The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
Nos. 26-1150 and 26-1454
______________
GABRIEL ANTONIO BUELE MOROCHO
v.
WARDEN PHILADELPHIA FDC; ACTING DIRECTOR
PHILADELPHIA FIELD OFFICE IMMIGRATION AND
CUSTOMS ENFORCEMENT; SECRETARY U.S.
DEPARTMENT OF HOMELAND SECURITY; U.S.
DEPARTMENT OF HOMELAND SECURITY;
ATTORNEY GENERAL UNITED STATES OF AMERICA;
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW,
Appellants
WANDERSON LOPES DE ANDRADE
v.
DIRECTOR PHILADELPHIA FIELD OFFICE
IMMIGRATION AND CUSTOMS ENFORCEMENT;
WARDEN PHILADELPHIA FDC,
Appellants
______________
On Appeal from the U.S. District Court
for the Eastern District of Pennsylvania
No. 2:25-cv-05930 (Hon. John M. Gallagher)
No. 2:26-cv-00603 (Hon. Mary Kay Costello)
______________
Argued May 11, 2026
Before: SHWARTZ, MASCOTT, and McKEE, Circuit
Judges.
(Filed: August 28, 2026)
______________
OPINION
______________
Kiley L. Kane, Esq.
John F. Stanton, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Charles E.T. Roberts, Esq. [ARGUED]
United States Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
Counsel for Appellants
Mana Aliabadi, Esq.
2
Christopher M. Casazza, Esq.
Palladino Isbell & Casazza
1528 Walnut Street
Suite 1701
Philadelphia, PA 19102
My Khanh Ngo, Esq.
Michael K.T. Tan, Esq. [ARGUED]
American Civil Liberties Union Foundation
Immigrants Rights Project
425 California Street
7th Floor
San Francisco, CA 94104
Farrin R. Anello, Esq.
Ezra D. Rosenberg, Esq.
American Civil Liberties Union of New Jersey
P.O. Box 32159
Newark, NJ 07102
Vanessa Stine, Esq.
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19102
Witold J. Walczak, Esq.
American Civil Liberties Union
P.O. Box 23058
Pittsburgh, PA 15222
Counsel for Appellees
Gillian Barna, Esq.
3
Office of Attorney General of New York
28 Liberty Street
19th Floor
New York, NY 10005
Counsel for Amici California, New York, Arizona,
Colorado, Connecticut, Delaware, Hawai‘i, Illinois, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Nevada,
New Jersey, Oregon, Rhode Island, Vermont, Virginia, and
Washington
Emma C. Winger, Esq.
American Immigration Council
Suite 500
2001 L Street NW
Pmb2026
Washington, DC 20036
Counsel for Amici American Immigration Council,
American Immigration Lawyers Association
Brianne J. Gorod, Esq.
Constitutional Accountability Center
1200 18th Street NW
Suite 501
Washington, DC 20036
Counsel for Amicus Constitutional Accountability
Center
Amit Jain, Esq.
Roderick & Solange MacArthur Justice Center
501 H Street NE
4
Suite 275
Washington, DC 20002
Counsel for Amicus Immigration Law Scholars
Linda H. Martin, Esq.
Baker Botts
30 Rockefeller Plaza
44th Floor
New York, NY 10112
Counsel for Amici Former Immigration Judges and
Appellate Immigration Judges
SHWARTZ, Circuit Judge.
The Government appeals the District Courts’ orders to
release Gabriel Antonio Buele Morocho and Wanderson Lopes
De Andrade (together, “Petitioners”) who had been held in
immigration custody without a bond hearing. Because their
detentions without hearings violated the Immigration and
Nationality Act (“INA”) and due process, we will affirm.
I
Buele Morocho, a citizen of Ecuador, and Lopes De
Andrade, a citizen of Brazil, entered the United States without
inspection in 2001 and 2014, respectively. In late 2025 and
early 2026, respectively, they were arrested by United States
Immigration and Customs Enforcement and detained without
bond under 8 U.S.C. § 1225(b)(2)(A).
5
Petitioners’ detention under § 1225(b)(2)(A) was a shift
in the Government’s enforcement of the INA. Until 2025,
apprehended noncitizens1 like Petitioners—namely, those who
had already entered the United States without inspection and
been present for years2—were detained or released under 8
U.S.C. § 1226(a). Unlike § 1225(b)(2)(A), § 1226(a) permits
discretionary release on bond pending removal proceedings so
long as the noncitizen is not a danger or flight risk.3 See 8
U.S.C. § 1226(a)(2); 8 C.F.R. § 1236.1(c)(8). In 2025, the
Government began using § 1225(b)(2)(A) to detain, without
bond, noncitizens already in the United States who had entered
without inspection. See Matter of Yajure Hurtado, 29 I. & N.
Dec. 216, 220-28 (BIA 2025).
1
Although the statutes frequently use the term “aliens,”
we will describe those subject to our immigration laws in this
context as “noncitizens.” See Nasrallah v. Barr, 590 U.S.
573, 578 n.2 (2020) (“This opinion uses the term ‘noncitizen’
as equivalent to the statutory term ‘alien.’”); B.C. v. Att’y Gen.
U.S., 12 F.4th 306, 308 n.2 (3d Cir. 2021) (“We use
the term ‘noncitizen’ as equivalent to the statutory term
‘alien.’”); Guerrero Orellana v. Moniz, 25-2152, ---F.4th---,
2026 WL 2352042, at *4 n.6 (1st Cir. Aug. 13, 2026) (same);
Lopez-Campos v. Raycraft, 175 F.4th 713, 719 n.1 (6th Cir.
2026) (same); Santillan Quiroz v. Mullin, 180 F.4th 1226, 1234
n.2 (10th Cir. 2026) (same).
2
Petitioners’ Notices to Appear described them as
“alien[s] present in the United States who ha[ve] not been
admitted or paroled.” App. 46, 77.
3
Section 1226(c), which imposes mandatory detention
of certain noncitizens in the United States who have committed
enumerated criminal offenses, is not applicable here. 8 U.S.C.
§ 1226(c).
6
Like many other noncitizens now mandatorily detained
under § 1225(b)(2)(A), Petitioners sought habeas relief under
28 U.S.C. § 2241, alleging their detentions violated the INA.
The District Court granted both petitions, holding that §
1225(b)(2)(A) did not apply to Petitioners and their continued
detentions without bond violated the INA. See Buele Morocho
v. Jamison, No. 5:25-CV-05930-JMG, 2025 WL 3296300, at
*3 (E.D. Pa. Nov. 26, 2025); Lopes de Andrade v. Rose, No.
26-603, 2026 WL 401189, at *4-5 (E.D. Pa. Feb. 12, 2026).
The Lopes de Andrade Court further held that his detention
violated the Fifth Amendment’s Due Process Clause. 2026
WL 401189, at *6. Both Petitioners were released.
The Government appeals.
II4
A
To decide this case, we must interpret § 1225(b)(2)(A).
“Our first step in interpreting a statute is to determine whether
the language at issue has a plain and unambiguous meaning
with regard to the particular dispute in the case.” Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997). “The plainness or
ambiguity of statutory language is determined by reference to
4
The District Courts had jurisdiction under 28 U.S.C.
§§ 1331 and 2241, and we have jurisdiction under 28 U.S.C. §
1291. German Santos v. Warden Pike Cnty. Corr. Facility, 965
F.3d 203, 208 (3d Cir. 2020). We review the District Courts’
legal conclusions de novo. Albrecht v. Horn, 485 F.3d 103,
114 (3d Cir. 2007).
7
the language itself, the specific context in which that language
is used, and the broader context of the statute as a whole.” Id.
at 341.
“[W]hen the statute’s language is plain, the sole function of the
courts—at least where the disposition required by the text is
not absurd—is to enforce it according to its terms.” Lamie v.
U.S. Tr., 540 U.S. 526, 534 (2004) (citation omitted).
Section 1225(b)(2)(A) provides that “in the case of an
alien who is an applicant for admission, if the examining
immigration officer determines that an alien seeking admission
is not clearly and beyond a doubt entitled to be admitted, the
alien shall be detained for a [removal] proceeding under
section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). Thus,
§ 1225(b)(2)(A) imposes mandatory detention if: (1) an
“examining immigration officer,” (2) determines that an
“applicant for admission,” (3) is “an alien seeking admission,”
and (4) is “not clearly and beyond a doubt entitled to be
admitted.”5 Id. The crux of the dispute before us is whether
an “applicant for admission” is necessarily “seeking
admission.”
Nine of our sister courts have already considered this
issue. The Courts of Appeals for the First, Second, Sixth,
Seventh, Ninth, Tenth, and Eleventh Circuits determined that
mandatory detention of similarly-situated petitioners under §
1225(b)(2)(A) is unlawful. Guerrero Orellana v. Moniz, 25-
2152, 2026 WL 2352042, at *1 (1st Cir. Aug. 13, 2026);
5
Our sister courts have dissected § 1225(b)(2)(A) to
similar elements. See, e.g., Barbosa da Cunha v. Freden, 175
F.4th 61, 74 (2d Cir. 2026); Hernandez Alvarez v. Warden,
Fed. Det. Ctr. Miami, 175 F.4th 1258, 1269 (11th Cir. 2026).
8
Barbosa da Cunha v. Freden, 175 F.4th 61, 84 (2d Cir. 2026),
petition for cert. filed, No. 26-104 (U.S. July 23, 2026); Lopez-
Campos v. Raycraft, 175 F.4th 713, 722 (6th Cir. 2026),
petition for cert. filed, No. 25-1415 (U.S. June 22, 2026);
Cirrus Rojas v. Olson, 25-3127, ---F.4th---, 2026 WL 2198315,
at *2 (7th Cir. July 30, 2026);6 Rodriguez Vazquez v. Bostock,
No. 25-6842, ---F.4th---, 2026 WL 2196424, at *3 (9th Cir.
July 30, 2026); Santillan Quiroz v. Mullin, 180 F.4th 1226,
1250-51 (10th Cir. 2026); Hernandez Alvarez v. Warden, Fed.
Det. Ctr. Miami, 175 F.4th 1258, 1262 (11th Cir. 2026). The
Courts of Appeals for the Fifth and Eighth Circuits have held
that § 1225(b)(2)(A) requires mandatory detention of
individuals like Petitioners here. Buenrostro-Mendez v.
Bondi, 166 F.4th 494, 503 (5th Cir. 2026), petition for cert.
filed, No. 26-43 (U.S. July 2, 2026); Avila v. Bondi, 170 F.4th
1128, 1134 (8th Cir. 2026).
B
Congress defined “applicant for admission” in §
1225(a)(1), which provides “[a]n alien present in the United
States who has not been admitted or who arrives in the United
States . . . shall be deemed for purposes of this chapter an
6
Previously, a divided panel of the Court of Appeals for
the Seventh Circuit did not reach a controlling holding on this
issue, see Castañon-Nava v. U.S. Dep’t of Homeland Sec., 175
F.4th 828 (7th Cir. 2026), though a prior panel in reviewing a
motion to stay determined § 1225(b)(2)(A) was inapplicable to
petitioners like those here, see Castañon-Nava v. U.S. Dep’t of
Homeland Sec., 161 F.4th 1048, 1061-62 (7th Cir. 2025).
9
applicant for admission.”7 A noncitizen is deemed “admitted”
following “lawful entry . . . after inspection and authorization
7
To the extent the Government contends that Congress
did not define “applicant for admission” in § 1225(a)(1)
because it used the word “deemed” in describing who qualified
as an applicant for admission, “[t]his is a distinction without a
difference.” Lopez-Campos, 175 F.4th at 728. By explaining
what criteria constitute an “applicant for admission,” Congress
provided a definition. See Dep’t of Agric. Rural Dev. Rural
Hous. Serv. v. Kirtz, 601 U.S. 42, 59 (2024) (“When Congress
takes the trouble to define the terms it uses, a court must respect
its definitions as ‘virtually conclusive.’” (citation omitted)).
Moreover, nearly every Circuit Court to have addressed this
issue has stated § 1225(a)(1) defines “applicant for admission.”
See Barbosa da Cunha, 175 F.4th at 74 (“‘[A]pplicant for
admission’ is defined by statute to mean any noncitizen who is
present in the United States and has not been admitted, or is
arriving in the United States.”); Buenrostro-Mendez v. Bondi,
166 F.4th 494, 499 (5th Cir. 2026) (discussing “[a]liens who
meet [§ 1225(a)(1)’s] statutory definition”); Lopez-Campos,
175 F.4th at 728 (“Congress defined ‘applicant for admission’
in § 1225(a)(1) . . . .”); Avila v. Bondi, 170 F.4th 1128, 1133
(8th Cir. 2026) (“In defining [applicant for admission], §
1225(a)(1) reads as follows . . . .”); Hernandez Alvarez, 175
F.4th at 1267 (“Section 1225(a)(1) defines [applicant for
admission] . . . .”); Cirrus Rojas v. Olson, 25-3127, ---F.4th---
, 2026 WL 2198315, at *8 (7th Cir. July 30, 2026) (same).
Thus, we disagree “that Congress did not sufficiently
indicate to us the obscure statutory meaning of ‘applicant for
admission’ such that we may then use ordinary meanings to
determine its definition.” Lopez-Campos, 175 F.4th at 729.
10
by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A); see
also Mullin v. Al Otro Lado, 146 S. Ct. 2079, 2087 (2026)
(recognizing the same definition); Guerrero Orellana, ---F.4th-
--, 2026 WL 2352042, at *6 (same); Barbosa da Cunha, 175
F.4th at 75 (same); Lopez-Campos, 175 F.4th at 722 (same);
Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *5 (same);
Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *11;
Hernandez Alvarez, 175 F.4th at 1268 (same). Petitioners are
“applicants for admission” under this definition because they
are present in the United States without having been lawfully
admitted and inspected by an immigration officer. See
Barbosa da Cunha, 175 F.4th at 74 (classifying similarly
situated petitioners as “applicant[s] for admission”); Guerrero
Orellana, ---F.4th---, 2026 WL 2352042, at *5 (same); Cirrus
Rojas, ---F.4th---, 2026 WL 2198315, at *5 (same); Santillan
Quiroz, 180 F.4th at 1237 (same); Hernandez Alvarez, 175
F.4th at 1269 (same). This classification, however, covers only
one part of § 1225(b)(2)(A). For the statute to apply to
Petitioners, each must also be “an alien seeking admission.”8
We are not recognizing a legal fiction but rather are simply
applying the statutory definition provided by Congress.
8
Because courts must conduct their own statutory
analysis, see Loper Bright Enters. v. Raimondo, 603 U.S. 369,
412 (2024); Miller Plastic Prods. Inc v. NLRB, 141 F.4th 492,
503 (3d Cir. 2025), we will not defer to the Board of
Immigration Appeals’ recent interpretation of § 1225(b)(2)(A)
as applying to noncitizens like Petitioners and its reasoning that
such “applicants for admission” are necessarily “seeking
admission,” Matter of Yajure Hurtado, 29 I. & N. Dec. 216,
221 (BIA 2025).
11
Congress has not defined “seeking admission.” As a
result, we look to its ordinary meaning. See Feliciano v. Dep’t
of Transp., 605 U.S. 38, 45 (2025); see also Barbosa da Cunha,
175 F.4th at 76 (relying on ordinary meaning of “seeking”);
Guerrero Orellana, ---F.4th---, 2026 WL 2352042, at *6
(same); Lopez-Campos, 175 F.4th at 723 (same); Cirrus Rojas,
---F.4th---, 2026 WL 2198315, at *7 (same); Rodriguez
Vazquez, ---F.4th---, 2026 WL 2196424, at *13 (same);
Santillan Quiroz, 180 F.4th at 1238 (same); Hernandez
Alvarez, 175 F.4th at 1266 (same). “Seeking” is defined as
“ask[ing] for” or “try[ing] to acquire or gain.” Seek, New
English Dictionary of the English Language 2266 (2d ed.
1952); accord Seek, Merriam-Webster’s Collegiate Dictionary
1057 (10th ed. 1996); see also Barbosa da Cunha, 175 F.4th at
74 (relying on similar definitions); Guerrero Orellana, ---F.4th-
--, 2026 WL 2352042, at *6 (same); Lopez-Campos, 175 F.4th
at 722-23 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315,
at *5 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL
2196424, at *11 (same); Santillan Quiroz, 180 F.4th at 1238
(same); Hernandez Alvarez, 175 F.4th at 1267-68 (same).
Congress’s decision to use the verb in its present participle
form—“seeking”—suggests it contemplated a current or
ongoing action. See United States v. Wilson, 503 U.S.
329, 333 (1992) (“Congress’[s] use of a verb tense is
significant in construing statutes.”); see also Barbosa da
Cunha, 175 F.4th at 74 (“The term ‘seeking’ is in the present
participle form, which expresses present action.”); Hernandez
Alvarez, 175 F.4th at 1268 (“That the word is written as a
present participle (‘seeking’) underscores that it is describing
some active and temporally ongoing step or process on the part
of the alien.”); Guerrero Orellana, ---F.4th---, 2026 WL
2352042, at *6 n.10 (same); Lopez-Campos, 175 F.4th at 723
(same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at
12
*11 (same); Santillan Quiroz, 180 F.4th at 1238 (same); cf.
United States v. Hull, 456 F.3d 133, 145 (3d Cir. 2006)
(Ackerman, J., concurring) (“Congress’s use of the present
participle ‘committing’ connotes present, continuing action.”).
Thus, to fall within § 1225(b)(2)(A)’s ambit, an “applicant for
admission” must engage in present or ongoing action to gain
“admission,” that is, “lawful entry . . . into the United States
after inspection and authorization by an immigration officer.”
