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

> Court of Appeals for the Seventh Circuit · May 5, 2026

URL: https://www.frixlaw.com/law-library/cases/11320765

## Case

- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** May 5, 2026
- **Precedential status:** Published
- **Opinion:** Opinion by Lee
- **Judges:** Lee
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11320765

## How later opinions describe it (automated extraction)

- observing that context can shed light on the meaning of terms that are, “in isolation, indeterminate”
- noting that statutes are read as a whole and not “as a series of unrelated and isolated provisions”

## Opinion text

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11320765. Public record. Not legal advice.