United States Court of Appeals
For the First Circuit
Nos. 25-2152, 26-1094
JOSÉ ARNULFO GUERRERO ORELLANA,
Petitioner, Appellee,
v.
ANTONE MONIZ, Superintendent, Plymouth County Correctional
Facility; DAVID J. VENTURELLA, Acting Director, U.S. Immigration
and Customs Enforcement; MARKWAYNE MULLIN, Secretary of the U.S.
Department of Homeland Security; TODD BLANCHE, U.S. Attorney
General; DAVID WESLING, Acting Field Office Director; DAREN K.
MARGOLIN, Director, Executive Office for Immigration Review,
Respondents, Appellants,
PATRICIA H. HYDE, Acting Director of Boston Field Office, U.S.
Immigration and Customs Enforcement,
Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Montecalvo, Lynch, and Dunlap,
Circuit Judges.
John Bailey, Counsel to the Assistant Attorney General, with
whom Brett A. Shumate, Assistant Attorney General, Yaakov M. Roth,
Principal Deputy Assistant Attorney General, Drew C. Ensign,
Deputy Assistant Attorney General, and Benjamin Hayes, Senior
Counsel to the Assistant Attorney General, Civil Division, U.S.
Department of Justice, and August Flentje, Special Counsel,
Katherine J. Shinners, Senior Litigation Counsel, and Laurie
Wiesner, Trial Attorney, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, were on brief, for
appellants.
Matt A. Crapo and Christopher J. Hajec, on brief for the
Federation for American Immigration Reform as amicus curiae
supporting appellants.
Adriana Lafaille, with whom Jessie J. Rossman, Daniel L.
McFadden, and Julian Bava, American Civil Liberties Union
Foundation of Massachusetts, Inc., Michael K.T. Tan, My Khanh Ngo,
Oscar Sarabia Roman, Judy Rabinovitz, and Natalie Behr, American
Civil Liberties Union Foundation, Gilles R. Bissonnette, SangYeob
Kim, and Chelsea Eddy, American Civil Liberties Union of New
Hampshire, Annelise M. Jatoba de Araujo, Annelise Araujo Law, LLC,
Christopher E. Hart, Foley Hoag LLP, Carol J. Garvan and Max I.
Brooks, American Civil Liberties Union of Maine Foundation, and
Sameer Ahmed, Harvard Immigration and Refugee Clinical Program,
Harvard Law School, were on brief, for appellee.
Emma Winger, Rebecca Cassler, and Suchita Mathur, on brief
for the American Immigration Council and the American Immigration
Lawyers Association as amici curiae supporting appellee.
Amit Jain, Kathleen Pleiss, Roderick & Solange, and MacArthur
Justice Center, on brief for Immigration Law Scholars as amici
curiae supporting appellee.
Robert Bonta, Attorney General, State of California, Letitia
James, Attorney General, State of New York, Michael L. Newman,
Senior Assistant Attorney General, Robin L. Goldfaden, Marissa
Malouff, Supervising Deputy Attorney General, and Julia Heming
Segal, Deputy Attorney General, California Attorney General's
Office, Barbara D. Underwood, Solicitor General, Philip J. Levitz,
Senior Assistant Solicitor General, Gillian Barna, Assistant
Solicitor General, and Julie Dona, Special Counsel, NYS Office of
the Attorney General, Kristin K. Mayes, Attorney General, State of
Arizona, Philip J. Weiser, Attorney General, State of Colorado,
William Tong, Attorney General, State of Connecticut, Kathleen
Jennings, Attorney General, State of Delaware, Brian L. Schwalb,
Attorney General, District of Columbia, Anne E. Lopez, Attorney
General, State of Hawai'i, Kwame Raoul, Attorney General, State of
Illinois, Aaron M. Frey, Attorney General, State of Maine, Anthony
G. Brown, Attorney General, State of Maryland, Andrea Joy Campbell, Attorney General, Commonwealth of Massachusetts, Dana Nessel,
Attorney General, State of Michigan, Keith Ellison, Attorney
General, State of Minnesota, Aaron D. Ford, Attorney General, State of Nevada, Jennifer Davenport, Acting Attorney General, State of
New Jersey, Dan Rayfield, Attorney General, State of Oregon, Peter
F. Neronha, Attorney General, State of Rhode Island, Charity R.
Clark, Attorney General, State of Vermont, Jay Jones, Attorney
General, Commonwealth of Virginia, Nicholas W. Brown, Attorney
General, State of Washington, on brief for States of New York,
California, Arizona, Colorado, Connecticut, Delaware, Hawai'i,
Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota,
Nevada, New Jersey, Oregon, Rhode Island, Vermont, Virginia,
Washington, and the District of Columbia as amici curiae supporting appellee.
James Joseph Beha, II and Baker Bott LLP, on brief for Former
Immigration Judges and Appellate Immigration Judges as amici
curiae supporting appellee.
August 13, 2026
MONTECALVO, Circuit Judge. The Immigration and
Nationality Act (INA) requires the detention of certain
noncitizens pending removal proceedings under 8 U.S.C.
§ 1225(b)(2)(A) and allows for the release of other noncitizens on
bond or conditional parole pursuant to § 1226(a). In this case,
we evaluate which of these two statutory provisions govern
Petitioner-Appellee José Arnulfo Guerrero Orellana, a Salvadoran
national who entered the United States without inspection
approximately thirteen years ago. To do so, we focus much of our
inquiry on whether Guerrero Orellana, who entered this country
unlawfully and thus, under the INA, is deemed an "applicant for
admission," is defined in the statute to be necessarily also
"seeking admission," as required by the mandatory detention
provision at § 1225(b)(2)(A). Because we conclude that the term
"seeking admission" means seeking lawful entry, and Guerrero
Orellana already entered the country unlawfully, we hold that he
is not "seeking admission." For this reason, and others discussed
below, we agree with the district court that Guerrero Orellana and
his fellow class members' detention (and eligibility for release)
are governed by § 1226(a), not § 1225(b)(2)(A). Thus, the district
court was right to order the government to release Guerrero
Orellana or provide him with a bond hearing. We affirm.
- 4 -I.
We begin with some background about the Illegal
Immigration Reform and Immigration Responsibility Act (IIRIRA),
the legislation that amended the statutory provisions before us on
appeal. Then we turn to the facts and procedure underlying this
case.
A.
In 1996, Congress enacted IIRIRA, ushering in
significant changes to the INA.1 See Pub. L. 104-208, 110 Stat.
3009 (1996). Most relevant to this appeal is how IIRIRA impacted
the immigration detention provisions codified at § 1225 and
§ 1226. In broad terms, § 1226 serves as a source of discretionary
detention authority and allows for the release, on bond or
conditional parole, of noncitizens who are subject to this section.
For example, IIRIRA introduced a singular "removal"
1
proceeding in place of prior "exclusion" and "deportation"
proceedings. See Pub. L. 104-208, § 304, 110 Stat. 3009-587 to
3009-597 (1996). In the newly created "removal" proceedings,
governed by § 1229a, noncitizens would be charged with grounds of
"inadmissibility" or "deportability," a concept we will explain
more later.
IIRIRA also created procedures called "expedited
removal" -- a swifter removal process with fewer procedural
protections than § 1229a removals. See id. § 302, 110 Stat.
3009-579 to 3009-584. Expedited removal applies only to certain
noncitizens (1) who are "arriving in the United States" or have
"not been admitted or paroled" and fail to show their continuous
presence in the United States for two years, and (2) who are
inadmissible for misrepresentation under § 1182(a)(6)(C) or lack
of valid entry documentation under § 1182(a)(7). See 8 U.S.C.