8 U.S.C. § 1101(a)(13)(A). In other words, for §
1225(b)(2)(A) to apply, the noncitizen must do more than be
an “applicant for admission.”9 See Barbosa da Cunha, 175
F.4th at 78 (recognizing § 1225(b)(2)(A) applies only to those
who are both “applicants for admission” and “seeking
admission”); Lopez-Campos, 175 F.4th at 723 (same); Cirrus
Rojas, ---F.4th---, 2026 WL 2198315, at *7 (same); Hernandez
Alvarez, 175 F.4th at 1269 (same).
Holding otherwise would render the phrase “seeking
admission” surplusage. “It is ‘a cardinal principle of statutory
construction’ that ‘a statute ought, upon the whole, to be so
9
This understanding is bolstered by § 1225(a)(4), which
provides that “[a]n alien applying for admission may . . . be
permitted to withdraw the application for admission and depart
immediately from the United States.” 8 U.S.C. § 1225(a)(4).
If those “applying” for—or in other words “seeking”—
admission are entitled to “withdraw” their applications, then
they must have taken an affirmative action that can be
withdrawn. See Barbosa da Cunha, 175 F.4th at 80 (“There is
simply no reason for a noncitizen who unlawfully entered
twenty years ago to request permission from the Attorney
General to ‘withdraw’ anything, because he never submitted
anything in the first place.”).
13
construed that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant.’” TRW Inc.
v. Andrews, 534 U.S. 19, 31 (2001) (citation omitted). If an
“applicant for admission” were necessarily “seeking
admission,” then it would be unnecessary for § 1225(b)(2)(A)
to specify that the noncitizen is “seeking admission.”10 Its
10
The Government insists that even if its reading results
in some redundancy, its interpretation is correct because
“[r]edundancy in one portion of a statute is not a license to
rewrite or eviscerate another portion of the statute contrary to
its text.” Appellants’ Br. at 33-34 (quoting Barton v. Barr, 590
U.S. 222, 239 (2020)). By recognizing the independent
significance of “seeking admission,” however, we ensure that
all terms of the statute are given meaning. TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001) (citations omitted); Tavarez
v. Klingensmith, 372 F.3d 188, 190 (3d Cir. 2004) (“If
possible, we must ‘give effect . . . to every clause and word of
a statute.’” (quoting Duncan v. Walker, 533 U.S. 167, 174
(2001)); see also Hernandez Alvarez, 175 F.4th at 1272
(“Doubtless, redundancies in law can happen, and where
otherwise clear text steers us toward repetition, we need not
veer out of the way—especially when the redundant phrases
are synonymous. But here, the plain text cuts against the
Government.” (citation omitted)).
True, “if forced to choose between an interpretation that
entails some redundancy and one that contradicts what words
usually mean, we would choose the former.” Mullin v. Al Otro
Lado, 146 S. Ct. 2079, 2094 (2026). We are not presented with
such a situation here, however, because our interpretation of
“seeking admission” is in accord with its ordinary meaning.
14
presence shows that it has independent meaning.11 See United
States v. Yung, 37 F.4th 70, 79 (3d Cir. 2022) (“Normally,
where Congress uses different words, we read those words to
have different meanings.” (citing Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 170
(2012)); see also Lopez-Campos, 175 F.4th at 723
11
Not all those present in the United States without
authorization seek lawful admission, even if they are
attempting to remain in the country. For example, those
seeking asylum are not requesting lawful admission, but rather
seek relief from removal. Indeed, as the Supreme Court has
instructed:
Lawful status and admission . . . are distinct
concepts . . . . On the one hand, a foreign national
can be admitted but not in lawful status—think
of someone who legally entered the United
States on a student visa, but stayed in the country
long past graduation. On the other hand, a
foreign national can be in lawful status but not
admitted—think of someone who entered the
country unlawfully, but then received asylum.
Sanchez v. Mayorkas, 593 U.S. 409, 415 (2021); see also
Lopez-Campos, 175 F.4th at 729 (“‘[A] foreign national can
be in lawful status but not admitted,’ such as individuals who
receive asylum or temporary protected status.” (quoting
Sanchez, 593 U.S. at 415-416)); Hernandez Alvarez, 175 F.4th
at 1269 (“[I]t is indisputable that there are many other ways to
be lawfully present in the United States under the INA, without
having been lawfully admitted into this country.”); Guerrero
Orellana, ---F.4th---, 2026 WL 2352042, at *15 & n.27 (same);
Barbosa da Cunha, 175 F.4th at 80-81 (same); Cirrus Rojas, --
-F.4th---, 2026 WL 2198315, at *7 (same).
15
(“Congress’s decision to employ the phrase ‘seeking
admission’ implies a meaning distinct from the defined phrase
‘applicant for admission.’”); Guerrero Orellana, ---F.4th---,
2026 WL 2352042, at *10 (same); Barbosa da Cunha, 175
F.4th at 75 (same); Cirrus Rojas, ---F.4th---, 2026 WL
2198315, at *10 (same); Rodriguez Vazquez, ---F.4th---, 2026
WL 2196424, at *13; Santillan Quiroz, 180 F.4th at 1240-41
(same); Hernandez Alvarez, 175 F.4th at 1269 (same).12 By
including this language, Congress specified what an “applicant
for admission” must do to be subject to § 1225(b)(2)(A),
namely engage in an ongoing affirmative act to “seek[]
admission” to the United States.13 Because Petitioners are not
12
The Government suggests that if § 1225(b)(2)(A)
applies only to those “seeking admission,” “then § 1225(b)(1)
swallows § 1225(b)(2).” Reply Br. at 10. Not so. “Section
1225(b)(1) applies to aliens initially determined to be
inadmissible due to fraud, misrepresentation, or lack of valid
documentation . . . [and] other aliens designated by the
Attorney General in his discretion.” Jennings v. Rodriguez,
583 U.S. 281, 287 (2018). Those noncitizens are generally
subject to “expedited removal.” Id. Section 1225(b)(2)(A), on
the other hand, applies to other noncitizens “seeking
admission” who do not fall under § 1225(b)(1)’s purview and
are “not clearly and beyond a doubt entitled to be admitted.” §
1225(b)(2)(A). Thus, our reading recognizes the independent
force of each provision. See Santillan Quiroz, 180 F.4th at
1245 (“[S]ubsection (b)(1) serves an important function at the
border that subsection (b)(2)(A) does not.”).
13
See Sw. Airlines Co. v. Saxon, 596 U.S. 450, 457-58
(2022) (“[W]here [a]
document has used one term in one place, and a materially dif
ferent term in another,
16
the presumption is that the different term denotes a different i
dea.” (quoting Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 170 (2012) (alteration
in original)).
17
taking such action,14 they are not within the scope of §
1225(b)(2)(A).15 See Lopez-Campos, 175 F.4th at 732
14
To support its interpretation, the Government points
to § 1225(a)(3), which provides that “[a]ll aliens . . . who are
applicants for admission or otherwise seeking admission or
readmission . . . shall be inspected.” 8 U.S.C. § 1225(a)(3).
“[O]r otherwise,” the Government contends, serves as a
catchall that renders being an “applicant for admission” one of
several ways to “seek admission.” The Government misreads
the statute.
As a preliminary matter, the Government’s
interpretation of § 1225(a)(3) does not negate the plain
meaning of § 1225(b)(2)(A), which, as we have explained,
establishes that “applicant for admission” and “seeking
admission” have independent meanings. See Hernandez
Alvarez, 175 F.4th at 1273 (“The most the inspection provision
of § 1225(a)(3) can offer is further illumination of the
relationship between ‘applicant for admission’ and ‘seeking
admission.’ By insisting that we must effectively read ‘seeking
admission’ out of § 1225(b)(2)(A) on account of language
found in a different provision, the Government offers a reading
that fails to produce a ‘harmonious whole.’” (quoting FTC v.
Mandel Bros., Inc., 359 U.S. 385, 389 (1959))).
Even then, “or otherwise” has two meanings.
“Otherwise” as a standalone term can mean “in a different way
or manner.” Otherwise, Merriam-Webster’s Collegiate
Dictionary 823-24 (10th ed. 1994). “Or otherwise” can also be
“used to refer to something that is different from something
already mentioned.” Or Otherwise, Merriam-Webster
Dictionary, https://www.merriam-
webster.com/dictionary/or%20otherwise (last visited Mar. 30,
2026); see also Barbosa da Cunha, 175 F.4th at 78 (“Although
18
the [G]overnment is correct that ‘or otherwise’ can sometimes
mean ‘in a different way or manner,’ it can also simply ‘refer
to something that is different from something already
mentioned.’” (citation omitted)); Guerrero Orellana, ---F.4th--
-, 2026 WL 2352042, at *12-13 (same); Santillan Quiroz, 180
F.4th at 1244-45 (same); Cirrus Rojas, ---F.4th---, 2026 WL
2198315, at *9 (same); Hernandez Alvarez, 175 F.4th at 1273
(same). This is particularly true where the words preceding “or
otherwise” do not “set forth a list of specific examples,” as is
the case here. Barbosa da Cunha, 175 F.4th at 79; cf. Ali v.
Fed. Bureau of Prisons, 552 U.S. 214, 225 (2008) (observing
that “a list of specific items separated by commas and followed
by a general or collective term” suggests that “Congress
remained focused on the common attribute when it used the
catchall phrase”). Section 1225(a)(3) does not list several
ways of “seeking admission,” but rather merely states that
“applicants for admission” and those “seeking admission” are
subject to inspection—this use of “or otherwise” does not
support the Government’s position. See Lopez-Campos, 175
F.4th at 727 (“‘Otherwise,’ as used in § 1225(a)(3), is better
understood as ‘one of . . . several distinct and independent’
qualifiers rather than ‘a general or collective term following a
list of specific items to which a particular statutory command
is applicable.’” (quoting United States v. Aguilar, 515 U.S.
593, 615 (1995) (Scalia, J., concurring in part and dissenting in
part) (alteration in original))); Barbosa da Cunha, 175 F.4th at
80 (“Section 1225(a)(3) applies to applicants for admission,
and also applies to three further categories of noncitizens,
which may overlap with but are not the same as ‘applicant for
admission.’”); Rodriguez Vazquez v. Bostock, No. 25-6842, -
--F.4th---, 2026 WL 2196424, at *16 (9th Cir. July 30, 2026)
(same); Hernandez Alvarez, 175 F.4th at 1273-75 (same).
19
15
It follows from Congress’s definition of “applicants
for admission” that not all applicants for admission are
“seeking admission” to the United States. Courts have offered
helpful analogies that explain why:
[S]omeone who enters a movie theater without
purchasing a ticket and then proceeds to sit
through the first few minutes of a film would not
ordinarily then be described as “seeking
admission” to the theater. Rather, that person
would be described as already present there.
Even if that person, after being detected, offered
to pay for a ticket, one would not ordinarily
describe them as “seeking admission” (or
“seeking” “lawful entry”) at that point—one
would say that they had entered unlawfully but
now seek a lawful means of remaining there.
Lopez Benitez v. Francis, 795 F. Supp. 3d 475, 489 (S.D.N.Y.
2025); Barbosa da Cunha, 175 F.4th at 76 (“If someone sneaks
into Yankee Stadium [a baseball stadium] at the start of the
game with no ticket for admission (and no intention of ever
paying) and he is later found by security in a seat in the seventh
inning, no one would consider that fan to be ‘seeking
admission’ to the game.”); see also Al Otro Lado, 146 S. Ct. at
2090 (relying on “[e]veryday examples” to determine ordinary
meaning of term). Because Petitioners here have engaged in
no affirmative act to “seek[] admission” to the United States,
§ 1225(b)(2)(A) does not apply.
The Court of Appeals for the Fifth Circuit suggests that
the above analogies over-complicate the issue—they contend
that “[j]ust as an applicant to a college seeks admission, an
applicant for admission to the United States is ‘seeking
admission’ to the same, regardless whether the person actively
20
(“Because no Petitioner is alleged to be seeking admission or
lawful entry into the United States, § 1225(b)(2)(A)’s
mandatory detention scheme does not apply to them.”);
Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *14
(“[W]e do not think an alien present in the interior of the United
engages in further affirmative acts to gain admission.”
Buenrostro-Mendez, 166 F.4th at 502. This reasoning is inapt
because Congress has given “applicant for admission” a
specific definition that does not include the phrase “seeking
admission.” 8 U.S.C. § 1225(a)(1); see Kirtz, 601 U.S. at 59
(“When Congress takes the trouble to define the terms it uses,
a court must respect its definitions as ‘virtually conclusive.’”
(citation omitted)); see also Barbosa da Cunha, 175 F.4th at 76
(“It is precisely because Congress employed a statutory term
of art for ‘applicant for admission’ but not for ‘seeking
admission’ that the analogy to an applicant for college, relied
upon heavily by the government and our two sister circuits, is
inapposite.”); Guerrero Orellana, ---F.4th---, 2026 WL
2352042, at *10 & n.17 (same); Lopez-Campos, 175 F.4th at
729 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *8
(same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at
*15 (same); Santillan Quiroz, 180 F.4th at 1241 (same);
Hernandez Alvarez, 175 F.4th at 1270 (same).
We recognize the Government’s view has superficial
appeal, namely, that it seems natural that an “applicant for
admission” is indeed “seeking admission,” but that is not what
Congress said.
Furthermore, our definition of “seeking admission”
does not redefine “applicant for admission,” as that term is
used in Chapter 12. The phrase “seeking admission” simply
describes the act an “applicant for admission” must undertake
to be covered by § 1225(b)(2)(A).
21
States remains in the perpetual state of seeking admission (that
is, seeking entry) . . . .”); Guerrero Orellana, ---F.4th---, 2026
WL 2352042, at *6 (same); Barbosa da Cunha, 175 F.4th at 78
(same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *7
(same); Santillan Quiroz, 180 F.4th at 1238 (same); Hernandez
Alvarez, 175 F.4th at 1269 (same).16
The statute contains another indication that “applicant
for admission” and “seeking admission” are separate elements.
Congress used the word “an” in the phrase “an alien seeking
admission.” Using the indefinite article “an” rather than a
definite article, such as “the,” which would refer back to the
initially-described individual, further shows that “an applicant
for admission” and “an alien seeking admission” refer to
different things. See U.S. Sugar Corp. v. EPA, 113 F.4th 984,
993 (D.C. Cir. 2024) (“Congress’s choice between a definite
16
8 U.S.C. § 1101(a)(13)(C), which provides that “[a]n
alien lawfully admitted for permanent residence in the United
States shall not be regarded as seeking an admission” except in
several specific circumstances, does not disturb this conclusion
as the provision is inapt. As explained in Lopez-Campos, “[i]f
anything, § 1101(a)(13)(C)’s discrete exceptions prove that
Congress knew how to explicitly define certain LPRs present
in the country as ‘seeking an admission’ but chose not to do so
for all other noncitizens who are also present in the country.”
175 F.4th at 730; see also Santillan Quiroz, 180 F.4th at 1239
n.8 (given the context of it usage, Ҥ 1101(a)(13)(C) is a
specific statutory carveout that applies only to lawful
permanent residents. It does not apply to noncitizens like
[Petitioners] who never had lawful permanent resident status
and therefore does not displace the ordinary meaning of
‘seeking admission.’”).
22
and indefinite article matters when determining statutory
meaning.” (citing Corner Post, Inc. v. Bd. of Governors of Fed.
Rsrv. Sys., 603 U.S. 799, 817 (2024))); see also Hernandez
Alvarez, 175 F.4th at 1271 (“The second condition also lacks
any definite article, such as ‘the,’ ‘this,’ or ‘such,’ which would
indicate that the ‘alien seeking admission’ is necessarily
the same alien who is an ‘applicant for admission.’” (emphasis
omitted)). Accordingly, the indefinite article “an” reveals that
the “applicant for admission” and the non-citizen “seeking
admission” refer to different things.
C
The INA’s broader statutory scheme also supports the
conclusion that § 1225(b) governs noncitizens arriving to the
United States whereas § 1226 governs those already within our
borders.
The type of noncitizen covered by each statute is
reflected in their titles, headings, and general subject matter.17
17
Although titles and headings cannot contravene
statutory text, see Bhd. of R. R. Trainmen v. Baltimore & O.
R. Co., 331 U.S. 519, 528-29 (1947), they may aid our
interpretation, see Fla. Dep’t of Revenue v. Piccadilly
Cafeterias, Inc., 554 U.S. 33, 47 (2008) (“[S]tatutory titles and
section headings ‘are tools available for the resolution of a
doubt about the meaning of a statute.’” (quoting Porter v.
Nussle, 534 U.S. 516, 528 (2002))); see also Santillan Quiroz,
180 F.4th at 1239 (“While a title does not control over the text,
it can helpfully ‘reinforce[ ] what the text’s nouns and verbs
independently suggest.’” (citation omitted)); Guerrero
Orellana, ---F.4th---, 2026 WL 2352042, at *14 n.24 (same).
