Jaciel Rojas v. Samuel Olson

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 25-3127

JACIEL CIRRUS ROJAS,

Petitioner-Appellant,

v.

SAMUEL OLSON, Field Office Director, Chicago Field Office,

Immigration and Customs Enforcement, and SCOTT SMITH,

Jail Administrator, Dodge County Jail,

Respondents-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:25-cv-01437 — Brett H. Ludwig, Judge.

____________________

ARGUED JUNE 15, 2026 — DECIDED JULY 30, 2026

____________________

Before SYKES, JACKSON-AKIWUMI, and KOLAR, Circuit

Judges.

KOLAR, Circuit Judge. This case is about a change in the fed-

eral government’s longstanding interpretation of its immigra-

tion-detention laws. After living in this country since 2018,

Jaciel Cirrus Rojas was caught in the throes of that change last

year. When the Department of Homeland Security (“DHS”)

2 No. 25-3127

arrested him for unlawfully entering the country without in-

spection, it cited Title 8 U.S.C. § 1226. An immigration judge

found him neither a danger to the community nor a risk of

flight and ordered him released on bond pending his re-

moval, also using Section 1226. It is no surprise this case

started with Section 1226, the provision that the government

has long used to detain “aliens” (the statutory term for any

noncitizen) present in the country’s interior without inspec-

tion.

But despite DHS’s initial use of Section 1226 and the im-

migration judge’s order, the agency reversed course. It re-

fused to release Cirrus Rojas based on a neighboring provi-

sion, Section 1225(b)(2)(A), which was previously used to de-

tain aliens without a bond determination only when they

were apprehended at the nation’s borders. DHS now con-

tends that for decades everyone has read the relevant statu-

tory provisions incorrectly and that Section 1225, not 1226,

controls, requiring Cirrus Rojas’s detention without so much

as a hearing on bond. In response to this change in interpre-

tation, Cirrus Rojas filed a petition for a writ of habeas corpus

pursuant to Title 28 U.S.C. § 2241 to secure his release from

detention.

This sets the stage for the question presented in this ap-

peal: whether Section 1226 or Section 1225 governs Cirrus Ro-

jas’s detention. That narrow question determines whether

millions of aliens living in the United States are subject to

mandatory detention, or are eligible for bond hearings before

an immigration judge. The issue has split the circuits, though

No. 25-3127 3

a consensus is emerging. 1 We have yet to definitively rule

upon the issue, leaving our district courts without binding au-

thority to help resolve the many similar habeas petitions

flooding their dockets. We add but a few more drops of ink to

the gallons already spilled, seeking to avoid simple repetition

while answering the question before us.

DHS rests its new interpretation on changes Congress

made to the Immigration and Nationality Act (“INA”) almost

thirty years ago. Before those changes, aliens who unlawfully

entered the country were given greater procedural rights than

those who presented for inspection at the border. Congress

ended that disparity by creating a legal fiction in removal pro-

ceedings that “deemed” all aliens not properly admitted “ap-

plicants for admission” to the United States, as if they had

never crossed the border. But before last year, no administra-

tion had ever suggested this legal fiction extended beyond the

INA’s removal procedures to its provisions governing deten-

tion pending removal.

1 Compare Barbosa da Cunha v. Freden, 175 F.4th 61 (2d Cir. 2026) (reject-

ing DHS’s interpretation), petition for cert. filed, No. 26-104 (U.S. July 24,

2026), Hernandez Alvarez v. Warden, Federal Detention Center Miami, 175

F.4th 1258 (11th Cir. 2026) (same), Lopez-Campos v. Raycraft, 175 F.4th 713

(6th Cir. 2026) (same), petition for cert. filed, No. 25-1415 (U.S. June 22, 2026),

and Santillan Quiroz v. Mullin, 180 F.4th 1226 (10th Cir. 2026) (same), with

Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026) (adopting DHS’s

interpretation), petition for cert. filed, No. 26-43 (U.S. July 14, 2026), and Avila

v. Bondi, 170 F.4th 1128 (8th Cir. 2026) (same); see also Sosnava Rodriguez v.

Ortega, 180 F.4th 702 (5th Cir. 2026) (acknowledging Buenrostro-Mendez’s

statutory holding but requiring bond hearings on constitutional grounds),

vacated and reh’g en banc granted, __ F.4th __, 2026 WL 2014647 (5th Cir. July

10, 2026).

4 No. 25-3127

The crux of the parties’ disagreement is how far the legal

fiction of “deeming” Cirrus Rojas an “applicant for admis-

sion” stretches. As we detail below, Section 1225(b)(2)(A) im-

poses mandatory detention on certain “applicants for admis-

sion,” but only those who are also “seeking admission.” And

Cirrus Rojas is not seeking admission: the relief he now seeks,

asylum and withholding of removal, is not admission as the

statute and Supreme Court case law use that term. Cirrus Ro-

jas has never applied for anything that counts as “admission”

to the United States. Nor can he successfully “seek” admis-

sion, as his unlawful entry renders him inadmissible. The

government simply argues that because Cirrus Rojas is

“deemed” an “applicant for admission,” he must be “seeking

admission.”

We hold that Cirrus Rojas is not “seeking admission”—

and thus not covered by Section 1225(b)(2)(A)—because that

is his real-world status. We join the majority of the circuits

that have confronted this question in rejecting the govern-

ment’s newfound statutory requirement for mandatory de-

tention, which rests upon the illogical use of both legal fiction

and ordinary meaning for the same term.

Congress may use legal fictions to place statutory terms in

their desired context. But legal fictions are just that—fictions.

One mixes fiction with fact at their peril. And the facts in this

case are clear: Cirrus Rojas is not seeking admission to the

United States. If Congress had meant to define individuals

like Cirrus Rojas as “seeking admission,” it could have done

so. But that is not what our elected representatives decided to

do, and we must apply the statute as it is written.

Our holding is limited. We deal only with whether all al-

iens present without admission in the interior and facing

No. 25-3127 5

removal proceedings are subject to mandatory detention. Un-

der the INA’s plain text, context, and history, the answer is

no. Aliens present in the country without admission and not

“seeking admission” fall under Section 1226, not Sec-

tion 1225(b)(2)(A), and are eligible for bond hearings subject

to the INA’s other requirements. Because the government

provides no reason other than its statutory analysis to deny

Cirrus Rojas’s petition for a writ of habeas corpus, we reverse

the district court’s denial and remand.

I. Background

Jaciel Cirrus Rojas, a Mexican national, has lived in the

United States since 2018 when he entered without inspection.

As discussed, DHS arrested him in June 2025 on a warrant

that cited 8 U.S.C. § 1226 as the legal basis for his detention.

He was placed in removal proceedings and sought release on

bond pending his removal. An immigration judge found him

neither a flight risk nor a danger to the community and or-

dered him released on bond.

DHS appealed to the Board of Immigration Appeals

(“BIA”). It argued—based on new agency guidance issued

days before the immigration judge’s decision—that Cirrus

Rojas did not fall under Section 1226 after all. Rather, DHS

argued that Cirrus Rojas was covered by 8 U.S.C.

§ 1225(b)(2)(A), subjecting him to mandatory detention with-

out bond. DHS also unilaterally stayed the immigration

judge’s bond order pending appeal, so Cirrus Rojas remained

in custody. See 8 C.F.R. § 1003.19(i)(2).

Cirrus Rojas petitioned for a writ of habeas corpus in fed-

eral district court. And, back in his removal proceedings, he

requested asylum, withholding of removal, and protection

6 No. 25-3127

under the Convention Against Torture. While his habeas pe-

tition was pending, the BIA reversed the immigration judge’s

bond order. It did so based on its new precedent adopting

DHS’s interpretation of Section 1225(b)(2)(A). See Matter of

Yajure Hurtado, 29 I. & N. Dec. 216 (B.I.A. 2025). The district

court agreed with DHS, too. It concluded that Cirrus Rojas

must be detained pending his removal proceedings and de-

nied his petition. Cirrus Rojas filed this appeal.

While Cirrus Rojas’s appeal was pending, a California dis-

trict court vacated the BIA’s decision adopting the govern-

ment’s new interpretation of Section 1225 in a nationwide

class action. Bautista v. Santacruz, 820 F. Supp. 3d 1016, 1030

(C.D. Cal. 2026). Cirrus Rojas sought another bond hearing in

the wake of this class action, and a different immigration

judge again ordered him released. This time DHS did not im-

mediately appeal and automatically stay the bond order, and

Cirrus Rojas was released from custody. A few weeks later,

the Ninth Circuit stayed the California district court’s order

pending appeal, and DHS promptly issued a notice purport-

ing to cancel Cirrus Rojas’s bond. DHS also appealed to the

BIA.

Before oral argument, we ordered the parties to brief

whether Cirrus Rojas’s habeas petition is now moot. And we

ordered DHS to state if it intends to re-detain Cirrus Rojas.

The government stated it would re-detain him “if, while this

[appeal] is pending, the [BIA] reverses his grant of release on

bond.” And after we held oral argument, the BIA did just that

and reversed and vacated the second bond order.

No. 25-3127 7

II. Discussion

We begin with whether Cirrus Rojas’s release from cus-

tody has mooted his habeas petition and conclude it does not.

We then turn to the statutory question and conclude that Cir-

rus Rojas is eligible for a hearing on bond under Section 1226.

A. Mootness

We have jurisdiction over “Cases” and “Controversies.”

U.S. Const. art. III, § 2. “That constitutional requirement en-

sures that the parties before us retain a ‘personal stake’ in the

litigation.” Moore v. Harper, 600 U.S. 1, 14 (2023) (citation omit-

ted). The mootness doctrine “addresses whether an interven-

ing circumstance has deprived the plaintiff of a personal stake

in the outcome of the lawsuit,” stripping a federal court’s sub-

ject-matter jurisdiction. Id. (citation omitted).