§ 1225(b)(1)(A)(i), (iii).
- 5 -See 8 U.S.C. § 1226(a). But, through amendments at § 1226(c),
IIRIRA required certain "criminal" noncitizens to remain detained
throughout the pendency of their removal proceedings, disallowing
their release on bond.2 § 303, 110 Stat. at 3009-585; see 8 U.S.C.
§ 1226(c). The question we address focuses on how IIRIRA applied
mandatory detention in a different provision of the INA:
§ 1225(b)(2)(A). And it concerns whether that provision applies
to noncitizens who entered the United States without inspection.
For nearly thirty years after IIRIRA's enactment,
immigration officials detained noncitizens who were present in the
United States after entering without inspection pursuant to
§ 1226. Unless they were subject to the mandatory detention
provision at § 1226(c) for certain criminal or terrorism-related
reasons, they could be released on bond or conditional parole
pending resolution of their removal proceedings.3
2 Following the lead of the title of § 1226(c) ("Detention of
criminal aliens"), we will occasionally refer to noncitizens
subject to mandatory detention under this provision as "criminal"
noncitizens. See Nielsen v. Preap, 586 U.S. 392, 398-99. But we
employ this shorthand only for brevity, noting that not all grounds that trigger mandatory detention under § 1226(c) require a
criminal conviction. See, e.g., 8 U.S.C. § 1226(c)(1)(E)
(requiring detention where the noncitizen has been "arrested for"
or "charged with" certain offenses).
3 When considering a noncitizen's eligibility for release from
detention on bond, an immigration judge considers whether the
individual poses a "danger to the community" or a "flight risk."
See Hernandez-Lara v. Lyons, 10 F.4th 19, 27 (1st Cir. 2021).
- 6 -That understanding and administration of § 1226 through
five different presidents changed on July 8, 2025, when the U.S.
Department of Homeland Security (DHS) issued interim guidance
requiring the detention of all noncitizens who had entered the
United States without inspection pursuant to § 1225. In this new
policy, DHS "revisited its legal position on detention and release
authorities," and for the first time determined that § 1225, not
§ 1226, was "the applicable detention authority" for "applicants
for admission." IIRIRA deems noncitizens (1) who are "present in
the United States" and who "[have] not been admitted" and (2) those
who "arrive[] in the United States" to be "applicant[s] for
admission" under the INA. 8 U.S.C. § 1225(a)(1). Thus,
noncitizens who have entered the United States without inspection
are considered "applicant[s] for admission" as individuals present
in the United States without admission. See id. The DHS guidance
newly interpreted § 1225(b) to require that all applicants for
admission would now be treated the same as "'arriving aliens' [had]
historically been treated," and thus instructed U.S. Immigration
and Customs Enforcement (ICE) to detain all applicants for
admission under § 1225(b) throughout their removal proceedings,
without access to a bond hearing. Instead of release after a bond
hearing, noncitizens subject to the guidance could only be released
pursuant to DHS's discretionary parole authority under
§ 1182(d)(5)(A), which allows the DHS Secretary to parole into the
- 7 -United States, "on a case-by-case basis," certain noncitizens for
"urgent humanitarian reasons or significant public benefit." See
8 U.S.C. § 1182(d)(5)(A).
Two months later, this policy became precedent through
the Board of Immigration Appeals' (BIA) decision in Matter of
Yajure Hurtado. 29 I. & N. Dec. 216, 225 (B.I.A. 2025). There,
the BIA held that, under the "plain language" of § 1225(b)(2)(A),
immigration judges "lack authority" to release noncitizens "who
are present in the United States without admission" on bond. Id.
In consequence, the number of noncitizens held in detention
increased. It was reported as of mid-January 2026 that the
government's new mandatory detention policy had resulted in
approximately 73,000 noncitizens being detained, "the highest
level" of detention ever recorded. See Camilo Montoya-Galvez,
ICE’s Detainee Population Reaches New Record High of 73,000, as
Crackdown Widens, CBS News (Jan. 16, 2026),
https://www.cbsnews.com/news/ices-detainee-population-recordhigh-of-73000/ [https://perma.cc/EY9J-QZ27].
B.
With this context in mind, we turn now to the Petitioner
in this appeal. While the specific place and time of Guerrero
Orellana's entry to the United States are unknown, the parties
- 8 -agree that he entered "without inspection, admission, or parole"
and has resided here since 2013.4
On September 18, 2025, during a vehicle stop in Everett,
Massachusetts, ICE arrested Guerrero Orellana. Shortly
thereafter, officials placed him in removal proceedings, detained
him, and transferred him to a detention center in Plymouth,
Massachusetts. ICE charged Guerrero Orellana as inadmissible for
being present in the United States without admission or parole and
for lacking valid entry documentation. See 8 U.S.C.
§ 1182(a)(6)(A)(i), (a)(7)(A)(i)(I). Consequently, in appellants'
view, he fell within the group of noncitizens that the BIA
determined was ineligible for release on bond in Yajure Hurtado.
See 29 I. & N. Dec. at 225.
Guerrero Orellana challenged the legality of his
detention without a bond hearing through a habeas petition filed
on September 18, 2025, in the U.S. District Court for the District
of Massachusetts. He later amended his petition to serve as a
class representative for similarly situated noncitizens.
On October 3, 2025, the district court, concluding that
Guerrero Orellana was likely to succeed on the merits of his claim,
entered a preliminary injunction ordering his release within seven
days unless he was given a bond hearing. Six days later, Guerrero
Guerrero Orellana's habeas petition indicates that
4 he "entered the United States without inspection in June 2013."
- 9 -Orellana received a bond hearing, and the immigration judge found
a change of custody status was warranted and ordered him released
on a $3,500 bond. In his removal proceedings, which remain
ongoing, Guerrero Orellana seeks cancellation of removal under 8
U.S.C. § 1229b(b).
Following Guerrero Orellana's release from detention,
the district court certified the proposed class and continued
forward to the merits.5 On December 19, 2025, the district court
granted partial summary judgment and partial final judgment for
Guerrero Orellana and the class and denied the government's crossmotion for partial summary judgment. The district court held that
DHS's policy of detaining class members under § 1225(b)(2)(A)
without access to a bond hearing violated the INA and its
regulations. It further held that class members were not subject
to mandatory detention under § 1225(b)(2)(A), but rather, were
subject to § 1226(a) and thus must be considered for release on
bond.
The class, which the district court modified on December
5
19, 2025, includes noncitizens arrested or detained in
Massachusetts or within a Massachusetts immigration court's
jurisdiction who satisfy certain criteria. Because the government
does not appeal the district court's class certification order, we
need not address the scope of the class in detail. But we briefly
highlight a few components of the class definition: namely, it
includes noncitizens who were allegedly never admitted or paroled
into the United States and excludes noncitizens subject to
expedited removal orders or proceedings, as well as those subject
to mandatory detention under § 1226(c).
- 10 -The government timely appealed the district court's
orders granting a preliminary injunction and partial summary
judgment. We now address those consolidated appeals.
II.
The questions before us are of pure statutory
interpretation. The key question is: does § 1226 apply to Guerrero
Orellana and his fellow class members, permitting their release on
bond pending resolution of their removal proceedings, or does
§ 1225(b)(2)(A) apply, thus mandating their detention? The
district court held that the class is governed by § 1226, thus
permitting class members' potential release on bond. We review
that legal determination de novo. Fraga v. Premium Retail Servs.,
Inc., 61 F.4th 228, 233 (1st Cir. 2023).
A.