23
Section 1225 is entitled “Inspection by immigration officers;
expedited removal of inadmissible arriving aliens; referral for
hearing,” and accordingly uses terms focusing on individuals
at the border. See 8 U.S.C. § 1225(b)(1) (“Inspection of aliens
arriving in the United States and certain other aliens who have
not been admitted or paroled.”). Moreover, § 1225(b)(2)
mentions categories of people typically understood to “arrive”
at a border, such as “crewm[e]n” and “stowaways.” §
1225(b)(2)(B); see also Hernandez Alvarez, 175 F.4th at 1278
(“[Section] 1225 seems to us to have been designed by
Congress to govern arriving [noncitizens]. It lays out the
procedures . . . for officers to inspect arriving vessels and
people, couching its scope in the language of ‘arriving aliens,’
‘alien[s] seeking admission,’ and [noncitizens] seeking ‘transit
through the United States.’”); Santillan Quiroz, 180 F.4th at
1239-40 (same).18 Section 1226, on the other hand, is entitled
“Apprehension and detention of aliens,” and does not mention
noncitizens arriving in the United States. 8 U.S.C. § 1226; see
also Hernandez Alvarez, 175 F.4th at 1278 (“[Section] 1226
set[s] out a general rule of detention for [noncitizens] . . . who
are suspected of being unlawfully in the interior . . . .”);
Barbosa da Cunha, 175 F.4th at 73 (same).19 The Supreme
18
Section 1225(b)(2)(C) also reflects that § 1225
applies to individuals at the border because it discusses the
return of individuals “arriving from a foreign territory
contiguous to the United States” pending removal proceedings.
19
The INA’s regulations recognize this dichotomy by
providing that “any arriving alien who appears to the
inspecting officer to be inadmissible, and who is placed in
removal proceedings pursuant to section 240 of the Act shall
be detained in accordance with [§ 1225(b)] of the Act.” 8
C.F.R. § 235.3(c)(1). The Notices to Appear here do not
24
Court recognized this distinction in describing § 1225(b) as
“authoriz[ing] the Government to detain certain aliens seeking
admission into the country,” and § 1226 as “authoriz[ing] the
Government to detain certain aliens already in the country
pending the outcome of removal proceedings.”20 Jennings v.
classify either Petitioner as an “arriving alien,” but rather
identify each of them as an “alien present in the United States
who has not been admitted or paroled.” App. 46, 77. Thus, the
Government’s own documents suggest Petitioners’ detentions
under § 1225(b)(2)(A) are inconsistent with regulations
interpreting the INA. See, e.g., Martinez v. Hyde, 792 F. Supp.
3d 211, 218-19 (D. Mass. 2025).
20
Although Jennings made this observation in dicta, its
insight is persuasive. See Off. Comm. of Unsecured Creditors
of Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery,
330 F.3d 548, 561 (3d Cir. 2003) (en banc) (“Although . . . the
Supreme Court’s dicta are not binding on us, we do not view it
lightly.”). Indeed, we have previously recognized that “we
should not idly ignore considered statements the Supreme
Court makes in dicta. The Supreme Court uses dicta to help
control and influence the many issues it cannot decide because
of its limited docket.” In re McDonald, 205 F.3d 606, 612 (3d
Cir. 2000); see also Barbosa da Cunha, 175 F.4th at 85 (“[W]e
afford great deference to the Court’s description of the
statutory scheme in Jennings.”); Hernandez Alvarez, 175 F.4th
at 1279 (“The Court’s interpretation of the INA [in Jennings]
was not a passing, off-hand remark—it was an expansive and
detailed account of how the statute is best read. We are obliged
to afford Jennings some weight in how to view the provisions
at issue today.”); Guerrero Orellana, ---F.4th---, 2026 WL
2352042, at *14 (same); Santillan Quiroz, 180 F.4th at 1237
n.5 (same); Lopez-Campos, 175 F.4th at 721 (relying on
25
Rodriguez, 583 U.S. 281, 289 (2018) (plurality).21
For this additional reason, requiring mandatory
detention for those arriving in the United States under §
1225(b)(2)(A) but permitting discretionary release for those
already within our borders under § 1226(a) is wholly consistent
with the statutory framework.22 Barbosa da Cunha, 175 F.4th
Jennings to explain “the relationship between” §§ 1225 and
1226); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *15
(same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at
*7 (same).
21
This treatment is also consistent with a longstanding
“distinction,” for constitutional and other purposes, “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); Zadvydas v. Davis, 533 U.S. 678, 693 (2001)
(“It is well established that certain constitutional protections
available to persons inside the United States are unavailable to
aliens outside of our geographic borders.”); see also Barbosa
da Cunha, 175 F.4th at 85 (“[I]t has long been settled that a
noncitizen can effect an entry even by crossing the border
illegally.”).
22
Giving those individuals a chance to seek bond makes
sense because they may have community ties that make it more
likely they will appear for future proceedings. See In Re
Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) (recognizing that
immigration judges in setting bond may consider, among other
things, “(1) whether the alien has a fixed address in the United
States; (2) the alien’s length of residence in the United States;
[and] (3) the alien’s family ties in the United States”); see also
Barbosa da Cunha, 175 F.4th at 78 (“[T]he strong rationale for
26
at 85 (“[T]he framework set forth in Jennings makes good
sense in light of Congress’s overall approach to immigration
detention.”); Hernandez Alvarez, 175 F.4th at 1279 (“The
Government’s interpretation cannot readily be reconciled with
Jennings.”); Guerrero Orellana, ---F.4th---, 2026 WL 2352042,
at *14 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL
2196424, at *12; Santillan Quiroz, 180 F.4th at 1237 (same).
D
Contrary to the Government’s view, the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”) retained two tracks for detention even though
it overhauled the procedures for removing noncitizens from the
United States. Before IIRIRA, noncitizens arriving in the
United States were subject to “exclusion” and those already in
the country were subject to “deportation”—the former were
held in mandatory detention while the latter were afforded
bond. 8 U.S.C. §§ 1225, 1252 (1995); see also Landon v.
Plasencia, 459 U.S. 21, 25 (1982) (“The deportation hearing is
the usual means of proceeding against an alien already
physically in the United States, and the exclusion hearing is the
usual means of proceeding against an alien outside the United
States seeking admission.”). Under this regime, those who
entered the United States surreptitiously were given more
rights during deportation proceedings. For example,
noncitizens subject to exclusion were not entitled to advance
notice of the charges and bore the burden of proof, whereas
noncitizens in deportation proceedings did not bear the burden
detaining noncitizens who are both ‘applicants for admission’
and ‘seeking admission’ does not apply to noncitizens who are
one but not the other.” (emphasis omitted)).
27
of proof and received notice of the charges as well as direct
appellate review. See Landon, 459 U.S. at 25-27; Ortega-
Lopez v. Barr, 978 F.3d 680, 682 (9th Cir. 2020)
(acknowledging that before IIRIRA, “[t]he [G]overnment had
the burden of proof at a deportation hearing, while the
[noncitizen] had the burden of proof at an exclusion hearing”);
see also Barbosa da Cunha, 175 F.4th at 89 n.9 (observing
immigration laws formerly “granted substantial legal
privileges and rights only to noncitizens in deportation
proceedings, including rights to notice and direct appeal”);
Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *13 (same);
Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *4
(same); Hernandez Alvarez, 175 F.4th at 1282 (same).
To eliminate the more favorable treatment afforded to
those in deportation proceedings, Congress passed IIRIRA,
which, among other things, required that “applicant[s] for
admission”—both those arriving to the country and those
already within our borders—receive the same procedural and
substantive rights in administrative proceedings.23 See
Martinez v. Att’y Gen., 693 F.3d 408, 413 n.5 (3d Cir. 2012);
8 U.S.C. § 1229a(c)(2)(A); 8 C.F.R. § 1240.8; see also Barbosa
da Cunha, 175 F.4th at 89 n.9 (“One aim of IIRIRA was to
eliminate the dual track for removal that had previously placed
some noncitizens into exclusion proceedings and others into
deportation proceedings.”); Lopez-Campos, 175 F.4th at 731
(same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at
*4 (same); Hernandez Alvarez, 175 F.4th at 1282 (same).
Although IIRIRA equalized some aspects of removal
23
See also Al Otro Lado, 146 S. Ct. at 2114-15
(Sotomayor, J., dissenting) (explaining impact of the IIRIRA
on removal proceedings).
28
proceedings for arriving noncitizens and those already present
in the country, nothing in the Act suggests that Congress
sought to eliminate the distinction between mandatory and
discretionary detentions.24 See Hernandez Alvarez, 175 F.4th
24
The Government asks us to rely on IIRIRA’s
legislative history, specifically language from a House of
Representatives Judiciary Committee report stating that
IIRIRA was “intended to replace certain aspects of the current
‘entry doctrine,’ under which illegal aliens who have entered
the United States without inspection gain equities and
privileges in immigration proceedings that are not available to
aliens who present themselves for inspection at a port of entry.”
H.R. Rep. No. 104-469, pt. 1, at 225 (1996) (“House Report”).
We decline to do so.
First, resorting to legislative history is unnecessary here
given the statute’s plain text. See Mohamad v. Palestinian
Auth., 566 U.S. 449, 458 (2012) (“[R]eliance on legislative
history is unnecessary in light of the statute’s unambiguous
language.” (citation omitted)); In re Phila. Newspapers, LLC,
599 F.3d 298, 304 (3d Cir. 2010), as amended (May 7, 2010)
(“Where the statutory language is unambiguous, the court
should not consider statutory purpose or legislative history.”);
see also Barbosa da Cunha, 175 F.4th at 88 (“[T]he
[G]overnment’s argument about the legislative history is
irrelevant because the plain statutory text controls.”).
Second, even if we considered legislative history, the
language the Government relies upon merely provides that
IIRIRA was “intended to replace certain aspects” of the then-
existing regime that afforded those who entered without
inspection “equities and privileges in immigration
proceedings” unavailable to others. House Report at 225. This
refers to the procedural and substantive changes to, among
29
other things, notice and burdens of proof in administrative
proceedings. See Barbosa da Cunha, 175 F.4th at 89 (“[T]he
[G]overnment erroneously concludes that IIRIRA sought to
abolish all distinctions between arriving and already present
noncitizens. It did not. Rather, IIRIRA had the much more
modest goal of altering ‘certain aspects of the [then] current
“entry doctrine.’” (emphasis omitted) (quoting House Report
at 225)); Hernandez Alvarez, 175 F.4th at 1282 (“Congress
was exceedingly clear about which parts of the entry doctrine
it meant to target: namely, the discordant distinction between
deportation proceedings and exclusion proceedings.”). Indeed,
the same House Report explains that “[§] 236(a) [, codified at
§ 1226(a),] restates the current provisions . . . regarding the
authority of the Attorney General to arrest, detain, and release
on bond an alien who is not lawfully in the United States.”
House Report at 229. Thus, the House Report shows Congress
did not intend to overhaul the INA’s discretionary detention
regime as it pertained to noncitizens already present in the
United States. See Barbosa da Cunha, 175 F.4th at 89
(recognizing the same); Guerrero Orellana, ---F.4th---, 2026
WL 2352042, at *16 (same); Rodriguez Vazquez, ---F.4th---,
2026 WL 2196424, at *22 (same); Santillan Quiroz, 180 F.4th
at 1248-49 (same). To the extent the Government argues this
interpretation encourages unlawful entry into the United
States, this concern “cannot defeat the best reading of the text.”
Al Otro Lado, 146 S. Ct. at 2095.
Finally, comparing the statutory language before and
after IIRIRA demonstrates the detention provisions remain
largely intact. Compare § 1225(b) (1995) (“Every alien . . .
who may not appear to the examining immigration officer at
the port of arrival to be clearly and beyond a doubt entitled to
land shall be detained for further inquiry to be conducted by a
30
at 1283 (“[T]he record is replete with evidence that Congress
intended for § 1225 to continue governing procedures for
arriving aliens, laying out how aliens arriving in or traveling
through the country are inspected, detained, and removed on
an expedited basis.”); Barbosa da Cunha, 175 F.4th at 89
(“[T]he [G]overnment erroneously concludes that IIRIRA
sought to abolish all distinctions between arriving and already
present noncitizens. It did not.”); Santillan Quiroz, 180 F.4th
special inquiry officer.”), and § 1252(a) (1995) (“Pending a
determination of deportability in the case of any alien . . . any
such alien taken into custody may, in the discretion of the
Attorney General and pending such final determination of
deportability, (A) be continued in custody; or (B) be released
under bond . . . .”), with § 1225(b)(2)(A) (“[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 admitted, the
alien shall be detained for a proceeding under section 1229a of
this title.”), and § 1226(a) (providing that “an alien may be
arrested and detained pending a decision on whether the alien
is to be removed from the United States” and the Attorney
General “may release” him on bond); see also Rodriguez
Vazquez, ---F.4th---, 2026 WL 2196424, at *18-19 (observing
similarity of pre- and post-IIRIRA provisions). In its IIRIRA
amendments, Congress moved “port of arrival” from the
detention provision of § 1225 to § 1225(a), which now includes
in its definition of “applicant for admission” those “who
arrive[] in the United States (whether or not at a designated port
of arrival . . . .” The omission of the phrase “port of arrival” in
one portion of the statute and its incorporation in another does
not suggest that IIRIRA upended § 1225’s applicability to
arriving noncitizens.
31
at 1248 (“While the Government’s account is plausible, and
many may agree with it as a matter of policy, it finds little
purchase as an interpretive aid.”); Guerrero Orellana, ---F.4th-
--, 2026 WL 2352042, at *16 (same); Lopez-Campos, 175
F.4th at 731 (same); Cirrus Rojas, ---F.4th---, 2026 WL
2198315, at *13 (same); Rodriguez Vazquez, ---F.4th---, 2026
WL 2196424, at *22-24 (same). Although our holding affords
bond to those who entered our borders without authorization
while mandating detention for noncitizens who present
themselves, Congress established this distinction in IIRIRA,
and if it meant to change it or influence the Government’s
interpretation of the statute in the years since its passage,25 it
25
In fact, when IIRIRA was passed, the Department of
Justice explicitly recognized that noncitizens present in the
United States were entitled to discretionary release, see
Detention and Removal of Aliens, 62 Fed. Reg. 10312, 10323
(Mar. 6, 1997) (“Despite being applicants for admission, aliens
who are present without having been admitted or paroled
(formerly referred to as aliens who entered without inspection)
will be eligible for bond and bond redetermination.”), and
every administration since has done the same, see Loper
Bright, 603 U.S. at 386 (“The longstanding practice of the
government—like any other interpretive aid—can inform a
court’s determination of what the law is.”); see also Barbosa
da Cunha, 175 F.4th at 91 (“[T]here can be no debate that the
Department of Justice’s contemporaneous understanding of the
statute was the same as Petitioner’s.”); Santillan Quiroz, 180
F.4th at 1248 (same). “[T]he fact that no President has ever
found such power in [a longstanding statute] is strong evidence
that it does not exist.” Learning Res., Inc. v. Trump, 146 S. Ct.
628, 643 (2026); see also Hernandez Alvarez, 175 F.4th at
1283-84 (“[T]hat five presidential administrations over three
32
would have done so. See Zemel v. Rusk, 381 U.S. 1, 11 (1965)
(“Under some circumstances, Congress[’s] failure to repeal or
revise in the face of such administrative interpretation has been
held to constitute persuasive evidence that that interpretation is
the one intended by Congress.”); see also Hernandez Alvarez,
175 F.4th at 1284 (“Where Congress revisits a law but leaves
a ‘longstanding administrative construction . . . untouched,’ the
lack of corrective action suggests Congress agreed with the
construction in place.” (alteration in original) (quoting Saxbe
v. Bustos, 419 U.S. 65, 74 (1974))); Guerrero Orellana, ---
F.4th---, 2026 WL 2352042, at *17 (same); Rodriguez
Vazquez, ---F.4th---, 2026 WL 2196424, at *26 (same). It did
not.26
decades have read IIRIRA to distinguish between arriving and
present aliens is ‘powerful evidence’ that the reading ‘is
natural and reasonable.’” (footnote and citation omitted));
Lopez-Campos, 175 F.4th at 725 (same); Cirrus Rojas, ---
F.4th---, 2026 WL 2198315, at *15 (same); Rodriguez
Vazquez, ---F.4th---, 2026 WL 2196424, at *25 (same);
Santillan Quiroz, 180 F.4th at 1236 (same).
26
Our interpretation that § 1225 was not intended to
result in the mandatory detention of millions of noncitizens is
also consistent with Congress’s recognition when passing
IIRIRA that the Immigration and Naturalization Service
(“INS”) would need to increase its detention capacity to
accommodate the mandatory detention of certain criminal
noncitizens under § 1226(c) and other provisions. See IIRIRA
§§ 303(a), 110 Stat. at 3009-585. Specifically, Congress
required INS to add at least 500 beds to its detention facilities,
IIRIRA § 386(a), 110 Stat. at 3009-653 (requiring increase to
“at least 9,000 beds before the end of fiscal year 1997); House
Report at 123 (noting INS intended to have 8,500 beds by
33
E
The Government’s interpretation of the relationship
1996), and paused implementation of parts of IIRIRA for two
years until it could accommodate this increase in detention.
See IIRIRA § 303(b), 110 Stat. at 3009-586.
Given the limited number of beds Congress mandated
to accommodate the increased number of criminal noncitizens
subject to removal without corresponding increases for non-
criminal noncitizens, we are skeptical IIRIRA also mandated
detention of, by Congress’s count, millions of other
noncitizens who had entered the country without admission.
See Chisom v. Roemer, 501 U.S. 380, 396 (1991) (“[I]f
Congress had such an intent, 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 . . . .”); see also
Barbosa da Cunha, 175 F.4th at 99 (Cabranes, J., concurring)
(“Congress gave the Attorney General two years during which
certain aliens could be released while five hundred beds were
added. Notably, Congress allowed no such grace period for the
mandatory detention of the two million aliens that Respondent
says then came within § 1225(b)(2)’s sweep. That discrepancy
is inexplicable.” (footnotes omitted)); Cirrus Rojas, ---F.4th---
, 2026 WL 2198315, at *14 (“[W]here Congress did expand
the INA’s mandatory-detention provisions, it did so carefully.