A party loses a personal stake in an appeal when we can

no longer grant “any effectual relief.” Calderon v. Moore, 518

U.S. 149, 150 (1996) (citation omitted). This standard is “de-

manding.” Mission Product Holdings, Inc. v. Tempnology, LLC,

587 U.S. 370, 377 (2019). So long as a court can provide even a

“partial remedy,” an appeal is not moot. Calderon, 518 U.S. at

150 (citation omitted).

Cirrus Rojas seeks relief through a writ of habeas corpus.

Habeas petitioners typically seek a reduction in, or release

from, custody. See DHS v. Thuraissigiam, 591 U.S. 103, 119

(2020) (habeas is “at its core a remedy for unlawful executive

detention” (citation omitted)); Graham v. Broglin, 922 F.2d 379,

381 (7th Cir. 1991) (habeas may be used to obtain “a quantum

change in the level of custody”). Ordering Cirrus Rojas re-

leased from physical custody now might not seem to provide

8 No. 25-3127

meaningful relief because the record suggests the government

has not yet re-detained him.

Nonetheless, we conclude on these unique facts that Cir-

rus Rojas’s appeal is not moot. Nothing stops DHS from re-

detaining him now, and that is precisely what it has vowed to

do. Cirrus Rojas was only released on bond because of a class-

action order that is no longer in place. DHS purported to can-

cel the bond on which he was released. Then it promised to

re-detain him, even while this appeal remains pending, once

the BIA reversed the immigration judge’s bond order. And

now that the BIA has reversed, nothing, absent our interven-

tion, stops the government from making good on its promise.

Cirrus Rojas’s “release” is at most a temporary “reprieve

from detention” that appears likely to end “at any time.”

Rosales-Garcia v. Holland, 322 F.3d 386, 395–96 (6th Cir. 2003).

This burden is “an actual injury traceable to” the government

that is “likely to be redressed by a favorable” habeas judg-

ment. Id.; see Haaland v. Brackeen, 599 U.S. 255, 294 (2023) (“It

is a federal court’s judgment, not its opinion, that remedies an

injury; thus it is the judgment, not the opinion, that demon-

strates redressability.”). We therefore hold that this appeal is

not moot.2

B. Interpretation of the INA’s Detention Provisions

With our jurisdiction secure, we turn to the merits. In re-

viewing the district court’s statutory interpretation de novo,

we consider the INA’s “text, structure, and history.” See

United States v. Liestman, 97 F.4th 1054, 1060 (7th Cir. 2024) (en

2 Article III mootness aside, Cirrus Rojas has satisfied the habeas stat-

ute’s “in custody” requirement because he was in custody when he filed

his petition. See Spencer v. Kemna, 523 U.S. 1, 7 (1998).

No. 25-3127 9

banc). Starting with the text and structure, we conclude that

Cirrus Rojas has the better reading. Then, widening our lens,

we look to the INA’s amendments and historical interpreta-

tions to confirm its plain meaning. Finally, we consider in the

alternative whether DHS’s interpretation invites constitu-

tional concerns.

Two INA provisions are at issue. We take them in the or-

der that the government used them in detaining Cirrus Rojas.

Recall that DHS initially detained Cirrus Rojas pursuant to a

warrant issued under Section 1226 (“Apprehension and de-

tention of aliens”). We focus on Section 1226(a):

On a warrant issued by the Attorney General,

an alien may be arrested and detained pending

a decision on whether the alien is to be removed

from the United States. Except as provided in

subsection (c) and pending such decision, the

Attorney General--

(1) may continue to detain the arrested alien;

and

(2) may release the alien on--

(A) bond of at least $1,500 with security

approved by, and containing conditions

prescribed by, the Attorney General; or

(B) conditional parole[.]

(Emphasis added).

Though Section 1226(a) permits bond, bond is by no

means guaranteed. An immigration officer makes the first de-

tention decision. 8 C.F.R. § 236.1(c)(8). This officer must pre-

sume that detention is required, see id., and has “extremely

10 No. 25-3127

broad discretion in deciding” whether to grant bond, In re

Guerra, 24 I. & N. Dec. 37, 39 (B.I.A. 2006). If the officer denies

bond, an alien may petition for a bond hearing before an im-

migration judge. 8 C.F.R. § 236.1(d)(1). But the judge must

also presume detention is necessary. See Matter of Siniauskas,

27 I. & N. Dec. 207, 207 (B.I.A. 2018). And the burden to prove

otherwise rests with the alien: the government need not pre-

sent any evidence justifying detention. See id. at 207–08;

Guerra, 24 I. & N. Dec. at 39–40. If the judge orders bond, the

government may appeal to the BIA—where the same burden

applies in its favor—and may unilaterally stay the judge’s

bond order pending appeal. Guerra, 24 I. & N. Dec. at 39–40

(burden on appeal rests on alien); 8 C.F.R. § 1003.19(i)(2) (uni-

lateral stay).

The government has since decided, though, that Cirrus

Rojas is not even entitled to these procedures. Instead it ar-

gues his detention is mandatory under Section 1225 (“Inspec-

tion by immigration officers; expedited removal of inadmissi-

ble arriving aliens; referral for hearing”). Here, we focus on

Section 1225(b)(2)(A):

[I]n the case of an alien who is an applicant for

admission, if the examining immigration of-

ficer determines that an alien seeking admission is

not clearly and beyond a doubt entitled to be ad-

mitted, the alien shall be detained for a proceed-

ing under Section 1229a of this title.

(Emphasis added).

Congress added Section 1225(b)(2)(A) and Section 1226(a)

in their current forms to the INA in the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),

No. 25-3127 11

Pub. L. No. 104-208, §§ 302, 303, 110 Stat. 3009-546, 3009-582,

-585. For the nearly thirty years since IIRIRA, five presidential

administrations—including the first administration of Presi-

dent Donald J. Trump—have applied Section 1225(b)(2)(A) to

aliens “at the Nation’s borders and ports of entry” and Sec-

tion 1226(a) to aliens “inside the United States.” Jennings v.

Rodriguez, 583 U.S. 281, 287–88 (2018); see Barbosa da Cunha v.

Freden, 175 F.4th 61, 91 (2d Cir. 2026), petition for cert. filed, No.

26-104 (U.S. July 24, 2026).

Now DHS has changed its view. So we must decide

whether Section 1226 or Section 1225 governs Cirrus Rojas’s

detention. If Cirrus Rojas reads the statutes correctly, he and

others like him are entitled to bond hearings under Sec-

tion 1226(a). But if the government’s reading is correct, they

must be detained without bond hearings under Sec-

tion 1225(b)(2)(A).

1. Statutory Text

The government’s recent reinterpretation turns on the

statutory term “applicant for admission.” That term is ex-

plained in Section 1225(a)(1):

An 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 ar-

rival and including an alien who is brought to

the United States after having been interdicted

in international or United States waters) shall be

deemed for purposes of this chapter an appli-

cant for admission.

Cirrus Rojas does not meaningfully contest that he is

“deemed” an “applicant for admission” under

12 No. 25-3127

Section 1225(a)(1)—that is, he is an “alien present in the

United States who has not been admitted.” Thus, the govern-

ment argues, he falls under Section 1225(b)(2)(A)—which it-

self applies to “an alien who is an applicant for admission”—

and so he must be detained without bond.

Cirrus Rojas disagrees. He argues Section 1225(b)(2)(A)

applies only to those who are both “applicants for admission”

and “seeking admission.” The INA defines “admission” as

“the lawful entry of the alien into the United States after in-

spection and authorization by an immigration officer.” 8

U.S.C. § 1101(a)(13)(A). It does not define what “seeking” ad-

mission means. But Cirrus Rojas observes that the ordinary

meaning of “seeking” connotes “an affirmative step of search

or pursuit.” 3 Hernandez Alvarez v. Warden, Federal Detention

Center Miami, 175 F.4th 1258, 1268 (11th Cir. 2026) (citation

omitted); see Oxford Encyclopedic English Dictionary 1311 (3d

ed. 1996) (defining “seek” as, inter alia, to “try or want to find

or get” or “ask for; request”). He says he is not “seeking” (as

ordinarily understood) “admission” (as the INA defines the

term). Indeed, his time to do so has passed: he unlawfully en-

tered the country eight years ago without inspection. So even

though he is “deemed” an “applicant for admission” as a legal

fiction under Section 1225(a)(1), he relies on the fact that he is

3 By “ordinary meaning” here, we refer to “the content of what the

statutory text would convey to a reasonable English user in the context of

everyday communication,” as opposed to “[p]lain meaning,” which “re-

fers to a judgment that whatever the statutory text conveys in context is

clear from the text.” Marco Basile, Ordinary Meaning and Plain Meaning,

110 Va. L. Rev. 135, 158 (2024). Plain meaning can arise not only from or-

dinary meaning, but also a statutorily imposed meaning that diverges

from ordinary meaning.

No. 25-3127 13

not presently “seeking” “admission” to argue he is not subject

to Section 1225(b)(2)(A).

The government does not distinguish an “applicant for ad-

mission” from one “seeking admission.” It claims all “appli-

cant[s] for admission” must be “seeking admission” under

Section 1225(b)(2)(A). In its view, these terms are a “doublet—

‘two ways of saying the same thing that reinforce its mean-

ing.’” Hernandez Alvarez, 175 F.4th at 1295 (Lagoa, J., dissent-

ing) (citation omitted); see American Heritage Dictionary of the

English Language 63 (1980) (defining “apply” as, inter alia, “[t]o

request or seek employment, acceptance, or admission”).