To answer the question of interpretation before us, we
begin, as we always do, with the text of the disputed statutory
provisions: § 1226 and § 1225(b)(2)(A). See Lackey v. Stinnie,
604 U.S. 192, 199-200 (2025); Dor v. Bondi, 161 F.4th 1, 8 (1st
Cir. 2025).
i.
Starting with § 1226, as discussed, this section
authorizes the arrest and detention of certain noncitizens and
permits their release on bond or conditional parole. Subsection
(a) reads:
- 11 -(a) Arrest, detention, and release
On a warrant issued by the Attorney General,
an alien may be arrested and detained pending
a decision on whether the alien is to be
removed from the United States. Except as
provided in subsection (c) and pending such
decision, the Attorney General—
(1) may continue to detain the arrested
alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with
security approved by, and
containing conditions prescribed
by, the Attorney General; or
(B) conditional parole . . . .
8 U.S.C. § 1226(a).6
Following subsection (a)'s general authorization for
release on bond or conditional parole, subsection (c) carves out
exceptions, mandating the detention of noncitizens charged with
specific criminal and terrorism-related grounds of inadmissibility
and deportability. See id. § 1226(c)(1); Jennings v. Rodriguez,
583 U.S. 281, 288-89 (2018). There is an important difference
between "inadmissibility" and "deportability," as we outline in
the footnote below.7 Subsection (c) states:
6 A note on terminology. The INA uses the term "alien" to
refer to a "noncitizen." Throughout this opinion, we replicate
quoted language as it appears in the original source but otherwise
use the term "noncitizen."
7 In removal proceedings, DHS charges noncitizens with
"inadmissibility" grounds if they entered the United States
without being admitted or paroled, and places the burden of proof
- 12 -(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody
any alien who(A) is inadmissible by reason of having
committed any offense covered in section
1182(a)(2) of this title,
(B) is deportable by reason of having
committed any offense covered in section
1227(a)(2)(A)(ii), (A)(iii), (B), (C),
or (D) of this title,
(C) is deportable under section
1227(a)(2)(A)(i) of this title on the
basis of an offense for which the alien
has been sentence[d] to a term of
imprisonment of at least 1 year,
(D) is inadmissible under section
1182(a)(3)(B) of this title or deportable
under section 1227(a)(4)(B) of this
title, or
(E)(i) is inadmissible under paragraph
(6)(A), (6)(C), or (7) of section 1182(a)
of this title; and (ii) is charged with,
is arrested for, is convicted of, admits
having committed, or admits committing
acts which constitute the essential
elements of any burglary, theft, larceny,
shoplifting, or assault of a law
enforcement officer offense, or any crime
that results in death or serious bodily
injury to another person,
on them to demonstrate that they are not inadmissible. See
generally 8 U.S.C. § 1182; see also id. § 1229a(c)(2)(A). In
contrast, noncitizens who were admitted to the country (meaning
they entered lawfully, such as with a valid visa) but later become
removable (for example, due to certain criminal convictions), are
charged with grounds of "deportability," which the government
bears the burden of proving. See generally id. § 1227; see also
id. § 1229a(c)(3)(A).
- 13 -when the alien is released, without
regard to whether the alien is released
on parole, supervised release, or
probation, and without regard to whether
the alien may be arrested or imprisoned
again for the same offense.
Id. § 1226(c)(1).
Guerrero Orellana argues that the text of subsections
(a) and (c) demonstrates that § 1226 applies to noncitizens who
entered the United States without inspection and that this textual
conclusion is supported by the structure of IIRIRA. Concerning
subsection (a) allowing release, he points to its use of these
terms: it applies to "an alien," allowing for their arrest and
detention, as well as release on bond or conditional parole
"pending a decision" about whether they will be "removed." Id.
§ 1226(a). This broad language, he points out, makes "no exception
based on the circumstances of a noncitizen's entry into the
country." And by referencing a pending decision concerning
removal, he argues, § 1226(a) applies both to noncitizens charged
with deportability grounds and noncitizens like him who were never
admitted and thus are subject to inadmissibility grounds.
Concerning subsection (c), he points out that the mandatory
detention carveouts cover both noncitizens charged with
deportability and inadmissibility grounds, and argues that this,
too, confirms § 1226's application to noncitizens who entered
without inspection, who are subject to inadmissibility grounds.
See id. § 1226(c)(1)(A), (D), (E).
- 14 -The government acknowledges that § 1226(a) authorizes
the Executive to arrest and detain, as well as release "any 'alien'
pending removal proceedings." But it also argues that "any 'alien'
pending removal proceedings" does not mean all noncitizens subject
to removal proceedings. It argues instead that the language
applies only to those noncitizens "who are not 'applicants for
admission' subject to § 1225(b)(2)(A)." Put simply, the
government maintains that § 1226 applies only to noncitizens "who
have been admitted to the United States but are now deportable,"
such as individuals who overstayed their visas. It cites no direct
authority for this assertion, but instead, points us to the other
disputed provision in this appeal, § 1225(b)(2)(A), to support its
argument.
ii.
Separate from the detention authority in § 1226, which
permits release on bond or conditional parole, § 1225(b)(2)(A)
mandates the detention of certain noncitizens as follows:
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 [removal] proceeding[s] under
section 1229a of this title.
8 U.S.C. § 1225(b)(2)(A).
- 15 -To interpret this provision more nimbly, we divide it by
clauses, following the natural breaks indicated by punctuation.
Doing so gives us four clauses:
1: Subject to subparagraphs (B) and (C),
2: in the case of an alien who is an applicant
for admission,
3: if the examining immigration officer
determines that an alien seeking admission is
not clearly and beyond a doubt entitled to be
admitted,
4: the alien shall be detained for [removal]
proceeding[s] under section 1229a of this
title.
Id. (citation modified).
We start with what is not in dispute, which is clauses
1, 2, and 4. Clause 1 carves out individuals to whom
§ 1225(b)(2)(A) does not apply and provides the Attorney General
with discretion to return certain noncitizens to territories
bordering the United States, rather than detain them.8 See id.;
see also id. § 1225(b)(2)(B)-(C). Next, under clause 2, a
noncitizen must be an "applicant for admission" for
§ 1225(b)(2)(A) to apply. Id. § 1225(b)(2)(A). As mentioned, the
Namely, under subparagraph (B), § 1225(b)(2)(A)'s mandatory
8
detention provision "shall not apply" to crewmen, stowaways, and
individuals subject to expedited removal. Id. § 1225(b)(2)(B).
And under subparagraph (C), for noncitizens described in
§ 1225(b)(2)(A) who are "arriving on land" to the United States
from a contiguous foreign territory, "the Attorney General may
return" them to that territory (rather than detain them), pending
removal proceedings. Id. § 1225(b)(2)(C).
- 16 -INA deems a noncitizen "an applicant for admission" if he or she
is (1) "present in the United States" and has "not been admitted,"
or (2) "arrives in the United States." Id. § 1225(a)(1). Guerrero
Orellana and class members concede (and we agree) that because
they are present in this country and have not been admitted, they
are deemed "applicants for admission." Finally, clause 4 mandates
detention for noncitizens who meet the criteria set forth in the
prior clauses, pending resolution of their removal proceedings.
Id. § 1225(b)(2)(A).
The parties vigorously dispute the meaning of clause 3,
namely, whether its use of the phrase "seeking admission" must
mean the same thing as "applicant for admission," as used in clause
2. We start by considering clause 3 -- which we will refer to
from here on as the "if clause" -- once more. It states:
if the examining immigration officer
determines that an alien seeking admission is
not clearly and beyond a doubt entitled to be
admitted . . .