. . . That Congress did not enact a similar provision [expanding
detention capacity] for Section 1225(b)(2)(A)—which would
have mandated detention for at least two million people in
1996—is telling.”); Guerrero Orellana, ---F.4th---, 2026 WL
2352042, at *16-17 (same); Lopez-Campos, 175 F.4th at 731
(same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at
*23 (same); Hernandez Alvarez, 175 F.4th at 1283 (same).
34
between §§ 1225(b)(2)(A) and 1226 is incorrect for two
additional reasons. First, the Government’s view significantly
limits § 1226(a)’s scope such that almost all noncitizens
present without authorization would no longer be entitled to
bond. By the Government’s telling, § 1226 “is the exclusive
source of detention authority for the substantial category of
aliens who . . . were admitted but are now deportable.”
Appellants’ Br. at 48. In other words, the Government
contends that § 1226(a) is meant for the detention of
noncitizens in the United States who were previously admitted,
such as those who overstayed their visas. The statute’s text is
not so narrow as to only apply to those noncitizens. See
Hernandez Alvarez, 175 F.4th at 1278 (“While the
Government claims that § 1226(a) applies only to aliens who
were first admitted, nothing in the provision itself supports this
reading.”); Barbosa da Cunha, 175 F.4th at 73 (“[T]he
government’s position is untenable based on the plain text of
the statute, which obviously does not limit its application to
that narrower category of noncitizens.”); Guerrero Orellana, --
-F.4th---, 2026 WL 2352042, at *5 (same) (observing the
Government offers “no direct authority for this assertion”).
Second, it renders unnecessary recent amendments to §
1226. In early 2025, Congress passed the Laken Riley Act,
which expanded § 1226 to require mandatory detention of
“inadmissible” noncitizens involved in certain criminal
conduct in the United States. See Pub. L. No. 119-1, 139 Stat.
3 (2025) (codified at § 1226(c)(1)(E)). “Congress is presumed
to enact legislation with knowledge of the law and a newly-
enacted statute is presumed to be harmonious with existing law
and judicial concepts[,]” Mack v. Yost, 63 F.4th 211, 222 (3d
Cir. 2023) (citation omitted), so if Congress intended for all
noncitizens present without authorization to be detained under
35
§ 1225, it would not have added mandatory detention for only
certain criminal noncitizens within our borders.27 See
Hernandez Alvarez, 175 F.4th at 1279 (“[W]hy would the
Laken Riley Act target unadmitted aliens who were otherwise
already included within the ambit of § 1225(b)(2)(A) by later
adding a new and separate provision?”); Guerrero Orellana, --
-F.4th---, 2026 WL 2352042, at *14 (same); Barbosa da
Cunha, 175 F.4th at 87-88 (same); Rodriguez Vazquez, ---
F.4th---, 2026 WL 2196424, at *20 (same); Santillan Quiroz,
180 F.4th at 1247 (same); see also Cirrus Rojas, ---F.4th---,
2026 WL 2198315, at *15 (“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.’” (citation
27
The Government insists that § 1226(c) complements
the statutory scheme by preventing the parole of criminal
noncitizens detained under § 1225(b)(2)(A) who could
otherwise be released for “humanitarian reasons or significant
public benefit.” § 1182(d)(5)(A). This misreads § 1226(c),
which “is simply a limit on the authority conferred by
subsection [§ 1226](a).” Nielsen v. Preap, 586 U.S. 392, 409
(2019). Indeed, nothing in any statute suggests that Congress
intended § 1226(c) to govern parole, which is addressed in an
entirely different portion of the INA. See Hernandez Alvarez,
175 F.4th at 1280 (“If Congress meant to limit the Attorney
General’s authority [using § 1226(c) in amending parole
provisions relating to § 1225], it could well have done so in
either § 1225(b)(2) or § 1182(d)(5)—not in an ancillary
provision that says nothing about either part of the statute.”);
Santillan Quiroz, 180 F.4th at 1247 (same).
36
omitted)).28 Put plainly, the Government’s reading results in
“a serious statutory redundancy.” Hernandez Alvarez, 175
F.4th at 1280. If one were to read § 1225(b)(2)(A) as
mandating detention of unadmitted noncitizens within our
borders, then § 1226(c) would be almost wholly unnecessary.
See Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *20
(“[T]he redundancy in § 1226(c) introduced by the
government’s interpretation creates an additional cloud over
the government’s account of the statutory text.”); Barbosa da
Cunha, 175 F.4th at 87-88 (same); Cirrus Rojas, ---F.4th---,
2026 WL 2198315, at *12 (same); Santillan Quiroz, 180 F.4th
at 1247 (same). By amending § 1226(c), Congress reiterated
that bond is unavailable to some unadmitted noncitizens within
the country. At the same time, § 1225(b)(2)(A) continues to
mandate detention for noncitizens at the border. See
Hernandez Alvarez, 175 F.4th at 1280-81. Because §
1225(b)(2)(A) does not apply to Petitioners as they were not
detained at the border, their detentions were unlawful under
that provision of the INA.
28
The Government argues that the time between 1996
and 2025 means inconsistencies between §§ 1225 and 1226
following the Laken Riley Act are not meaningful guides to
our interpretation. This argument overlooks that Congress
enacts new law with the knowledge of existing law. Mack, 63
F.4th at 222. Thus, we decline to conclude that Congress was
unfamiliar with the law it was amending merely due to the
passage of time. See Barbosa da Cunha, 175 F.4th at 88
(recognizing surplusage “canon applies . . . even though the
Laken Riley Act was enacted later in time”).
37
III
We also conclude that Petitioner’s detention without
bond hearings violates the Due Process Clause.
The Supreme Court has recognized the Fifth
Amendment’s “Due Process Clause applies to all ‘persons’
within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001); Mathews v.
Diaz, 426 U.S. 67, 77 (1976) (“Even one whose presence in
this country is unlawful, involuntary, or transitory is entitled to
[the due process of law].”); Shaughnessy v. United States ex
rel. Mezei, 345 U.S. 206, 212 (1953) (“[Noncitizens] who have
once passed through our gates, even illegally, may be expelled
only after proceedings conforming to traditional standards of
fairness encompassed in due process of law.”); see also
Barbosa da Cunha, 175 F.4th at 94 (“Petitioner is protected by
the Fifth Amendment’s Due Process Clause . . . .”); Santillan
Quiroz, 180 F.4th at 1250 (“[T]he Supreme Court has never
said that due process protections fall away completely in the
immigration context. Quite the opposite.”); Lopez-Campos,
175 F.4th at 732 (same); Cirrus Rojas, ---F.4th---, 2026 WL
2198315, at *16 (same).
The Government relies on Department of Homeland
Security v. Thuraissigiam, 591 U.S. 103 (2020) to argue that
Petitioners are only entitled to due process as afforded by
statute. Their reliance on Thuraissigiam is misplaced as that
case concerned the “entry fiction” doctrine as applied to a
noncitizen apprehended within twenty-five yards of the border,
i.e. “at the threshold of initial entry.” Id. at 107. The Court
determined that the noncitizen should be treated as if he never
38
entered the country such that he “cannot claim any greater
rights under the Due Process Clause” than those provided by
statute. Id. However, the Court also recognized that other
noncitizens “who have established connections in this country
have due process rights in deportation proceedings.” Id.
Because Petitioners here have lived in the United States for
decades, they have “established connections” in the country
and are entitled to due process rights beyond those provided to
noncitizens at the border. See Barbosa da Cunha, 175 F.4th at
86 (“While the [entry fiction] doctrine may extend further than
the twenty-five yards and twenty-four hours at issue in
[Thuraissigiam], no one could seriously contend that it applies
to a noncitizen like Petitioner who has been living in the United
States for decades.” (citation omitted)); Rodriguez v. Ortega,
180 F.4th 702, 709 (5th Cir. 2026), reh’g en banc granted,
opinion vacated, 26-50183, 2026 WL 2014647 (5th Cir. July
10, 2026). (“The Government is trying to equate that to the
entry of hundreds of miles and years of residence. Such
supposed equivalence is far more than a convenient legal
fiction. It is a complete fantasy.”); Lopez-Campos, 175 F.4th
at 733-34 (“Thuraissigiam merely reinforces our longstanding
understanding that noncitizens ‘on the threshold of initial entry
stand[ ] on a different footing’ than those who have ‘passed
through our gates.’ It does not control where, like in the instant
case, noncitizens have resided within the United States for
years.” (alteration in original) (citation omitted)); Cirrus Rojas,
---F.4th---, 2026 WL 2198315, at *16 n.7 (same).
Thus, we must determine whether detention without
bond of noncitizens who have lived in the United States for
extended periods of time with no criminal records violates due
process. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972)
(“Once it is determined that due process applies, the question
39
remains what process is due.”). To assess Petitioners’ due
process claim, we consider: (1) “the private interest that will
be affected by the official action,” (2) “the risk of an erroneous
deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural
safeguards,” and (3) “the Government’s interest, including the
function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would
entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see
also Rodriguez, 180 F.4th at 725 (applying Mathews to assess
“‘the process that is constitutionally due’ before aliens may be
deprived of their liberty interests” (citation omitted)). As
explained herein, these factors show that Petitioners have been
deprived of due process.
First, mandatory detention implicates Petitioners’
“constitutionally protected interest in avoiding physical
restraint.” Kansas v. Hendricks, 521 U.S. 346, 356 (1997);
Zadvydas, 533 U.S. at 690 (“Freedom from imprisonment—
from government custody, detention, or other forms of
physical restraint—lies at the heart of the liberty that [the Due
Process] Clause protects.”); Hamdi v. Rumsfeld, 542 U.S. 507,
529 (2004) (recognizing “the interest in being free from
physical detention by one’s own government” as “the most
elemental of liberty interests”); see also Rodriguez, 180 F.4th
at 725 (acknowledging similarly situated petitioners had “a
cognizable interest in being free from unjustified physical
restraint”).
Second, the absence of an opportunity for a neutral
decisionmaker to assess whether Petitioners are dangerous, see
United States v. Salerno, 481 U.S. 739, 748 (1987) (“[W]e
have found no absolute constitutional barrier to detention of
40
potentially dangerous resident [noncitizens] pending
deportation proceedings.”), or flight risks, see Bell v. Wolfish,
441 U.S. 520, 534 (1979) (acknowledging that pre-trial
detainees may be held to ensure they appear for trial), presents
a high risk of erroneously depriving Petitioners of their liberty
interest. See Rodriguez, 180 F.4th at 720 n.8 (“Dangerousness
and flight risk have long been viewed as justifications for
detention in immigration proceedings.” (citing Leng May Ma
v. Barber, 357 U.S. 185, 190 (1958) (“Physical detention of
aliens . . . is generally employed only as to security risks or
those likely to abscond.”))).29
29
The Government contends that dangerousness and
flight risk should not be considered because these facts are not
relevant to § 1225, and principally relies on Connecticut
Department of Public Safety v. Doe, 538 U.S. 1, 8 (2003)
(“Plaintiffs who assert a right to a hearing under the Due
Process Clause must show that the facts they seek to establish
in that hearing are relevant under the statutory scheme.”) for
their argument. Doe is inapposite because it did not disturb the
Supreme Court’s caselaw on confinement but rather concerned
a plaintiff’s reputational interest when he was required to
register as a sex offender following a criminal conviction,
where the facts concerning his conduct were fully aired. Id. at
4, 6. Given that Doe presented a situation where the party’s
dangerousness was already considered and due process
protection concerned reputation rather than liberty, it does not
apply in a situation like this one, where no evidence on either
flight or danger was adduced before their liberty was infringed.
See Foucha v. Louisiana, 504 U.S. 71, 86 (1992) (requiring
state to establish dangerousness in cases of civil confinement);
see also Rodriguez v. Ortega, 180 F.4th 702, 716-17 (5th Cir.
41
Third, the Government’s legitimate interest in
preventing the release of dangerous noncitizens and those who
might fail to appear at future hearings, Zadvydas, 533 U.S. at
690, does not outweigh the other two factors here, particularly
when these non-criminal individuals were detained absent
evidence that either is dangerous or a flight risk, and the
Government has not argued that bond hearings are unduly
burdensome. See Rodriguez, 180 F.4th at 725 (“[A]s long-
time residents of this country with children who are citizens,
there is no evidence that [petitioners] are a flight risk . . . . They
have no criminal background or history of violence and appear
to have each peaceably lived in this country, obedient to its
laws, for over a decade.”).
Thus, the Mathews factors weigh in Petitioners’ favor,
and their detentions without bond hearings violated their
procedural due process rights.30
IV
For the foregoing reasons, we will affirm.
2026), reh’g en banc granted, opinion vacated, 26-50183, 2026
WL 2014647 (5th Cir. July 10, 2026).
30
Because Petitioners prevail on their procedural due
process claims, we need not also address their substantive due
process arguments to the extent they were fully presented on
appeal.
42
MASCOTT, Circuit Judge, dissenting.
The majority opinion holds that although aliens
approaching the United States at an authorized border entry
point may be held without bond, aliens slipping undetected
past the border may not. I respectfully dissent.
I
Under the terms of the Immigration and Nationality Act
(INA) and its 1996 amendments (IIRIRA),1 all aliens “seeking
admission” as applicants for United States admission are
subject to mandatory detention without bond while their lawful
presence claims are adjudicated.2 According to the majority,
people approaching the border at an authorized location are
“seeking admission” because of their open and intentional
request for entry and lawful admission.3 But, on its account,
aliens who crossed the border undetected by authorities until
years later are not “seeking admission” within the statute’s
terms despite their desire to remain in the United States.4
Under the majority’s view, such individuals were not actively
trying to gain legal status here at the time of their detention.5
Rather, they were content to stay here illegally until they were
discovered. Therefore, those individuals are not technically
“seeking” admission and fall outside the INA’s mandatory
detention provisions for admission applicants under the
majority’s semantic view.6
The majority’s interpretation is inconsistent with both
the text and structure of IIRIRA and with any ordinary, or
1
See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
110 Stat. 3009-546 (1996).
2
See 8 U.S.C. § 1225(b)(2)(A) (“[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 admitted, the alien shall be
detained for a proceeding under section 1229a of this title.”).
3
See Maj. Op. at 16.
4
See 8 U.S.C. § 1225(b)(2)(A); Maj. Op. at 9–22.
5
Maj. Op. at 13.
6
See 8 U.S.C. § 1225(b)(2)(A); Maj. Op. at 9–22.
1
commonsense, understanding of the phrase “seeking
admission.”7 It also would subject individuals who lawfully
ask permission to enter the country to much tougher rules than
people who submit formal requests to stay only once detained
or inspected by immigration officials.8
This is not the system Congress enacted in its 1996
reforms to the immigration system.9 The District Courts’
7
Cf. Jennings v. Rodriguez, 583 U.S. 281, 293–94 (2018)
(plurality opinion) (“eschew[ing] ‘uncritical literalism’” in
tension with text, context, and structure, “leading to results that
‘no sensible person could have intended’” (quoting Gobeille v.
Liberty Mut. Ins. Co., 577 U.S. 312, 319 (2016))); see also
FERC v. Elec. Power Supply Ass’n, 577 U.S. 260, 278 (2016)
(adopting a “common-sense construction” of the Federal
Power Act’s language).
8
Maj. Op. at 23.
9
See Buenrostro-Mendez v. Bondi, 166 F.4th 494, 503 (5th Cir.
2026), petition for cert. filed, No. 26-43 (U.S. July 2, 2026);
Avila v. Bondi, 170 F.4th 1128, 1134 (8th Cir. 2026) (holding
that Petitioners detained for removal proceedings after crossing
the border without inspection are subject to § 1225’s
mandatory detention provision); see also Guerrero Orellana v.
Moniz, No. 25-2152, 2026 WL 2352042, at *17 (1st Cir. Aug.
13, 2026) (Dunlap, J., dissenting); Lopez-Campos v. Raycraft,
175 F.4th 713, 735 (6th Cir. 2026) (Murphy, J., dissenting),
petition for cert. filed, No. 25-1415 (U.S. June 22, 2026);
Cirrus Rojas v. Olson, No. 25-3127, ---F.4th---, 2026 WL
2198315, at *17 (7th Cir. July 30, 2026) (Sykes, J., dissenting);
Rodriguez Vazquez v. Bostock, No. 25-6842, ---F.4th---, 2026
WL 2196424, at *26 (9th Cir. July 30, 2026) (Bea, J.,
dissenting); Hernandez Alvarez v. Warden, 175 F.4th 1258,
1285 (11th Cir. 2026) (Lagoa, J., dissenting). The Second and
Tenth Circuits held the other way, along with split panels on
the First, Sixth, Seventh, Ninth, and Eleventh Circuits. See
Barbosa da Cunha v. Freden, 175 F.4th 61, 84 (2d Cir. 2026),
petition for cert. filed, No. 26-104 (U.S. July 23, 2026);
Santillan Quiroz v. Mullin, 180 F.4th 1226, 1250–51 (10th Cir.
2026); Guerrero Orellana, 2026 WL 2352042, at *3; Lopez-
Campos, 175 F.4th at 722; Cirrus Rojas, 2026 WL 2198315,
at *2; Rodriguez Vazquez, 2026 WL 2196424, at *3;
Hernandez Alvarez, 175 F.4th at 1262; cf. Rodriguez v. Ortega,
2
decisions releasing Petitioners should be reversed. Congress
broadly defined the class of “applicants for admission” in 1996
and generally required detention without bond while aliens’
claims to entry are being evaluated.10 That detention scheme,
including Petitioners’ detention here, is consistent with the
constitutional due process principles articulated by the
Supreme Court.11 I would reverse both orders and remand.
