the country at the border or port of entry. See

8 C.F.R. § 235.1 (Entitled “Scope of Examination,” the regula-

tion states that “[a]pplication to lawfully enter the United

States shall be made in person to an immigration officer at a

U.S. port-of-entry” and, among other things, “[a] person

claiming U.S. citizenship must establish that fact to the exam-

ining officer’s satisfaction”); United States v. Corrales-Vazquez,

931 F.3d 944, 948 (9th Cir. 2019) (noting that “examination or

inspection by immigration officers—occur, as they always

have, at designated ports of entry that are staffed by immigra-

tion officials and open for inspection”) (citation modified);

Romero, 795 F. Supp. 3d at 283 (“examination” is “the specific

legal process one undergoes while trying to enter the coun-

try”). As such, reading § 1225(b)(2)(A) in its entirety indicates

that the mandatory detention it authorizes is directed at arriv-

ing noncitizens, not those who are already here.

Section 1101(a)(13)’s definition of “admission”—“the law-

ful entry of the alien into the United States after inspection

and authorization by an immigration officer”—further sup-

ports this construction. Like examinations, inspections are

No. 25-3050 33

processes that ordinarily occur at the border. As one circuit

court has observed, “this definition refers expressly to entry

into the United States, denoting by its plain terms passage into

the country from abroad at a port of entry.” Posos-Sanchez v.

Garland, 3 F.4th 1176, 1182–83 (9th Cir. 2021) (citation modi-

fied) (emphasis in original).

For these reasons, reading § 1225(b)(2)(A) to apply only to

arriving noncitizens presently seeking admission into the

United States takes full account of the provision’s text and

grammar and respects Congress’s authority to define statu-

tory terms as it sees fit.

b. The Statutory Context

Section 1225(b)(2)(A)’s context also confirms that it is di-

rected at noncitizens who are “seeking admission” at the bor-

der and ports of entry, not those already within the United

States. See Yates v. United States, 574 U.S. 528, 537 (2015) (ex-

plaining that “statutory language is determined not only by

reference to the language itself, but as well by the specific con-

text in which that language is used, and the broader context

of the statute as a whole”) (citation modified); see also Sturgeon

v. Frost, 577 U.S. 424, 438 (2016) (“It is a fundamental canon of

statutory construction that the words of a statute must be read

in their context and with a view to their place in the overall

statutory scheme.”) (quoting Roberts v. Sea-Land Servs., Inc.,

566 U.S. 93, 101 (2012)).

Consider § 1225’s title and headings. See Dubin v. United

States, 599 U.S. 110, 120–21 (2023) (The Supreme Court “has

long considered that the title of a statute and the heading of a

section are tools available for the resolution of a doubt about

the meaning of a statute.”) (citation modified). Section 1225’s

34 No. 25-3050

title references “Inspection by immigration officers” (which,

as we have seen, typically refers to a procedure that takes

place when a person presents himself at the border or port of

entry) as well as the “expedited removal of inadmissible ar-

riving aliens.” 8 U.S.C. § 1225. In fact, the term “inspection”

appears throughout the section. See, e.g., id. §§ 1225(a), (a)(3),

(b), (b)(1), (b)(2), and (d). In this way, § 1225 lays out the pro-

cess and standards immigration officials must employ when

assessing noncitizens who seek lawful entry into the United

States at its borders or ports of entry.

Furthermore, § 1225 is rife with other examples that illus-

trate its border-oriented focus. Such provisions include

§ 1225(a)(2) (stowaways); § 1225(c) (removal of “arriving”

noncitizens inadmissible for certain security-related reasons);

and § 1225(d) (the inspection of vessels and aircraft bringing

noncitizens “into the United States”). This is also true of

§ 1225(b)(2) itself. See id. §§ 1225(b)(2)(B) (exempting crew-

men and stowaways); 1225(b)(2)(C) (addressing noncitizens

arriving “from a foreign territory contiguous to the United

States”).

We can also look to “neighboring statutory provision[s],”

which “lend[] further contextual support for the view that”

§ 1225(b)(2)(A) is focused on arrivals at the border. Pereira v.

Sessions, 585 U.S. 198, 210 (2018). For instance, § 1223 concerns

the authority to contract with transportation lines for “inspec-

tion and admission of [noncitizens] coming to the United

States from foreign territory or from adjacent islands” and the

creation of “landing stations” at “points of entry.” Sec-

tion 1224 designates “ports of entry for [noncitizens] arriving

by aircraft.” And § 1225a involves the “preinspection” of

noncitizens at foreign airports. They all lend weight to the

No. 25-3050 35

conclusion that § 1225(b)(2)(A) pertains to arriving nonciti-

zens.

Defendants too appeal to a neighboring provision,

§ 1225(a)(3), but its text cannot bear the weight of their argu-

ment. That section provides that “[a]ll aliens (including alien

crewmen) who are applicants for admission or otherwise seek-

ing admission or readmission to or transit through the United

States shall be inspected by immigration officers.” 8 U.S.C.

§ 1225(a)(3) (emphasis added). According to Defendants, “or

otherwise” acts as a catchall that subsumes the phrase before.

Therefore, the argument goes, “applicant for admission” is a

subset of “otherwise seeking admission.” And because iden-

tical words in different parts of a statute are intended to be

defined harmoniously, Defendants posit that “applicants for

admission” must necessarily be “seeking admission” in

§ 1225(b)(2)(A) as well. The Buenrostro-Mendez and Avila

courts agree. There are, however, several problems with this

argument.

First, under Defendants’ analysis, “or otherwise” serves as

an adverb modifying “seeking,” leading to the conclusion that

“applicants for admission” is a subset of aliens “otherwise

seeking admission.” But Defendants (as well as the two circuit

courts) fail to recognize that this is not the only way to read

this sentence.

The phrase “or otherwise” can also be read to serve an

adjectival function in the clause “who are applicants for

admission or otherwise.” Merriam-Webster’s Collegiate

Dictionary (10th ed. 1994) (noting that “otherwise” can be

used as an adjective to mean “different”). Read this way, “or

otherwise” serves as a predicate adjective modifying the

36 No. 25-3050

pronoun “who.” 20 And so, § 1225(c) would apply to

noncitizens who are “applicants for admission” or aliens who

fall into another category. And, again, recognizing this

distinction makes sense because a noncitizen can “seek …

readmission” even though he may not be an “applicant for

admission.” See Gonzaga-Ortega v. Holder, 736 F.3d 795, 799

(9th Cir. 2013) (noting that “[a lawful permanent resident]

returning to the United States ordinarily is not treated as an

‘applicant for admission’”).

Moreover, grouping “or otherwise” with “who are appli-

cants for admission” would be consistent with Congress’s in-

jection of the entire clause into the statute as part of the Sep-

tember 1996 amendments 21 and would avoid the grammatical

awkwardness of using “or otherwise” to join two different

parts of speech—a noun (“applicants for admission”) with a

present participle (“seeking”).

20 A predicate adjective is an adjective that follows a linking verb such

as “be” or “seem” as in the example: “The building is huge.” See Predicate,

Merriam-Webster’s Collegiate Dictionary (10th ed. 1994).

21 The prior version of this provision read:

The inspection, other than the physical and mental examination,

of aliens (including alien crewmen) seeking admission or readmission

to or the privilege of passing through the United States shall be

conducted by immigration officers, except as otherwise provided

in regard to special inquiry officers. All aliens arriving at ports of

the United States shall be examined by one or more immigration

officers at the discretion of the Attorney General and under such

regulations as he may prescribe.

8 U.S.C. § 1225(a) (Apr. 1996) (emphases added).

No. 25-3050 37

Second, even if “or otherwise” were to function as an ad-

verb modifying “seeking” as Defendants propose, it can still

be read one of two ways. While the phrase may be used to link

a set of examples to a general phrase, it can also mean “in a

different manner” or “in other respects.” See Fischer v. United

States, 603 U.S. 480, 507 (2024) (Barrett, J., dissenting) (quoting

10 Oxford English Dictionary at 984 (2d ed. 1989) and Web-

ster’s Third New International Dictionary 1598 (2002)). It de-

pends on context, id., and context supplies the key here.

When “or otherwise” is used in the first manner, it typi-

cally joins words that are the same part of speech, such as the

example Defendants provide (and the Buenrostro-Mendez

court echoes)—a physician’s directive to “bike, jog, or other-

wise exercise.” Reply Br. at 22; Buenrostro-Mendez, 166 F.4th at

503. But, as previously noted, in § 1225(c), the phrase “or oth-

erwise” joins different parts of speech—the noun phrase “ap-

plicant for admission” and the adjectival present participle

“seeking admission or readmission.”

Thus, even if we were to adopt Defendants’ position that

“or otherwise” modifies “seeking,” the more natural reading

would be to employ its alternative meaning—to refer to

something that is ”something or anything else.” Merriam-

Webster’s Collegiate Dictionary (10th ed. 1994). Take the

sentence: “All students who are football players or otherwise

seeking to play football should attend the meeting.” In this

sentence, student-football-players are not a subset of students

who are “otherwise seeking to play football;” they comprise

an entirely separate group. See Buenrostro-Mendez, 166 F.4th at

518 (Douglas, J., dissenting). In much the same way, in

§ 1225(c), an “applicant for admission” is different from an

alien “seeking admission.”

38 No. 25-3050

This is not to say that Defendants’ reading of § 1225(c) is

completely unsupportable. But, of the two interpretations, it

is Plaintiffs’ construction that takes full account of

§ 1225(b)(2)(A)’s text and context for the reasons explained. It

is also more consistent with the provision’s statutory history

and background, as we shall see.

c. The Statutory History and Background

Section 1225’s statutory history and background further

bespeak its applicability to noncitizens at the border rather

than those who reside within the United States. In this way,

“[t]he historical context in which the provision was adopted

confirms the plain import of its text.” Biden v. Texas, 597 U.S.

at 804; see also Niz-Chavez v. Garland, 593 U.S. 155, 165 (“To the

extent any doubt remains about the meaning of the two spe-

cific statutes before us, we believe a wider look at IIRIRA’s

statutory structure and history enough to resolve it.”).

Before 1996, the INA distinguished between “deportation

proceedings” and “exclusion proceedings.” The former ap-

plied to noncitizens who were present within the United

States after unlawfully entering and those who had legal sta-

tus but were later subject to removal (due to certain criminal

convictions, for example). 8 U.S.C. § 1252(a)(1) (1995). In de-

portation proceedings, the government had the burden of

proof. See Woodby v. I.N.S., 385 U.S. 276, 277 (1966) (In depor-

tation proceedings “the Government” had to “establish the

facts supporting deportability by clear, unequivocal, and con-

vincing evidence.”).

Exclusion proceedings, on the other hand, applied to

noncitizens who presented themselves at the border or ports

of entry. See 8 U.S.C. §§ 1225(a)–(b), 1226(a) (1995). And a

No. 25-3050 39

noncitizen who presented himself at the border had the bur-

den to show admissibility. See Massignani v. I.N.S., 438 F.2d

1276, 1277 (7th Cir. 1971) (“The burden of proof of admissibil-

ity is upon the alien.”).