The government’s argument does not get off the ground

without a logical leap we see little reason to make. We agree

that the ordinary meaning of “applicant for admission” could

perhaps include “seeking admission.” But the government

goes a step too far. It argues that because Cirrus Rojas is

“deemed” an “applicant for admission,” he is also deemed to

be all that flows from that term’s ordinary meaning—includ-

ing “seeking admission.” This conclusion does not follow; it

mixes an admitted legal fiction with fact. And the fact re-

mains: Cirrus Rojas is not presently seeking a form of relief

qualifying as admission.

When Congress “deems” something, we take it as a depar-

ture from the term’s ordinary meaning in favor of a particu-

larized one. See Barbosa da Cunha, 175 F.4th at 76 (“Where a

statute deems a term to have a particularized meaning, an

analogy to its use in everyday conversation is of limited

help.”); see also Sturgeon v. Frost, 587 U.S. 28, 47 (2019) (the

word “deemed” “is used in legal materials to treat something

as if it were really something else” (cleaned up)); Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of

14 No. 25-3127

Legal Texts 225 (2012) (“Drafters often specify the meaning of

the terms they use. Individual statutes often contain defini-

tion sections giving ordinary words a limited or artificial

meaning.”).

Section 1225(a)(1) explains “applicant for admission” as a

term of art—relevant here, as “[a]n alien present in the United

States who has not been admitted.” This artificial “deeming”

mandates that the ordinary meaning of “applicant for admis-

sion” must give way to Congress’s chosen definition. See Dig-

ital Realty Trust, Inc. v. Somers, 583 U.S. 149, 160 (2018). And

Section 1225(a)(1) does not say applicants for admission are

necessarily seeking admission. But Section 1225(b)(2)(A)’s

mandatory-detention clause does use the unique phrase

“seeking admission,” and we cannot ignore that meaningful

variation. See Russello v. United States, 464 U.S. 16, 23 (1983)

(discussing canon of meaningful variation). The government

attempts to read “seeking admission” into Section 1225(a)(1)’s

definition of “applicant for admission” with little textual sup-

port. 4 Congress could have defined “seeking admission” con-

sistent with the government’s reading; it did not do so.

We apply the artificial meaning to “applicant for admis-

sion” because the statute requires it. But because the term

4 Indeed, IIRIRA struck a provision of the INA that never took legal

effect, which would have “deemed” individuals like Cirrus Rojas as “seek-

ing entry and admission.” See Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, § 414, 110 Stat. 1214, 1270; IIRIRA

§ 308(d)(2)(D), 110 Stat. at 3009-617. IIRIRA thus ensured that “seeking ad-

mission” remained undefined in Section 1225(b)(2)(A). “When Congress

amends legislation, courts must presume it intends the change to have real

and substantial effect.” Van Buren v. United States, 593 U.S. 374, 393 (2021)

(citation omitted).

No. 25-3127 15

“seeking admission” is undefined, we must apply its ordinary

meaning. Feliciano v. Department of Transportation, 605 U.S. 38,

45 (2025); Scalia & Garner, supra, at 69, 226. While Sec-

tion 1225(a)(1)’s “deeming” language may make Cirrus Rojas

an applicant for admission “abracadabra-style,” Sturgeon, 587

U.S. at 47, it does not conjure a fictional intent to seek admis-

sion. Congress holds the magic wand to “deem” that statutory

terms carry a specific meaning in this context; the Executive

does not.

The dissent thoughtfully recognizes that the labyrinthine

nature of the INA complicates the use of dictionary defini-

tions and canons of construction, and we share the view that

generations of overlapping legislation coupled with defined

terms make our task a difficult one. But we trudge on, march-

ing next to our dissenting colleague 5 even as we hear the

drum beat a bit differently. At least to our ears, solving the

riddle before us by mixing a legal fiction with ordinary mean-

ing is less faithful to the statutory scheme and the words Con-

gress chose.

With that in mind, we agree with Cirrus Rojas that he is

not “seeking admission” as the term is ordinarily understood.

Again, admission means “lawful entry … into the United

States after inspection and authorization.” Sanchez v. Mayor-

kas, 593 U.S. 409, 411 (2021) (citing 8 U.S.C. § 1101(a)(13)(A)).

Cirrus Rojas entered the United States without admission or

parole in 2018, making him “inadmissible” under the INA. See

8 U.S.C. § 1182(a)(6)(A)(i). “[O]nce a noncitizen has entered

5 Judge Kirsch and many colleagues from our sister circuits have like-

wise produced well-reasoned explanations supporting a broader reading

of Section 1225. See Castañon-Nava v. DHS, 175 F.4th 828, 871–77 (7th Cir.

2026) (Kirsch, J., dissenting); supra note 1.

16 No. 25-3127

unlawfully, no amount of legal maneuvering allows him to go

back in time and make his initial entry lawful.” Santillan Qui-

roz v. Mullin, 180 F.4th 1226, 1239 (10th Cir. 2026).

Rather, those in Cirrus Rojas’s shoes—though deemed

“applicants for admission”—can only seek to remain in the

United States through other forms of relief that are not admis-

sion. Cirrus Rojas’s own case illustrates this point. He has pe-

titioned for asylum, withholding of removal, and protection

under the Convention Against Torture in his removal pro-

ceeding—all legal statuses different from “admission.” 6

Sanchez, 593 U.S. at 415.

This highlights a fundamental issue with the govern-

ment’s reasoning. To read Section 1225(b)(2)(A)’s use of

“seeking admission” as merely another way of saying “appli-

cant for admission” ignores that while “applicants for admis-

sion” may literally “seek admission,” they do not always do

so. Indeed, they cannot (at least not successfully) “seek admis-

sion” after unlawfully entering. Cirrus Rojas is an “applicant

for admission” because he is an alien present in the country

and not admitted. But he wisely does not “seek” the “lawful

entry” that he could never obtain. Compare that with an “ap-

plicant for admission” at the border. That applicant may af-

firmatively seek—and subject to the INA’s other require-

ments, secure—admission. Both Cirrus Rojas and our exam-

ple of an alien at the border are deemed “applicants for ad-

mission.” But the applicant at the border actually seeks what

Cirrus Rojas has not sought and cannot obtain: admission.

6 For this same reason, the district court’s alternative conclusion that

Cirrus Rojas is “seeking admission” by seeking asylum misses the mark.

No. 25-3127 17

The dissent correctly notes that we look to real-world facts

in attempting to answer a legal question of statutory analysis.

But that approach follows from our textual reading of “seek-

ing” and “applicant” as meaningfully distinct terms. We do

not suggest that Cirrus Rojas could alter the plain meaning of

the INA based on his factual circumstances. Nor do we sug-

gest that, if that plain meaning did reach Cirrus Rojas’s cir-

cumstances—if, for example, he were on a quixotic quest to

seek the admission that he cannot obtain—he would escape

the grasp of Section 1225(b)(2)(A)’s mandatory-detention pro-

vision. We simply apply the relevant statutory provision to

the facts in the record before us based upon Cirrus Rojas’s de-

cision to seek forms of relief that do not qualify as admission.

As it has in other cases, the government likens Cirrus Ro-

jas to a student who is an “applicant for admission” to a col-

lege, and who seeks admission to that college even after their

initial application. See Buenrostro-Mendez v. Bondi, 166 F.4th

494, 502 (5th Cir. 2026), petition for cert. filed, No. 26-43 (U.S.

July 14, 2026); Avila v. Bondi, 170 F.4th 1128, 1134 (8th Cir.

2026). But that only spotlights the error in mixing defined or

deemed terms and ordinary meaning. The student is an ap-

plicant for admission precisely because they are seeking ad-

mission; Cirrus Rojas is an “applicant for admission” only be-

cause the statute deems him so. In the college example, Cirrus

Rojas is a nonstudent who has never applied to college sitting

in on a lecture long after the semester’s registration deadline

has passed.

The government also contended at oral argument that Sec-

tion 1225(a)(1)’s “deeming” clause does not exclusively define

the category “applicant for admission” by using the word

“means,” but merely “deems” as a legal fiction “present” and

18 No. 25-3127

“arriving” aliens to fall within that undefined category. In the

government’s view, the term’s outer boundary is instead set

by the ordinary meaning of “applicant for admission.” Our

dissenting colleagues in the Sixth and Eleventh Circuits have

reasoned similarly. See Lopez-Campos v. Raycraft, 175 F.4th 713,

743 (6th Cir. 2026) (Murphy, J., dissenting), petition for cert.

filed, No. 25-1415 (U.S. June 22, 2026); Hernandez Alvarez, 175

F.4th at 1288 (Lagoa, J., dissenting).

But neither these dissents nor the government cite any au-

thority stating that “deemed” as used in Section 1225(a)(1) is

not definitional. Indeed, the Tenth Circuit recently collected

other examples in the U.S. Code where “deem” functions as

“quintessential definitional language.” Santillan Quiroz, 180

F.4th at 1243 (citation omitted). That is how we see it being

used here: the way Section 1225(a)(1) is set up strongly im-

plies that it is definitional. “Applicant for admission,” like “al-

ien” or “immigrant,” is a discrete label used throughout the

INA—unlike, for instance, the “deeming” provision that the

Supreme Court considered in Sturgeon, which “deemed” cer-

tain lands to fall outside real “geographic boundaries” for le-

gal purposes. 587 U.S. at 47.