II
As the majority opinion details, both Petitioners initially
crossed the United States border well more than a decade ago.12
They entered without stopping at an authorized entry point and
requesting inspection.13 Petitioner Gabriel Antonio Buele
Morocho was detained in fall 2025 by Immigration and
Customs Enforcement officers who charged him with civil
180 F.4th 702,717 (5th Cir.), reh’g en banc granted, opinion
vacated, 181 F.4th 608, 609 (5th Cir. 2026) (finding a due
process problem with a previous panel’s interpretation of the
statute, even though that earlier panel had previously found
such detentions were consistent with statutory authority and
indeed mandated by it).
10
See 8 U.S.C. § 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 arrival 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
applicant for admission.”); see also 8 C.F.R. § 235.3(b)
(allowing expedited removal without any process or
proceedings of certain arriving aliens, rather than allowing
their release within the country); id. § 241.25(c) (“Any alien
ordered excluded who boarded an aircraft or vessel in foreign
contiguous territory or in any adjacent island shall be deported
to such foreign contiguous territory or adjacent island if the
alien is a native, citizen, subject, or national of such foreign
contiguous territory or adjacent island, or if the alien has a
residence in such foreign contiguous territory or adjacent
island.”); infra Part III for more interpretive discussion.
11
See infra Part IV.
12
See Appellant’s Br. at 18; Appellees’ Br. at 15.
13
See Appellant’s Br. at 18.
3
inadmissibility for presence without admission under 8 U.S.C.
§ 1182(a)(6)(A)(i).14 Petitioner Wanderson Lopes de Andrade
entered without inspection in 2014 and has lived in the United
States since that time.15 He was ordered removed in absentia
in 2016 and briefly detained in 2019 before his release during
the pandemic on an order of supervision.16 Subsequently, he
applied for asylum, an application that remains pending.17
Both men challenged the Government’s statutory
authority for their detention without bond under § 1225(b)(2).
Mr. Buele Morocho was detained for 56 days.18 Mr. Lopes de
Andrade was detained for 24 days.19 Mr. Lopes de Andrade
also contended that his detention violated constitutional due
process because it lacked a hearing on the questions of whether
he posed a flight risk or danger to the community20—even
though the Supreme Court previously held that individualized
bond determinations were not constitutionally required for a
class of aliens mandatorily detained under a separate provision
of the INA.21
Both Petitioners contend that the Government was
required to detain them instead under § 1226(a), a provision
applicable generally to “aliens” that permits the Attorney
General to release aliens from detention on bond during their
inadmissibility or deportation hearings.22 But in 1996,
Congress enacted significant reforms to the immigration laws
in IIRIRA, eliminating the INA’s procedural distinctions based
on whether an alien had crossed the border and instead
14
See id.; J. App’x at 21; see also 8 U.S.C. § 1182(a)(7).
15
J. App’x at 5–6.
16
Id. at 6.
17
Id.; see also generally 8 U.S.C. § 1158(a)(2) (excluding from
asylum anyone whose application comes more than one year
after their entry subject to exceptions just for material changed
circumstances or “extraordinary” causes justifying delay).
Individuals who fall outside the time bar without establishing
qualification for one of the two exceptions are statutorily
barred from asylum applications. See 8 U.S.C. § 1158(a)(2).
18
See Appellant’s Br. at 18–19 (from September 30, 2025, to
November 24, 2025).
19
See id. (from January 20, 2026, to February 12, 2026).
20
See J. App’x at 15.
21
See Demore v. Kim, 538 U.S. 510, 528 (2003).
22
See 8 U.S.C. § 1226(a)(1)–(2).
4
distinguishing between deportability for previously admitted
aliens and removal pre-admission. Previously, aliens who
approached the border at an authorized entry point were subject
to detention without bond, and aliens who entered
unauthorized and were later detained were afforded bond
proceedings.23 The 1996 amendments eliminated those
distinctions, placing all aliens who have not yet been admitted
under the category of “applicants for admission.”24 And 8
U.S.C. § 1225(b)(2)(A) requires the detention of “applicants
for admission” without bond under § 1229a.25
The District Courts agreed with Mr. Buele Morocho and
Mr. Lopes de Andrade that they should have been detained
under § 1226(a) rather than § 1225(b)(2)(A).26 The courts
released both Petitioners into the interior of the United States
with no legal determination on their entitlement to remain in
the United States.27 Those decisions were wrong. I would
reverse.
III
Under well-trodden principles of statutory
interpretation, the Government correctly concluded that
Petitioners are aliens “seeking admission” to the United States,
and therefore § 1225(b)(2)(A) authorizes their mandatory
23
See Buenrostro-Mendez, 166 F.4th at 498–99 (“Before 1996,
the detention provisions in the Immigration and Nationality
Act (INA) distinguished between aliens who presented at a port
of entry and those who evaded inspection. Aliens who arrived
at a port of entry were subject to mandatory detention until the
conclusion of the exclusion process and could not request
release on bond. In contrast, aliens who evaded inspection and
were apprehended months or years later could seek release on
bond pending deportation proceedings.” (citations omitted)).
24
See 8 U.S.C. § 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 arrival 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
applicant for admission.”).
25
See id. § 1225(b)(2)(A).
26
See J. App’x at 16; id. at 25.
27
See id.
5
detention for the duration of the Government’s consideration
of their claims of entitlement to remain in the United States.28
In 1996, Congress and the President enacted reforms to the
INA, bringing parity to detention treatment for all aliens who
had not yet acquired lawful status in the United States and,
consequently, are “applicants[s] for admission” to the country.
Petitioners fall squarely within that group, under the text and
structure of the INA and the 1996 amendments to it in IIRIRA.
But under IIRIRA, there is more than one scheme for
evaluating an alien’s lawful entitlement to presence in the
United States. Separate provisions govern specific forms of
relief, like grants of asylum or the withholding of removal.29
But the two primary procedural schemes for evaluating a
general right to be admitted or remain are in (1) § 1225(b)(2)
working in tandem with § 1229a removal proceedings and (2)
§ 1226(a).30
The parties agree that § 1225(b)(2)(A) applies to
standard applicants for admission who approach the border at
an authorized entry point.31 A second detention scheme in
§ 1226(a) applies to aliens who have been lawfully present in
the United States but now face potential deportation for one
28
See 8 U.S.C. § 1225(b)(2); id. § 1225(a)(1); id.
§ 1101(a)(13).
29
Id. § 1158 (asylum); id. § 1231 (withholding of removal).
30
See id. § 1225(b)(2); id. § 1226(a); id. § 1229a. Other
provisions, like 8 U.S.C. § 1228, govern more specific
circumstances, such as aliens subject to expedited removal
proceedings for convictions of aggravated felonies. See id.
§ 1228(a). And § 1225(b)(1) authorizes development of an
expedited removal scheme for aliens detained within their first
two years of continuous presence in the country. Id.
§ 1225(b)(1)(A)(iii).
31
See Appellant’s Br. at 38; Appellees’ Br. at 19; J. App’x at
13 (the District Court concluding that those “taking active steps
to obtain entry into the United States” are detainable under this
provision); see also 8 U.S.C. § 1225(a)(1) (including within
applicants for admission an alien “who arrives in the United
States (whether or not at a designated port of arrival[)]”); id.
§ 1225(b)(2)(A) (referring to “an applicant for admission” who
is “seeking admission”).
6
reason or another.32 Petitioners and the Government disagree
about whether § 1226(a)’s general reference to “aliens” means
the Government must apply § 1226 to Petitioners or whether
Petitioners who have not yet been admitted to the country but
entered years ago are more appropriately subject to
§ 1225(b)(2)(A).
Section 1226(a) is preferable, in Petitioners’ view,
because it permits the Attorney General to release aliens on
bond during the proceedings adjudicating their entitlement to
remain in the country.33 Section 1225(b)(2)(A), on the other
hand, mandates detention without bond. Petitioners contend
the Executive Branch lacked authority to hold them under
§ 1225(b)(2)(A) and should have continued applying § 1226(a)
to aliens detained in the country’s interior instead—even where
those aliens had never acquired lawful admission status or
lawful status of any kind. But they misperceive the statutory
scheme. Section 1226(a) references “alien[s]” in general,
potentially extending to Petitioners here. But § 1225(b)(2)(A)
is more specific—it mandates detention under § 1229a for all
“applicant[s] for admission” where an examining officer
determines the alien “seeking admission” is “not clearly and
beyond a doubt entitled to be admitted.”34
A
The answer to Petitioners’ dispute with the Government
over their detention pursuant to § 1225(b)(2)(A) is readily
apparent within the text of IIRIRA. In full, § 1225(b)(2)(A)
provides:
Subject to subparagraphs (B) and (C), in the case
of an alien who is an applicant for admission, if
32
Id. § 1226(a) (authorizing, generally, the Attorney General
to arrest and detain “an alien . . . pending a decision on whether
the alien is to be removed from the United States” without
specifying anything specific about the alien’s admission status
(emphasis added)).
33
Id. (“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. . . . [T]he
Attorney General—(2) may release the alien on—(A) bond . .
. or (B) conditional parole . . . .”).
34
Id. § 1225(b)(2)(A).
7
the examining immigration officer determines
that an alien seeking admission is not clearly and
beyond a doubt entitled to be admitted, the alien
shall be detained for a proceeding under section
1229a of this title.35
Petitioners contend that the Government may not hold
them under § 1225(b)(2)(A) because they are not “seeking
admission” under the statute.36 Their aim is different, they say,
from those who presented themselves at the border and
followed the statutory procedures for admission. They did not
want lawful admission then, and they claim they do not want it
now. So on their hyper-technical reading of the statute, they
cannot be “seeking admission,” and the Government cannot
apply to them the ordinary requirements that everyone
forthrightly requesting admission at the border must follow.37
In their view, after Petitioners’ many years of not following the
rules, they’re entitled to a bond hearing, so they can seek
release from detention while their claims are adjudicated38—
even though similarly situated people, who instead first head
to the United States border to ask for entry, are mandatorily
detained while the Government sorts through their entry
claims.39
35
Id.
36
See Appellees’ Br. at 19 (“The statute applies only to those
noncitizens who are seeking admission at the border:
noncitizens who arrive at a port of entry or who arrive between
those ports but have not yet effected an entry.”).
37
See id. at 33.
38
See id. at 22–32.
39
See 8 U.S.C. § 1225(b)(2); see also Lopez-Campos, 175
F.4th at 735 (Murphy, J., dissenting) (“Our country’s
immigration laws once encouraged illegal behavior. If
immigrants lawfully stopped for an inspection at our border,
the Immigration and Nationality Act (INA) required the
government to detain them pending a hearing on their right to
be here. But if immigrants unlawfully snuck across the border,
they could get released on bond pending such a hearing. In
1996, Congress eliminated this discrepancy. It told courts that
they must treat both arriving immigrants at the border and
present immigrants who entered illegally as ‘applicant[s] for
admission’ under the INA.” (alteration in original)).
8
B
Grounded in the text and structure of the applicable
statutory scheme, the Government correctly interprets IIRIRA
to mandate Petitioners’ evaluation under § 1225.40 This puts
Petitioners at parity with other applicants for admission—the
subset of those who, in contrast to Petitioners, properly
presented themselves at the border before entry. More
importantly, the Government’s interpretation is correct under
the law and those mandated statutory procedures accord with
Supreme Court precedent on the constitutional strictures of due
process as further detailed below.
Under the statute’s terms and the text of
§ 1225(b)(2)(A)’s mandatory detention instruction, the
question turns on whether Petitioners fall within the class of
“applicants for admission” covered by the text of that
provision. The majority and Petitioners claim the otherwise
broad provision is narrowed by the subsequent phrase “an alien
seeking admission,” creating essentially a subset of the
applicant class to whom § 1225(b)(2)(A) exclusively applies.41
This reading is inconsistent with IIRIRA’s terms, the statutory
structure, the relevant enactment history, and the use of the
terms “seeking” and variants of “apply” and “applicant”
elsewhere in the statutory scheme, as well as § 1225’s own
internal instructions for how its provisions are to be read and
applied.
§ 1225(a)
Under IIRIRA, Congress broadly defined the category
of “applicant for admission” at issue in this case. In a
“deem[ing]” clause, Congress designated across the board
several broad categories of aliens as such “applicants.” In
particular, § 1225(a)(1) provides: “An alien present in the
United States [(i)] who has not been admitted or [(ii)] who
arrives in the United States (whether or not at a designated port
of arrival 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
applicant for admission.”42
40
See Johnson v. Guzman Chavez, 594 U.S. 523, 542 (2021).
41
Maj. Op. at 11.
42
8 U.S.C. § 1225(a)(1).
9
This provision plainly includes aliens not yet
admitted43—i.e., those not yet granted legal status in the United
States—as well as those who are just arriving. All aliens in
those groups are “deemed” applicants for admission. And that
“deeming” clause expressly has broad effect—the status of
“applicant[] for admission” carries with the arriving or not-yet-
admitted aliens all the way through “this chapter.”44 The
chapter containing the deeming clause is Chapter 12 of Title 8
of the U.S. Code; it spans § 1101 through § 1537 of the INA,
and includes provisions addressing admission qualifications,
change of status, inspection, exclusion, removal, nationality
and loss of nationality, numerous procedural requirements, and
many others.45
Petitioners concede they are applicants under this
deeming clause.46 It would be nearly impossible for them to
do otherwise. They do not claim to have ever been lawfully
admitted to the United States. Just like the aliens desiring
admission in the United States who present themselves
transparently at the border, Petitioners are “present in the
United States,” they “ha[ve] not been admitted” previously,
and therefore the statute “deem[s]” them “applicant[s] for
admission” for purposes of all of Chapter 12, whatever that
entails.47
43
See id. § 1101(a)(13)(A) (“The terms ‘admission’ and
‘admitted’ mean, with respect to an alien, the lawful entry of
the alien into the United States after inspection and
authorization by an immigration officer.”).
44
Id. § 1225(a)(1).
45
See generally id. §§ 1101–1537; see also, e.g., id. §§ 1181–
1189 (admission qualifications); id. §§ 1221–1232 (inspection,
examination, exclusion, and removal); id. §§ 1401–1489
(national and loss of nationality); id. § 1521–1522 (refugees).
46
See Bond v. United States, 572 U.S. 844, 871 (2014) (Scalia,
J., concurring in the judgment) (“When a statute includes an
explicit definition, we must follow that definition, even if it
varies from that term’s ordinary meaning.” (quoting Stenberg
v. Carhart, 530 U.S. 914, 942 (2000))).
47
The majority does not significantly grapple with the
implications and operative effect of § 1225(a)(1) extending its
“applicant” designation throughout all of Chapter 12. Indeed,
the majority essentially would abandon the applicant
designation of Petitioners—or any alien not formally in a
10
The disagreement is principally over the next step.
Section 1225(a)(1) was enacted as part of the 1996
IIRIRA reforms. It was the tip of the spear for changing the
bifurcation of the immigration scheme from entry versus
exclusion to admission versus deportability. Prior to 1996,
immigration status and relevant procedures attached
significant distinctions to whether an alien had crossed the
border and entered the country or whether the alien stood
outside the country and was subject to exclusion.48 Now, under
current law, status turns on inadmissibility versus
deportability. Inadmissibility, as § 1225(a)(1) defines its
mirror image, “applicant for admission,” is for aliens who have
not yet acquired legal status. Deportability is applicable to
individuals who had acquired legal status but might no longer
have entitlement to remain lawfully present.49
Rather than distinguishing among classes of aliens and
the procedures applicable to them based on geographic
location and where the alien stands in relation to the border,
like the majority and Petitioners’ test, the 1996 statutory
reforms shifted to evaluation of whether an alien had
previously acquired lawful presence or admission status.50 As
the Supreme Court noted in Department of Homeland Security
present application process—any further than just the bounds
of § 1225(a)(1) itself. Maj. Op. at 9–22. For what purpose
have Petitioners been deemed “applicants for admission” if not
to fall within applicant instructions and requirements contained
within § 1225 itself? Immediately following § 1225(a), in
§ 1225(b)(2)(A), Congress addressed “applicant[s] for
admission” and the mandatory-detention-without-bond
scheme before the court today. See 8 U.S.C. § 1225(b)(2)(A).
48
See Buenrostro-Mendez, 166 F.4th at 498–99.
49
See, e.g., 8 U.S.C. § 1229a(a)(1) (“An immigration judge
shall conduct proceedings for deciding the inadmissibility or
deportability of an alien.”); id. § 1229a(a)(2) (“An alien placed
in proceedings under this section may be charged with any
applicable ground of inadmissibility under section 1182(a) of
this title or any applicable ground of deportability under
section 1227(a) of this title.”); see also generally id. § 1227
(establishing criteria making aliens “deportable” that include
losing admissibility or becoming “inadmissible” at the time of
their entry or adjustment of status).
50
See Buenrostro-Mendez, 166 F.4th at 498–99.
11
(DHS) v. Thuraissigiam, under the statutory scheme even an
“alien who tries to enter the country illegally” is nonetheless
“treated as an ‘applicant for admission.’”51 Congress did not
want there to be a “perverse incentive to enter at an unlawful
rather than a lawful location.”52
In addition to this enactment backdrop, at least three
features of the text of this “deem[ing]” language are
particularly pertinent to further unpack the question here. First,
“deemed” is a legal command essentially creating a legal status
of “applicant for admission” that applies to a broad class.
Congress did not direct courts to ask, on a case-by-case basis,
whether an alien colloquially has put forward an application
for admission. It assigned a legal status to all present in the
United States who had not yet acquired legal admission and
directed that “applicant for admission” assignment hold “for
purposes of this chapter,” Chapter 12.53 The provision creates
a status; it does not invite an inquiry into one.54 And
Congress’s broad assignment of the designation throughout the
entirety of Chapter 12 extends to § 1225(b)(2) governing
adjudication of Petitioners’ claims.55
Second, the deeming clause contains no temporal
limitation. The phrase “present in the United States” is
unqualified. It is unbounded by length of presence, proximity
to the border, or active steps to obtain status. An alien who
51
591 U.S. 103, 140 (2020).
52
See id.