In 1996, the IIRIRA combined deportation and exclusion

proceedings into a single proceeding called “removal pro-

ceedings.” See IIRIRA, 110 Stat. 3009-587–3009-593. Under this

approach, a noncitizen, who is admitted but subsequently

loses legal status, is removable on grounds of “deportability,”

8 U.S.C. § 1227(a), while a noncitizen who was not admitted

is subject to removal based on grounds of “inadmissibility,”

id. § 1182(a), whether or not that person is at the border or in

the interior. But, as demonstrated below, this restructuring

did not expand § 1225(b)(2)(A)’s applicability beyond noncit-

izens arriving at the border.

Indeed, all the statutory predecessors of § 1225(b)(2)(A),

for over a century, expressly focused their attention on the ar-

rival of noncitizens at the country’s border or ports of entry.

Starting with the Immigration Act of 1893, the relevant provi-

sion read:

[I]t shall be the duty of every inspector of arriving alien

immigrants to detain for a special inquiry … every per-

son who may not appear to him to be clearly and be-

yond doubt entitled to admission.

Immigration Act of 1893, § 5, 27 Stat. 569, 570 (1893) (emphasis

added).

Similarly, the mandatory detention provision in the Immi-

gration Act of 1903 also focused on arriving noncitizens:

Every alien who may not appear to the examining im-

migration inspection at the port of arrival to be clearly

40 No. 25-3050

and beyond a doubt entitled to land shall be detained

for examination in relation therefore by a board of spe-

cial inquiry.

Immigration Act of 1903, § 24, 32 Stat. 1213, 1219–20 (1903)

(emphasis added).

The corresponding provision in the 1952 INA likewise re-

flected the statute’s limited scope:

Every alien (other than an alien crewman), and except

as otherwise provided in subsection (c) of this section

and in section 273 (d), who may not appear to the ex-

amining immigration officer at the port of arrival to be

clearly and beyond a doubt entitled to land shall be de-

tained for further inquiry to be conducted by a special

inquiry officer.

INA of 1952, § 235(b), 66 Stat. 163, 199 (1952) (emphasis

added).

And, in 1990, the provision was amended to read:

The inspection, … of aliens (including alien crewmen)

seeking admission or readmission to or the privilege of

passing through the United States shall be conducted by

immigration officers …. All aliens arriving at ports of the

United States shall be examined by one or more immi-

gration officers …. Every alien … who may not appear

to the examining immigration officer at the port of ar-

rival to be clearly and beyond a doubt entitled to land shall

be detained for further inquiry to be conducted by a special

inquiry officer.

8 U.S.C. § 1225(c) (1990) (emphases added). Thus, from 1893

to now, § 1225(b)(2)(A) and its predecessors have been limited

No. 25-3050 41

to “port[s] of arrival,” “alien[s] seeking entry,” or (today) “al-

ien[s] seeking admission.”

Despite this century-long history, Defendants now assert

that § 1225(b)(2)(A) not only reaches noncitizens at the border

or ports of entry, but those living in the interior as well. But,

if Congress had intended § 1225(b)(2)(A) to sweep in the mil-

lions of noncitizens who are unlawfully in the United States

after a century of not doing so, one would “expect more than

simple statutory silence” for such “a major departure.”

Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 465 (2017). After

all, “[e]xtraordinary grants of … authority are rarely accom-

plished through ‘modest words,’ ‘vague terms,’ or ‘subtle de-

vice[s].’” West Virginia v. Env’t Prot. Agency, 597 U.S. 697, 723

(2022) (quoting Whitman v. Trucking Ass’ns, 531 U.S. 457, 468

(2001)). “Nor does Congress typically use oblique or elliptical

language to empower an agency to make a ‘radical or funda-

mental change’ to a statutory scheme.” Id. (quoting MCI Tele-

comms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 229 (1994)).

Instead, “[t]he better understanding is that Congress simply

streamlined” the statutory language, “which, as any nonlaw-

yer who has picked up the U.S. Code can tell you, is a com-

mendable effort.” United States v. Hansen, 599 U.S. 762, 778

(2023). Neither Defendants nor the Buenrostro-Mendez or Avila

courts provide any response to this argument.

The legislative history leading to § 1225(b)(2)’s enactment

also demonstrates Congress’s intent to maintain § 1225(b)(2)’s

limited application consistent with this long-standing history.

We are mindful, of course, that legislative history is “not the

law,” Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018), but

“clear evidence of congressional intent may illuminate

42 No. 25-3050

ambiguous text,” Delaware v. Pennsylvania, 598 U.S. 115, 138–

39 (2023) (quotation omitted).

Here, the legislative history could not be clearer. The con-

ference report unequivocally states that “section 235(b) [codi-

fied at § 1225(b)] establishes new procedures for the inspec-

tion and in some cases removal of aliens arriving in the United

States.” H.R. Rep. No. 104-828, at 209 (1996) (emphasis added).

So too does the report of the House Judiciary Committee. H.R.

Rep. No. 104-469, pt. 1, at 228 (1996) (stating, “New section

235(b) establishes new procedures for the inspection and in

some cases removal of aliens arriving in the United States.”).

As for noncitizens unlawfully present in the country, the com-

mittee report confirmed that “[s]ection 236(a) [codified at

§ 1226(a)] restates the current provisions ... regarding the au-

thority of the Attorney General to arrest, detain, and release

on bond an alien who is not lawfully in the United States.” Id. at

229 (emphases added).

But there is more. When enacting § 1225(b) and § 1226(a)

in 1996, Congress also passed § 1226(c), which authorized

mandatory detention for certain noncitizens, excluding them

from the bond proceedings provided in § 1226(a).

Recognizing that this new provision could subject an ad-

ditional 45,000 noncitizens annually to mandatory detention,

Congress was concerned about the government’s ability to

house such a large increase in detainees and provided the

agency with an option to delay § 1226(c)’s implementation for

up to two years, which the agency invoked. See H.R. Rep. No.

104-469, pt. 1, at 120, 123, 207; IIRIRA, 110 Stat. 3009-586;

Memorandum from Michael A. Pearson, Executive Associate

Commissioner of Office of Field Operations in the Immigra-

tion and Naturalization Service (Oct. 7, 1998),

No. 25-3050 43

https://www.ice.gov/doclib/foia/policy/memoDetPolicyAsy-

lumICE_Appealed_02.20.2004.pdf at 5.

At the same time, Congress recognized that nearly 1.7 mil-

lion noncitizens were living within the United States after en-

tering unlawfully. See H.R. Rep. No. 104-469, pt. 1, at 111 (es-

timating that roughly one-half of the approximately 3.4 mil-

lion “permanent illegal aliens” entered the country illegally).

If Congress had intended § 1225(b)(2)(A) to subject almost

two million additional individuals to mandatory detention, as

Defendants contend, one would think “Congress would have

made it explicit in the statute, or at least some of the Members

would have identified or mentioned it at some point,” as it

did with respect to § 1226(c). Chisom v. Roemer, 501 U.S. 380,

396 (1991). After all, Congress “does not … hide elephants in

mouseholes.” Whitman, 531 U.S. at 468. In this context, Con-

gress’s silence speaks volumes. 22

22 The Buenrostro-Mendez and Avila courts reject this line of reasoning,

refusing to “speculate about why Congress may or may not have deferred

implementation of § 1225(b)(2)(A)” as it did with § 1225(c). Buenrostro-

Mendez, 166 F.4th at 507; see also Avila, 170 F.4th at 1137–38. Rather than

considering Congress’s purpose, the Fifth and Eighth Circuits preferred

to rely on the “statutory text.” Buenrostro-Mendez, 166 F.4th at 507; see also

Avila, 170 F.4th at 1138. But, given the explanatory record before us, we

are not “required to exhibit a naivete from which ordinary citizens are

free.” United States v. Stanchich, 550 F.2d 1294, 1300 (2d. Cir. 1977). Moreo-

ver, the Buenrostro-Mendez court itself goes on to rely on its view of con-

gressional purpose in the very next paragraph. See 166 F.4th at 507; see also

id. at 520 (Douglas, J., dissenting) (“Anyway, the majority’s reflection on

congressional purpose sits oddly beside the statement that ‘[u]ltimately,

… Congress’s purpose matters far less than what it wrote[.]’”). And so too

does the Avila court. See Avila, 170 F.4th at 1135 (“The statutory purpose of

§ 1225 also supports the Government’s interpretation of the text.”).

44 No. 25-3050

The recent amendment to § 1226(c) further reinforces

Plaintiffs’ reading of § 1225(b)(2)(A). In January 2025, Con-

gress passed the Laken Riley Act, amending § 1226(c) to add

§ 1226(c)(1)(E), which provides for the mandatory detention

of a noncitizen who is:

inadmissible under paragraph (6)(A), (6)(C), or (7) of

section 1182(a) … and is charged with, is arrested for,

is convicted of, admits having committed, or admits

committing acts which constitute the essential ele-

ments of any burglary, theft, larceny, shoplifting, or as-

sault of a law enforcement officer offense, or any crime

that results in death or serious bodily injury to another

person.

8 U.S.C. § 1226(c)(1)(E).

The first cross reference, § 1182(a)(6)(A), provides that

“[a]n alien present in the United States without being admit-

ted or paroled, or who arrives in the United States at any time

or place other than as designated by the Attorney General, is

inadmissible.” 8 U.S.C. § 1182(a)(6)(A). In other words,

§ 1226(c)(1)(E) authorizes, among other things, mandatory

detention of any noncitizen, who is present in the United

States following an unlawful entry, if he has committed vari-

ous crimes, such as burglary, theft, and assault. If, however,

as Defendants argue, § 1225(b)(2)(A) already subjects all

noncitizens, who are present in the United States after unlaw-

fully entering, to mandatory detention, it would render

§ 1226(c)(1)(E) entirely redundant. And, as the Supreme

Court observed, “the canon against surplusage is strongest

when an interpretation would render superfluous another

part of the same statutory scheme.” Marx v. Gen. Revenue

Corp., 568 U.S. 371, 386 (2013); see Stone v. I.N.S., 514 U.S. 386,

No. 25-3050 45

397 (1995) (“When Congress acts to amend a statute, we pre-

sume it intends its amendment to have real and substantial

effect.”). 23

For their part, Defendants point out that one of the

IIRIRA’s goals was to equalize the treatment of noncitizens

who presented themselves at the border with those who were

already in the country illegally. And, in their view, requiring

mandatory detention for all noncitizens furthered this goal.

This is half-correct.

Congress was concerned that noncitizens present in the

country following an unlawful entry had certain “equities

and privileges” not available to noncitizens who presented

themselves at the border. And, to address this disparity, the

IIRIRA provides that an unadmitted noncitizen bears the bur-

den to prove admissibility in removal proceedings, whether

he arrived at the border or was found in the country, thereby

eliminating the disparity in the prior statutory scheme. See

H.R. Rep. No. 104-469, pt. 1, at 225 (recognizing the difference

in “equities and privileges” and stating, “Hence, the pivotal

factor in determining an alien’s status will be whether or not

the alien has been lawfully admitted.”).