More to the point, whether Section 1225(a)(1)’s deeming

clause defines “applicant for admission” exclusively or non-

exclusively is irrelevant. A local code could deem bicycles,

among other unspecified vehicles, to be “motorized vehicles”

for purposes of a ban on such vehicles in public parks. It does

not follow that bicycles are deemed to have motors for pur-

poses of emissions-testing requirements. The question, in

other words, is whether Section 1225(a)(1)’s acknowledged le-

gal fiction “behave[s] in the way” DHS posits by imposing the

real-world consequences of “applicant” on those who are

No. 25-3127 19

“deemed” to fall within that category. Santillan Quiroz, 180

F.4th at 1243–44. And for the reasons already stated, we do

not believe it does.

The government next turns to Section 1225’s other provi-

sions to justify equating “applicant for admission” and “seek-

ing admission.” It points to another subsection in 1225 that

says “[a]ll aliens … who are applicants for admission or other-

wise seeking admission … shall be inspected by immigration of-

ficers.” 8 U.S.C. § 1225(a)(3) (emphasis added). This provi-

sion, the government contends, suggests that “applicant for

admission” is a subset of those “seeking admission.”

We are unpersuaded. True, “or otherwise” can be read “as

a catchall: the specific items that precede it are … subsumed

by what comes after [it].” Kleber v. CareFusion Corp., 914 F.3d

480, 483 (7th Cir. 2019) (citation omitted). But “or otherwise”

can also “refer to something that is different from something

already mentioned.” Lopez-Campos, 175 F.4th at 727 (quoting

Hernandez Alvarez, 175 F.4th at 1273–74); Castañon-Nava v.

DHS, 175 F.4th 828, 850–51 (7th Cir. 2026) (opinion of Lee, J.).

And as we discuss below, a disjunctive reading of Sec-

tion 1225(a)(3)—treating “applicant for admission” and

“seeking admission” as distinct—better fits within Section

1225 and the INA as a whole.

In sum, Congress was clear about which terms it wanted

to define and those it left to ordinary meaning. “Alien” is de-

fined. 8 U.S.C. § 1101(a)(3). “Admission” is defined. Id.

§ 1101(a)(13)(A). “Applicant for admission” is defined. Id.

§ 1225(a)(1). “Seeking admission” is conspicuously not de-

fined. The government cannot escape these choices. Just as

Cirrus Rojas could not invoke ordinary meaning to argue he

is not an “alien” or an “applicant for admission,” the

20 No. 25-3127

government cannot ignore ordinary meaning and “deem”

him to be “seeking admission” when that runs contrary to

fact. The statute’s plain text therefore shows Cirrus Rojas is

not covered by Section 1225(b)(2)(A).

2. Statutory Structure

We next consider the government’s argument that Cirrus

Rojas’s reading creates structural problems within Section

1225. We reject that argument, then turn to the government’s

own structural problems within both Section 1225 and the

INA overall.

a. Structural Fit of Cirrus Rojas’s Reading

The government suggested at oral argument that distin-

guishing “seeking admission” from “applicant for admis-

sion” creates structural issues within Section 1225. Though

not directly presented in the government’s brief, we under-

stand the argument like this. In Section 1225(a)(1), Congress

deemed individuals “present in the United States who ha[ve]

not been admitted” as applicants for admission. If those indi-

viduals are not “seeking admission” or “arriving in the

United States,” the government posits that it is not clear what

work that category does in the section. They would not be

subject to Section 1225(b)(2)(A)’s mandatory detention since

they are not “seeking admission.” Nor are they subject to ex-

pedited removal under Section 1225(b)(1)(A)(i) because they

are not “arriving.” And Section 1225(a)’s provisions for re-

quiring “statements” and “withdrawal[s] of application[s],”

which apply where aliens are “applying for admission” or

have “intentions of … seeking admission,” also seem inappli-

cable. See id. § 1225(a)(4), (5).

No. 25-3127 21

The government sees this as creating a surplusage prob-

lem within the section. As the government argues, Cirrus Ro-

jas’s reading would mean that Congress included those pre-

sent in the interior without admission within “applicant[s] for

admission” but then “excluded” them “from every operative

consequence in the section where the phrase appears.” Her-

nandez Alvarez, 175 F.4th at 1297 (Lagoa, J., dissenting). If Con-

gress went out of its way to counterintuitively deem individ-

uals like Cirrus Rojas “applicants for admission,” then why

(the government asks) does no provision of Section 1225 seem

to apply to him?

But there are indeed sections of the INA that apply to “ap-

plicants for admission” like Cirrus Rojas. True, many in-

stances of “applicant for admission” do apply only to those

who are “arriving” and “seeking” admission at the border.

But others—both within Section 1225 and the INA writ

large—also apply to those who are simply “present” without

admission in the interior, like Cirrus Rojas.

For example, Section 1225(a)(1) “deem[s]” aliens in the in-

terior like Cirrus Rojas applicants for admission “for purposes

of this chapter,” i.e., the whole INA. And Section 1229a, which

governs removal proceedings, specifies that applicants for ad-

mission have “the burden of establishing” they are “clearly

and beyond doubt entitled to be admitted” with no mention

of whether those persons are “seeking admission.” 8 U.S.C.

§ 1229a(c)(2)(A). Applicants for admission carry this burden

whether they are arriving at the border or present without ad-

mission in the interior. Section 1225(a)(1)’s definition of “ap-

plicant for admission” is naturally placed at the top of the sec-

tion about the initial admission process. But one of its key

functions—to hold unadmitted aliens in the interior to the

22 No. 25-3127

same burden in removal as if they had never entered the

country—kicks in several sections down.

Even within Section 1225 itself, the present-without-ad-

mission category of “applicant for admission” still does

meaningful work under Cirrus Rojas’s reading. Consider

those in the interior “designated” for expedited removal un-

der Section 1225(b)(1)(A)(iii). They are applicants for admis-

sion. See id. § 1225(b)(1)(A)(iii)(II) (applying to aliens “who

ha[ve] not been admitted or paroled into the United States”);

id. § 1225(b) (describing procedures for the “[i]nspection of

applicants for admission”). But they are not “arriving.” See id.

§ 1225(b)(1)(a)(i) (distinguishing “arriving” aliens from those

“described in clause (iii)”). Nor does the statute require that

they be “seeking admission.” Rather, so long as they have not

“been physically present in the United States continuously

for the 2-year period immediately prior” to a determination

of inadmissibility, the Attorney General may “designate”

them for expedited removal. Id. § 1225(b)(1)(A)(iii). This sec-

tion alone solves the government’s purported surplusage

puzzle. It applies to present-without-admission “applicants

for admission” who are neither “arriving” nor “seeking ad-

mission.”

Conversely, Cirrus Rojas’s reading avoids the opposite

surplusage problem of reading “seeking admission” out of

the statute. Section 1225(b)(2)(A)—the provision that the gov-

ernment has invoked to detain Cirrus Rojas—is a “catch-all”

that applies to “all applicants for admission not covered by

§ 1225(b)(1) (with specific exceptions not relevant here).” Jen-

nings, 583 U.S. at 287. It applies only to those “applicants for

admission” who are “seeking admission,” a qualifier that does

not appear in its neighbor (b)(1)(A)(iii). That variance

No. 25-3127 23

suggests Congress meant Section 1225(b)(2)(A) to apply to the

subcategory of “applicants for admission” who are also

"seeking admission." See Scalia & Garner, supra, at 170 (“[A]

material variation in terms suggests a variation in meaning.”).

Cirrus Rojas’s reading accounts for that meaningful variation;

the government’s reading does not.

These examples show that “applicant for admission” and

“seeking admission” are distinct—both do independent work

in Section 1225 and the INA overall. Some “applicants for ad-

mission” are also “seeking admission,” and some are not. “It

is our duty to give effect, if possible, to every clause and word

of a statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001)

(cleaned up); see Scalia & Garner, supra, at 174. Cirrus Rojas’s

reading best honors this duty.

b. Structural Fit of Government’s Reading

On the other hand, the government’s interpretation cre-

ates a host of other structural problems within Section 1225

and the broader INA. First, equating “applicant for admis-

sion” and “seeking admission” disrupts several provisions in

Section 1225. These provisions make little sense if applied to

“applicants for admission” who, like Cirrus Rojas, are not lit-

erally “seeking admission” or “applying for” lawful entry at

the border.

For example, Section 1225(b)(2)(A) imposes mandatory

detention if “the examining immigration officer” finds that

“an alien seeking admission” is not “clearly and beyond a

doubt” admissible. Unlike Section 1225(a)(3)’s general “in-

spection” mandate (which Cirrus Rojas concedes applies to

“applicants for admission” like him), Section 1225(b)(2)(A)’s

reference to “the examining immigration officer” evokes a

24 No. 25-3127

specific interaction with a specific DHS official. This language

suggests contact at the border, not the interior: DHS’s own

regulations outline a border-specific “examination” process

applying to individuals presenting “in person to an immigra-

tion officer at a U.S. port-of-entry when the port is open for

inspection.” 8 C.F.R. § 235.1(a); see Castañon-Nava, 175 F.4th at

848 (opinion of Lee, J.).

How this language might apply to persons already in the

country is unclear. It is, after all, unclear from this record who

“the examining immigration officer” was in Cirrus Rojas’s

case, or how and when that officer “examined” him and

found him inadmissible. And it is obvious that Cirrus Rojas is

categorically inadmissible by statute so there is little work for

the phantom “examining officer” to do under DHS’s reading.

Next, Section 1225(a)(4) permits “[a]n alien applying for ad-

mission … to withdraw the application for admission and de-

part immediately from the United States” (emphasis added).