53
See 8 U.S.C. § 1225(a)(1).
54
Sturgeon v. Frost, 587 U.S. 28, 47 (2019) (defining
“deemed” as a drafting device used “to establish a legal
fiction”); id. (warning that the deeming clause cannot be read
so as to deprive it of its “point” or to turn the provision into “an
inkblot”).
55
Cf. Buenrostro-Mendez, 166 F.4th at 502–08; Avila, 170
F.4th at 1133–38; see also Hernandez Alvarez, 175 F.4th at
1287–89 (Lagoa, J., dissenting) (noting that § 1225(a)(1)’s use
of “deemed” creates a legal fiction that carries the ordinary
attributes of the assigned status, so that one deemed an
applicant for admission is treated as seeking admission);
Lopez-Campos, 175 F.4th at 740–41 (Murphy, J., dissenting)
(arguing that Congress’s direction to treat an unadmitted alien
as an applicant for admission “for purposes of” the INA
operates by law, making that alien one “seeking admission”).
12
entered without inspection in 2001 is, consequently, as a matter
of statutory definition, no less an applicant for admission today
than an alien who entered last week.
Third, § 1225(a)(1) broadly extends its definition,
throughout Chapter 12 of the INA spanning from 8 U.S.C.
§ 1101 through § 1537 and of course including within it
§ 1225(b)(2)(A). The Court must give the term “applicant for
admission” the same meaning in (b)(2)(A) that the statute
supplies in (a)(1), throughout all of § 1101 through § 1537,
spanning the entirety of Chapter 12. Section 1225(a)(1)
supplies an explicit definition of “applicant for admission,”
and that definition governs wherever the defined term appears
in the Chapter.56
The majority’s analysis acknowledges (a)(1) but gives
the first prong surprisingly little work to do in the detention
provision that immediately follows.57 On its reading, the
universe of aliens “present in the United States who ha[ve] not
been admitted” are deemed applicants for admission by
Congress’s express command in (a)(1).58 Yet that broad
categorical depth carries no weight and is of no consequence.
Under Petitioners’ and the majority’s interpretation, one’s
status as “applicant for admission” does not even carry over to
subsequent subsections within 8 U.S.C. § 1225, the section
creating the category. Although Congress deems a broad
group legally to be “applicant[s] for admission” in § 1225(a)(1)
for purposes of the whole chapter, by the next subsection,
§ 1225(b), the majority’s read is that the statute’s reference to
the class “applicant for admission” sets aside no independently
significant group.59 For instance, § 1225(b)(2), in the
majority’s view, applies only to those actively pursuing formal
requests for legal admission, not to the class of “applicant[s]”
designated earlier at the start of the statutory section in
§ 1225(a)(1)—even though § 1225(b)(2) begins by referring to
that admission “applicant” group.60 Under that reading, the
56
See Stenberg, 530 U.S. at 942 (“When a statute includes an
explicit definition, we must follow that definition, even if it
varies from that term’s ordinary meaning.”).
57
Maj. Op. at 9–10.
58
Id.
59
Id. at 12–22.
60
See 8 U.S.C. § 1225(b)(2)(A) (“Subject to subparagraphs (B)
and (C), in the case of an alien who is an applicant for
13
first prong of (a)(1) becomes a label without consequence
inside the very statute it introduces. That is difficult to
reconcile with the breadth of the text Congress chose, and it is
in tension with the Supreme Court’s instruction that a deeming
clause must have a “point.”61
Further, under the majority’s reading, the § 1225(b)
reference to “applicant[s] for admission” ultimately is
surplusage.62 They read the statute to require only a separate
group, those actively “seeking admission,” to be placed in
mandatory detention. But then the § 1225(b)(2)(A) reference
to the § 1225(a)(1) applicant class is meaningless and
unnecessary. The only aliens seeking admission would be
those who “ha[ve] not yet been admitted.” So why reference
the §1225(a)(1) applicant class at all, if “seeking admission”
simply designates an entirely different group or even subset of
(a)(1)? Section 1225(b)(2)(A) could merely have begun, “[I]f
the examining immigration officer determines that an alien
seeking admission is not clearly and beyond a doubt entitled to
be admitted, the alien shall be detained for a proceeding under
section 1229a of this title.” There are no terms in
§ 1225(b)(2)(A) that require anything of “applicants for
admission” separate from the group of aliens “seeking
admission.” Moreover, the subsection ends with a reference to
“the alien” using a definite article, with two provisions
containing the term “alien” preceding it—“an alien who is an
applicant for admission” and “an alien seeking admission.”
The singular definite reference to “the alien” in the final clause
suggests the earlier two “alien” groups are one and the same
for purposes of § 1225(b)(2)(A).
Further, directly contrary to the majority’s suggestion
that the group “seeking admission” is significantly narrow than
the “applicant” group, those “seeking admission” in Chapter
12 include . . . None of those groups are “applicant[s] for
admission, if the examining immigration officer determines
that an alien seeking admission . . . .”).
61
Sturgeon, 587 U.S. at 61 (“There is no reason to pretend that
inholdings are not part of a park if they can still be regulated as
parklands.”). The same logic applies here: There is no reason
to deem an alien an applicant for admission if the deeming
carries no consequence in the very chapter “for purposes of”
which the deeming operates.
62
Maj. Op. at 13.
14
admission. This suggests those “seeking admission”
throughout the INA may actually be a larger group than the
“applicant[s]”—flipping the majority view of 1225(b)(2)(A)
on its head.
“Applicant for Admission”
The specific uses of the “applicant” phrase throughout
Chapter 12 underscore its breadth and demonstrate that the
term includes aliens like Petitioners who are not actively,
formally applying for admission.63 There are nine instances of
the term “applicant for admission” in Chapter 12, and they are
highly informative.64 Four usages are in § 1225(a).65 Other
than § 1225(a)(1) that establishes the category, § 1225(a)(2)
removes stowaways entirely from the eligible class of aliens
who can be “applicant[s] for admission,” underscoring the
INA’s general disfavoring of deceit and rule-breaking in the
admission process.66 Section 1225(a)(2) is one of a number of
penal provisions for individuals who circumvent the admission
and immigration system.67 This statutory system disfavoring
those who break the rules, declining to give them new process
63
See Weyerhauser Co. v. U.S. Fish & Wildlife Servs., 586
U.S. 9, 20 (2018) (“[W]e consider the context of the
surrounding terms and other provisions within the statutory
scheme.”). The statute itself here instructs the reader to
examine context by expressly specifying that the “applicant for
admission” status set forth in § 1225(a)(1) extends throughout
Chapter 12 of the INA. See 8 U.S.C. § 1225(a)(1).
64
See 8 U.S.C. §§ 1105(b)(1), 1182(d)(5)(A), 1187(h)(3)(E),
1225(a)(1), 1225(a)(2), 1225(a)(3), 1225(a)(5), 1225(b)(2)(A),
1229a(c)(2)(A).
65
See id. § 1225(a)(1), (2), (3), (5). Subsection 1225(a)(3) is
addressed in the discussion on the use of the term “or otherwise
seeking admission.”
66
See id. § 1225(a)(2) (“In no case may a stowaway be
considered an applicant for admission or eligible for a hearing
under section 1229a of this title.”).
67
See id.; see also, e.g., id. § 1182(a)(6)(C)(i) (designating
inadmissible any alien who tries to procure a visa “or
admission” through “fraud” or the “willful[]
misrepresent[ation] [of] a material fact”); id.
§ 1182(a)(6)(C)(ii) (designating inadmissible any alien who
falsely represented himself to be a U.S. citizen).
15
and benefits, is highly unlikely to contain the discrimination in
favor of illegal entrants that the majority opinion and
Petitioners would have us read into the statute.
Section 1225(a)(5) is more directly informative. There,
the provision applies to “[a]n applicant for admission.” It then
uses a definite article, “the,” to reference that initial subject.
Section 1225(a)(5) provides that the “applicant” may have to
state under oath information regarding the “intentions of the
applicant in seeking admission.”68 Here, with an even tighter
nexus than in § 1225(b)(2)(A), Congress used the phrase
“seeking admission” simply to describe the state of an
applicant.69 It creates no new subset. An applicant for
admission is the applicant seeking admission. Applicants
“seek[]” admission, and they might need to provide relevant
information under oath. Aliens “seeking admission” are not a
separate subset standing apart from a broader applicant class.
Other informative instances of the term in Chapter 12
include § 1105(b)(1). There, Congress addresses national
crime files. The section provides instructions for “determining
whether or not a visa applicant or applicant for admission” has
a criminal history index—suggesting that the two classes and
possible statuses of individuals desiring U.S. presence are visa
applicants or admission applicants.70 There is no third class of
individuals in the crime index who still want to remain in the
United States but somehow do not “seek[]” admission simply
because they tried to circumvent formal application
procedures.
Then in § 1182(d)(5)(A) dealing with the allocation of
parole, Congress’s language is directly inconsistent with
Petitioners’ assertion that aliens not actively applying for
68
Id. § 1225(a)(5) (emphases added).
69
See id. (referencing “the purposes and intentions of the
applicant in seeking admission”).
70
Id. § 1105(b)(1) (describing the “purpose of determining
whether or not a visa applicant or applicant for admission has
a criminal history record indexed in any such file”). One
additional usage of “applicant for admission” arises in 8 U.S.C.
§ 1187(h)(3)(E) which addresses reporting requirements under
the visa waiver program, which authorizes temporary visits up
to 90 days, so the provision is not immediately informative
here.
16
admission are outside the class “seeking admission.”71 The
Attorney General has power to temporarily parole “any alien
applying for admission.”72 But even after parole ends, the alien
is to be treated just like “any other applicant for admission to
the United States.”73 This suggests there is a particular way to
“deal[]” with such applicants. Individuals remain such
applicants whether they are active or inactive in “applying,”
just like aliens who had been granted parole whose status has
since ended.74
The dual, just-two-class division of immigration
statuses also is evident from § 1229a(c)(2) where Congress
established relevant burdens of proof.75 Again using a definite
article, “the,” Congress provided two choices—if “the alien” is
“an applicant for admission,” the alien has the burden to
establish he is “clearly and beyond doubt entitled to be
admitted.”76 Otherwise, he must show “by clear and
convincing evidence” that “the alien is lawfully present in the
United States pursuant to a prior admission.”77 There is no
third way. Aliens are either in the “applicant” class with the
attendant burden of proof or they have a prior admission. This
burden structure also matches up with § 1225(b)(2)(A) itself,
which uses the “clearly and beyond a doubt” standard to refer
to “an alien seeking admission.”78 There are two burden
standards in § 1229a removal proceedings—those for “aliens
seeking admission” (i.e., all applicants) or those who have
“prior admission[s].”79
Pre-Admission Detention and Release
There is no INA category permitting aliens, before they
have established any legal entitlement to any form of U.S.
presence, to remain in the country and roam free. Section 1225
addresses release prior to admission, and it is very specific and
71
Id. § 1182(d)(5)(A).
72
Id.
73
Id.
74
See id.
75
Id. § 1229a(c)(2)(A).
76
See id.
77
Id. § 1229a(c)(2)(B).
78
Id. § 1225(b)(2)(A).
79
Id. § 1229a(c).
17
particular about the circumstances in which this is permitted.80
Under § 1225(b)(2)(C), where an applicant for admission
“arriv[es] on land” from “a foreign territory contiguous to the
United States, the Attorney General may return the alien to that
territory pending a [§ 1229a] proceeding.”81 Even here, the
release is not into the United States. Rather, the alien is sent
back across the border to the country out of which he is trying
to pass to remain there while waiting for his determination.
It defies commonsense and logic to conclude that within
this finely grained, reticulated statutory scheme, Congress sub
silentio, authorized all applicants not actively and formally
requesting admission prior to detention to be released on bond
right into the United States interior. What would be the point,
then, of the § 1225(b)(2)(C) particularized treatment for
contiguous territories? If aliens can be released into the United
States on bond while waiting for their admissibility
determination, there is no need to return aliens to a contiguous
territory for them to remain outside detention.
§ 1225(b)(1)–(2)
Moving on to the operative provision underlying this
case, § 1225(b)(2)(A)’s structure further informs the singular
nature of the “applicant for admission” class. Congress may
modify a word within one statutory provision, but doing so
simply specifies an application of that term; it does not change
80
Even where aliens are raising a claim to the very protected
and sacrosanct status of asylum due to persecution, § 1225 has
detailed mandates about the process to which they are subject,
keeping applicants under watchful supervision and detention
according to § 1225(b)(1)(B)(ii). For example, if an “alien
indicates either any intention to apply for asylum . . . or a fear
of persecution, [an] officer shall refer the alien for an interview
by an asylum officer.” Id. § 1225(b)(1)(A)(ii). Asylum
interviews are to take place “either at a port of entry or at such
other place designated by the Attorney General.” Id.
§ 1225(b)(1)(B)(i). And even where the officer “determines .
. . that an alien has a credible fear of persecution . . . , the alien
shall be detained for further consideration of the application
for asylum.” Id. (emphasis added).
81
Id. § 1225(b)(2)(C).
18
its meaning.82 Contrary to the majority opinion’s implicit
qualifying additions to the § 1225(b)(2)(A) description of
applicants, the group “seeking admission” is the same group as
the “admission” applicants described in the very same
provision. There are not two distinct admission groups.
Reading § 1225(b)(2)(A) as a complete whole, the
phrase addressing admission with the modification of
“seeking” refers to the group of admission applicants who are
the provision’s primary subject. The provision addresses the
“case of an alien who is an applicant for admission”; where
“the examining immigration officer determines that an alien
seeking admission” is not entitled to be admitted, the alien shall
be detained under § 1229a.83 Further, the provision’s use of a
definite article, “the,” suggests the alien referenced throughout
the statute is one and the same.84 After referring to “an alien
who is an applicant for admission” and “an alien seeking
admission,” the statute commands “the alien shall be
detained.”85
“seeking”
The majority opinion’s reading of § 1225(b)(2)(A) also
is inconsistent with the ordinary meaning of the term “seeking
admission” and the structure of how the phrase “seeking
admission” fits within the § 1225(b)(2)(A) detention
82
See Perrin v. United States, 444 U.S. 37, 42, 49–50 (1979).
83
8 U.S.C. § 1225(b)(2)(A) (emphases added); see also 18
U.S.C. § 3583(e)(1) (permitting a court to “terminate a term of
supervised release” and discharge a defendant after “one year”
of that same term of “supervised release” if certain conditions
exist).
84
See Nielsen v. Preap, 586 U.S. 392, 408 (2019) (“‘[T]he’ is
a function word indicating that a following noun or noun
equivalent is definite or has been previously specified by
context.” (alterations, internal quotation marks, and citation
omitted)); id. (“Congress’s ‘use of the definite article in a
reference to ‘the appraisement’ means an appraisement
specifically provided for.” (alterations omitted) (quoting Work
v. United States ex rel. McAlester-Edwards Co., 262 U.S. 200,
208 (1923))).
85
See 8 U.S.C. § 1225(b)(2)(A) (emphases added).
19
instructions.86 The majority opinion and Petitioners contend
that the present participle “seeking” in the § 1225(b)(2)(A)
provision limits its reach to only those aliens who are actively,
formally “seeking” a determination of admission.87 Those
efforts must be ongoing, in Petitioners’ view, for the
mandatory-detention-without-bond provision to apply. The
majority opinion compares this use of the term “seeking” to
one “seeking” admission in a movie theater, meaning one must
be actively requesting entry.88
This limitation is in tension with the structure and
mechanics of the statutory provision. For example,
immediately following the § 1225(b)(2)(A) reference to
express textual limitations in subparagraphs (B) and (C), §
1225(b)(2)(A) identifies its objects—“an alien who is an
applicant for admission.” Further, the meat of the provision
begins with, “in the case of” such aliens (i.e., “in the case of an
alien who is an applicant for admission”), conveying the
circumstances in which the statute applies. The whole point of
the provision is to tell the reader what process to apply to those
aliens who are applicants.89
The provision, further, does not condition § 1229a
detention on an alien-by-alien inquiry into each alien’s
intentions. The deeming clause of (a)(1) assigns the status of
“applicant” by operation of statute whether or not the alien at
the precise moment of detention is taking affirmative, formal
steps to lawfully enter or lawfully acquire U.S. presence.90 So
long as an alien is in the United States without admission, he is
86
See, e.g., EPA v. Calumet Shreveport Refin., L.L.C., 145
S.Ct. 1735, 1757 (2025) (instructing that interpreters are to
give a word its “ordinary meaning” under standard statutory
interpretation principles); Bostock v. Clayton County, 140 S.Ct.
1731, 1738 (2020) (“[O]ur duty is to determine the ordinary
public meaning of the provision at issue.”).
87
Maj. Op. at 12–13.
88
Id. at 20.
89
See 8 U.S.C. § 1225(b)(2)(A) (“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 admission is not clearly and beyond a
doubt entitled to be admitted, the alien shall be detained for a
proceeding under section 1229a of this title.”).
90
See id.
20
“seeking” that status. He must be. There is no other, third
category other than applicants subject to the procedural
requirements for (i) aliens who have not yet achieved lawful
presence and (ii) aliens who were admitted in the past. Where
an alien desires presence in the United States, he is “seeking”
admission under the ordinary, common-sense meaning of the
term. Neither the statutory structure nor its text nor general
principles of language require an alien to take a step not
specified in the statute to remain in a state of “seeking”
admission while he is in the hunt for U.S. presence.