23 Adopting Defendants’ argument, the Buenrostro-Mendez court says

there is no redundancy because the recent amendments to § 1225(c) elim-

inated parole for certain identified categories of noncitizens. 144 F.4th at

504. But the Act already contains sections that specifically address parole.

See, e.g., 8 U.S.C. §§ 1182(d)(5), 1184(f)(2). If Congress’s primary purpose

was to eliminate parole for certain individuals, it is reasonable to think

that Congress would have simply added such exceptions to these provi-

sions. See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We assume

that Congress is aware of existing law when it passes legislation.”).

46 No. 25-3050

Rather than pointing to specific legislative history pertain-

ing to § 1225(b)(2)(A) (or even § 1225 generally), Defendants

rely on expressions of Congress’s general intent to eliminate

the preferential treatment of noncitizens present in the coun-

try after an unlawful entry as compared to those who present

themselves at the border or a port of entry. Reply Br. at 33. But

not only does Defendants’ interpretation of § 1225(b)(2)(A)

run counter to its text and context, but “[i]n analyzing legisla-

tive history, specificity breeds credibility.” United States v.

Meade, 175 F.3d 215, 219 (1st Cir. 1999). Thus, the “particular-

ized explanations of how specific provisions of an act are

meant to work have been deemed more instructive than gen-

eralized pronouncements” about “statutory purpose.” Id.

Here, the legislative history specific to § 1225(b) evinces Con-

gress’s desire to limit its application to noncitizens at the bor-

der or ports of entry.

Defendants and the Buenrostro-Mendez court also rely

heavily on the agency’s own interpretation of the legislative

history set forth in Matter of Yajure Hurtado, 29 I. & N. Dec. 216

(BIA 2025). But the Board of Immigration itself

“acknowledge[d] that for years Immigration Judges have con-

ducted bond hearings for aliens who entered the United

States without inspection.” Id. at 225 n.6. In any event, the

BIA’s adoption of Defendants’ novel legal argument is not

binding on this court and erroneous in any event for the rea-

sons already explained. See Loper Bright, 603 U.S. at 394

(“[C]ourts must exercise independent judgment in determin-

ing the meaning of statutory provisions.”).

In short, nothing in the statutory text or history supports

Defendants’ contention that Congress wanted to apply

No. 25-3050 47

mandatory detention equally to both categories of nonciti-

zens. In fact, as we have seen, the opposite is true.

d. The Government’s Understanding

The government’s contemporaneous and long-held un-

derstanding of § 1225(b)(2)(A) is also relevant to our inquiry.

See Learning Res., Inc. v. Trump, 146 S. Ct. 628, 643 (2026) (not-

ing that “the fact that no President has ever found such power

in [the statute] is strong evidence that it does not exist”) (plu-

rality opinion); see also Biden v. Texas, 597 U.S. at 805 (The

“novelty” of a re-interpretation of IIRIRA that contradicts

“every Presidential administration[’s] interpretation for the

past 26 years “bears mention.”); Biden v. Nebraska, 600 U.S.

477, 519 (2023) (Barrett, J., concurring) (“A longstanding want

of assertion of power by those who presumably would be

alert to exercise it may provide some clue that the power was

never conferred.”) (citation modified).

It is undisputed that, since the IIRIRA’s enactment in 1996,

the government has never asserted its novel claim that

§ 1225(b)(2)(A) authorizes the mandatory detention of noncit-

izens already present in the interior of the country. That is,

until July 10, 2025, when ICE issued interim guidance an-

nouncing that applicants for admission “are subject to man-

datory detention under [8 U.S.C. § 1225(b)] and may not be

released from DHS custody except” through parole. Memo-

randum from Rodney S. Scott, U.S. Customs and Border Pro-

tection Commissioner (July 10, 2025)

https://www.cbp.gov/sites/default/files/2025-09/intc-46100_-

_c1_signed_memo_-_07.10.2025.pdf.

In fact, Solicitors General and their deputies under both

President Obama and President Trump have represented to

48 No. 25-3050

the Supreme Court that only § 1226(a), not § 1225(b)(2)(A), ap-

plied to those living in the interior. See Jennings v. Rodriguez,

583 U.S. 281 (2018) (No. 15-1204) (Nov. 30, 2016), Oral Argu-

ment at 04:48–06:20 (Acting Solicitor General stating that “an

alien who has come into the United States illegally without

being admitted who takes up residence is … held under

1226(a) and … get[s] a bond hearing.”); Rodriguez, 583 U.S. 281

(Oct. 3, 2017) (on reargument), Oral Argument at 10:02–10:27

(Deputy Solicitor General stating that “1226 is the provision

that we use when we arrest somebody who … is within the

United States; 1225 is the one we use when we are dealing

with aliens who arrive at our shores.”).

In the words of the Supreme Court, “it is … telling that in”

§ 1225(b)(2)(A)’s thirty years of existence “no President has in-

voked the statute to impose” mandatory detention on the mil-

lions of noncitizens living in the United States who have en-

tered unlawfully. Learning Res., 146 S. Ct. at 640. “[T]he fact

that no President has ever found such power” in the IIRIRA

“is strong evidence that it does not exist.” Id. at 643. 24

24 The Buenrostro-Mendez court discounts the government’s decades-

long practice, believing that “prior Administrations decided to use less

than their full enforcement authority under § 1225(b)(2)(A).” 144 F.4th at

506. But the Federal Register passages it cites (i.e., Detention and Removal of

Aliens, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997)) do not support the

contention that § 1225(b)(2)(A)’s mandatory detention authority was

intended to encompass all noncitizens within the United States who

unlawfully entered. To the contrary, it is consistent with the government’s

long-standing view that such noncitizens are entitled to bond under

§ 1226. See id. (“Despite being applicants for admission, aliens who are

present without having been admitted or paroled … will be eligible for

bond and bond redetermination.”).

No. 25-3050 49

One final point. Consider the number of times the courts

in Buenrostro-Mendez and Avila as well as the dissenting opin-

ion invoke an exception to a widely-applied rule of statutory

construction to arrive at their conclusion. For example, their

reading renders inapplicable: the rule requiring us to strictly

apply Congressional definitions; the rule against surplusage;

the rule respecting Congress’s usage of grammer; the rule that

a provision’s title is a clue to its meaning; the rule that, when

faced with ambiguous statutory language, specific indications

of legislative intent overrule the more general; the rule that

the contemporaneous and historic interpretation and prac-

tices of the Executive matter; and so on. That they must rely

more on exceptions rather than the rules is telling. By contrast,

the present construction gives effect to the statute’s every

word and takes into full account its context and historical

background.

* * *

In summary, the text, statutory context, legislative history,

and long-standing Executive practice all confirm that

§ 1225(b)(2)(A) applies to “applicants for admission” who are

seeking lawful entry at the border or ports of entry and not to

noncitizens unlawfully living in the country’s interior. Given

the statute’s history, it is unreasonable to think that Congress

in 1996 intended to subject millions of noncitizens to manda-

tory detention in the oblique, off-handed fashion that Defend-

ants claim. Thus, Defendants lacked the authority in the first

instance to place the individuals at issue, all of whom were

already within the United States, under mandatory detention

pursuant to § 1225(b)(2)(A).

50 No. 25-3050

2. Release of “Potential” Class Members

Lastly, we remain convinced that the Consent Order does

not authorize the district court to release “potential” class

members. In Section IV(E)(1) of the Consent Decree, the par-

ties agreed that a detained “Class Member” would be released

from ICE custody “upon a determination by the Parties or the

Court ... that [the] Class Member was so arrested contrary to

the terms of the Agreement.” Dkt. 155-1 at 8. Here, no such

determination has been made for the approximately 200 “po-

tential class members” who remain the subjects of the No-

vember 13 order.

Nor do we think the discretion the court retained under

Section V(B)(2) to “provide any equitable remedies not other-

wise specified in this Agreement” would override the specific

remedy delineated in Section IV(E)(1). Id. at 10. Thus, under

the terms of the Consent Decree, an individual subject to a

warrantless arrest may be released only after an individual-

ized determination that he was arrested in violation of

§ 1357(a)(2).

III. Conclusions

For the reasons stated, we affirm the October 7 order inso-

far as it extended the Consent Decree by 118 days. We also

affirm the November 13 order to the extent it orders the re-

lease of class members for whom a determination has been

made that they were arrested without a warrant in contraven-

tion of 8 U.S.C. § 1357(a) and the Consent Decree. That said,

we reverse the November 13 order to the extent it requires the

release of “potential class members” and any person who was

arrested pursuant to an I-200 warrant (defective or otherwise).

No. 25-3050 51

PRYOR, Circuit Judge, concurring in part and concurring in

the judgment. I join the portion of Judge Lee’s opinion hold-

ing that the Department of Homeland Security and the U.S.

Immigration and Customs Enforcement waived reliance on

8 U.S.C. § 1252(f)(1)’s bar on classwide injunctive relief when

they entered the Consent Decree and that the district court

did not abuse its discretion in extending the Consent Decree’s

terms due to Defendants’ substantial noncompliance. I there-

fore join in the judgment to affirm the October order. I also

join in the judgment to affirm in part the November order re-

leasing class members arrested in violation of 8 U.S.C.

§ 1357(a) and the Consent Decree and reverse the judgment of

the district court releasing “potential class members” and to

remand for individual determinations.

I do not join the portion of the opinion (Part II-B-1) reach-

ing the merits of the Plaintiffs’ argument that the Defendants’

interpretation of 8 U.S.C. § 1225(b)(2)(A) is improper. I come

to my conclusion with respect to the November order, by way

of a different path. In my view, similar to our holding in re-

gard to the October order, I would find the Defendants

waived the argument that the district court’s November order

violates § 1252(f)(1) because it restrained the Defendants’

ability to mandatorily detain “potential class members” pur-

suant to 8 U.S.C. § 1225(b)(2)(A). For that reason, I do not

reach the legality of Defendants’ interpretation of

§ 1225(b)(2)(A). Unlike Judge Lee, if the issue were not

waived, I find the § 1252(f)(1)’s bar on classwide injunctive re-

lief prevented the district court from reaching the merits of

whether Defendants’ interpretation and operation of

§ 1225(b)(2)(A) is lawful. Garland v. Aleman Gonzalez, 596 U.S.

543, 550–54 (2022).

52 No. 25-3050

Moreover, when the parties entered the Consent Decree,

they shared an understanding of who was subject to manda-

tory detention under § 1225(b)(2)(A) of the Immigration and

Nationality Act: individuals who were apprehended at our

country’s borders and shores. See generally Brief for Respond-

ent United States of America, Biden v. Texas, 597 U.S. 785

(2022), No. 21-954. Therefore, the November order did not run

afoul of the Consent Decree’s ban on releasing individuals

subject to mandatory detention because Defendants’ later re-

interpretation, made without filing a motion to modify under

Federal Rule of Civil Procedure 60(b), cannot nullify the par-

ties’ mutual assent to the meaning of those terms at the time

they entered the Consent Decree.

Therefore, I concur in part and concur in the judgment.

I. BACKGROUND

In Judge Lee’s opinion, he has ably and methodically pro-

vided the factual background and procedural history of this

case. To prevent repetition, I seek to highlight only what is

necessary for me to resolve Defendants’ appeal of the Novem-

ber order.