The government says “applying” tracks “applicant” in Sec-

tion 1225(a)(1). But consider that reading’s practical implica-

tions. It is not clear how this “withdrawal” provision would

work here: how can Cirrus Rojas “withdraw” an “application

for admission” when “he never submitted anything in the

first place”? Barbosa da Cunha, 175 F.4th at 80. Who decides if

someone has “withdrawn” a fictional “application”? How

would that decision be documented? Perhaps that is why

DHS’s “own regulations confirm that this voluntary with-

drawal provision is available ‘only [to] an arriving alien.’” Id.

(quoting 8 C.F.R. § 1240.1(d)) (emphasis added). In other

words, Section 1225(a)(4) only makes sense at the border,

where an applicant for admission who is actively seeking—or

“applying”—for admission has something to withdraw.

No. 25-3127 25

The government’s reading also chafes against Section

1225(a)(5). The provision says:

An applicant for admission may be required to

state under oath any information sought by an

immigration officer regarding the purposes and

intentions of the applicant in seeking admission to

the United States, including the applicant’s in-

tended length of stay and whether the applicant

intends to remain permanently or become a

United States citizen, and whether the applicant

is inadmissible.

8 U.S.C. § 1225(a)(5) (emphasis added).

The government cites Section 1225(a)(5) to again argue

that “applicant for admission” and a person “seeking admis-

sion” are the same. But the subsection itself suggests the op-

posite. If an applicant for admission is not in fact seeking law-

ful entry, Section 1225(a)(5)’s questions are pointless. They

are, after all, “only relevant to those who have not yet entered

the country.” Hernandez Alvarez, 175 F.4th at 1273. “It would

be absurd for an immigration officer to ask someone like [Cir-

rus Rojas]—who entered unlawfully and has been living here

for [eight] years— to attest to his ‘intended length of stay.’”

Barbosa da Cunha, 175 F.4th at 81.

Instead, the subsection’s reference to “purposes and inten-

tions of the applicant … in seeking admission” suggest that

“seeking admission” must be given its ordinary meaning—it

cannot apply to those “deemed” applicants who do not in fact

have any such purposes or intentions. See Scalia & Garner, su-

pra, at 228 (“[W]here the artificial or limited meaning would

cause a provision to contradict another provision, whereas

26 No. 25-3127

the normal meaning of the word would harmonize the two,

the normal meaning should be applied.”).

The government’s reading is not only hard to square with

the rest of Section 1225; it is also a poor fit for the INA writ

large. Most broadly, the government misapprehends the

INA’s entire scheme by “shift[ing] the center of gravity for de-

tention authority” from Section 1226 to the “ancillary catchall

provision” of Section 1225(b)(2)(A). Hernandez Alvarez, 175

F.4th at 1276. Recall that Section 1226(a) has long been viewed

as the “default rule” for the detention of “aliens … inside the

United States.” Jennings, 583 U.S. at 288. Its provisions

squarely apply to Cirrus Rojas, who was first arrested on a

Section 1226 warrant. The government now reimagines Sec-

tion 1226 as limited to those who entered lawfully but lost

lawful status, making them “deportable” under Section 1227

rather than “inadmissible” under Section 1182.

But the statute’s plain language draws no such distinction:

it applies equally to all “aliens”—both “inadmissible” and

“deportable”—who may be “removed.” 8 U.S.C. § 1226(a),

(c); see id. § 1229a(1) (distinguishing between grounds of “in-

admissibility” and “deportability” in removal proceedings).

If Congress had wanted to limit Section 1226 to “deportable”

aliens, it could have carved out “inadmissible” aliens from

that section directly—not by negative implication through

Section 1225, as the government suggests. See Biden v. Texas,

597 U.S. 785, 798 (2022) (“If Congress had wanted the provi-

sion to have that effect, it could have said so in words far sim-

pler than those that it wrote.”).

What is more, the government’s reading also clashes with

Section 1226’s own mandatory-detention provisions, which

deny bond to anyone who is inadmissible for having

No. 25-3127 27

committed certain crimes or terrorist acts. 8 U.S.C.

§ 1226(c)(1)(A), (D), (c)(4). Just last year, in the Laken Riley

Act, Congress expanded Section 1226(c) by adding additional

offenses triggering its detention mandate. Pub. L. No. 119-1,

139 Stat. 3 (adding 8 U.S.C. § 1226(c)(1)(E)). There was “no

need” for Congress to amend Section 1226(c) in this way if

Section 1225(b)(2)(A) “had always covered” all inadmissible

aliens present in the United States and required detention

without bond. Kleber, 914 F.3d at 486.

Reading Section 1226(c) as redundant collides with the

canon against surplusage, which “is strongest when an inter-

pretation would render superfluous another part of the same

statutory scheme.” City of Chicago v. Fulton, 592 U.S. 154, 159

(2021) (citation omitted); Scalia & Garner, supra, at 176–77. To

be sure, Congress sometimes legislates in belt-and-suspend-

ers fashion. But the government’s reading does not suggest

belt-and-suspenders drafting: it invites “serious statutory re-

dundancy” that undermines multiple statutory layers. Her-

nandez Alvarez, 175 F.4th at 1280.

The government argues Section 1226(c)’s mandatory-de-

tention provisions are not surplusage under its reading by

pointing to a very limited set of circumstances where they

would still apply. In the government’s view, they would still

cover (1) aliens admitted erroneously who then commit enu-

merated crimes, and (2) aliens who enter unlawfully, commit

such crimes, and would otherwise receive humanitarian pa-

role. But the provisions—applying to “any alien” who is in-

admissible after committing certain offenses—contain no

such limitations. It is unlikely that “Congress wrote § 1226(c)

so broadly” yet only intended it to apply so narrowly. Barbosa

da Cunha, 175 F.4th at 87.

28 No. 25-3127

Thus, even if we accept that both of the competing read-

ings of Section 1225 and Section 1226 create some friction

within the INA, Cirrus Rojas’s reading better fits the act’s in-

tricacies. The statutory structure confirms that Cirrus Rojas

falls under Section 1226(a), not Section 1225(b)(2)(A).

3. Statutory History, Purpose, and Practice

We could stop here. But the history of the INA’s detention

provisions—how they have been amended and interpreted—

supports our conclusion that Section 1225(b)(2)(A) does not

apply to Cirrus Rojas.

Other circuits, most notably the Eleventh, have already

laid out the complete statutory history of the INA’s detention

provisions; we need not recite it in full here. The Eleventh Cir-

cuit surveyed over a century of immigration law and con-

cluded that Section 1225(b)(2)(A)’s predecessors have long

applied detention without bond to aliens at the border, not

those already in the country. Hernandez Alvarez, 175 F.4th at

1281 (citing Immigration Act of 1893, § 5, 27 Stat. 569, 570); see

also Castañon-Nava, 175 F.4th at 851–52 (opinion of Lee, J.)

(same). Section 1225(b)(2)(A)’s reference to those “seeking ad-

mission” tracks the same border focus. In contrast, Section

1226 “stems from newer interior-detention laws” aimed at

preserving the Executive’s discretion “to release noncitizens”

arrested within the United States “pending final removal de-

cisions.” Buenrostro-Mendez, 166 F.4th at 513–14 (Douglas, J.,

dissenting) (citation omitted). Again, this backdrop confirms

what the plain text and structure show: Section 1226(a), not

Section 1225(b)(2)(A), fits Cirrus Rojas.

The upshot of the government’s case is that IIRIRA ended

this longstanding distinction. Before 1996, the immigration

No. 25-3127 29

laws “primarily distinguished individuals on the basis of ‘en-

try’ and not ‘admission.’” Hing Sum v. Holder, 602 F.3d 1092,

1099 (9th Cir. 2010) (citation omitted). Those who had entered

the United States—lawfully or not—enjoyed “greater proce-

dural and substantive rights” in “deportation” proceedings,

while those “who presented themselves at a port of entry for

inspection were subjected to more summary exclusion pro-

ceedings.” Id. at 1100.

The government cites legislative history to suggest that

Congress sought to erase this disparity through IIRIRA by

treating aliens unlawfully within the United States just like

those arriving at the border. See Gov’t’s Br. at 41–42 (quoting

H.R. Rep. No. 104-469, pt. 1, at 225 (1996) (discussing “equities

and privileges in immigration proceedings” available to those

who enter without inspection)). And, says the government,

IIRIRA met that goal in part by extending Section

1225(b)(2)(A)’s mandatory-detention requirement from the

border to the interior.

As an initial matter, legislative “purpose” cannot displace

the INA’s text. “Congress’s purpose matters far less than what

it wrote.” Buenrostro-Mendez, 166 F.4th at 508. As explained

above, what Congress wrote in Section 1225(b)(2)(A) and en-

acted in IIRIRA does not apply to Cirrus Rojas. That is the end

of the line in interpreting statutes. Regardless, we do not find

the government’s appeal to legislative purpose persuasive on

its merits.

Whatever IIRIRA’s various “purposes” may have been,

they were far more nuanced than what the government as-

serts. Its amendments to the INA show that Congress focused

on eliminating disparities between lawful and unlawful en-

trants in removal procedures, not pre-removal detention. The

30 No. 25-3127

act heavily revised the INA to combine “deportation” and

“exclusion” proceedings into one “removal” procedure, and

replaced “entry” with “admission”—i.e., lawful entry—as the

touchstone for procedural rights in these proceedings. IIRIRA

§§ 301(a), 304(a), 110 Stat. at 3009-575, -587 to -597.

IIRIRA did so by maintaining a distinction between “de-

portability” and “inadmissibility” in removal proceedings.