Id. (emphases added). Under the "if clause," an "examining
immigration officer" is tasked with making a determination about:
(1) "an alien seeking admission," (2) concerning that person's
"entitle[ment] to be admitted" and the strength of the noncitizen's
argument for admission. Id. Only if the examining officer
determines the noncitizen is not "clearly and beyond a doubt
entitled to be admitted," (and only where the individual also meets
- 17 -the requirements laid forth in the prior clauses), is that
noncitizen subject to mandatory detention under § 1225(b)(2)(A).
Noting that the examining officer's determination involves these
two components, we analyze them each in turn.
First, the officer's determination concerns "an alien
seeking admission." Here, the parties dispute the meaning of part
of that phrase: "seeking admission." To interpret this, we begin
with any statutorily-defined terms, because when Congress defines
a term, "we must follow that definition, even if it varies from a
term's ordinary meaning." Van Buren v. United States, 593 U.S.
374, 387 (2021) (citation modified). As for undefined terms, our
understanding is "gleaned from a consideration of the 'ordinary,
contemporary, common meaning' of the terms." Delaware v.
Pennsylvania, 598 U.S. 115, 128 (2023) (quoting Sandifer v. United
States Steel Corp., 571 U.S. 220, 227 (2014)). The phrase "seeking
admission" is not statutorily defined, but the term "admission" is
defined in the statute. "[A]dmission" means "the lawful entry of
[an] alien into the United States after inspection and
authorization by an immigration officer."9 8 U.S.C.
"Entry," although once defined in the INA, no longer is
9
defined there, so we look to its plain and ordinary meaning. It
is defined as "the act of entering," and "enter," in turn, means
"to go or come into a material place." Webster's Third New
International Dictionary 756, 759 (Philip Babcock Gove ed., 1993).
Indeed, this aligns with our precedent. While this circuit has
stopped short of announcing a "definitive definition of 'entry,'"
we have looked approvingly at definitions requiring "a crossing
- 18 -§ 1101(a)(13)(A) (emphasis added); Mullin v. Al Otro Lado, 146 S.
Ct. 2079, 2087 (2026) (explaining that "an alien cannot lawfully
enter this country without first being inspected by an immigration
officer"). Next, we look to "seeking." As it is not defined in
the INA, we consider its ordinary meaning: "to try to acquire or
gain."10 Merriam-Webster's Collegiate Dictionary 1057 (10th ed.
1994); see City of Providence, 954 F.3d 23, 31 (1st Cir. 2020);
American Heritage Dictionary 1633 (def. 2) (3d ed. 1992) ("[t]o
endeavor to obtain or reach"); Oxford English Dictionary 876 (def.
5.1.a) (2d ed. 1989) ("[t]o go in search or quest of; to try to
find, look for"). "Putting the pieces together," then, a
noncitizen is "seeking admission" if they are trying to gain lawful
entry into the United States after inspection and authorization by
an immigration officer. Cf. Montgomery v. Caribe Transp. II, LLC,
146 S. Ct. 1199, 1204-05 (2026) (employing a similar analytical
into the territorial limits of the United States," and have
acknowledged that entry requires that the noncitizen "cross the
United States border free from official restraint." Dimova v. Holder, 783 F.3d 30, 38-40 (1st Cir. 2015)(citation modified); cf.
Mullin v. Al Otro Lado, 146 S. Ct. 2079, 2090 (2026) (considering
the ordinary meaning of "arrives in the United States," and
concluding that it "clear[ly]" means that "[a] person arrives in
a geographic location only when he enters it").
10 Notably, the present participle "seeking" implicates an
active, present tense action. See United States v. Wilson, 503
U.S. 329, 333 (1992) ("Congress' use of a verb tense is significant in construing statutes."); see also Santillan Quiroz v. Mullin,
180 F.4th 1226, 1238 (10th Cir. 2026) (noting that the use of the
present participle "seeking" rather than "seek" "requires present
and continuing action").
- 19 -approach). It is clear on its face that Guerrero Orellana and his
fellow class members entered the United States. And both parties
agree that they did so unlawfully. Thus, the text leads us to the
rather straightforward conclusion: Guerrero Orellana and his
fellow class members are not "seeking admission" under
§ 1225(b)(2)(A) because they have already unlawfully entered the
United States. To conclude otherwise would defy the plain language
of the statute.11
Second, the examining officer's determination as
described in the "if clause" concerns whether the noncitizen
seeking admission is "entitled to be admitted." 8 U.S.C.
§ 1225(b)(2)(A). "[A]dmitted," as used here, and "admission," as
used in "seeking admission," carry the same statutory definition.
See 8 U.S.C. § 1101(a)(13)(A). Both terms mean "the lawful entry
of [an] alien into the United States after inspection and
authorization by an immigration officer." Id. For § 1225(b)(2)(A)
to apply then, the examining immigration officer necessarily must
ascertain whether the noncitizen has a right to lawfully enter the
United States. And logically, that determination takes place at
11When questioned at oral argument about how class members
could possibly be seeking lawful entry to the United States from
within the country, the government maintained that because class
members have not "yet" entered the United States lawfully, "by
operation of law, they are seeking admission." But this argument
contorts the plain meaning of "entry," as used in the statutory
definition of "admission" (lawful entry), beyond recognition.
- 20 -the time the noncitizen seeks entry -- hence, the inclusion of
this language immediately following "seeking admission." Id.
§ 1225(b)(2)(A). Here again, only after Guerrero Orellana was
found in a traffic stop in Massachusetts was he identified as being
in the country unlawfully by ICE. And whoever at ICE identified
Guerrero Orellana was not evaluating whether he could lawfully
enter the United States, since he had already entered the country
without inspection years prior.12
This leads to our conclusion that the "if clause" is not
satisfied here. The clause can only be satisfied if the examining
immigration officer determines that a noncitizen "seeking
admission" is not clearly "entitled to be admitted." Id. Guerrero
Orellana and class members had already entered the country without
inspection -- so, they are not "seeking admission." And thus, a
determination concerning whether they are "entitled to be
admitted," i.e. to be granted lawful entry, is impossible.
The dissent takes issue with the word-by-word and
clause-by-clause approach to interpreting § 1225(b)(2)(A) that we
just employed, raising several arguments that it contends point to
a contrary reading. Principally, the dissent avers that our
"definitional exercise" is misguided and that the real task before
12 Rather, they were evaluating whether he should be charged
with inadmissibility grounds and referred for removal proceedings,
which he in fact was.
- 21 -this court concerns "giving effect" to a different provision,
namely, what the dissent refers to as the "deeming provision" in
§ 1225(a)(1). Our reading of § 1225(b)(2)(A), says the dissent,
"nullifies" that deeming provision.
We respectfully disagree for a number of reasons. We
find that the dissent relies on an assumption that lacks textual
support in the deeming provision it points to and, in so doing,
violates the applicable rules of statutory construction the
Supreme Court mandates lower courts must follow. Precisely because
this deeming provision knowingly departs from reality to create a
legal fiction different from Congress's normal legislative use of
common language, this deeming provision cannot be read to include
language which Congress chose not to use in creating that fiction.
Additionally, the dissent, in attempting to reframe the
issue before this court, fails to interpret the provision actually
before us, § 1225(b)(2)(A). Indeed, the dissent reaches a reading
of that provision that, in our view, defies the statutory language
Congress used. Our interpretation, in contrast, gives effect to
every word of § 1225(b)(2)(A) and, contrary to the dissent's
assertion, does nothing to nullify § 1225(a)(1). We will explain,
but before we do, we begin with our points of agreement.