A. Consent Decree

In 2018, Plaintiffs sued Defendants, alleging they were

conducting warrantless arrests of noncitizens without proba-

ble cause in violation of 8 U.S.C. § 1357(a)(2). After two years

of litigating, the parties engaged in settlement negotiations to

resolve their dispute. And in 2022, the parties submitted their

settlement agreement to the district court for approval. The

parties also requested it certify a class under Federal Rule of

Civil Procedure 23(e) consisting of “All current and future

persons arrested without a warrant for a civil violation of U.S.

No. 25-3050 53

immigration laws within the area of responsibility of the ICE

Chicago Field Office.” The district court certified the class, ap-

proved the settlement agreement, and entered an order treat-

ing the settlement agreement as a Consent Decree. 1

The Consent Decree provided the process by which the

parties would address any future allegations that Defendants

had violated the terms of the Consent Decree.2 If, say, Defend-

ants arrested someone in violation of § 1357(a)(2), the Consent

Decree required the parties to first meet and confer in an at-

tempt to resolve the dispute. If that was unsuccessful, they

had to present the issue to the district court for resolution. Un-

der either path, a determination that a class member was ar-

rested in violation of § 1357(a)(2) entitled the person to the

Consent Decree’s individualized remedy: the noncitizen was

required to be released from custody as soon as practicable

without bond or conditions of release. The remedy, however,

did “not apply” “to [c]lass [m]embers subject to mandatory

detention pursuant to the Immigration and Nationality Act.”

At the time they entered the Consent Decree, the Defend-

ants’ longstanding position was that § 1225(b)(2)(A) author-

ized mandatory detention of noncitizens detained at the bor-

der of the United States or its shores as opposed to noncitizens

seized within the interior of the United States—their deten-

tion was governed instead by 8 U.S.C. § 1226. See generally

Brief for Respondent United States of America, Biden v.

Texas, 597 U.S. 785 (2022), No. 21-954. Despite its 30-year in-

terpretation of § 1225(b)(2)(A), the Defendants announced on

1

District Ct. Dkt. 158 - Order Approving Consent Decree.

2

District Ct. Dkt. 155-1 at 10–11 - Settlement Agreement and Release.

54 No. 25-3050

July 10, 2025, that they had “revisited its legal position on de-

tention and release authorities” under the Immigration and

Nationality Act. Memorandum from Rodney S. Scott, U.S.

Customs and Border Protection Commissioner (July 10, 2025)

https://www.cbp.gov/sites/default/files/2025-09/intc-46100_-

_c1_signed_memo_-_07.10.2025.pdf. Effective that day, the

government would mandatorily detain noncitizens “regard-

less of when or where” they were encountered. Id. In other

words, Defendants announced a new interpretation of

§ 1225(b)(2)(A) that subjected noncitizens apprehended either

within the United States or at our borders to mandatory de-

tention. Id.

B. Procedural History

After years without issues being brought to the district

court’s attention, on March 13, 2025, Plaintiffs moved to en-

force the Consent Decree. They argued the Defendants had

arrested 26 individuals in violation of § 1357(a)(2) and thus

the Consent Decree. Roughly a month later, on April 14, 2025,

Plaintiffs filed a motion pursuant to Federal Rule of Civil Pro-

cedure 60(b)(5) to modify the Consent Decree. In their view,

extension of the Consent Decree’s terms was warranted based

on Defendants’ repeated and material noncompliance.

The district court granted the first motion in relevant part

and the second on October 7, 2025. As for the motion to mod-

ify, it concluded the record supported a finding that Defend-

ants had failed to substantially comply with the Consent De-

cree and extended its terms by 118 days. The district court also

ordered Defendants to produce arrest records for individuals

seized between June 11, 2025, and October 7, 2025, whose ar-

rests were potential violations, so individualized dispute res-

olution could begin.

No. 25-3050 55

On October 17, 2025, Defendants filed a motion requesting

an eight-week extension to provide Plaintiffs with the arrest

records the district court ordered they produce to Plaintiffs.

In the same motion, Defendants acknowledged that they had

identified 1,852 arrests that potentially violated the Consent

Decree. Plaintiffs responded on October 20, 2025, opposing

Defendants’ request for an extension because such a delay

would cause irreparable harm. They also cross-moved for in-

terim relief. Specifically, Plaintiffs sought a court order plac-

ing “potential class members” on ankle monitors or other al-

ternatives to detention. Defendants opposed Plaintiffs’ re-

quested interim relief. The district court granted Defendants’

extension request on October 20, 2025, and four days later, it

ordered the parties to file simultaneous briefs by October 31,

2025, on whether it could release potential class members on

alternatives to detention, which the parties timely filed.

On November 7, 2025, the parties notified the district court

of arrests they agreed violated the Consent Decree. And at a

hearing on November 12, 2025, the parties, as relevant here,

confirmed the arrests of 13 class members violated the Con-

sent Decree yet they remained in custody. Defendants,

though, opposed their release because they asserted for the

first time that these individuals were being mandatorily de-

tained pursuant to § 1225(b)(2)(A). On November 13, 2025,

the district court ordered the release of the 13 individuals and

granted Plaintiffs’ broader request for relief to place “poten-

tial class members” on alternatives to detention, save for

those individuals Defendants identified as posing a high risk

of danger to the public.

Defendants timely appealed the district court’s October

and November orders.

56 No. 25-3050

II. DISCUSSION

I concur with Judge Lee’s analysis and disposition of the

October order and do not repeat that here. With respect to the

November order, Defendants lodge three challenges. I ad-

dress them in turn. 3

A. Waiver

Defendants insist the November order runs afoul of

§ 1252(f)(1)’s bar on classwide injunctive relief. Plaintiffs con-

tend Defendants waived this argument by entering the Con-

sent Decree. I agree.

Section 1252(f)(1) states that “[r]egardless of the nature of

the action or claim or of the identity of the party or parties

bringing the action, no court (other than the Supreme Court)

shall have jurisdiction or authority to enjoin or restrain the

operation of [8 U.S.C. §§ 1221–1232] … other than with re-

spect to the application of such provisions to an individual

alien against whom proceedings under such part have been

initiated.” Pointing to their mandatory detention authority

under § 1225(b)(2)(A), which they now claim covers nonciti-

zens arrested within the country’s borders, Defendants argue

the November order impermissibly restrains the operation of

a provision covered by § 1252(f)(1).

Certain arguments invoking § 1252(f)(1) can be waived.

See supra Opinion of Lee, J., Part II-A-1-a; accord Biden v. Texas,

597 U.S. 785, 797–801 (2022). And “[c]onsent decrees are en-

tered into by parties to a case after careful negotiation has pro-

duced agreement on their precise terms.” United States v.

3

I agree with Judge Lee that we have jurisdiction to review the November

order. See supra Opinion of Lee, J., Part II-B n.12.

No. 25-3050 57

Armour & Co., 402 U.S. 673, 681 (1971). At the heart of a con-

sent decree lies “a compromise” because “in exchange for the

saving of cost and elimination of risk, the parties each give up

something they might have won had they proceeded with the

litigation.” Id. In doing so, “[t]he parties waive their right to

litigate the issues involved in the case and thus save them-

selves the time, expense, and inevitable risk of litigation.” Id.

Here, the parties entered the Consent Decree after two

years of litigation and two years of negotiation, spanning two

presidential administrations. They artfully crafted the terms

of it, dispensing with potential success had the case gone to

judgment and defenses or arguments either may have had in

exchange for a mutually beneficial system of enforcement and

dispute resolution. Cf. McDowell v. Philadelphia Housing Au-

thority (PHA), 423 F.3d 233, 239 (3d Cir. 2005) (Alito, J.) (“Be-

cause the decree compromises litigation, it will rarely afford

the plaintiffs all the relief they would have obtained had the

case proceeded to a judgment in their favor.”); Chisom v. Lou-

isiana ex rel. Landry, 116 F.4th 309, 318 (5th Cir. 2024) (“The

whole point of negotiating and agreeing on a plethora of spe-

cific, highly detailed action plans was to establish a clearly de-

fined roadmap for attempting to achieve the Decree’s pur-

pose.” (quoting Frew v. Janek, 780 F.3d 320, 328 (5th Cir.

2015))). By entering into the Consent Decree, then, Defendants

intentionally relinquished known rights. Armour, 402 U.S. at

681. In other words, Defendants waived their argument that

§ 1252(f)(1) prohibits injunctive relief restraining the opera-

tion of any covered provision found in § 1252(f)(1), including

§ 1225(b)(2)(A), and cannot now seek haven in a waivable

statutory provision they forwent to receive the benefit of their

bargain to resolve the claims against them. See Miller v. Willow

Creek Homes, Inc., 249 F.3d 629, 631 (7th Cir. 2001) (“A waiver,

58 No. 25-3050

which can be either expressed or implied, is an intentional re-

linquishment of a known right.”).

B. Section 1252(f)(1)

I stop there and venture no further. The district court,

however, reached the merits of Defendants’ interpretation of

their mandatory detention authority under § 1225(b)(2)(A),

rejected that interpretation, and issued a classwide release of

noncitizens on alternatives to detention. That was error.

Without a binding consent decree, the door to the merits

of this argument is closed; § 1252(f)(1) prohibits classwide

injunctive relief of a covered statutory provision. Section

“1252(f)(1) generally prohibits lower courts from entering

injunctions that order federal officials to take or to refrain

from taking actions to enforce, implement, or otherwise carry

out the specified statutory provisions.” Aleman Gonzalez, 596

U.S. at 550. The parties do not disagree that § 1225(b)(2)(a)

falls among the specified provisions. The Supreme Court has

explained that § 1252(f)(1) “‘prohibits federal courts from

granting classwide injunctive relief’ but ‘does not extend to

individual cases.’” Id. (quoting Reno v. Am.-Arab Anti-

Discrimination Comm., 525 U.S. 471, 481–82 (1999)).

Section 1252(f)(1)’s classwide injunctive relief bar applies

even where the government is “misinterpreting and

misapplying” a covered statutory provision. Id. at 553–54. 4

Therefore, even if Defendants are unlawfully deploying

their authority under § 1225(b)(2)(A), lower courts cannot

4

I agree with Judge Lee that a classwide injunction does not run into

§ 1252(f)(1)’s bar if it only “has some collateral effect on the operation of a

covered provision.” Aleman Gonzalez, 596 U.S. at 553 n.4. But I don’t see

this issue arising under these facts.

No. 25-3050 59

enjoin operation of it on a classwide basis. Id. at 553–54. But,

as described above, Defendants waived reliance on

§ 1252(f)(1) by agreeing to the Consent Decree. Because courts

should endeavor to resolve issues on the narrowest grounds

available, that is all that is necessary to resolve this issue.

C. Mandatory Detention

As a final arrow in their quiver, Defendants argue the No-

vember order violates the terms of the Consent Decree in two

ways. First, they maintain that the Consent Decree’s carve out

of class members subject to mandatory detention from its re-

medial procedures incorporated its newfound definition of

§ 1225(b)(2)(A). Second, Defendants contend the November

order’s grant of widespread release of noncitizens without an

individualized determination that any of their arrests were

permissible was incompatible with the Consent Decree’s com-

mand that release of a class member could result only “upon

a determination by the parties or the Court … that a Class

Member was so arrested contrary to the terms of th[e] [Con-

sent Decree].” While I disagree with Defendants’ first argu-

ment, I agree with their second.