Those who unlawfully entered without inspection remained

“inadmissible” and shouldered a greater burden during the

newly created removal proceedings. Those who lawfully en-

tered the country with inspection and became “deportable”

had greater protections during removal proceedings. This

was accomplished in part by defining “applicant for admis-

sion” in Section 1225(a)(1) to include those “present in the

United States” without admission. Id. § 302(a), 110 Stat. at

3009-579. Congress built that definition into Sec-

tion 1229a(c)(2)(A) to require applicants for admission de-

fending against removal—both at the border and in the inte-

rior—to show they are clearly and beyond doubt entitled to

be admitted and not “inadmissible.” Id. § 304(a), 110 Stat. at

3009-591.

On the other hand, Congress’s changes to Section 1226(a)’s

discretionary-bond regime maintained the statute’s applica-

bility to those present without admission like Cirrus Rojas.

Before IIRIRA, Section 1226(a)’s predecessor applied to “de-

portab[le]” aliens, which—under the pre-IIRIRA frame-

work—would have included those in Cirrus Rojas’s shoes. 8

U.S.C. § 1252(a)(1) (1996). After IIRIRA, those like Cirrus Ro-

jas were subject to removal based on grounds of “inadmissi-

bility,” not “deportability.” But as amended, Section 1226(a)

applies to aliens pending their “remov[al],” without

No. 25-3127 31

limitation. IIRIRA § 303(a), 110 Stat. at 3009-585 to -586 (em-

phasis added). Had Congress intended Section 1226(a) to ex-

clude “inadmissible” aliens like Cirrus Rojas who entered

without inspection, it could have simply kept the prior “de-

portability” language.

The same goes for Section 1225’s inspection and detention

provisions. Congress’s biggest change to that section was the

new expedited-removal procedure added in Sec-

tion 1225(b)(1). Id. § 302(a), 110 Stat. at 3009-580. By contrast,

Congress “retained the exact language used in [Sec-

tion 1225(b)(2)(A)’s] predecessor statute,” Helsinn Healthcare

S.A. v. Teva Pharmaceuticals USA, Inc., 586 U.S. 123, 131 (2019),

by keeping the verb “seeking” in that subsection. And given

the other textual and contextual clues on the table, its mere

“addition of [‘applicant for admission’]” to Sec-

tion 1225(b)(2)(A) “is simply not enough of a change for us to

conclude that Congress intended to alter the meaning of the

reenacted term [‘seeking’].” Id.

Indeed, where Congress did expand the INA’s mandatory-

detention provisions, it did so carefully. When Congress ex-

panded mandatory detention under Section 1226(c) to in-

clude “criminal aliens,” it confronted the possibility that the

Executive could not detain all aliens subject to mandatory de-

tention at once. See H.R. Rep. No. 104-469, pt. 1, at 118, 120,

123 (estimating that there were 8,500 beds available in deten-

tion facilities in 1996, versus roughly 100,000 “criminal aliens

incarcerated in Federal and State prisons” and 45,000 “crimi-

nal aliens ... placed in deportation proceedings each year”).

This in mind, it let the Executive forgo enforcing Sec-

tion 1226(c) as amended for up to two years based on a lack

of “detention space and … personnel.” IIRIRA § 303(b)(2), 110

32 No. 25-3127

Stat. at 3009-586 to -587. And the Executive twice used this

authority to put off mandatory detention after IIRIRA passed.

See 74 Interpreter Releases 1552–53 (Oct. 10, 1997).

That Congress did not enact a similar provision for Sec-

tion 1225(b)(2)(A)—which would have mandated detention

for at least two million people in 1996—is telling. H.R. Rep.

No. 104-469, pt. 1, at 111. To be sure, “a Congressional omis-

sion” cannot override “clear text.” Buenrostro-Mendez, 166

F.4th at 507–08; Avila, 170 F.4th at 1137–38. And the clear text

shows Section 1225(b)(2)(A) does not apply to Cirrus Rojas.

But to the extent we look to historical context to confirm our

textual analysis, this omission is hard to ignore. Plus, similar

context clues point to the same result. IIRIRA, though part of

an appropriations bill, did not fund a mass-detention man-

date, let alone one as vast as the government insists Congress

intended. See H.R. Rep. No. 104-469, pt. 1, at 123; IIRIRA § 386,

110 Stat. at 3009-653 to -654 (contemplating an expansion of

only five hundred beds). Congress in 1996 did not implement

what the government claims IIRIRA enacted.

“It is easy to imagine why Congress might not have

wanted to extend mandatory detention into the country’s in-

terior even as it equalized in other ways the treatment be-

tween noncitizens stopped at the border and those who en-

tered unlawfully.” Santillan Quiroz, 180 F.4th at 1248. If Con-

gress had indeed demanded—but not funded—no-bond de-

tention for all unlawful entrants, that may well have thrown

the nation’s immigration system into chaos and prevented the

Executive from effectuating the act’s goals. Immigration au-

thorities might have found themselves quickly overwhelmed

by a colossal unfunded mandate to arrest and detain millions

like Cirrus Rojas who posed no flight risk or danger to the

No. 25-3127 33

community. All this is to say that “[d]eciding what competing

values will or will not be sacrificed to the achievement of a

particular objective is the very essence of legislative choice,”

and “no legislation pursues its purposes at all costs.” Rodri-

guez v. United States, 480 U.S. 522, 525–26 (1987). Given the

conflicting trade-offs at stake in a statute like IIRIRA, we are

not persuaded that Congress meant to end bond hearings for

those like Cirrus Rojas.

Nor does post-enactment history suggest otherwise. Until

last year, all three branches of our government agreed that

Section 1225(b)(2)(A) applied only at the border. Five succes-

sive presidential administrations followed this interpretation.

And the Executive’s sudden about-face presents its own rea-

son to doubt the government’s new reading. We may “con-

sider the consistency of an agency’s views,” and its “track rec-

ord” over time, to assess “the persuasiveness of any interpre-

tation it proffers in court.” Biden v. Nebraska, 600 U.S. 477, 519

(2023) (Barrett, J., concurring) (citation omitted). We accept

that when past practice clashes with a statutory mandate, it

must change. After all, the courts interpret the law and often

order the government to depart from the executive’s prior un-

derstanding of the law. But here the government’s about-face

stems from anything but a clear statutory mandate. Instead,

the government tries to mix legal fiction with real-world facts

contrary to the statute’s language. We hesitate to accept such

a change after three decades of consistent contrary interpreta-

tion. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

156–57 (2000).

The Supreme Court has also associated Section 1225 with

“aliens seeking admission into the country” and Section 1226

with aliens “already in the country.” Jennings, 583 U.S. at 289

34 No. 25-3127

(emphasis added). To be clear, Jennings’s statements on this

front—made in recounting the general statutory framework

governing immigration detention—are nonbinding dicta; Sec-

tion 1225(b)(2)(A)’s applicability was not before the Court in

that case. But at minimum, the Supreme Court’s unquestion-

ing recitation of the border-interior distinction between Sec-

tions 1225 and 1226 is another data point suggesting that Cir-

rus Rojas’s reading is correct.

And Congress has never repudiated the other two

branches’ interpretations since passing IIRIRA—either by

clarifying Section 1225(b)(2)(A)’s text or funding its supposed

mass-detention mandate. Indeed, DHS has historically “never

had ‘sufficient detention capacity to maintain in custody

every single person described in Section 1225’” even under

the Executive’s old reading of the statute due to “consistent

and significant funding shortfalls.” Texas, 597 U.S. at 792 (ci-

tation omitted). Congressional failure to intervene and correct

the Executive’s prior interpretation—despite passing the

Laken Riley Act last year—“is persuasive evidence that the

interpretation is the one intended.” FDIC v. Philadelphia Gear

Corp., 476 U.S. 426, 437 (1986).

The government’s textual interpretation further unravels

when read in this context. We read statutes with a “common

sense” understanding of their impacts. West Virginia v. EPA,

597 U.S. 697, 722 (2022) (citation omitted). Put simply, Con-

gress does not hide “elephants in mouseholes.” Whitman v.

American Trucking Associations, Inc., 531 U.S. 457, 468 (2001).

The government asks us to accept that Congress in 1996

tucked “the broadest mass-detention-without-bond mandate

in our Nation’s history” into an obscure corner of its new law

and has never bothered to fund it for three decades since.

No. 25-3127 35

Barbosa da Cunha, 175 F.4th at 69–70. That is more than an “el-

ephant in a mousehole”: it “cram[s] a veritable legislative zoo

into one clause of one subparagraph of one subsection of our

Nation’s vast immigration laws.” Patel v. Garland, 596 U.S.

328, 365 (2022) (Gorsuch, J., dissenting). We cannot believe

Congress intended such a result.

Historical context thus confirms what the INA’s text

shows: Congress in 1996 left the essential border-interior dis-

tinction in the INA’s detention provisions alone. Perhaps ap-

plying Section 1225(b)(2)(A) to the interior superficially

matches other changes Congress made to the INA through

IIRIRA. But the statutory history reveals that Congress did

not pursue this project at all costs. It worked the INA with a

scalpel, not a sword. And it preserved Section 1226’s applica-

tion to aliens already in the country.

4. Constitutional Concerns

Finally, a word about this case’s constitutional dimen-

sions. As discussed, the plain meaning of the INA shows that

Cirrus Rojas falls under Section 1226 and is thus not subject to

mandatory detention. But even if we thought the law ambig-

uous, we would still confront a strong argument for reversal.

The government’s interpretation poses grave due-process

concerns. Cirrus Rojas’s case illustrates this point. And when

faced with an ambiguous statute subject to multiple readings,

we “may shun an interpretation that raises serious constitu-

tional doubts.” Jennings, 583 U.S. at 286.