We agree with the dissent that § 1225(a)(1) informs our
interpretation of § 1225(b)(2)(A), as § 1225(a)(1) describes who
is deemed an "applicant for admission," and "applicant for
- 22 -admission," in turn, appears in clause 2 of § 1225(b)(2)(A). And
we agree that § 1225(a)(1) states that a noncitizen who "arrives
in the United States" or who is "present" here and "has not been
admitted" "shall be deemed for purposes of this chapter an
applicant for admission."13 8 U.S.C. § 1225(a)(1) (emphasis
added). Indeed, based on this text, earlier in this opinion, we
easily concluded that Guerrero Orellana is deemed an "applicant
for admission."
Where we disagree with the dissent is in the leap in
reasoning that it makes next. The dissent asserts that because
the deeming language of § 1225(a)(1) creates "a legal fiction"
13 The dissent's argument rests on framing § 1225(a)(1) as a
"deeming" provision rather than a "definitional" provision. We
need not decide this issue because, as we will explain, even if we
accept § 1225(a)(1) as a deeming provision rather than
definitional, we remain unconvinced by the dissent's argument. We
note that our sister circuits have cast doubt on the importance of
that distinction here. See, e.g., Santillan Quiroz, 180 F.4th at
1243 (rejecting the "premise that only words like 'means' and
'defined' can create a statutory definition" and concluding that
because "deemed" in § 1225(a)(1) "specifically directs how to
construe or understand the meaning of a particular phrase, [it] is
definitional"). Indeed, nearly all of our sister circuits to
"consider[] whether § 1225(a)(1) supplie[s] the definition for the
phrase 'applicant for admission' ha[ve] answered that question in
the affirmative," including those that reached a contrary
conclusion from the one we reach today. Lopez-Campos v. Raycraft,
175 F.4th 713, 728 (6th Cir. 2026) (citing, among other cases,
decisions issued by the Second, Fifth, Seventh, Eighth, and
Eleventh circuits); see also Cirrus Rojas v. Olson, No.
25-3127, --- F.4th ---- 2026 WL 2198315, at *8 (7th Cir. July 30,
2026) (concluding that § 1225(a)(1) "is definitional"); Santillan
Quiroz, 180 F.4th at 1243 (same); but see generally Rodriguez
Vazquez v. Bostock, No. 25-6842, --- F.4th ---- 2026 WL 2196424
(9th Cir. July 30, 2026) (not addressing this issue).
- 23 -whereby noncitizens who "have not affirmatively applied for
anything" are "treated as 'applicant[s] for admission'" simply
because "they are present in the United States without having been
admitted," Congress must have meant that all applicants for
admission are "seeking admission" as that language appears in
§ 1225(b)(2)(A). Dissent at 4 ("If a person whom Congress has
deemed an applicant for admission is not seeking admission, it is
hard to know what Congress thought it was deeming him to be."
(quoting Hernandez Alvarez v. Warden, Fed. Det. Ctr. Miami, 175
F.4th 1258, 1291 (11th Cir. 2026) (Lagoa, J., dissenting))). This
argument can be summarized as follows: "[T]he legal fiction that
'a person is deemed to be A' also deems that person to have all of
A's ordinary attributes and meanings." Santillan Quiroz v. Mullin,
180 F.4th 1226, 1242 (10th Cir. 2026) (summarizing similar
dissenting arguments). Thus, according to the dissent's
reasoning, "when § 1225(a)(1) deems certain noncitizens to be
applicants for admission, it also deems them to be seeking
admission." See id.
The problem is that this leap between the deeming
language of § 1225(a)(1) and its alleged effect on § 1225(b)(2)(A)
is contradicted by the text of § 1225(a)(1). The text "deem[s]"
certain noncitizens "applicant[s] for admission" but says nothing
to indicate that they are also deemed to be "seeking admission."
See 8 U.S.C. § 1225(a)(1) (devoid of any such language). Nor is
- 24 -that assumption supported by the sole case that the dissent relies
on, Sturgeon v. Frost, 587 U.S. 28 (2019). Unlike in § 1225(a)(1),
the deeming language at issue in Sturgeon was immediately followed
by language "expressly stat[ing] the consequence" of the deeming
language.14 587 U.S. at 49. Here, where "Congress [has] deem[ed]
a person as 'A' but remains silent about whether that person is
also deemed as 'B,'" we will "not infer that Congress meant to
14In Sturgeon, the Supreme Court evaluated section 103(c) of
the Alaska National Interest Lands Conservation Act to resolve a
dispute over which lands in Alaska were subject to the National
Park Service's regulatory authority. Section 103(c) provides
that:
Only those lands within the boundaries of any
conservation system unit which are public
lands . . . shall be deemed to be included as
a portion of such unit. No lands which,
before, on, or after December 2, 1980, are
conveyed to the State, to any Native
Corporation, or to any private party shall be
subject to the regulations applicable solely
to public lands within such units.
16 U.S.C. § 3103(c) (emphasis added). The Court explained that
the deeming language in the "first sentence" of that provision,
underlined above, "set[] out the essential distinction[] relating
to what qualifies as parkland": namely, "that only the 'public
lands' (essentially, the federally owned lands) within any system
unit's boundaries would be 'deemed' a part of that unit."
Sturgeon, 587 U.S. at 47 (citation modified). And critically, the
Court explained that "the effect of that exclusion" was "expressly
state[d]" in the very next sentence, namely, that "non-public
lands, including waters," were exempt "from the Park Service's
ordinary regulatory authority." Id. at 48-49 (emphasis added).
But here, § 1225(a)(1) includes no such express language imbuing
it with the broad effect that the dissent claims it has.
- 25 -deem the person as 'B,' too." Santillan Quiroz, 180 F.4th at 1244
(emphasis added).15
We must also reject the dissent's expansive
understanding of the so-called deeming provision because it leads
to a reading of § 1225(b)(2)(A) that defies the text of that
provision. Recall that § 1225(b)(2)(A) refers to both "admission"
and "admitted," see 8 U.S.C. § 1225(b)(2)(A) ("alien seeking
admission" and "entitled to be admitted"), reinforcing, through
repetition, Congress's purposeful choice to include these
statutorily-defined terms. Terms which, as discussed at length,
mean the "lawful entry" of a noncitizen "into the United States
after inspection and authorization." 8 U.S.C. § 1101(a)(13)(A).
15The dissent, taking issue with our view of its expansive
reading of the deeming provision as violating rules of statutory
construction, asserts that it knows of no rule "demanding that
deeming clauses be functionally treated as definitional in
nature." But that misapprehends our points. Our role as courts
"is to interpret the language of the statute enacted by Congress,"
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461 (2002), and in so
doing, "resist reading words or elements into a statute that do
not appear on its face," Bates v. United States, 522 U.S. 23, 29
(1997). Congress's creation of a legal fiction does not give
courts license to extend the operation of that legal fiction beyond the statutory text Congress used to create it. See Simmons v.
Himmelreich, 578 U.S. 621, 627 (2016) ("Absent persuasive
indications to the contrary, we presume Congress says what it means and means what it says."); see also Jama v. Immigr. and Customs
Enf't, 543 U.S. 335, 341 (2005) (stating that "we do not lightly
assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply"). Our reading, then, is not
a narrowing of the deeming provision as the dissent suggests, but
rather, an honoring of the text of that provision as it exists.
The dissent's reading, in contrast, impermissibly broadens the
scope of the deeming provision beyond the statutory text.
- 26 -When one carefully parses the language of § 1225(b)(2)(A) then, it
is clear that § 1225(b)(2)(A) applies only if an applicant for
admission is seeking lawful entry to the United States and an
immigration officer determines that he or she is not "clearly and
beyond a doubt" entitled to lawfully enter. 8 U.S.C.