Consent Decrees are creatures of contract, and “they

should be construed basically as contracts,” using the familiar

aids of contract interpretation. United States v. ITT Continental

Baking Co., 420 U.S. 223, 236 (1975). 5 “Such aids include the

circumstances surrounding the formation of the consent [de-

cree], any technical meaning words used may have had to the

5

The parties agree the interpretation of the Consent Decree is construed

in accordance with federal common law, which incorporates “general

principles of contract law.” Bock v. Computer. Assocs. Int’l, Inc., 257 F.3d

700, 704 (7th Cir. 2001).

60 No. 25-3050

parties, and any other documents expressly incorporated in

the decree.” Id. at 238. The ultimate “objective” is to “con-

stru[e] [the] contract … to give effect to the intentions of the

parties.” Lumpkin v. Envirodyne Indus., Inc., 933 F.2d 449, 455

(7th Cir. 1991) (quoting Air Line Stewards & Stewardesses Ass’n

v. Am. Airlines, Inc., 763 F.2d 875, 877–78 (7th Cir. 1985));

United States v. Rand Motors, 305 F.3d 770, 774 (7th Cir. 2002)

(“[W]e attempt to construe a contract to give full effect to the

intention of the parties.”). To do so, we “apply an objective

standard of reasonableness to determine the meaning of the

settlement agreement,” Rand Motors, 305 F.3d at 774, and keep

in mind “[t]he principle that a contract is construed to give

effect to all of its provisions.” First Nationwide Bank v. United

States, 431 F.3d 1342, 1347 (Fed. Cir. 2005). At the same time,

“the scope of a Consent Decree must be discerned within its

four corners, and not by reference to what might satisfy the

purposes of one of the parties to it.” Armour, 402 U.S. at 682.

The Consent Decree specifies that its individual remedy

provisions do not apply “to Class Members subject to manda-

tory detention pursuant to the Immigration and Nationality

Act.” The Consent Decree neither defines mandatory deten-

tion nor specifies a particular statutory provision under the

Immigration and Nationality Act. But at the time the parties

entered into the agreement, they shared an understanding of

what the provision meant. See Loc. 93, Int’l Ass’n of Firefighters,

AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 522 (1986)

(“[T]he agreement of the parties, rather than the force of the

law upon which the complaint was originally based, … cre-

ates the obligations.”). Defendants and Plaintiffs contempora-

neously agreed that § 1225(b)(2)(A) authorized the govern-

ment to mandatorily detain individuals who it seized at the

country’s border and shores, whereas § 1226 permitted it to

No. 25-3050 61

release citizens who it apprehended within the United States

on bond. See Detention and Removal of Aliens, 62 Fed. Reg.

10312, 10323 (Mar. 6, 1997) (“Despite being applicants for ad-

mission, aliens who are present without having been admit-

ted or paroled … will be eligible for bond and bond redeter-

mination.”); see, e.g., Matter of Castillo-Padilla, 25 I. & N. Dec.

257, 257–58, 262 (BIA 2010) (observing a noncitizen who was

present without admission or parole was released under

§ 1226); Matter of Akhmedov, 29 I. & N. Dec. 166 (BIA 2025)

(stating where a noncitizen entered without inspection at the

border “[t]he respondent’s custody determination is gov-

erned by the provisions of section [1226]”); Jennings v. Rodri-

guez, 583 U.S. 281 (2018) (No. 15-1204) (Nov. 30, 2016), Oral

Argument at 04:48–06:20 (“[A]n alien who has come into the

United States illegally without being admitted who takes up

residence … is … held under 1226(a) and … get[s] a bond

hearing.”); Rodriguez, 583 U.S. 281 (Oct. 3, 2017), Oral Argu-

ment at 10:02–10:27 (“1226 is the provision that we use when

we arrest somebody who is within the … United States; 1225

is the one we use when we are dealing with aliens who arrive

at our shores.”). Were that not the case, to the extent those in-

dividuals would be subject to mandatory detention, the Con-

sent Decree’s remedial provision would not have aided any

class member or “potential class member,” rendering this

provision completely superfluous. That’s absurd.

Then, fast forwarding three years, the government con-

cedes it changed course in interpreting § 1225(b)(2)(A) to per-

mit it to mandatorily detain noncitizens regardless of whether

they were apprehended at the border or within the United

States after nearly 30 years of contending the opposite. See

Aparecido Barbosa da Cunha v. Freden, No. 25-3141-pr, slip op.

at 52–53 (2d Cir. Apr. 28, 2026). Even though the Defendants

62 No. 25-3050

ushered in a unilateral 180-degree change in interpretation of

a key term of the Consent Decree, they never requested the

district court amend the Consent Decree’s terms. But “[w]hen

a court has embodied the settlement agreement in a judicial

decree, Federal Rule of Civil Procedure 60(b) governs modifi-

cations.” Daniels v. Hughes, 147 F.4th 777, 785 (7th Cir. 2025).

Here, the Department of Homeland Security and the U.S.

Immigration and Customs Enforcement have refused to take

the legally prescribed path to seek relief from the Consent De-

cree. They, instead, unilaterally sought to circumvent their

contractually assented to terms and cease their obligations

imposed by court order. Our system of government does not

condone such lawlessness. Marbury v. Madison, 5 U.S. (1

Cranch) 137, 163 (1803) (“The government of the United States

has been emphatically termed a government of laws and not

of men.”). Indeed, inscribed in the American rule of law rests

the fundamental principle that federal courts say what the

law is and require every single person subject to the law to

follow its dictates, processes, and procedures. Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (R. Jackson, J.,

concurring) (1952) (“The essence of our free Government is

‘leave to live by no man’s leave, underneath the law’—to be

governed by those impersonal forces which we call

law.”). That’s the only way our system of government can

properly function. Cooper v. Aaron, 358 U.S. 1, 23 (1958)

(Frankfurter, J., concurring) (“‘A government of laws and not

of men’ was the rejection in positive terms of rule by fiat,

whether by the fiat of governmental or private power. Every

act of government may be challenged by an appeal to law, as

finally pronounced by [the Supreme] Court.”).

No. 25-3050 63

In short, Defendants must be held to the bargain they

struck. Without properly moving for modification under Rule

60(b), the Defendants could not on their own accord rewrite

the Consent Decree to encompass the government’s new-

found definition of mandatory detention pursuant to

§ 1225(b)(2)(A).

On the other hand, for the reasons stated in Judge Lee’s

opinion, the November order did run afoul of the Consent De-

cree’s requirement that class members and “potential class

members” be subject to individualized determinations re-

garding whether they had been arrested in violation of the

Consent Decree’s terms. As stated, the Consent Decree man-

dates release of a class member from custody “upon a deter-

mination by the Parties or the Court ... that [the] Class Mem-

ber was so arrested contrary to the terms of the Agreement.”

No such determination has been made for the “potential class

members” who remain the subjects of the November 13 order.

Thus, remand is necessary for individualized review of

whether the potential class members are in fact members of

the class subject to the Consent Decree’s terms.

III. CONCLUSION

For the reasons stated above, I concur in part and concur

in the judgment.

64 No. 25-3050

KIRSCH, Circuit Judge, dissenting. The majority concedes

that the district court’s orders were deeply flawed. By enjoin-

ing the government from using I-200 warrants in its October

order, the district court ran afoul of the Immigration and Na-

tionality Act’s injunction bar. My colleagues nonetheless af-

firm the remainder of that order. The November order re-

quired the government to release hundreds of aliens at once,

in violation of the terms of the consent decree. No matter, the

majority says, the rest of that order should stand as well.

There are other problems, too, beyond those my colleagues

acknowledge. The district court failed to consider the separa-

tion of powers principles that make this case unique. The

class-wide injunctive relief in the November order was barred

by the Immigration and Nationality Act and the Supreme

Court’s decision in Garland v. Aleman Gonzalez, 596 U.S. 543

(2022). And the district court erred in its interpretation of

mandatory detention, limiting the broad reach of 8 U.S.C.

§ 1225 just to those aliens encountered at the borders and

ports of entry. We should have taken a different course: we

should vacate and remand both orders. I respectfully dissent.

I

This lawsuit began in 2018. Plaintiffs alleged that Immi-

gration and Customs Enforcement made arrests in violation

of 8 U.S.C. § 1357(a)(2), which sets requirements for warrant-

less arrests. Though the class action was filed during Presi-

dent Trump’s first term in office, the parties settled—and en-

tered a consent decree—during the Biden administration.

Plaintiffs gave up their litigation in exchange for a promise

that, for a period of three years, ICE officers assigned to the

Chicago area could make arrests under § 1357 only if they had

probable cause that an individual was in the United States in

No. 25-3050 65

violation of the immigration laws and probable cause that the

individual was likely to escape before a warrant could be ob-

tained. The agreement included an individualized remedy: if

the parties or court found that a class member was arrested in

violation of the decree, ICE had to release that person unless

they were “subject to mandatory detention pursuant to the

Immigration and Nationality Act.” The court also retained

discretion to provide equitable remedies.

For two-and-a-half years, the case went quiet. But after

President Trump returned to office and ICE began intensive

operations in the Chicago area, the litigation sprang back to

life. Citing arrests that they alleged were in violation of the

consent decree, plaintiffs filed a motion to enforce in March

2025, which put the expiration of the agreement on hold. A

month later, they moved under Federal Rule of Civil Proce-

dure 60(b)(5) to extend the agreement by another three years.

On October 7, 2025, the district court ruled on both mo-

tions (the October order). Considering the motion to enforce,

the district court found that 22 of the 26 arrests identified by

plaintiffs were, in fact, warrantless arrests in violation of the

consent decree. The parties agreed that 14 of the arrests were

warrantless, and the court found that 12 of those were in vio-

lation of the agreement. But there was a dispute about the na-

ture of the remaining 12 arrests. Plaintiffs argued that these

arrests were also warrantless, made under the authority of

§ 1357(a)(2). ICE contended that these arrests were supported

by warrants issued in the field (using a warrant form called

an I-200) and were based on authority under a different stat-

ute—8 U.S.C. § 1226—such that the consent decree did not ap-

ply. The district court decided that ICE’s I-200 warrant prac-

tice was unlawful, that the arrests had been warrantless, and

66 No. 25-3050

that most of the I-200 arrests were in violation of the decree.

The court granted plaintiffs’ motion to enforce in part, order-

ing ICE to provide relief to those arrested in violation of the

agreement.

The district court also granted plaintiffs’ motion to modify

the agreement under Federal Rule of Civil Procedure 60(b)(5).

Citing an email from ICE’s Principal Legal Advisor that pur-

ported to rescind the consent decree because it was expired

and ICE’s I-200 field warrant policy, the court found that ICE

was in substantial non-compliance with the decree and that

plaintiffs had shown a significant change of circumstances

warranting a modification. The district court extended the de-

cree for an additional four months.

Weeks later, plaintiffs moved to release “all potential class

members” from ICE detention and instead place those aliens

on ankle monitors and other alternatives to detention. The

government argued that under a new interpretation of part of

the INA—8 U.S.C. § 1225(b)(2)—aliens arrested in the Chi-

cago area were subject to mandatory detention, meaning that

ICE could not lawfully release them. The district court disa-

greed with the government’s interpretation of § 1225. Without

deciding whether the detained aliens were in the class or had

been arrested contrary to the consent decree, the court or-

dered hundreds of detainees released and stayed their re-

moval for one day after their release.