The Fifth Amendment’s Due Process Clause protects all

persons in the United States—even those unlawfully

36 No. 25-3127

present—from unjustified deprivations of liberty. 7 Zadvydas

v. Davis, 533 U.S. 678, 690 (2001). Detention without sufficient

purpose, or indefinitely prolonged detention, threatens due

process. Id.

The government has never justified detaining Cirrus Rojas

pending his removal proceeding beyond its view that

§ 1225(b)(2)(A) requires it. In general, the government detains

aliens pending removal for two reasons: to (1) ensure that

they appear at future immigration proceedings, and (2) pro-

tect the community if the person is dangerous. Lopez-Campos,

175 F.4th at 732; see also Zadvydas, 533 U.S. at 690. The govern-

ment need not always make an individualized showing that

the person might flee or endanger the community. It may de-

tain “criminal aliens” without bond under Section 1226(c) “by

reference to the legislative scheme” categorizing them as a

danger to society. Demore v. Kim, 538 U.S. 510, 523–24 (2003)

(citation omitted). But it still must have a reason to detain an

alien pending removal.

Cirrus Rojas’s case highlights the constitutional infirmities

of the government’s approach. Not one but two separate im-

migration judges have now said he is neither a flight risk nor

a danger to the community. The government has not

7 The government invokes the “entry-fiction” doctrine to argue Cirrus

Rojas remains “at the border” for constitutional purposes because he ille-

gally entered the United States. Thus, it concludes, his due-process rights

are only what Congress has authorized. Thuraissigiam, 591 U.S. at 138. We

need not dwell on this argument. The petitioner in Thuraissigiam was ar-

rested only twenty-five yards from the border. Id. at 140. And the Supreme

Court expressly limited its holding to those persons “in [his] position.” Id.

Cirrus Rojas is not in that position; he has lived in the United States for

years and was arrested nowhere near the border.

No. 25-3127 37

challenged those findings in its most recent BIA appeal. Nor

has it sought to detain Cirrus Rojas by reference to a statutory

scheme classifying him as posing a specific danger. 8 Yet un-

der the government’s interpretation of Section 1225(b)(2)(A)

it must detain him anyway, with no further adjudication of

risk.

The government’s interpretation of Section 1225(b)(2)(A)

could thus permit it to detain aliens with no apparent pur-

pose. And at minimum, there is a very real risk that the gov-

ernment’s reading will sweep in others like Cirrus Rojas who

have already been found not to be dangers or flight risks. The

Due Process Clause forbids such arbitrary detention. This

alone makes us doubt the government’s interpretation as a

matter of constitutional avoidance. Zadvydas, 533 U.S. at 690.

That aside, “[i]t is not hyperbolic to project” that the gov-

ernment’s interpretation might subject those like Cirrus Rojas

to unconstitutionally prolonged detention pending their re-

moval proceedings. Barbosa da Cunha, 175 F.4th at 95. While

“criminal aliens” detained under Section 1226(c) are removed

on a fast track, Demore, 538 U.S. at 529, aliens detained under

Section 1225 are not. In practice, ordinary removal proceed-

ings can take years. Barbosa da Cunha, 175 F.4th at 94; Lopez-

Campos, 175 F.4th at 733 n.3. These factors raise the specter of

8 The government has never argued that we may categorize everyone

present without admission as flight risks or dangers to the community “by

reference to the legislative scheme.” Demore, 538 U.S. at 524. Such an argu-

ment would be difficult to reconcile with Demore, which upheld manda-

tory detention under Section 1226(c) by reference to a narrower, “justifi-

abl[e] concern[] that deportable criminal aliens who are not detained con-

tinue to engage in crime and fail to appear for their removal hearings in

large numbers.” Id. at 513 (emphasis added).

38 No. 25-3127

“indefinite” detention that the Court in Zadvydas found unac-

ceptable. 533 U.S. at 690.

But again, these concerns do not drive our holding. In-

stead, we conclude based on the INA’s text, structure, and his-

tory that Section 1225(b)(2)(A) unambiguously does not apply

to Cirrus Rojas.

III. Conclusion

We end where we started. The government has moved

from relying upon Section 1226(a)‘s discretionary-bond pro-

vision to a new interpretation that Section 1225(b)(2)(A)’s

mandatory-detention clause controls. This presents a stark

choice between two competing readings of the INA, with the

circuits split over the correct interpretation. We share the dis-

sent’s hope that the Supreme Court will settle this matter and

bring uniformity.

We hold Cirrus Rojas is present in the United States with-

out admission and is not “seeking admission.” He is therefore

not subject to mandatory detention under 8 U.S.C.

§ 1225(b)(2)(A) and is eligible for a bond hearing under 8

U.S.C. § 1226(a). Accordingly, we REVERSE the district

court’s denial of Cirrus Rojas’s habeas petition and REMAND

with instructions to issue the writ “and dispose of the matter

as law and justice require.” 28 U.S.C. § 2243.

No. 25-3127 39

SYKES, Circuit Judge, dissenting. For the last year, federal

courts across the country have disagreed about the proper in-

terpretation of the immigrant-detention statute at issue here.

The contending positions have been exhaustively explored,

and there is now a well-developed circuit split. I therefore

share my colleagues’ inclination to avoid spilling more ink

than is necessary to resolve this appeal. “‘It has all been said

before, but not by us’” is hardly an excuse for “burdening the

reader” with exegesis. United States v. Prince, 171 F.4th 1009,

1011 (7th Cir. 2026). So rather than engage with each of the

grammatical, structural, and historical points in my col-

leagues’ thoughtful opinion, I instead direct the reader to

Judge Murphy’s comprehensive and well-reasoned dissent in

Lopez-Campos v. Raycraft, 175 F.4th 713, 735 (6th Cir. 2026)

(Murphy, J., dissenting), with which I fully agree, and offer

only a brief explanation of the key reasons why I find the gov-

ernment’s interpretation of the statute more persuasive than

Cirrus Rojas’s.

In my view, it’s most helpful to start with the statutory

section actually at issue here—namely, 8 U.S.C. § 1225. As the

majority notes, this statute begins by deeming all aliens pre-

sent in the United States without admission as “applicants for

admission” for purposes of the Immigration and Nationality

Act (“INA”):

(a) Inspection

(1) Aliens treated as applicants for admission

An alien present in the United States who

has not been admitted or who arrives in the

United States (whether or not at a desig-

nated port of arrival … ) shall be deemed for

40 No. 25-3127

purposes of this chapter an applicant for

admission.

§ 1225(a)(1). This designation applies to Jaciel Cirrus Rojas.

He is a native and citizen of Mexico who unlawfully entered

the United States without admission in 2018; he was arrested

in Wisconsin in June 2025.

Section 1225 then establishes a comprehensive inspection

regime that applies to all applicants for admission: “All

aliens … 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.”

§ 1225(a)(3). At that point the applicant faces a choice: He may

seek permission “to withdraw [his] application for admission

and depart immediately from the United States.” § 1225(a)(4).

Or he may proceed with the inspection process, “stat[ing] un-

der oath any information sought by an immigration officer re-

garding [his] purposes and intentions … in seeking admission

to the United States.” § 1225(a)(5).

The applicant’s choice to proceed through inspection

(rather than leave the country) triggers the statutory deten-

tion and removal process set forth in § 1225(b). That process

follows one of two tracks. The first is an expedited removal

procedure, which applies to arriving aliens who lack valid en-

try documents or who attempt to procure their admission by

fraud. § 1225(b)(1)(A)(i); see 8 U.S.C. § 1182(a)(6)(C), (a)(7). The

expedited process also applies, at the discretion of the

Executive Branch, to unadmitted aliens present in the country

who have lived here less than two years. § 1225(b)(1)(A)(iii).

Cirrus Rojas has lived in the United States for at least eight

years, so this provision doesn’t apply to him. No more needs

to be said about it.

No. 25-3127 41

Section 1225(b)(2), titled “Inspection of other aliens,” func-

tions as a catchall for everyone else:

[I]n the case of an alien who is an applicant for

admission, if the examining immigration officer

determines that an alien seeking admission is

not clearly and beyond a doubt entitled to be ad-

mitted, the alien shall be detained for a proceed-

ing under section 1229a of this title.

§ 1225(b)(2)(A). Cirrus Rojas doesn’t claim he is entitled to ad-

mission. So if this provision applies to him, as the government

contends, then he must be detained during removal proceed-

ings; if it does not, then the alternative detention scheme in

8 U.S.C. § 1226(a) applies and authorizes his release on bond.

My colleagues have much to say about the real-life, on-

the-ground facts that in their view make § 1225 seem like a

strange fit as applied to Cirrus Rojas. In some senses, it is. It

would indeed be odd to ask Cirrus Rojas, who has been living

in the United States for eight years and who was arrested

without warning, whether he “intends to remain perma-

nently” in the country. § 1225(a)(5). And he is not in fact “seek-

ing admission” into the United States. § 1225(b)(2). Under-

standably so. As the majority notes, even if Cirrus Rojas for-

mally applied for admission, his application would go

nowhere because he is inadmissible. § 1182(a)(6)(A)(i) (“An

alien present in the United States without being admitted or

paroled, or who arrives in the United States at any time or

place other than as designated by the Attorney General, is in-

admissible.”).

But it’s the majority’s zeroed-in focus on the facts particu-

lar to Cirrus Rojas that leads it astray. Section 1225’s applica-

42 No. 25-3127

tion is fixed primarily by law, not (as the majority sees things)

by facts. Because Cirrus Rojas is “present in the United States”

and “has not been admitted,” § 1225(a)(1) deems him an

“applicant for admission” for purposes of the INA—and

that’s so regardless of whether he is actually pursuing admis-

sion into the United States. So while the facts suggest that

Cirrus Rojas is not “seeking” or “applying for” admission, the

law nonetheless treats him as though he is.