§ 1225(b)(2)(A). Because we cannot replace the language Congress
wrote with what the dissent suggests Congress meant, we must reject
the dissent's argument.16 See Atl. Sounding Co. v. Townsend, 557
16 Several other circuits have rejected the leap required by
the dissent's expansive reading of the deeming provision for
similar reasons. See, e.g., Cirrus Rojas, 2026 WL 2198315, at *6
(rejecting argument that because petitioner is "'deemed' an
'applicant for admission,' he is also deemed to be all that flows
from that term's ordinary meaning -- including 'seeking admission'" as "mix[ing] an admitted legal fiction with fact");
Rodriguez Vazquez, 2026 WL 2196424, at *13-15 (concluding that
because "applicant for admission" is "a term of art," a "plain
meaning comparison" of this phrase with "seeking admission" fails
to "account for the stylized treatment of [applicant for admission] and the default plain meaning treatment of [seeking admission]").
For example, in Cirrus Rojas, the Seventh Circuit found a lack of
textual support for the government's efforts "to read 'seeking
admission' into" § 1225(a)(1). 2026 WL 2198315, at *6. It observed that the presence of "seeking admission" in § 1225(b)(2)(A) compared with the absence of this phrase in
§ 1225(a)(1) constituted a "meaningful variation" that it could
not ignore. Id. In addition to a lack of textual support, the
Seventh Circuit spotlighted how IIRIRA struck a provision that
"would have 'deemed' individuals like [Guerrero Orellana] as
'seeking entry and admission'" from the INA before that provision
could ever go into effect, thereby "ensur[ing] that 'seeking
admission' remained undefined in [§] 1225(b)(2)(A)." Id. at *6
n.4 (citing Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, § 414, 110 Stat. 1214, 1270 and IIRIRA,
§ 308(d)(2)(D), 110 Stat. at 3009-617). This legislative history,
as we see it, further undermines the expansive view of
§ 1225(a)(1)'s deeming provision that the dissent adopts.
- 27 -U.S. 404, 424 (2009) ("[W]e will not attribute words to Congress
that it has not written.").
The dissent's assertion that our interpretation of
§ 1225(b)(2)(A) "nullifies" the deeming language in § 1225(a)(1)
similarly fails in our view. Section 1225(a)(1) instructs that
its two-part description of "applicant for admission" -- including
noncitizens who arrive in the United States and those present here
who have not been admitted -- applies "for purposes of this
chapter," referring to Chapter 12 of Title 8 of the U.S. Code,
which codifies the entirety of the INA. 8 U.S.C. § 1225(a)(1)
(emphasis added). We do not view Congress's choice in (b)(2)(A)
to mandate detention of some but not all applicants for admission
through its inclusion of the "if clause" as nullifying (a)(1). To
the contrary, under our reading, "applicant for admission," as
used in § 1225(b)(2)(A), remains fully intact and it is the "if
clause" that effectively limits the application of § 1225(b)(2)(A)
to only those "applicants for admission" who are "arriv[ing] in
the United States." Similarly, our reading does not nullify
(a)(1)'s deeming language in any other part of the INA. As our
sister circuits have pointed out, "applicant for admission" is
used throughout the INA and "takes on its full scope" in sections
that do not include the kind of limiting clause found in
§ 1225(b)(2)(A). See Santillan Quiroz, 180 F.4th at 1246
(discussing "applicant for admission" as that term appears, for
- 28 -example, in §§ 1225(a)(3) and 1229a(c)(2)); see also 8 §§ U.S.C.
1105, 1182, 1187, 1225, 1229a (employing "applicant for admission"
in other sections of the INA).
The government, like the dissent, also urges us to bypass
our text-based interpretation of § 1225(b)(2)(A) by arguing that
all applicants for admission are "necessarily 'seeking
admission.'" To do so, the government relies not on statutory
text or on dictionary definitions but by resort to analogy.
Analogizing to a college applicant, the government reasons, just
as a person "applying" for admission to college is necessarily
"seeking" admission to that college, a noncitizen who is
"'applying' for admission to the United States . . . is
necessarily 'seeking admission' to the United States." Guerrero
Orellana counters that Congress chose to have § 1225(b)(2)(A)
apply only to those applicants for admission who are "seeking
admission," namely, those "seeking to enter the United States,"
not those like him who did not seek admission and instead entered
the United States without inspection.
We acknowledge that two circuit court majorities have
accepted the government's college applicant analogy. See
Buenrostro-Mendez v. Bondi, 166 F.4th 494, 502 (5th Cir. 2026);
Avila v. Bondi, 170 F.4th 1128, 1134 (8th Cir. 2026). But the
government provides no reason to think that Congress had such an
analogy in mind. We reject that analogy and in doing so join six
- 29 -other circuits. See Barbosa da Cunha v. Freden, 175 F.4th 61,
75-76 (2d Cir. 2026); Hernandez Alvarez, 175 F.4th at 1266-67;
Lopez-Campos v. Raycraft, 175 F.4th 713, 729 (6th Cir. 2026);
Santillan Quiroz, 180 F.4th at 1241-42; Rodriguez Vazquez v.
Bostock, No. 25-6842, --- F.4th ---- 2026 WL 2196424, at *15 (9th
Cir. July 30, 2026); Cirrus Rojas v. Olson, No.
25-3127, --- F.4th ---- 2026 WL 2198315, at *8 (7th Cir. July 30,
2026).17
Our conclusion is supported by yet a different rule of
statutory interpretation: the surplusage canon. This canon
instructs courts to "give meaning to the words of a statute in a
manner that avoids redundancies." See United States v. Freeman,
147 F.4th 1, 22 (1st Cir. 2025). It guides us to "read statutes,
whenever possible, to give effect to every word and phrase."
Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 26 (1st
Cir. 2006) (en banc). Guerrero Orellana argues that the
government's interpretation of § 1225(b)(2)(A) violates this canon
In any event, we find the government's college applicant
17
analogy flawed. The term "applicant for admission" includes
noncitizens "present" in the United States "who ha[ve] not been
admitted," 8 U.S.C. § 1225(a)(1), and so, for the college analogy
to work, "a college would have to deem an individual physically
located on its campus at any point in time to be an 'applicant for
admission' to that college, including an individual who had never
filed an application and had no intention of doing so." Barbosa
da Cunha, 175 F.4th at 76. And even beyond that, "no one would
consider an individual who never applied [to the college] to also
be 'seeking admission'" to it. Id.
- 30 -by rendering "seeking admission" superfluous. If the government's
interpretation is right, and every "applicant for admission" is
necessarily "seeking admission," there would have been no need for
Congress to include "seeking admission" in the provision at all.
The government counters that even if "applicant for admission" and
"seeking admission" are redundant under its interpretation of
§ 1225(b)(2)(A), the cannon is inapplicable for two contradictory
reasons. First, it argues "redundancies are common in statutory
drafting." See Barton v. Barr, 590 U.S. 222, 239 (2020). Second,
it argues that under Guerrero Orellana's interpretation of
§ 1225(b)(2)(A), it is the term "applicant for admission" that is
rendered superfluous.
We agree with Guerrero Orellana that "seeking admission"
is rendered superfluous under the government's interpretation.
Although the surplusage canon "is not a silver bullet," Rimini
St., Inc. v. Oracle USA, Inc., 586 U.S. 334, 346 (2019), it is a
meaningful interpretive tool, particularly when, as here, "a
competing interpretation would avoid superfluity." Bufkin v.
Collins, 604 U.S. 369, 387 (2025); see also Al Otro Lado, 146 S.