The government moved to stay both orders pending ap-

peal, and we denied in part and granted in part that motion.

See Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048

(7th Cir. 2025). On appeal, the government challenges the ex-

tension of the October order and the entirety of the November

order.

No. 25-3050 67

II

We review the district court’s orders for an abuse of dis-

cretion. Shakman v. Clerk of Cook Cnty., 994 F.3d 832, 840 (7th

Cir. 2021). “The abuse-of-discretion standard includes review

to determine that the discretion was not guided by erroneous

legal conclusions.” Koon v. United States, 518 U.S. 81, 100

(1996). Abuse of discretion also includes “a serious error of

judgment, such as reliance on a forbidden factor or failure to

consider an essential factor.” Gopalratnam v. Hewlett-Packard

Co., 877 F.3d 771, 782 (7th Cir. 2017). When a district court

abuses its discretion, the court of appeals may “vacate the

original decision and remand to the district court to perform

its task in the manner it should have carried out originally.”

United States v. Stephens, 514 F.3d 703, 713 (7th Cir. 2008).

The district court committed errors in both orders. The Oc-

tober order exceeded the court’s jurisdiction because it

granted class-wide injunctive relief enjoining ICE’s operation

of § 1226 (barring the government from issuing I-200 warrants

in the field). See 8 U.S.C. § 1252(f)(1); Aleman Gonzalez, 596

U.S. at 548. And the district court abused its discretion in the

November order by requiring the release, en masse, of hun-

dreds of potential class members contrary to the decree’s in-

dividualized remedy. In addition to these errors—which the

majority acknowledges—the district court also abused its dis-

cretion in both orders by failing to consider the separation of

powers, and, in the November order, by enjoining ICE’s use

of mandatory detention contrary to § 1252(f)(1) and based on

an erroneous interpretation of the INA. We should vacate and

remand both orders.

68 No. 25-3050

A

The district court abused its discretion in the October or-

der for two reasons. First, the court failed to take account of a

factor essential to its decision—that this case involves an

agreement entered by temporary officeholders of the execu-

tive branch and so involves the public interest and separation

of powers. Second, the district court exceeded its jurisdiction

and violated the INA’s injunction bar—8 U.S.C. § 1252(f)(1)—

by preventing the government from issuing I-200 warrants in

the field. Considered alone or together, these errors require

that we vacate the decision to extend the decree.

1

Consent decrees are, in some respects, like contracts. See

United States v. Alshabkhoun, 277 F.3d 930, 933–34 (7th Cir.

2002). In a typical contract dispute, it’s the parties to the agree-

ment whose interests matter. But when temporary officehold-

ers of the executive branch are on one side of the deal, the cal-

culus changes. The public has a stake in the degree to which

the executive branch barters away its powers. See Evans v. City

of Chicago, 10 F.3d 474, 478 (7th Cir. 1993) (en banc) (plurality

opinion). And a district court that exercises control over exec-

utive functions through a consent decree must do so with

“due regard for the separation of powers, the flexibility of eq-

uity, the ambiguity of the decree … the sensitivity and im-

portance of the subject matter, and the limitations of judicial

competence.” All. to End Repression v. City of Chicago, 742 F.2d

1007, 1019 (7th Cir. 1984) (en banc).

Attention to this factor isn’t optional. “As both the Su-

preme Court and this court have made clear, the district

court’s recognition of the uniqueness of [institutional reform

No. 25-3050 69

litigation] must inform its decision whether to grant or deny a

motion brought pursuant to Rule 60(b).” Shakman v. City of

Chicago, 426 F.3d 925, 934 (7th Cir. 2005) (emphasis added);

Gopalratnam, 877 F.3d at 782 (finding an abuse of discretion

when a court failed to consider a factor essential to its analy-

sis). Interpreting and modifying promises made by tempo-

rary officeholders, the court should preserve “maximum lee-

way for democratic governance.” Evans, 10 F.3d at 479. That’s

because governments are unlike other contracting parties,

and “temporary officeholders may not contract away the

basic powers of government … in the same way natural per-

sons may make enduring promises about their own future be-

havior.” Id. at 478.

In modifying the decree, the district court proceeded as if

this were a usual contracts case. It broadly interpreted not just

the meaning of the agreement but also the surrounding law,

including a provision that the consent decree didn’t address

at all (§ 1226). Recall that the decree centers on just one part

of the immigration law: warrantless arrests under § 1357.

Plaintiffs alleged that ICE had violated that provision, but the

district court went way beyond warrantless arrests. It de-

clared that ICE’s I-200 field warrants—issued under § 1226, an

entirely different statute—were unlawful. And based on that

interpretation of § 1226 and related violations of the agree-

ment, as it saw them, the district court extended the consent

decree by four months. In doing so, the court both bound cur-

rent elected officeholders to the promises of their predeces-

sors and went beyond those limited promises (which centered

only on § 1357), barring ICE from using warrants in a way the

government believes is lawful. Because the court failed to ap-

preciate the unique nature of this case, it overplayed its role

and created an unnecessary conflict between the judicial and

70 No. 25-3050

executive branches. See All. to End Repression, 742 F.2d at 1019.

This was an abuse of discretion.

My colleagues excuse this error, relying on waiver. Ante,

at 17. But the government did not waive argument on this

point. Responding to plaintiffs’ motion to modify, the govern-

ment cited cases discussing the need for courts to take a flex-

ible approach to proposed modifications of consent decrees

binding public officials. See Shakman v. Pritzker, 43 F.4th 723,

731 (7th Cir. 2022) (noting that extended federal judicial over-

sight of executive officials “should not serve as a primary

means of ensuring state officials comply with duties imposed

by federal law”); Shakman, 426 F.3d at 932 (“The public inter-

est and considerations based on the allocations of powers

within our federal system require that the district court defer

to … government administrators who have the primary re-

sponsibility for elucidating, assessing, and solving the prob-

lems of institutional reform, to resolve the intricacies of im-

plementing a decree modification.”). The government didn’t

use the magic words “separation of powers,” but it didn’t

need to. The authority the government cited adequately

raised the unique aspects of institutional reform litigation.

And even if it hadn’t, we should reach the issue now because

the court retains “the independent power to identify and ap-

ply the proper construction of governing law.” Kamen v. Kem-

per Fin. Servs., Inc., 500 U.S. 90, 99 (1991).

Waiver aside, the majority contends that we should rest

easy about any separation of powers problems because the

government could ask to end the decree under Rule 60(b)(5),

and because the decree’s continued vitality depends “on the

existence of a substantial claim under federal law.” Ante, at

18–19 (quoting Evans, 10 F.3d at 480). I agree that these are

No. 25-3050 71

important safeguards on institutional reform litigation. But

my colleagues ignore a third guardrail: adequate judicial at-

tention to the unique aspects of these cases. See Shakman, 426

F.3d at 934; Evans, 10 F.3d at 479; All. to End Repression, 742

F.2d at 1019.

That the government can move to modify the decree, and

that the decree must rise or fall with a substantial claim, does

not mean the court may exercise control over institutional re-

form litigation however it sees fit. We have a “responsibility

to identify the rule of federal law supporting a consent decree

binding the political arms of government, and the corre-

sponding obligation to permit new public officials to set their

own policy within the limits established by federal law.” Ev-

ans, 10 F.3d at 479. The October order ignored these obliga-

tions. It exceeded the “appropriate limits” on institutional re-

form decrees and went beyond a “reasonable and necessary

implementation[] of federal law,” improperly depriving offi-

cials of their designated executive powers. Horne v. Flores, 557

U.S. 433, 450 (2009) (citation modified).

2

The October order also violated the Immigration and Na-

tionality Act. One part of that law—8 U.S.C. § 1252(f)(1)—

strips lower federal courts of power to issue certain class-

based injunctions:

Regardless of the nature of the action or claim

or of the identity of the party or parties bringing

the action, no court (other than the Supreme

Court) shall have jurisdiction or authority to en-

join or restrain the operation of [8 U.S.C.

§§ 1221–1232], other than with respect to the

72 No. 25-3050

application of such provisions to an individual

alien against whom proceedings under [those

provisions] have been initiated.

Generally, this statute “prohibits lower courts from entering

injunctions that order federal officials to take or to refrain

from taking actions to enforce, implement, or otherwise carry

out the specified statutory provisions.” Aleman Gonzalez, 596

U.S. at 550.

The majority holds that the government waived objection

to the October order based on § 1252(f)(1), noting that the

government in 2021 raised this statute before entering the

consent decree and failed to argue the point again in opposi-

tion to plaintiffs’ motion to modify. Ante, at 9–12. But entering

a consent decree three years earlier is not a waiver of a

§ 1252(f)(1) objection to an injunction reaching outside the

four corners of the decree. And even if the government for-

feited this argument by failing to raise it below, we should

reach it because the application of § 1252(f)(1) to this instance

of institutional reform litigation involves (as discussed above)

“concerns broader than those of the parties.” United States v.

Ford, 683 F.3d 761, 768 (7th Cir. 2012) (citation modified).

I agree with the majority’s conclusion that, waiver or for-

feiture aside, the October order ran afoul of § 1252(f)(1). See

ante, at 14–15. On a class-wide basis, the order barred ICE

from issuing I-200 field warrants pursuant to § 1226. And, as

the majority also acknowledges, whether the district court

was right about the lawfulness of ICE’s I-200 procedure

doesn’t matter. Section 1252(f)(1) barred the district court

from issuing class-wide injunctive relief affecting the opera-

tion of a covered provision (including § 1226) regardless of

whether the government was properly interpreting that

No. 25-3050 73

provision. See Aleman Gonzalez, 596 U.S. at 554 (noting that a

court’s jurisdiction to entertain a request for class-wide in-

junctive relief does not depend on the merits of the claim).

The district court granted plaintiffs’ extension request un-

der Rule 60(b) after having found some non-I-200 violations

of the decree and cited an ICE official’s declaration that the

government would no longer comply with the decree. But the

district court understood ICE’s I-200 warrant procedure to be

a central aspect of the change in circumstances justifying a

modification. The district court wrote that ICE’s I-200 field

warrant policy was an explicit attempt to circumvent the

agreement’s requirements. And about half of the violations of

the decree that the court found in the October order involved

an I-200 warrant. In short, a key justification supporting the

court’s modification of the decree was wrong. And because

the district court committed errors of law, we should vacate

and remand. See United States v. Chaparro, 956 F.3d 462, 474

(7th Cir. 2020); Costello v. BeavEx, Inc., 810 F.3d 1045, 1061 (7th

Cir. 2016).

B

As discussed above, the October order was flawed because

the district court failed to take account of the unique aspects

of this institutional reform litigation and issued class-wide in-

junctive relief that was barred by § 1252(f)(1). The November

order—requiring ICE to release hundreds of potential class

members—suffered from the same two problems, and from

two others. By failing to conduct individualized determina-

tions as to whether the aliens at issue had been arrested in

violation of the agreement, the district court violated the rem-

edy provision of the consent decree. And the court erred in its

interpretation of mandatory detention under § 1225. For any

74 No. 25-3050

of these reasons, we should vacate and remand the November

order.