The provision then goes on to describe the case in which
the applicants must be detained under § 1229a—when “the
examining immigration officer determines that an alien
seeking admission is not clearly and beyond a doubt entitled to
be admitted.”91 The limiting descriptor there is “clearly and
beyond a doubt.” But the reference to “examining immigration
officer” assumes there will be such an officer anytime there is
an applicant—§ 1225(b)(2)(A) refers to “the” officer, not “if
an . . . officer determines.”92 Further, when discussing the
relevant process, the statutory provision references some form
of the term “admit” three times—without any indication the
admission relates to distinct groups or subsets.93 The statutory
provision also gives no particular definition or description to
the term “alien” that would subject the provision’s three
references to “alien” identify distinct groups.94
Dictionary definitions of the terms “applying” and
“seeking,” further, show the terms have a permissibly broad
application and meaning, ranging beyond a one-time, active
request. For example, the American Heritage Dictionary
defines “seek” as “[t]o endeavor to obtain or reach” such as
“seek[ing] a college education”—an action or state of mind
that could extend throughout a child’s entire grade-school and
91
See id.
92
Id. (emphasis added).
93
See id. § 1225(b)(2)(A) (e.g., “an alien . . . applicant for
admission”; “an alien seeking admission”; “if . . . not clearly
and beyond a doubt entitled to be admitted, the alien . . .”).
94
See id. (“in the case of an alien who is an applicant for
admission,” “an alien seeking admission,” and “the alien shall
be detained . . . .”).
21
secondary education.95 Other definitions of the term in that
dictionary include “[t]o go to or toward”—again, movement
and action that can extend over a period of time. Merriam-
Webster similarly defines “seek” and “seeking” broadly, as “to
resort to: go to” or “to go in search of”—the kinds of phrases
that in no way connote one limited particular point in time but
rather appear to describe a process or state of being.96 Webster
Collegiate also defines the term as “to try to acquire or gain”
or “to ask for: request,” which is closer to Petitioners’ view but
ultimately could be satisfied here by Petitioners’ present,
ongoing desire to remain here in the United States.97 The 1989
version of the Oxford English Dictionary’s definition of
“admission” is likewise telling—defining the term as “[t]he
action of admitting to some position, standing, or privileges,
distinguished from . . . the literal action of letting in to a
place.”98 This definition is consistent with the conception of
an application for admission or a “seeking” of admission as
embodying a state of being rather than a formal, affirmative
time-limited act of formally requesting permission.
“or otherwise”
The majority opinion and Petitioners also contend that
the phrase “or otherwise” in § 1225(a)(3) of the statute
supports their view and keeps Petitioners outside of the
§ 1225(b)(2)(A) mandate.99 This position, too, stands the
statute on its head and is unnatural. Under § 1225(a)(3), “[a]ll
aliens (including alien crewmen) who are applicants for
admission or otherwise seeking admission or readmission to or
transit through the United States shall be inspected by
immigration officers.”100 They say “or otherwise” sets aside a
95
seek, THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE,
https://ahdictionary.com/word/search.html?q=seek (last
visited August 27, 2026).
96
seek, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/seek (last visited August 27, 2026).
97
Id.
98
admission, OXFORD ENGLISH DICTIONARY (2d ed. 1989).
99
Maj. Op. at 18–19.
100
8 U.S.C. § 1225(a)(3).
22
subcategory here of “applicants for admission” and shows that
not all applicants “seek[]” admission.
But the opposite is true—the “otherwise” class is
broader here. First, the initial reference of “[a]ll aliens . . . who
are applicants for admission” is comprehensive. Second, just
a straightforward cross-reference to other provisions within
Chapter 12 of the INA, such as provisions covering
nonimmigrant visas, provides information about the larger
group of “applicants for admission” who “otherwise” “seek[]
admission.” For example, § 1187(h)(3)(E) gives instructions
for collecting information from such nonimmigrant applicants
who desire visas for temporary presence rather than long-term
status.101
More, it is a familiar principle of statutory interpretation
that the phrase “or otherwise” typically stands for the first in a
list.102 It signifies the following phrase such as “seeking
admission” is a catchall—making the reference broader, not
narrower, than the group of “applicant[s] for admission.”103
Further, under §§ 1225(a)(1) and 1225(a)(3), aliens who
enter lawfully enter at a “port of entry.” Aliens who are
“caught trying to enter at some other spot” also are “treated the
same way” and fall under the same definition of applicant for
101
Id. § 1187(h)(3)(E) (mandating that the “Secretary of
Homeland Security shall collect from an applicant for
admission pursuant to this section information on any
additional or previous countries of citizenship of that
applicant” and take that into account “when making
determinations as to the eligibility of the alien for admission
pursuant to this section,” which addresses the visa waiver
program (emphasis added)).
102
Cf. Begay v. United States, 553 U.S. 137, 153 (2008)
(Scalia, J., concurring) (observing that the phrase “or
otherwise” is a “catchall”).
103
See, e.g., Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d
958, 963–64 (11th Cir. 2016) (en banc) (“or otherwise”
introduces a first category that is a subsection of the second);
Kieber v. CareFusion Corp., 914 F.3d 480, 483 (7th Cir. 2019)
(the terms preceding “or otherwise” are “meant to be subsumed
by what comes after the ‘or otherwise’ clause”); see also
Buenrostro-Mendez, 166 F.4th at 503–04 (finding that “the
phrase ‘or otherwise’ suggests that ‘applicants for admission’
are a subset of those ‘seeking admission’”).
23
admission.104 Aliens who sneak past are not formally seeking
lawful entry—whether they are caught within a few minutes of
passing the border or a few years. If one needs to be actively
affirmatively seeking legal status to be under the terms of
aliens who are “applicants for admission . . . seeking
admission” in § 1225(b)(2)(A), then illegal border crossers
caught within miles and minutes of the border would not
qualify either. Yet the Supreme Court has already referred to
such individuals as admission applicants.105
C
In addition to the interpretive information evident from
the provisions directly addressing the § 1225 detention
mandate, the surrounding statutory structure supports the
Government’s use of § 1225(b)(2) detention authority for
Petitioners.106 Statutory definitions within 8 U.S.C. § 1101
governing the INA and the structure of textual exemptions
from the § 1225(b)(2)(A) detention mandate indicate that
“applicants for admission” include more than those formally
pursuing an admission application process at the time they are
detained.
§ 1101 Definitions
Section 1101 of the INA provides textual definitions for
dozens of terms throughout the statute. A number of those
definitions are informative here and arguably dispositive.
Notably, the term “seeking” is not one of those that is
defined.107
Take, for example, 8 U.S.C. § 1101(a)(13)(C), which
treats a lawful permanent resident (LPR) returning from abroad
as “seeking an admission into the United States” in six
enumerated circumstances: abandonment or relinquishment of
lawful permanent resident status; continuous absence
exceeding 180 days; engagement in illegal activity after
departure; departure during pending removal proceedings;
104
See Thuraissigiam, 591 U.S. at 108.
105
See id. (describing lawful entry to be at a port of entry but
noting that aliens who were caught and not trying to lawfully
enter are also admission applicants).
106
Cf. City and County of San Francisco, CA v. EPA, 604 U.S.
334, 339 (2025) (examining the “text and structure” of an Act
to examine the scope of an agency’s authority under it).
107
8 U.S.C. § 1101(a)(1) –(52), (b)–(i).
24
commission of an offense identified in § 1182(a)(2); or an
attempt to enter at a place other than a designated port of
entry.108 Under § 1101(a)(13)(C), LPRs in those sets of
circumstances can be regarded as “seeking an admission.” Yet
a number of those six conditions are passive and do not suggest
the alien is actively engaged in a formal admission application
process, as the majority’s position requires for the “seeking” of
admission. Rather, LPRs who essentially lost legal status by
engaging in crime out of the country or by attempting unlawful
departure or by having an extended absence are eligible to be
considered “seeking admission.”109 This section shows that
“seeking” admission is not necessarily tied to actively pursuing
an ongoing formal admission application process. Instead, it is
more about one’s legal status and whether one needs to acquire
admission, or entitlement to lawful status, in the United States.
The § 1101(a)(13)(C) population is significant for the
present case because these aliens were lawfully admitted.
They do not fit § 1225(a)(1)’s deeming clause, which captures
the never-admitted. Yet Congress nonetheless treats them as
“seeking an admission” and subjects them to § 1225
inspection.
That treatment cannot be reconciled with the majority’s
reading of “seeking admission.” If the phrase requires present,
active conduct directed at lawful entry, then a lawful
permanent resident returning home after a 181-day absence is
not actively “seeking.” He is returning to a residence he
lawfully holds. Congress treats him as seeking admission
anyway. The phrase functions as a statutorily assigned posture,
not as a description of present-tense activity.
In even more tension with the majority opinion,
exclusion of aliens detained in the interior would orphan the
§ 1101(a)(13)(C) population from § 1225 entirely. Returning
LPRs were admitted; they are therefore not “deemed
108
Vartelas v. Holder, 566 U.S. 257, 262–63 (2012). Section
1101(a)(13)(C) was added by IIRIRA. It replaced the prior
“entry” doctrine, under which a returning lawful permanent
resident with substantial ties to the United States was generally
not regarded as seeking a new admission. See Rosenberg v.
Fleuti, 374 U.S. 449, 461–62 (1963).
109
See 8 U.S.C. § 1101(a)(13)(C).
25
applicants” under (a)(1).110 On the majority’s view, they also
would not be “seeking admission,” so it is unclear what vehicle
or admission status they would use to retain or regain LPR
status or admission to the country. This reading inverts the
statutory architecture.
Section 1101(a)(13)(A) reinforces the result. Although
the Act provides no definition for the term “seeking” or to
“seek,” it defines “admission” and “admitted.” The Act’s
definition and color on these terms essentially broadens their
application rather than narrowing the § 1225(a)(1) category of
“applicant for admission.”
The Act defines “admission” and “admitted” with
respect to an alien simply as “the lawful entry of the alien into
the United States after inspection and authorization by an
immigration officer.”111 When it describes “applicant for
admission,” the Act not only clarifies that the phrase refers to
application for general admission to the United States—not
“application for the issuance of an immigrant or nonimmigrant
visa.”112 The Act also instructs that “any alien present in the
United States who has not been admitted” should be deemed
an “applicant for admission.”113 This is without respect to
when an individual initially arrived in the United States, or
whether he arrived at a designated port for lawful
processing.114 The statutory deeming provision explicitly
makes clear, by its terms, that arriving aliens are only one
subcategory of those that are to be deemed “applicants.”115
Exemptions, § 1225(b)(1)-(2)
The exemptions within §1225(b) confirm this meaning.
The textual structure of the detention mandate itself, within
110
Id. § 1225(a)(1) (“deem[ing]” as “applicants for admission”
only those who have not previously “been admitted”).
111
Id. § 1101(a)(13)(A).
112
Id. § 1101(a)(4).
113
Id. § 1225(a)(1) (emphasis added).
114
See id. (referring to aliens who arrive “(whether or not at a
designated port of arrival . . .)”).
115
See id. § 1225(a)(1) (“An alien present in the United States
who has not been admitted or who arrives in the United States
. . . shall be deemed for purposes of this chapter an applicant
for admission.” (emphasis added)).
26
§ 1225(b)(2), shows its reach beyond just applicants formally
seeking lawful approval prior to detention. The § 1225(b)(1)
expedited removal program applicable to aliens in the United
States for less than two years likewise confirms that
§ 1225(b)(2)(A) authority extends beyond aliens formally
requesting lawful presence.
Further, the § 1225(b)(1) expedited removal authority
provides another clear, high-profile example of an Executive
Branch policy determination not to use the full range of its
removal or detention authority for decades after a statute’s
enactment. Similar to the nonapplication of § 1225(b)(2)(A)
detention-without-bond authority from 1996 through 2026, the
Attorney General, until 2019, chose to apply expedited
removal only to a subset of aliens present for less than two
years and found close to the border.116 For example, when
exercising expedited removal authority in 2004, the Executive
Branch applied those procedures only to aliens detained within
100 miles of the border who had been continuously present in
the United States for less than 14 days.117 DHS explained that
it was “not logistically possible” at the time “for DHS to
initiate removal proceedings against all” of the “nearly 1
million aliens who [were] apprehended each year in close
proximity to the borders after illegal entry.”118 So as a practical
matter, DHS announced it would focus even its new exercise
of authority on a subset of aliens such as third-country
nationals and Canadian and Mexican nationals with criminal
histories.119
Executive use of the full scope of expedited removal
authority was nonetheless judicially upheld when DHS
announced in 2019 that aliens within the statutory reach of
expedited removal authority would be potentially subject to
those procedures moving forward.120 This announcement was
116
See Designating Aliens for Expedited Removal, 84 Fed.
Reg. 35,409, 35,413 (July 23, 2019). Designating Aliens for
Expedited Removal, 69 Fed. Reg. 48,877, 48,878–79 (August
11, 2004).
117
See Designating Aliens for Expedited Removal, 69 Fed.
Reg. 48,877 (Aug. 11, 2004).
118
See id. at 48,878.
119
See id.
120
See Make the Rd. N.Y. v. Mullin, 179 F.4th 16, 20 (D.C. Cir.
2026).
27
issued nearly twenty years after the Executive Branch first
concluded it had the statutory authority to take this step.121
Within the same 1997 announcement implementing the
1996 IIRIRA enactment that provided a fulsome interpretation
of expedited removal authority, the Executive Branch
interpreted all aliens present without admission to be
“applicants for admission” despite choosing to voluntarily give
them eligibility for bond hearings.122 Immigration authorities
also provided by regulation in 1997 that aliens within the two-
year expedited removal timeframe “shall be detained” under
§ 1225(b)(2)(A) if the Executive Branch desired to pursue
inadmissibility charges against them other than those provided
for within the expedited removal framework.123 Executive
Branch authorities have repeatedly noted the difficulty of
providing process to the sheer number of aliens arriving at the
border, which has driven a number of its decisions about how
fulsomely to use the discretion Congress has provided in
removal authority under immigration statutes.124
121
See Inspection and Expedited Removal of Aliens; Detention
and Removal of Aliens; Conduct of Removal Proceedings;
Asylum Procedures, 62 Fed. Reg. 10,312, 10,355 (Mar. 6,
1997) (finding that the Commissioner of the Immigration and
Naturalization Service, who oversaw immigration procedures
at that time, had the “sole discretion” to apply expedited
removal procedures to aliens who entered the United States
without admission status and remained present “continuously
for the 2-year period immediately prior to the date of
determination of inadmissibility”). Contra Rodriguez-
Vazquez, 2026 WL 2196424, at *2–3 (9th Cir. 2026) (starting
the court’s opinion interpreting mandatory detention authority
with the fact that it was not used fulsomely until 2026 and
suggesting that has significant interpretive weight).
122
See 62 Fed. Reg. at 10,323; see also Buenrostro-Mendez,
166 F.4th at 506.
123
See 8 C.F.R. §§ 235.3(b)(1)(ii), (b)(3) (providing that aliens
within the two-year expedited removal timeline against whom
the Executive Branch desires to pursue inadmissibility charges
other than those within the expedited removal framework
“shall be detained” under § 1225(b)(2)(A); see also 62 Fed.
Reg. at 10,355–56; Buenrostro-Mendez, 166 F.4th at 307.
124
See, e.g., 69 Fed. Reg. at 48,878 (noting that “DHS has a
pressing need to improve the security and safety of the nation’s
28
The trajectory of the use of expedited removal authority
is not dissimilar from the Executive Branch’s 2020
determination to apply, for the first time, Title 42 authority to
aliens arriving at the border during the COVID-19 pandemic.
At that time, the Administration expelled aliens arriving at and
even crossing over the border without either expedited removal
or § 1229a hearings. To do so, the Executive Branch applied
public health provisions first enacted in 1944 that had
previously remained little-used.125 Courts upheld the use of
this authority under two separate presidential administrations
extending from 2020 all the way through May 2023. Its
previous disuse did not prevent judicial affirmance of
Executive Branch implementation of the statutory authority
when needed as a policy matter. And in any event, the
Supreme Court has observed previously that sometimes the
scope of authority permitted within statutory terms differs
from, or is broader than, longstanding agency practice.126
Beyond this history of Executive Branch practice, the
structure and exceptions within § 1225(b)(2)(A) themselves
show the designation “applicant for admission” is not
coextensive with just the collection of aliens formally
requesting a lawful determination. And the systemic exception
from the standard §§ 1225(b)(2)(A) and 1229a admission
determinations and detention scheme contained within
§ 1225(b)(1), colloquially designated “expedited removal,”
structurally and textually also confirms this reading.
§ 1225(b)(1)—Expedited Removal
Section 1225(b)(2)(A) provides that it “shall not apply
to any alien to whom paragraph (1) applies.”127 Section
1225(b)(1) in turn includes within it provisions authorizing
immediate removal of pre-admission aliens continuously
land borders” but “lacks the resources” to detain all
apprehended aliens who “subsequently fail to appear for their
removal proceedings” after being “released in the U.S. each
year”).
125
See 42 U.S.C. § 265; 58 Stat. 704 (1944).
126
See, e.g., Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 483–84 (1999) (discussing discretionary
provisions within the INA).
127
8 U.S.C. § 1225(b)(2)(A).
29
present in the United States for under two years.128 The
Supreme Court in Thuraissigiam found application of
expedited removal to be consistent with due process,
concluding that with aliens who have just crossed the border
into the United States any liberty interests that have attached
are satisfied by the statutory procedures Congress has chosen
to give them.129
But beyond this history, the terms of § 1225(b)(1)
indicate that the touchstone for defining “applicant for
admission” in § 1225(b)(2)(A) is not “arriving” at the border.