Ct. at 2092. The government, in interpreting "applicant for
admission" and "seeking admission" as meaning essentially the same
thing, reads "seeking admission," -- which, again, means seeking
lawful entry -- out of the statute. Guerrero Orellana's
- 31 -interpretation, in contrast, does not read "applicant for
admission" out of the statute, but rather limits its scope.18
The government argues that Guerrero Orellana's
interpretation of § 1225(b)(2)(A) renders the entirety of clause
2, "in the case of an alien who is an applicant for admission,"
surplusage. If that were so, § 1225(b)(2)(A) would have the exact
same effect even if clause 2 were eliminated. But the logic is
otherwise. To give an example, consider noncitizens at a
pre-inspection site in the Dublin airport who plan to fly from
Ireland to the United States. See generally 8 U.S.C. § 1225a.
They, in presenting themselves to the U.S. Customs and Border
Patrol officer at the pre-inspection site, are "seeking admission"
to the United States. If the government's argument were correct
18 The dissent acknowledges that the government's reading of
§ 1225(b)(2)(A) renders "seeking admission" duplicative but
tolerates this redundancy as an acceptable byproduct of "inartful"
drafting. Indeed, the dissent considers the erasure of this phrase
a "minor interpretive cost" compared to what it considers the
nullification "of a deeming provision across an entire statutory
section." But as explained, our interpretation of § 1225(b)(2)(A)
has no such nullifying effect on § 1225(a)(1). It bears repeating:
the fact that Congress inserted additional language in
§ 1225(b)(2)(A) to limit this provision's application to only
certain "applicant[s] for admission" does nothing to negate
§ 1225(a)(1). We add that the dissent, while arguing forcefully
to preserve its perception of the reach of § 1225(a)(1)'s "deeming
provision," appears to discount the massive overlap that the
government's reading of § 1225(b)(2)(A) creates with § 1226(c).
See Hernandez Alvarez v. Warden, Fed. Det. Ctr. Miami, 175 F.4th
1258, 1280 (11th Cir. 2026) (explaining that this is no "small
overlap," but rather, "a serious statutory redundancy"). More on
that to come.
- 32 -and Guerrero Orellana's interpretation of § 1225(b)(2)(A) swallows
up "applicant for admission" whole, then if the examining officer
determines that the noncitizens are not "entitled to be admitted"
to the United States, § 1225(b)(2)(A)'s mandatory detention
provision kicks in, requiring the detention of those individuals
while abroad in Ireland.
Guerrero Orellana's interpretation avoids this illogical
outcome and shows why "applicant for admission" is not rendered
surplusage, as the government contends. For § 1225(b)(2)(A) to
apply, the individual must first be an "applicant for admission"
to even continue on to the "if clause." Here, because the
noncitizen travelers located in Dublin are neither "arriving" to
the United States nor "present" in the United States without
admission, it makes no difference that they are "seeking
admission," because they are not "applicant[s] for admission."
Thus, failing to satisfy clause 2, the inquiry ends there, and
§ 1225(b)(2)(A)'s mandatory detention provision does not apply.
(And, rather than be detained by the U.S. government in Ireland,
the individual is simply not allowed to board the flight.)
It is Congress's prerogative to limit the application of
one statutory phrase through the inclusion of another; it is not
our prerogative to read language out of a statute. See
Narragansett Indian Tribe, 449 F.3d at 26; Stanard v. Olesen, 74
S. Ct. 768, 771 (1954) ("[I]t is for Congress, not the courts, to
- 33 -write the law."). Considering it "[b]etter to live with the
mystery [of why Congress chose the language it did] than to rewrite
the statute," we must reject the government's interpretation.19
See Montgomery, 146 S. Ct. at 1207.
In sum, our careful study of the disputed statutory texts
leads us to join the Second, Sixth, Seventh, Ninth, Tenth, and
Eleventh Circuits in holding that noncitizens like Guerrero
Orellana who are present in the United States without admission
are not subject to § 1225(b)(2)(A)'s mandatory detention
provision, but rather, are governed by § 1226. See Barbosa da
Cunha, 175 F.4th at 70-71; Lopez-Campos, 175 F.4th at 723; Cirrus
Rojas, 2026 WL 2198315, at *2; Rodriguez Vazquez, 2026 WL 2196424,
at *3; Santillan Quiroz, 180 F.4th at 1233, 1246; Hernandez
Alvarez, 175 F.4th at 1261-62.
In reaching a contrary reading, the dissent offers that had
19
Congress meant to limit the scope of § 1225(b)(2)(A) as we find it
did, it "could have used the [narrower] phrase" "arriving alien[]"
instead of "applicant for admission." That Congress could have
used any number of alternative or additional words is beside the
point. We must interpret § 1225(b)(2)(A) as written, including
not only its reference to "applicant for admission" in clause 2,
but also its inclusion of clauses 1, 3, and 4. That clause 3, the
"if clause," effectively limits the scope of which applicants for
admission will be subject to § 1225(b)(2)(A)'s mandatory detention
provision is a policy choice that Congress had every right to
elect. Our job, in interpreting the law, is to "give
effect . . . to every word Congress used." In re Fin. Oversight
& Mgmt. Bd. for Puerto Rico, 7 F.4th 31, 37 (1st Cir. 2021)
(emphasis added) (quoting Nat'l Ass'n of Mfrs. v. Dep't of Def.,
583 U.S. 109, 128-29 (2018)).
- 34 -B.
Because "the meaning of statutory language, plain or
not, depends on context," we continue on to consider the parties'
additional arguments. Holloway v. United States, 526 U.S. 1, 7
(1999) (citation modified); see Niz-Chavez v. Garland, 593 U.S.
155, 165 (2021) (confirming textual analysis of specific statutory
provisions by considering IIRIRA's broader "statutory structure
and history"). These arguments only reinforce our conclusion.
i.
First, we consider the government's contention that
other provisions of § 1225 support its interpretation of
§ 1225(b)(2)(A). The government begins with subsection (a)(4),
which permits a noncitizen who is "applying for admission" to
"withdraw the application for admission and depart immediately
from the United States." 8 U.S.C. § 1225(a)(4). The government
reasons that the "application" referenced here must be that of an
"applicant for admission," and thus, it infers, so long as a
noncitizen remains an "applicant for admission," they must be
"applying for admission." The problem with the government's
reasoning is that subsection (a)(4) does not use "applicant for
admission" -- it uses "applying for admission." Id. The present
participle "applying" suggests the noncitizen is taking an active
step towards lawful entry to the United States. See United States
v. Wilson, 503 U.S. 329, 333 (1992) (discussing the significance
- 35 -of verb tenses). And that differs from the statutory meaning of
"applicant for admission," which includes noncitizens taking no
action at all who simply satisfy the passive condition of being
present in the United States unlawfully. See 8 U.S.C.
§ 1225(a)(1). Thus, the government's (a)(4) argument is
unavailing.
The government next directs us to subsection (a)(5),
which states, "applicant[s] for admission may be required to state
under oath any information sought by an immigration officer
regarding the purposes and intentions of the applicant in seeking
admission to the United States," such as length of stay, intent to
remain permanently or become a U.S. citizen, and inadmissibility.
Id. § 1225(a)(5) (emphases added). The underlined language, the
government reasons, suggests that applicants for admission must be
seeking admission. We see two flaws in this argument. For one,
subsection (a)(5)'s reference to an immigration officer
questioning a noncitizen about their length of stay and intentions
indicates the reference applies at the border and ports of entry.
And second, its statement that a noncitizen "may" be required to
make these statements under oath, not "shall," indicates that this
line of questioning occurs only in certain contexts -- namely,
when an applicant for admission is "seeking admission," i.e. lawful
entry, to the United States.