1

I agree with my colleagues that an initial, obvious problem

with the November order is that it violates the terms of con-

sent decree itself. Ante, at 50. The agreement’s remedy provi-

sion authorized release from ICE custody for class members

“upon a determination by the Parties or the Court … that [the]

Class member was so arrested contrary to the terms of this

Agreement.” The district court bypassed this requirement en-

tirely and instead ordered ICE to release hundreds of aliens

with no analysis as to whether those detainees had been ar-

rested in violation of the agreement. The district court abused

its discretion by failing to adhere to the remedial terms of the

consent decree.

2

The November order should also be vacated because the

district court failed to consider the public interest and separa-

tion of powers aspects of the litigation. By ignoring the reme-

dial terms of the decree, issuing class-wide relief barred by

the INA, and ordering the government to comply with the

previous administration’s view of mandatory detention un-

der 8 U.S.C. § 1225, the district court left little “leeway for

democratic governance.” Evans, 10 F.3d at 479. The court

could have narrowly interpreted and enforced the decree to

avoid “a premature confrontation between the judicial and

executive branches.” All. to End Repression, 742 F.2d at 1019.

Instead, the court invoked its equitable discretion to grant

wide-ranging relief that went beyond the only “substantial

claim under federal law” (warrantless arrests under § 1357)

No. 25-3050 75

that supports the continued existence of the decree. Evans, 10

F.3d at 480. The district court should have approached plain-

tiffs’ motion with “due regard for the separation of powers,

the flexibility of equity, the ambiguity of the decree … the

sensitivity and importance of the subject matter, and the lim-

itations of judicial competence.” All. to End Repression, 742

F.2d at 1019. The court did not do so, and that choice was er-

ror.

3

The November order violated § 1252(f)(1), the INA’s bar

on class-wide injunctive relief that enjoins operation of certain

parts of the INA. In opposition to plaintiffs’ motion, the gov-

ernment asserted that § 1225 (a provision covered by

§ 1252(f)(1)) required the detention of aliens arrested in the

Chicago area. The district court disagreed and issued injunc-

tive relief on a class-wide basis, requiring the government to

release hundreds of detainees that, in ICE’s view, the govern-

ment had to detain under § 1225. That relief was barred by

§ 1252(f)(1).

The Supreme Court’s decision in Aleman Gonzalez controls

this case. 596 U.S. at 552–54. In Aleman Gonzalez, the govern-

ment detained aliens pursuant to a covered provision. Id. at

547. The aliens filed suit; two district courts certified classes

of similarly situated plaintiffs and then issued class-wide in-

junctive relief. Id. The Supreme Court found that the orders

ran afoul of § 1252(f)(1). Id. at 548. The plaintiffs argued that

§ 1252(f)(1) only barred injunctions that interfered with the

operation of a covered provision “as properly interpreted.”

Id. at 552. The Court rejected that argument, holding that ju-

risdiction to entertain a request for class-wide injunctive relief

is not dependent on the merits of the claim. Id. at 554. In other

76 No. 25-3050

words, an injunction that interferes with a covered provision

“is barred even if a court determines that the Government’s

‘operation’ of a covered provision is unlawful or incorrect.”

Al Otro Lado v. Exec. Off. for Immigr. Rev., 138 F.4th 1102, 1125

(9th Cir. 2025); see N.S. v. Dixon, 141 F.4th 279, 289 (D.C. Cir.

2025); Arizona v. Biden, 40 F.4th 375, 394 (6th Cir. 2022) (Sutton,

C.J., concurring) (Ҥ 1252(f)(1) has the same force even when

the National Government allegedly enforces the relevant stat-

utes unlawfully.”).

The same analysis applies to the November order. The dis-

trict court issued class-wide injunctive relief, enjoining the

government from operating § 1225’s mandatory detention re-

quirement in the way that ICE believed was lawful. That the

district court disagreed with the government’s interpretation

of § 1225 doesn’t matter.

My colleagues say that by entering the consent decree, the

government waived argument that the November order vio-

lated § 1252(f)(1). That’s wrong. When the litigation began,

the government raised § 1252(f)(1) as a bar to the consent de-

cree itself and then dropped that objection when it entered the

agreement. But that means the government waived argument

that the decree itself violated § 1252(f)(1)—it didn’t forever

bar the government from raising § 1252(f)(1) against any or-

der implicating the injunction bar in a new way in this litiga-

tion. Similarly, the consent decree says the district court may

provide equitable remedies to manage the decree, but that

doesn’t mean the government agreed that the district court

could issue equitable remedies prohibited by the INA’s in-

junction bar. The government squarely raised § 1252(f)(1) in

opposition to the November order, and the district court ran

afoul of that statute.

No. 25-3050 77

Judge Lee’s attempt to explain why § 1252(f)(1) doesn’t ap-

ply ignores the clear rule in Aleman Gonzalez. While my col-

league acknowledges that § 1252(f)(1) bars injunctions that

enjoin even the unlawful operation of a covered provision,

Judge Lee reasons that operation is a limited concept, and so

courts may freely decide whether a covered provision applies

in the first instance. Ante, at 22. And because the plaintiffs “are

not challenging the manner in which DHS is enforcing and

implementing § 1225,” my colleague says the issue here is

whether § 1225 applies at all. Id. at 24.

One problem with this new rule is that it’s contrary to Ale-

man Gonzalez. The Court did not distinguish between opera-

tion and application of covered provisions. 596 U.S. at 552–54.

Instead, Aleman Gonzalez says unequivocably that the availa-

bility of class-wide injunctive relief is not dependent on the

merits of the claim. Id. at 554. And even if Judge Lee’s rule

wasn’t barred by Aleman Gonzalez, it is also unworkable.

Every objection to the government’s operation of a covered

provision can be styled as a challenge to the applicability of

the law. For instance, if § 1225, properly operated, doesn’t au-

thorize the detention of certain aliens, then § 1225 doesn’t ap-

ply to those aliens. Judge Lee’s approach authorizes plaintiffs

and courts to make an easy end-run around Aleman Gonzalez,

even in cases—like this one—where the government’s inter-

pretation is more than plausible. See Buenrostro-Mendez v.

Bondi, 166 F.4th 494 (5th Cir. 2026) (agreeing with the govern-

ment’s interpretation of § 1225); Avila v. Bondi, 170 F.4th 1128

(8th Cir. 2026) (same).

Setting aside the novel distinction between operation and

application, the rule from Aleman Gonzalez is already con-

strained in two ways. First, § 1252(f)(1) applies only to

78 No. 25-3050

covered provisions—the government cannot use the injunc-

tion bar against an order affecting only a non-covered provi-

sion. And second, even when the government asserts that an

injunction interferes with a covered provision, the courts still

play a role by deciding whether, as a factual matter, the injunc-

tion at issue enjoins or restrains the operation of that law as

interpreted by the government, such that the order runs afoul

of the injunction bar. See Texas v. DHS, 123 F.4th 186, 210 (5th

Cir. 2024) (“The district court found as a factual matter that

Defendants’ duties [under covered provisions] would not be

thwarted by the injunction.”); Al Otro Lado, 138 F.4th at 1125

(Ҥ 1252(f)(1) does not prohibit an injunction simply because

of collateral effects on a covered provision.”); Dixon, 141 F.4th

at 289 (“We disagree with N.S.’s argument that the injunction

has only a collateral effect on [covered provisions.]”). In this

case, the district court’s order targets a covered provision—

§ 1225—and there’s no dispute that the injunction as a factual

matter has more than collateral effects on that provision.

Aleman Gonzalez drew a bright line. If an injunction re-

quires ICE to refrain from an action that, in the government’s

view, is required by § 1225, that injunction is barred even if a

court decides that the government is wrong about the law. 596

U.S. at 551–54. The rule applies both when the government is

a little and a lot wrong about its operation of a covered provi-

sion. And while that may seem like an extreme approach, re-

call that § 1252(f)(1) only bars class-wide injunctive relief.

Faithfully applying Aleman Gonzalez does not insulate the

government from judicial review—it simply means that

courts must decide the lawfulness of government operation

of covered provisions one case at a time.

No. 25-3050 79

The district court didn’t do that here. The November order

included class-wide injunctive relief enjoining the govern-

ment from operating a covered provision—§ 1225—in a way

that the government believes to be lawful. Even if the govern-

ment was wrong about the proper operation of § 1225 (and it

wasn’t, as I discuss below), that doesn’t matter. By issuing the

injunction, the district court exceeded its jurisdiction under

§ 1252(f)(1). Aleman Gonzalez, 596 U.S. at 548.

4

Section 1252(f)(1) and the district court’s other errors

should have meant that we need not reach whether the gov-

ernment was right about mandatory detention under § 1225.

But the government independently argued, setting

§ 1252(f)(1) aside, that the district court’s order violated

§ 1225. The government is correct. The better reading of § 1225

is that the INA’s mandatory detention provision applies to al-

iens arrested in the interior as well as to those encountered at

the border.

Noting that § 1225 enters this case by way of the parties’

consent decree, Judge Pryor contends that we must decide the

meaning of mandatory detention under that provision by ref-

erence to what that term meant at the time the parties entered

the decree. That’s wrong for two reasons. First, as discussed

above, this isn’t a normal contract, and so strictly applying the

usual contract interpretation rules is a mistake. Locking the

government to a past interpretation of § 1225 is the approach

that leaves the least “leeway for democratic governance.” Ev-

ans, 10 F.3d at 479. Second, because mandatory detention is a

legal term of art, its meaning when used in a contract is

guided by its usage in the legal field. See Marquez v. Screen

Actors Guild, Inc., 525 U.S. 33, 46 (1998); Bandak v. Eli Lilly and

80 No. 25-3050

Co. Retirement Plan, 587 F.3d 798, 800 (7th Cir. 2009) (“The pre-

sumption in interpreting a contract is that the meaning of a

technical term is its technical meaning, and thus, if it is a tech-

nical legal term, its technical legal meaning.”) (citation modi-

fied); see also Restatement (Second) of Contracts § 178 (1981)

(“A promise or other term of an agreement is unenforceable

on grounds of public policy if legislation provides that it is

unenforceable.”). The parties bargained for a remedy—aliens

arrested in violation of the decree who were not subject to

mandatory detention would be released—that was tied to the

statutory definition of mandatory detention under § 1225.

They therefore agreed that the consent decree would be inter-

preted by reference to the actual meaning of § 1225, not what

prior administrations may have thought that statute meant at

one time or another. The question before us, then, is whether

the November order violated the legal requirements of § 1225.

Section 1225 includes the following:

(2) Inspection of other aliens

(A) In general

[I]n 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 ad-

mitted, the alien shall be detained for a proceed-

ing under section 1229a of this title.

8 U.S.C. § 1225(b)(2)(A). The INA defines “alien” as “any per-

son not a citizen or national of the United States,” id.

§ 1101(a)(3), and “applicant for admission” as “[a]n alien pre-

sent in the United States who has not been admitted or who

arrives in the United States,” id. § 1225(a)(1).

