For decades, a person arrested by ICE inside the country could ask an immigration judge for bond. The judge weighed flight risk and danger, set an amount of at least $1,500, and the person went home to fight the case. That was the ordinary course under section 236(a) of the INA.
On July 8, 2025, ICE's acting director issued guidance concluding that section 236 was the wrong provision. Anyone who entered without inspection, the memo said, remains an "applicant for admission" under section 235(b)(2)(A), which mandates detention and provides no bond hearing at all. Release would come only through a parole decision by ICE itself.
On September 5, 2025 the Board of Immigration Appeals agreed. In Matter of Yajure Hurtado, the Board held that immigration judges lack authority to grant bond to anyone present without admission. The respondent had crossed near El Paso in November 2022 and lived in the interior for nearly three years. Under the new reading, the three years did not matter.
Who it reaches
Anyone who entered without inspection and was never admitted or paroled, including people arrested years after entry with families, jobs and pending applications. It does not change the rules for people admitted on a visa, for permanent residents, or for those already subject to mandatory detention under section 236(c) because of criminal grounds.
The split
The Board's reading is being tested in habeas petitions across the country, and the courts of appeals have divided.
For the government. The Fifth Circuit, in Buenrostro-Mendez v. Bondi, upheld the Board over a dissent: people who entered without inspection remain applicants for admission wherever they are found, and section 235 governs. The Eighth Circuit followed in Avila v. Bondi in March 2026, again with a dissent.
Against the government. The Second Circuit, in Barbosa Da Cunha v. Freden on April 28, 2026, rejected the reading unanimously. People who entered without inspection and have long resided in the country are not "seeking admission"; they fall under section 236(a) and may ask a judge for bond. The court invoked constitutional avoidance, which is to say it declined to read the statute in a way that would raise due process problems. The Sixth Circuit, in Lopez-Campos v. Raycraft, reached the same result and added that prolonged detention without meaningful review violates due process.
Pending. The Fourth Circuit heard argument on May 5 and the Third on May 12. Other circuits will follow. The split is wide enough that the Supreme Court will almost certainly be asked to resolve it.
The practical consequence is stark. A person detained in Texas or Louisiana has no bond hearing. The same person detained in New York or Ohio does. The law of the detention facility, not the law of the residence, controls.
The scale
The daily detained population passed 73,000 in January 2026, a record, and every day since June 2025 has exceeded the previous peak of 2019. In February ICE was holding people in 456 facilities while listing 220 on its website, in every state plus Guam, Guantanamo Bay, Puerto Rico and the Northern Marianas. H.R. 1 appropriated $45 billion through 2029 to expand capacity toward roughly 100,000 beds. The numbers are not a temporary surge; they are the design.
What a family can do
- Find the person. The ICE Online Detainee Locator takes an A-number or a name and country of birth and returns the facility. Confirm it by phone and ask for the assigned deportation officer.
- Get a lawyer the same day. The bond question turns entirely on which circuit the facility sits in, and transfers between facilities happen fast, sometimes to change the answer.
- Where a judge can hear bond, file for it and bring evidence of residence, family, employment and community ties.
- Where a judge cannot, the routes are a parole request to ICE under section 212(d)(5) and a habeas petition in the federal district court that covers the facility. The petition is the vehicle through which the Second and Sixth Circuit rulings were won.
- Keep the evidence ready regardless: length of residence, children's birth certificates, tax returns, leases. It matters to parole, to bond where available, and to any due process argument.
The government's reading turns a thirty-year resident into a person standing at the border. Two circuits have accepted that; two have refused. Until the Supreme Court speaks, geography is the rule.