This “legal fiction,” as the majority puts it, is the product

of a statutory classification embedded into the modern immi-

gration code. Historically, the INA differentiated between al-

iens at the border and those who had already entered the

country (whether lawfully or not). Aliens at the border were

entitled to few procedural protections; most notably, these

noncitizens were subject to mandatory detention during their

exclusion proceedings unless they were “clearly and beyond

a doubt entitled to land.” 8 U.S.C. § 1225(b) (1994). Aliens

taken into custody in the country’s interior, by contrast, could

apply for “release[] under bond” while they awaited deporta-

tion. Id. § 1252(a)(1).

This distinction, as the Ninth Circuit pointed out,

“resulted in an anomaly.” Hing Sum v. Holder, 602 F.3d 1092,

1100 (9th Cir. 2010). Aliens who evaded inspection and

sneaked across the border could seek release on bond; those

who sought to enter the country lawfully could not.

The Illegal Immigration Reform and Immigrant Responsi-

bility Act of 1996 (“IIRIRA”) remedied this anomaly by insti-

tuting a new statutory touchstone: admission. No longer did

an alien’s substantive and procedural entitlements hinge on

the mere fact that he had crossed the border. Instead, his en-

titlements hinged on his “admission” by immigration author-

No. 25-3127 43

ities—that is, his “lawful entry” into the United States “after

inspection and authorization.” 8 U.S.C. § 1101(a)(13) (empha-

sis added).

Under IIRIRA, an alien who enters the country illegally

(and thus has not been “admitted”) is presumptively subject

to removal; he bears the “burden of establishing” that he is

“clearly and beyond doubt entitled to be admitted” into the

United States. Id. § 1229a(c)(2). An admitted alien, by contrast,

is entitled to greater procedural protections: The burden lies

with the government to establish “by clear and convincing ev-

idence” that for one of the reasons listed in § 1227, he is

“deportable.” § 1229a(c)(3)(A). (These reasons include, for

example, failing to maintain nonimmigrant status or being

convicted of a serious crime. Id. § 1227(a)(1)(C), (a)(2).)

By reorienting removal procedures around an alien’s

admission by immigration authorities rather than his physical

entry into the country, Congress eliminated the procedural

windfall that had long accrued to aliens who evaded inspec-

tion at the border. And in so doing, it put all aliens who have

not lawfully entered the country on equal footing: Today, any

alien who “arrives” or is “present” in the United States with-

out admission is deemed an “applicant for admission” and is

treated as though he never entered the country at all.

§ 1225(a)(1). That unquestionably includes Cirrus Rojas. By

operation of law, he is an “applicant for admission” and must

be treated as if he is applying for or seeking admission into

the United States regardless of whether he is in fact doing so.

The law classifies him as constructively seeking or applying for

admission.

My colleagues acknowledge, as they must, that Cirrus

Rojas is an “applicant for admission” under § 1225(a)(1).

44 No. 25-3127

Majority Op. at 11–12. They also appear to acknowledge that

he is at least nominally subject to inspection by immigration

officers under § 1225(a)(3). Id. at 23. But from there they con-

clude that § 1225 has no further application to him. He need

not answer the inspecting officers’ questions (as the statute

requires) because he is not actually “seeking admission to the

United States.” § 1225(a)(5). And he is not subject to manda-

tory detention under § 1225(b)(2)(A)—again, because he is not

actually “seeking admission” to the United States.

But that interpretation ignores the legal effect of the con-

structive application for admission that arises by operation of

law under § 1225(a)(1). And it relegates § 1225(b)(2)(A)’s de-

tention mandate from “a catchall provision that applies to all

applicants for admission not covered by § 1225(b)(1),”

Jennings v. Rodriguez, 583 U.S. 281, 287 (2018), to a far more

limited provision that applies to only a subset of arriving

aliens—undoing IIRIRA’s key shift to lawful admission (rather

than entry) as the criterion for determining which removal

procedures apply. And that, in turn, saps an important part

of IIRIRA of its full effect. See Stone v. I.N.S., 514 U.S. 386, 397

(1995) (“When Congress acts to amend a statute, we presume

it intends its amendment to have real and substantial effect.”);

see also Hernandez Alvarez v. Warden, Fed. Det. Ctr. Miami,

175 F.4th 1258, 1298–99 (11th Cir. 2026) (Lagoa, J., dissenting).

That is not the only reason to question the majority’s read-

ing. As Judge Murphy explains, the INA repeatedly uses the

phrases “seeking” or “applying for” admission “in ways that

include those who are present in this country after an illegal

entry.” Lopez-Campos, 175 F.4th at 746 (Murphy, J. dissenting).

One prominent example is § 1182(d)(5), the provision govern-

ing humanitarian parole; if the terms “seeking” and “apply-

No. 25-3127 45

ing for” admission mean actually seeking or applying for

admission, then Cirrus Rojas and aliens like him would not

be eligible for parole. Id. at 751–52. I doubt that unadmitted

immigrants would prefer this interpretation of the parole pro-

vision. And elsewhere in the immigration code the phrase

“seeking admission” simply can’t mean what the majority

says it does. An example: Section 1182(a)(9)(B)(i) deems as

“inadmissible” any alien who was “unlawfully present in the

United States” and who, after departure or removal, “again

seeks admission” into the country. (Emphasis added.) If

“seeking admission” means in fact “seeking admission,” then

the presence of “again” makes no sense. If, by contrast, that

phrase means “being treated as an applicant for admission by

virtue of an unlawful entry,” then the use of “again” is per-

fectly coherent. Id. at 752–53.

My aim here is not to try to counter each of the majority’s

points. Rather, it’s to show that statutory incongruities are not

unique to the government’s interpretation; Cirrus Rojas’s

reading produces them too. Indeed, when an old and complex

statute like the INA has been repeatedly amended and is rid-

dled with legal fictions, terms of art, and redundancies, incon-

gruities are sure to exist. As Judge Learned Hand said a cen-

tury ago, our immigration laws are “so confused, contradic-

tory, minute[,] and manifold” that they “inevitably produce

such caprices.” United States ex rel. Georgas v. Day, 43 F.2d 917,

919 (2d Cir. 1930).

It’s for this reason that I find dictionary definitions and

canons of construction largely unhelpful here. My colleagues

and I could debate until we’re blue in the face about whether

“an applicant for admission” is necessarily “seeking admis-

sion” (the answer is yes, unless the applicant chooses to

46 No. 25-3127

depart the country) or whether (and to what extent) the rule

against superfluity or any other interpretive canon helps an-

swer that question. Thoughtful judges across the country

have been engaging in precisely these debates. My takeaway

from their conflicting opinions is this: For every grammatical

thrust, there is a parry; for every canon of construction, there

is an exception that calls for the canon to give way. See Mullin

v. Al Otro Lado, 146 S. Ct. 2079, 2092 (2026) (“The anti-

surplusage canon is not an iron rule.”).

Accordingly, dictionary definitions, analogies to real-

world uses of the word “admission,” and the various mean-

ings of the word “otherwise” do not—cannot—resolve this

case. See Majority Op. at 12–13, 17–19. Rather, the interpretive

question presented here is best answered by reference to the

statutory classification that pervades the INA. Section

1225(a)(1) deems both arriving and unlawfully present aliens

as “applicants for admission.” And by design, all applicants

for admission are subject to the same inspection and removal

procedures. See §§ 1225(a), 1229a(c)(2). In my view, they are

also subject to the same mandatory-detention requirement.

Nothing in the statute—and certainly not the use of the verb

“seeking” in lieu of the noun “applicant”—suggests that

Congress intended otherwise. Indeed, had Congress wanted

to differentiate between arriving and present aliens, it easily

could have done so; many provisions in the INA apply only

to aliens “arriving” in the United States. E.g., § 1225(a)(2),

(b)(1)(A)(i), (c)(1); 8 U.S.C. § 1231(b)(1).

I thus am persuaded by the majority opinions of the Fifth

and Eighth Circuits, as well as the dissenting opinions au-

thored by Judges Kirsch, Lagoa, and Murphy. See Buenrostro-

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

No. 25-3127 47

170 F.4th 1128 (8th Cir. 2026); Castañon-Nava v. U.S. Dep’t of

Homeland Sec., 175 F.4th 828, 863 (7th Cir. 2026) (Kirsch, J.,

dissenting); Hernandez Alvarez, 175 F.4th at 1285 (Lagoa, J.,

dissenting); Lopez-Campos, 175 F.4th at 735 (Murphy, J.,

dissenting). These opinions cover the waterfront, comprehen-

sively rebutting each of the grammatical, structural, and his-

torical points on the other side. I see no reason to say more.

At this point, only the Supreme Court can bring uni-

formity and settle this question once and for all. I anticipate

that it will do so soon. The Solicitor General has filed two

petitions for certiorari asking the Supreme Court to review

the decisions of the Second and Sixth Circuits addressing this

very question. Petition for Writ of Certiorari, Rhoney v. Barbosa

da Cunha (No. 26-104); Petition for Writ of Certiorari, Raycraft

v. Lopez-Campos (No. 25-1415). 1 I hope the Court accepts the

Solicitor General’s invitation. The arguments on both sides

have been fully ventilated, the circuits are deeply split, and

our court has joined the wrong side. Cirrus Rojas is an “appli-

cant for admission” who is subject to § 1225(b)(2)’s

mandatory-detention regime. Because the majority concludes

otherwise, I respectfully dissent.

1 The immigrants who lost in the Fifth Circuit have likewise petitioned for

a writ of certiorari. Petition for Writ of Certiorari, Buenrostro-Mendez v.

Blanche (No. 26-43).