No. 25-3050 81

It’s undisputed that, insofar as they were not citizens and

were present in the United States without having been admit-

ted, the aliens the district court ordered released in the No-

vember order were applicants for admission. Because these

arrests occurred in the interior of the country, the issue we

need to decide is this: does § 1225(b)(2)(A) require the deten-

tion of all applicants for admission not clearly entitled to ad-

mission (including those that ICE encounters in the interior of

the country), or merely those present at the borders and ports

of entry? The Supreme Court’s decision in Jennings v. Rodri-

guez, 583 U.S. 281 (2018), generally discussed this area of the

law, but the Court has yet to squarely confront the question.

See id. at 287–89; Avila, 170 F.4th at 1136. And absent guidance

from the Supreme Court, I interpret § 1225 by considering the

text of the law, the context in which the provision appears,

and the broader context of the statute. Robinson v. Shell Oil Co.,

519 U.S. 337, 340 (1997). If the statutory language is unambig-

uous, the court should not look elsewhere. Id.

i

Focusing on the second clause of § 1225(b)(2)(A), plaintiffs,

the district court, and Judge Lee want to draw a firm line be-

tween an alien seeking admission and an applicant for admis-

sion. But reading the whole of this provision shows that Con-

gress didn’t draw that line. See Gustafson v. Alloyd Co., 513 U.S.

561, 570 (1995) (noting that statutes are read as a whole and

not “as a series of unrelated and isolated provisions”). In-

stead, the statute simply uses different terms to refer to the

same person. Section 1225(b)(2)(A) begins by referring to a

singular “case” involving an applicant for admission and then

refers to that same person as an alien seeking admission. Put

differently, § 1225(b)(2)(A) includes a condition—an alien not

82 No. 25-3050

clearly entitled to admission must be detained—but it does

not also create a separate requirement that the alien be ac-

tively seeking admission. See Avila, 170 F.4th at 1134–35 (not-

ing that the grammatical structure of § 1225(b)(2)(A) does not

indicate that seeking admission is an independent require-

ment); see also Dubin v. United States, 599 U.S. 110, 118 (2023)

(observing that context can shed light on the meaning of terms

that are, “in isolation, indeterminate”); King v. St. Vincent’s

Hosp., 502 U.S. 215, 221 (1991) (“Words are not pebbles in alien

juxtaposition; they have only a communal existence; and not

only does the meaning of each interpenetrate the other, but all

in their aggregate take their purport from the setting in which

they are used.”). The law draws no distinction between appli-

cants for admission and aliens seeking admission—it merely

uses a different term to refer to the applicant for admission

identified at the start of the sentence.

That applicant for admission and alien seeking admission

share a definition also shows that § 1225(b)(2)(A) applies to

aliens in the interior as well as those at the border. The statu-

tory definition of “applicant for admission” is broad: “[a]n al-

ien present in the United States who has not been admitted or

who arrives in the United States … shall be deemed for pur-

poses of this chapter an applicant for admission.” 8 U.S.C.

§ 1225(a)(1). Anyone who is an applicant for admission is ap-

plying for admission. See Applicant, Merriam-Webster’s Col-

legiate Dictionary (10th ed. 1994) (defining applicant as “one

who applies”). And anyone who is applying for admission is

seeking admission. Compare Seek, Merriam-Webster’s Colle-

giate Dictionary (10th ed. 1994) (defining “seek” as “to go in

search of”; “look for”; “to ask for”; “to try to acquire or gain”;

“aim at”; and “to make an attempt”), with Apply, Merriam-

Webster’s Collegiate Dictionary (10th ed. 1994) (defining

No. 25-3050 83

“apply” as “to make an appeal or request esp. in the form of

a written application”). That Congress chose to use a noun,

applicant, and the present participle of the verb seek makes

no difference, because by definition an applicant for admis-

sion is seeking admission—the terms mean the same thing.

It’s true that “applicant for admission” is a term of art be-

cause it’s defined by the statute, while “alien seeking admis-

sion” is not. It’s also the case that “a definition which declares

what a term means excludes any meaning that is not stated.”

Stenberg v. Carhart, 530 U.S. 914, 942 (2000) (citation modified).

But “applicant for admission” is a defined term that also has

an obvious, ordinary meaning. And because “an entirely arti-

ficial definition is rare,” we typically expect the meaning of a

definition to be “closely related to the ordinary meaning of

the word being defined.” Antonin Scalia & Bryan A. Garner,

Reading Law 228 (2012); see Delligatti v. United States, 604 U.S.

423, 435 (2025) (“When choosing among interpretations of a

statutory definition, the ‘ordinary meaning’ of the ‘defined

term’ is an important contextual clue.”). We need not abandon

all reference to the ordinary meaning of applicant for admis-

sion, and so what we have here is a term of art that is synon-

ymous with an undefined term—alien seeking admission.

The law says that an alien present in the United States who

has not been admitted or who arrives in the United States is

an applicant for admission, 8 U.S.C. § 1225(a)(1), and appli-

cants for admission are seeking admission. See Buenrostro-

Mendez, 166 F.4th at 503 (“Because being an applicant ordinar-

ily entails seeking something, it seems natural to use the

words somewhat interchangeably.”); Avila, 170 F.4th at 1134

(noting that the “ordinary meanings of the phrases ‘applicant

for admission’ and ‘seeking admission’ are the same”).

84 No. 25-3050

To sum up, reading § 1225(b)(2)(A) as a whole shows that

Congress did not draw a distinction between two categories

of aliens—it merely referred to the same person by using two

different terms. That those terms share an ordinary meaning

reinforces that conclusion. And because the statute applies to

all applicants for admission, it is not limited merely to those

actively seeking admission at the border or ports of entry. All

applicants for admission, even those encountered in the inte-

rior of the country, are subject to mandatory detention unless

they are clearly entitled to admission.

Judge Lee concludes that this interpretation creates super-

fluity in the law, but Congress is permitted to use synonyms

in a statute. See Tyler v. Cain, 533 U.S. 656, 664 (2001); Rimini

St., Inc. v. Oracle USA, Inc., 586 U.S. 334, 346 (2019) (“Redun-

dancy is not a silver bullet.”). My colleague urges that plain-

tiffs’ alternative interpretation—Congress excepted from

mandatory detention all aliens who aren’t actively seeking

admission—allows “applicant for admission” and “alien

seeking admission” to “do independent work.” Ante, at 31.

That’s an understatement. Plaintiffs’ preferred interpretation

assigns “seeking admission” an immense workload—plain-

tiffs would use that term to carve an enormous exception into

the law covering most of the aliens in the country. The words

cannot bear the load, and we do not read statutes in this way.

See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)

(Congress “does not … hide elephants in mouseholes.”).

Moreover, plaintiffs’ interpretation raises more questions

than it answers. For instance, “at what point does an alien

who enters unlawfully no longer actively desire admission?”

Chen v. Almodovar, 25 Civ. 9670, 2026 WL 100761, at *9

(S.D.N.Y. Jan. 14, 2026). Plaintiffs have no answer, and their

No. 25-3050 85

approach would lead to difficult line drawing problems that

judges are ill-equipped to solve.

Two other provisions within the same statute show that in

§ 1225(b)(2)(A) Congress simply used different words for the

same set of people. First, § 1225(a)(5) says that “[a]n applicant

for admission may be required to state under oath any infor-

mation sought by an immigration officer regarding the pur-

poses and intentions of the applicant in seeking admission to the

United States….” 8 U.S.C. § 1225(a)(5) (emphasis added). This

provision suggests that applicants for admission are neces-

sarily seeking admission.

Second, § 1225(a)(3) says that “[a]ll aliens (including alien

crewmen) who are applicants for admission or otherwise seek-

ing admission or readmission to or transit through the United

States shall be inspected by immigration officers.” Id.

§ 1225(a)(3) (emphasis added). As Judge Lee acknowledges,

see ante, at 35, one way to understand this provision is that

the statute says that there are other ways to seek admission

besides being an applicant for admission. And that necessarily

implies that applicants for admission are seeking admission. See

Otherwise, Black’s Law Dictionary (12th ed. 2024) (defining

“otherwise” as “[i]n a different way” and “in another man-

ner”); see also Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d

958, 964 (11th Cir. 2016) (en banc) (explaining that “or other-

wise” means “the first action is a subset of the second action”);

Kleber v. CareFusion Corp., 914 F.3d 480, 482–83 (7th Cir. 2019)

(same).

Attributing to Congress limitless powers of grammatical

precision, Judge Lee explains that this isn’t the only way to

read § 1225(a)(3). Ante, at 35–38. But that doesn’t matter, be-

cause the natural reading is also the most convincing. As

86 No. 25-3050

discussed above, applying and seeking are synonymous. And

so while § 1225(a)(3) may technically link different parts of

speech, Congress compared two concepts that were closely

related: applying for and seeking admission. Section

1225(a)(3) supports the proposition that the detention require-

ment in § 1225(b)(2)(A) applies to all applicants for admission.

My colleague argues that other parts of § 1225 and the INA

support his narrower reading of mandatory detention. Ante,

at 33–35. But Judge Lee overstates the significance of these

contextual clues and ignores those that cut the other way. For

instance, my colleague reasons that because immigration in-

spections typically occur at the border, § 1225(b)(2)(A)’s men-

tion of an “examining immigration officer” and the statute’s

many other references to inspections must mean that

§ 1225(b)(2)(A) only applies at the border. Ante, at 32–33. But

the fact that most immigration inspections today occur at the

border doesn’t matter. The statute describes the inspection re-

quirement and does not say that inspections only refer to an

encounter that occurs at the border or in ports of entry. See 8

U.S.C. § 1225(a)(3). Judge Lee points to § 1225’s title and head-

ings, see ante, at 33–34, which reference “expedited removal

of inadmissible arriving aliens.” Yet § 1225(b)(2)(A) falls un-

der a different heading: “[i]nspection by immigration offic-

ers.” And the specific sub-headings of § 1225(b) support the

government’s interpretation. Section 1225(b)(1) says “Inspec-

tion of aliens arriving in the United States and certain other

aliens who have not been admitted or paroled.” The heading

of § 1225(b)(2), by contrast—“Inspection of other aliens”—

makes no reference to arriving aliens, which suggests that

§ 1225(b)(2)(A) applies to all applicants for admission. An-

other example: Judge Lee observes that neighboring statutory

provisions concern the border and arriving aliens, see ante, at

No. 25-3050 87

34–35, but fails to mention § 1226, granting the Attorney Gen-

eral authority to arrest and detain aliens regardless of where

or when they are encountered, and even authorizing state at-

torneys general (including those in interior states) to bring an

action against the government if an alien harms state resi-

dents. Id. § 1226(a) & (f).

Some parts of § 1225 focus on arriving aliens (rather than

those already within the country). See, e.g., § 1225(b)(1),

(b)(2)(B)(i) & (iii), (b)(2)(C). But the statute’s express attention

to arriving aliens in other parts underscores the absence of

that language in § 1225(b)(2)(A). Congress knew how to dis-

tinguish between arriving aliens and those already here. That

Congress did not do so in § 1225(b)(2)(A) (by using, for in-

stance, “arriving alien” rather than “alien seeking admis-

sion”) suggests that an alien seeking admission is different

than an arriving alien. Sw. Airlines Co. v. Saxon, 596 U.S. 450,

457–58 (2022) (discussing the meaningful-variation canon);

see also Sebelius v. Auburn Reg’l Med. Ctr., 5

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