All aliens arriving at the border and crossing unlawfully, for up
to two years, are detainable and immediately removable under
§ 1225(b)(1) if the Attorney General chooses to use that
authority. These aliens clearly include within their group many
who were not formally, lawfully requesting or proactively
“seeking” legal permission to remain in the United States. Yet
they are subject to § 1225(b)(1) and would be subject to
§ 1225(b)(2)(A) but for its terms excepting § 1225(b)(1) from
its reach.130
This alternative to detention within the United States
while section § 1229a removal proceedings are ongoing is
highly informative for two reasons. First, it again demonstrates
that Congress was giving highly specific and detailed
instructions parsed out by subgroups within § 1225(b)(2),
making far-fetched the idea that Congress would carve out
128
See id. § 1225(b)(1)(A)(i) (“If an immigration officer
determines that an alien who is arriving in the United States or
is described in clause (iii) is inadmissible under section
1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order
the alien removed from the United States without further
hearing or review . . . .”); id. § 1225(b)(1)(A)(iii)(I) (“The
Attorney General may apply clauses (i) and (ii) of this
subparagraph to any or all aliens described in subclause (II) as
designated by the Attorney General.”); id.
§ 1225(b)(1)(A)(iii)(II) (“An alien described in this clause . . .
has not affirmatively shown . . . that the alien has been
physically present in the United States continuously for the 2-
year period immediately prior to the date of the determination
of inadmissibility under this paragraph.”).
129
See Thuraissigiam, 591 U.S. at 138–39.
130
8 U.S.C. § 1225(b)(2)(B) (“Subparagraph (A) shall not
apply to an alien . . . (ii) to whom paragraph (1) applies.”).
30
some undefined group of non-“seeking” applicants in contrast
to the ordinary meaning of “to seek.” It strains credulity to
posit that Congress would exempt crewman, stowaways, aliens
eligible for expedited removal, and aliens arriving (i) by land
(ii) from contiguous territories but not spell out a fifth legal
category of those not actively “seeking” admission. Moreover,
as the Supreme Court has noted, “[a]n exception to a ‘general
statement of policy’ is ‘usually read narrowly in order to
preserve the primary operation of the provision.’”131 “Unless
commanded by the text,” interpretation of exceptions and their
application “ought not operate to the farthest reach of their
linguistic possibilities if that result would contravene the
statutory design.”132
§ 1225(b)(2)(A) Exemptions
Even more fundamentally, § 1225(b)(2)(A) exempts
from its mandatory detention-sans-bond requirement any of
those aliens arriving on land from foreign contiguous
territories whether or not they arrive at designated arrival
ports.133 There is no requirement, or hint here, that these
individuals must actively seek admission. Indeed, the
exemption’s applicability to individuals crossing at an
unauthorized point suggests the opposite. As the provision
addressing arrival from contiguous territory does not specify
applicability to just those coming to an authorized entry point,
it apparently applies textually even to aliens who made no
attempt to lawfully acquire admission. This undermines the
notion that such aliens already are exempt from the terms of
§ 1225(b)(2)(A) through its inherent scope.134
The remaining § 1225(b)(2) subsections underscore this
textual and structural point.135 For example, § 1225(b)(2)(A)
131
Maracich v. Spears, 570 U.S. 48, 60 (2013) (alteration
omitted) (quoting Commissioner v. Clark, 489 U.S. 726, 739
(1989)).
132
Id.
133
8 U.S.C. § 1225(b)(2)(C).
134
Cf. Thuraissigiam, 591 U.S. at 108 (noting that “[a]n alien
who arrives at a ‘port of entry’” is arriving at “a place where
an alien may lawfully enter”).
135
Structural considerations in statutory interpretation are not
in tension with, or secondary to, examination of the text of the
direct provision under review. Structural analysis evaluates
31
begins by providing that its detention instructions are subject
to the limits in (B) and (C). Those subsections place aliens
such as crewmen and stowaways outside the reach of the
§ 1225(b)(2)(A) detention terms. But aliens such as
stowaways did not present themselves at the border. They,
similar to aliens walking across the border undetected and
staying undetected in the country’s interior for years, are not
actively applying for admission. The fact that Congress did the
work, in the statutory text, to expressly set aside stowaways
and crewmen suggests that otherwise those aliens would have
fallen within the § 1225(b)(2)(B) scope. This undermines
Petitioners’ contention that § 1225(b)(2)(B) with its reference
to “seeking admission” means to apply only to individuals
actively engaged in an ongoing formal application process. If
that were so, stowaways would already be outside the contours
of § 1225(b)(2)(A) and Congress would not have created a
statutory subsection to exempt them.
IV
Petitioners contend, further, that even if the INA
authorized Petitioners’ detention without bond during
adjudication of their admission, that detention violates the
Constitution’s Fifth Amendment Due Process Clause.136 It
does not, under the Supreme Court’s precedent interpreting and
applying those constitutional protections.
Under current Supreme Court doctrine, there are two
distinct categories of constitutional due process protections—
enacted text just like the process of interpretation that occurs at
the first step of analysis of a statute’s plain meaning—such as
examining dictionary definitions or a statutory definition for a
term. Looking at the enactment context simply recognizes that
all of statutory text is enacted by Congress and the President
and that statutory enacted text in surrounding provisions and
other portions of a statute informs how the precise subsection
at issue is to be read. Simply put, “[s]tatutes must ‘be read as
a whole.’” United States v. Atl. Rsch. Corp., 551 U.S. 128, 135
(2007) (quoting King v. St. Vincent’s Hosp., 502 U.S. 215, 221
(1991)).
136
See U.S. Const. amend. V (“No person shall . . . be deprived
of life, liberty, or property, without due process of law . . . .”);
see also Appellees’ Br. at 49–50.
32
procedural and substantive. Procedural due process doctrine
entitles individuals to notice and some kind of hearing prior to
governmental deprivation of the individual’s life, liberty, or
property interest.137 Substantive due process under the
Supreme Court’s jurisprudence, on the other hand, provides
some type of substantive protection from a governmental
restraint.138 To identify which substantive rights fall within
this range of protections, the Court looks for a history and
tradition establishing the right.139
137
See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“This
Court consistently has held that some form of hearing is
required before an individual is finally deprived of a property
interest. The ‘right to be heard before being condemned to
suffer grievous loss of any kind, even though it may not involve
the stigma and hardships of a criminal conviction, is a principle
basic to our society.’ The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” (citations omitted) (first quoting
Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168
(1951) (Frankfurter, J., concurring); and then quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965))). Here, that
determination is whether Petitioners’ continued presence in the
United States is lawful.
138
See Washington v. Glucksberg, 521 U.S. 702, 720–21
(1997) (observing that the Court’s “established method of
substantive-due-process analysis” includes identifying
“fundamental rights and liberties which are, objectively,
‘deeply rooted in this Nation’s history and tradition’” (quoting
Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality
opinion))).
139
See Glucksberg, 521 U.S. at 721 (“[W]e have required in
substantive-due-process cases a ‘careful description’ of the
asserted fundamental liberty interest.” (quoting Reno v. Flores,
507 U.S. 292, 302 (1993))). Under Glucksberg, Petitioners
would need to identify a history and tradition of the substantive
right to freedom from detention as non-flight or security risks.
See id. at 721. It is not the government’s burden to show the
absence of an extra-textual substantive right to freedom from
detention for certain aliens seeking legal status in the United
States. See, e.g., Dep’t of State v. Munoz, 602 U.S. 899, 903
(2024) (“To establish this premise, [the plaintiff] must show
that the asserted right is ‘deeply rooted in this Nation's history
33
Here, the District Court found that Mr. Lopes de
Andrade’s detention violated what it characterized as his
procedural due process rights.140 Mr. Lopes de Andrade
contends that before the Government had the power to detain
him without bond, he had a right to a bond hearing to determine
whether he was a flight risk or posed a danger to the
community.141 But because factors like flight risk or
community danger bear no relationship to the statutory
entitlement to remain in the country that Petitioners claim, the
request for a hearing on those factors ultimately sounds more
in substantive than procedural rights.142
Petitioners’ claim is not that the Government must
provide more safeguards, a more involved hearing, or lengthier
notice to more accurately adjudicate whether Petitioners may
remain in the country.143 Petitioners were eligible for some
proceedings, in any event—just ineligible for release on
bond.144 And multiple Supreme Court cases have indicated
support for detention pending an adjudication of the alien’s
and tradition.’” (emphasis added) (quoting Glucksberg, 521
U.S. at 720–21)).
140
See J. App’x at 15.
141
See Appellee’s Br. at 51.
142
See Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 8 (2003)
(“Plaintiffs who assert a right to a hearing under the Due
Process Clause must show that the facts they seek to establish
in that hearing are relevant under the statutory scheme.”); cf.
Rodriguez, 180 F.4th at 740 (Wilson, J., dissenting)
(“Petitioners’ procedural due process claims largely collapse
into substantive due process because they assert a right to
procedure that is absent from the statutory text.”).
143
See Appellees’ Br. at 51; see also Landon v. Plasencia, 459
U.S. 21, 34 (1982) (observing that under the Mathews v.
Eldridge framework, “[i]n evaluating the procedures in any
case, the courts must consider the interest at stake for the
individual, the risk of an erroneous deprivation of the interest
through the procedures used as well as the probable value of
additional or different procedural safeguards, and the interest
of the government in using the current procedures rather than
additional or different procedures”).
144
See 8 U.S.C. § 1225(b)(2)(A); id. § 1229a(a)(1).
34
legal entitlement to remain in the United States.145
Consequently, Petitioners’ contention essentially distills to the
argument that the Government may not, as a substantive
matter, detain pre-admission aliens with no demonstrated flight
risk or community danger.146 But that is not the system
Congress created.147 And Petitioners make no attempt to show
a history or tradition of a constitutional right to release into the
United States on bond during adjudication of an alien’s claims
to legal presence in the United States.148 The history of claims
before the Supreme Court actually shows the opposite.149
A
Ultimately, whether procedural or substantive due
process is at stake here, Mr. Lopes de Andrade has not
145
See, e.g., Demore, 538 U.S. at 531 (“Detention during
removal proceedings is a constitutionally permissible part of
that process.”); Wong Wing v. United States, 163 U.S. 228, 235
(1896) (“We think it clear that detention or temporary
confinement, as part of the means necessary to give effect to
the provisions for the exclusion or expulsion of aliens, would
be valid.”); Landon, 459 US at 32 (“This Court has long held
that an alien seeking initial admission to the United States
requests a privilege and has no constitutional rights regarding
his application, for the power to admit or exclude aliens is a
sovereign prerogative.”).
146
See Appellees’ Br. at 54–55 (“Mr. Lopes de Andrade’s no-
bond detention also violates substantive due process because it
imposes detention not reasonably related to a legitimate
government interest—namely, the prevention of flight or
protection of public safety.”); see also J. App’x at 15.
147
See, e.g., 8 U.S.C. § 1225(b)(2)(A) (“[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 admitted, the
alien shall be detained for a proceeding under section 1229a of
this title.” (emphasis added)).
148
See Appellees’ Br. at 55.
149
See, e.g., supra note 145; see also Carlson v. Landon, 342
U.S. 524, 538 (1952) (“Detention is necessarily a part of this
deportation procedure.”); Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 216 (1953).
35
established that his detention during removal proceedings
violates either. Procedural due process protections apply to
ensure that one receives a fair, accurate adjudication of their
ultimate legal interests—here, whether they may remain in the
United States.150 Those protections do not constitutionally
guarantee Petitioners the right to adjudicate unrelated
questions—ones Congress didn’t deem relevant—such as
flight and security risk. All that matters is the Petitioners fall
within the class of people that Congress has decided should be
mandatorily detained.151 Any argument that Congress’s
determination was constitutionally infirm rings more in
substantive due process.
Indeed, under both § 1225(b)(2)(A) and § 1229a,
immigration detention does not turn on a demonstrated absence
of flight risk or dangerousness. The statute commands
detention if the alien is an “applicant for admission” and the
examining officer “determines that the alien is not clearly and
beyond a doubt entitled to be admitted.”152 The escape valve
is discretionary parole under § 1182(d)(5)(A), which is
administered case-by-case only “for urgent humanitarian
reasons or significant public benefit.”153 A bond hearing
focused on flight risk and dangerousness would generate
irrelevant facts, not material to individual determinations under
150
See Landon, 459 U.S. at 34 (“In evaluating the procedures
in any case, the courts must consider . . . the probable value of
additional or different procedural safeguards”); O’Bannon v.
Town Ct. Nursing Ctr., 447 U.S. 773, 797 (1980) (Blackmun,
J., concurring in the judgment) (“Procedural due process seeks
to ensure the accurate determination of decisional facts . . . ..”).
151
See Doe, 538 U.S. at 4 (“[D]ue process does not require the
opportunity to prove a fact that is not material to the State’s
statutory scheme.”).
152
8 U.S.C. § 1225(b)(2)(A).
153
Id. § 1182(d)(5)(A) (authorizing the DHS Secretary “in his
discretion” to temporarily parole aliens “applying for
admission to the United States” on these limited conditions and
specifying this is temporary status that “shall not be regarded
as an admission of the alien” and that following the termination
of parole status the alien shall be treated “in the same manner
as that of any other applicant for admission to the United
States”); 8 C.F.R. § 212.5(b) (implementing case-by-case
parole criteria).
36
the § 1225(b)(2)(A) and § 1229a detention scheme—a scheme
designed to keep aliens who have never received any
adjudication of lawful U.S. presence from release into the
country without demonstrated legal entitlement.154
B
More substantively, in Demore v. Kim—a case
involving criminal alien detention under § 1226(c)—the
Supreme Court previously suggested that Fifth Amendment
due process principles extend to aliens in deportation
proceedings.155 But “[d]etention during removal proceedings
is a constitutionally permissible part of that process.”156 And
here, Petitioners arguably have less of a significant protected
interest than the aliens in Demore because they have never
received any determination of lawful presence.157
The Supreme Court has repeatedly indicated there is no
general right to freedom from detention during removal
proceedings.158 And on the merits of the ultimate question of
lawful status, the Supreme Court “has long held that an alien
154
Cf. 8 U.S.C. § 1225(a)(1) (designating as “applicant[s] for
admission” any “alien present in the United States who has not
been admitted or who arrives”); Doe, 538 U.S. at 8 (“Plaintiffs
who assert a right to a hearing under the Due Process Clause
must show that the facts they seek to establish in that hearing
are relevant under the statutory scheme.”).
155
Demore, 538 U.S. at 531 (discussing Flores, 507 U.S. at
306)); see Flores, 507 U.S. at 306 (“It is well established that
the Fifth Amendment entitles aliens to due process of law in
deportation proceedings.”).
156
Demore, 538 U.S. at 531; see also id. at 524 (discussing
how the Government “could deny bail to the detainees ‘by
reference to the legislative scheme’ even without any finding
of flight risk” (quoting Carlson, 342 U.S. at 543)); Carlson,
342 U.S. at 538 (“Detention is necessarily a part of [a]
deportation procedure.”).
157
See Appellant’s Br. at 2 (“Petitioners entered the country
without inspection, [and] were never ‘admitted,’ . . .”); cf.
Demore, 538 U.S. at 513 (“[Kim] entered the United States in
1984, at the age of six, and became a lawful permanent resident
of the United States two years later.”)
158
See supra note 145.
37
seeking initial admission to the United States requests a
privilege and has no constitutional rights regarding his
application, for the power to admit or exclude aliens is a
sovereign prerogative.”159
Detention pending removal generally serves the
purpose of preventing “aliens from fleeing prior to or during
their removal proceedings” and increases the likelihood of
successful removal.160 When crafting procedures adjudicating
the status of “deportable aliens, the Due Process Clause does
not require [Congress] to employ the least burdensome means
to accomplish its goal.”161 Under the “longstanding view” of
the Supreme Court, “the Government may constitutionally
detain deportable aliens during the limited period necessary for
their removal proceedings.”162 The Supreme Court has
underscored in recent cases involving admission and removal
authority that “the Constitution gives ‘the political department
of the government’ plenary authority to decide which aliens to
admit.”163 “[C]oncomitant” with that authority is “the power
to set the procedures to be followed in determining whether an
alien should be admitted.”164
159
Landon, 459 U.S. at 32.
160
Demore, 538 U.S. at 528; see also Wong Wing, 163 U.S. at
235 (“Proceedings to exclude or expel would be vain if those
accused could not be held in custody pending the inquiry into
their true character, and while arrangements were being made
for their deportation.”).
161
Demore, 538 U.S. at 528; see also Carlson, 342 U.S. at 543
(“In carrying out that policy the Attorney General is not left
with untrammeled discretion as to bail. Courts review his
determination. Hearings are had, and he must justify his
refusal of bail by reference to the legislative scheme to
eradicate the evils of Communist activity.” (emphasis added));
Landon, 459 U.S. at 35 (rejecting the concept that the judicial
role is to “impos[e] procedures that merely displace
congressional choices of policy”).
162
Demore, 538 U.S. at 526; see also supra note 145.
163
Thuraissigiam, 591 U.S. at 139 (quoting Nishimura Ekiu v.
United States, 142 U.S. 651, 659 (1892)).
164
Id. The Court has noted that deference in this area is
important given that “any policy toward aliens is vitally and
intricately interwoven with contemporaneous policies in
regard to the conduct of foreign relations, the war power, and
38
Hoping to sidestep this principle from Demore,
Petitioners attempt to rely on Zadvydas v. Da
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