- 36 -Perhaps the government's strongest contextual argument
concerns subsection (a)(3), titled "Inspection." Id.
§ 1225(a)(3). This provision requires all noncitizens "who are
applicants for admission or otherwise seeking admission or
readmission to or transit through the United States" to be
"inspected by immigration officers." Id. The government argues
that the use of "or otherwise" means that "applicants for
admission" must be included within the broader category of
individuals "seeking admission." We agree with the government
that "or otherwise" is often used to indicate that one term is
subsumed within another category. But that is not always so.
"[O]r otherwise" also indicates "something that is different from
something already mentioned." Barbosa da Cunha, 175 F.4th at 78
(quoting Or Otherwise, Merriam-Webster.com
Dictionary, https://www.merriam-webster.com/dictionary/or%20othe
rwise [https://perma.cc/9F9H-PH6Q]). And precedent reflects that
"or otherwise" does not always confer the subset-superset
relationship that the government alleges. In Helsinn Healthcare
S.A. v. Teva Pharmaceuticals, USA, Inc., for example, the Supreme
Court declined to read the phrase "or otherwise available to the
public" in the Leahy-Smith America Invents Act as limiting the
terms that preceded it. See 586 U.S. 123, 132 (2019). Instead,
the Court held, this phrase "capture[d] material that [did] not
- 37 -fit neatly into the statute's enumerated categories but [was]
nevertheless meant to be covered." Id.
To put the government's argument to test, we again turn
to an example: noncitizens returning to the United States on
"advance parole." Individuals granted certain forms of immigration
relief, such as Deferred Action for Childhood Arrivals (DACA),
must request advance parole to return to the United States after
trips abroad. See generally 8 C.F.R. § 212.5(f). When they
return, they are "arriv[ing]" to the United States and thus are
considered "applicants for admission." See 8 U.S.C. § 1225(a)(1).
But because they are being "paroled" into the country, a distinct
concept from being "admitted," they are not "seeking admission."
Compare 8 U.S.C. § 1101(a)(13)(A) (defining "admission"), with id.
§ 1101(a)(13)(B) (explaining that a "paroled" noncitizen "shall
not be considered to have been admitted"). In this example, then,
the government's argument that § 1225(a)(3)'s use of "or
otherwise" indicates that "applicant for admission" is a smaller
category necessarily included within the broader category of
"seeking admission" fails. Individuals returning to the United
States on advance parole are "applicants for admission," but are
not "seeking admission." Thus, because "or otherwise" does not
- 38 -function as the government alleges, we reject this attempt to
undercut our textual reading.20
ii.
Next, the government contests our conclusion that its
reading of § 1225(b)(2)(A) impermissibly "render[s] superfluous
portions of § 1226(c)" (the separate mandatory detention authority
applying to certain criminal noncitizens discussed earlier).
While acknowledging that its interpretation would indeed result in
"overlap for some aliens," the government maintains that
§ 1225(b)(2)(A) and § 1226 still each have "independent effect."
That is so, it argues, because the "discretionary detention
authority in § 1226(a)" remains intact, allowing for the detention
of admitted noncitizens who later become "deportable."21 And that
is also so, it continues, because § 1226(c) independently limits
A final word on the government's argument about subsection
20
(a)(3). Recall that this subsection reads, "or otherwise seeking
admission or readmission to or transit through the United States."
Notably, "admission" is directly followed by the terms
"readmission to" and "transit through" the United States. Id.
§ 1225(a)(3). Because those words are commonly associated with
determinations made at the border, this sheds light on the meaning
of "seeking admission," and reaffirms our interpretation that
"seeking admission" means seeking lawful entry to the country.
See Dubin v. United States, 599 U.S. 110, 124 (2023) (noting that
"a word is known by the company it keeps" (citation modified)).
21 Indeed, the government argues that § 1226 is the
"exclusive" detention authority for admitted noncitizens who later
become deportable.
- 39 -DHS's authority to release on parole certain noncitizens already
subject to no-bond detention under § 1225(b)(2)(A).22
Neither of these arguments are persuasive. For one, the
government's argument that § 1226(a) provides the detention
authority for admitted noncitizens only is inconsistent with
§ 1226(c)'s carveouts mandating detention of certain criminal
noncitizens charged with inadmissibility grounds -- which, as
discussed, apply only to noncitizens who have not been admitted.
See 8 U.S.C. § 1226(c)(1)(A), (D), (E); cf. Nielsen v. Preap, 586
U.S. 392, 409 (2019) (explaining that § 1226(c) derives from the
authority in § 1226(a)). In fact, three of the five subsections
in § 1226(c)(1)'s mandatory detention provision apply to
noncitizens charged with inadmissibility grounds. See 8 U.S.C.
§ 1226(c)(1)(A), (D), (E). Thus, the overlap that the government's
interpretation of § 1225(b)(2)(A) creates with § 1226 is far from
minor.
22 Some background is needed to digest this argument.Earlier,
we noted that DHS has discretionary authority under 8 U.S.C.
§ 1182(d)(5)(A) to temporarily release qualifying noncitizens from
custody on parole. But that discretionary parole authority is
limited for noncitizens detained under § 1226(c). That is because
§ 1226(c)(4) allows release only where necessary to protect
certain witnesses and cooperating persons implicated in major
criminal investigations, and where release does not present a
danger to others or a flight risk. See 8 U.S.C. § 1226(c)(4).
Thus, the government argues, § 1226(c) does independent work from
§ 1225(b)(2)(A) by limiting DHS's ability to release certain
noncitizens on § 1182(d)(5)(A) parole.
- 40 -Perhaps the most compelling legal and practical example
in support of Guerrero Orellana's argument is the tension that the
government's interpretation of § 1225(b)(2)(A) causes with
§ 1226(c)(1)(E) ("subsection (E)"). Congress added subsection (E)
to the INA in 2025, through the Laken Riley Act. Laken Riley Act
§ 2, Pub. L. 119-1, 139 Stat. 3 (2025). This new subsection
mandates detention of noncitizens charged with inadmissibility
under § 1182(a)(6)(A) for being "present in the United States
without admission or parole" if they have been arrested, charged,
convicted of, or admit to certain criminal offenses. 8 U.S.C.
§ 1226(c)(1)(E). If we accept the government's interpretation of
§ 1225(b)(2)(A) as already mandating the detention of all
noncitizens present in the United States without admission,
Congress's addition of subsection (E) through the Laken Riley Act
was entirely duplicative. The government insists this is not so
because, by limiting the availability of release on parole for
certain unadmitted noncitizens subject to detention under
§ 1225(b)(2)(A), subsection (E) does "independent work." We are
unconvinced. For one, the government cites no authority
demonstrating that this was Congress's aim. And indeed, had that
been Congress's purpose, it could have easily enumerated a parole
exception in the parole statute at § 1182(d)(5) (which already
enumerates other such exceptions), or in § 1225(b)(2) itself. See
- 41 -Hernandez Alvarez, 175 F.4th at 1280; see also 8 U.S.C.
§ 1182(d)(5)(B).
But more critically, this argument fails because it
requires us to conceptualize § 1225(b)(2)(A) and § 1226 as
overlapping authorities. After all, the premise that subsection
(E) has independent force by limiting release on parole only works
if we understand certain unadmitted noncitizens as subject to both
§ 1225(b)(2)(A) (mandating their detention) and § 1226(c)
(limiting their release through (c)(4)). Guerrero Orellana
objects to this characterization, arguing that § 1226 and
§ 1225(b)(2) are "mutually exclusive authorities." As we will now
explain, Guerrero Orellana's argument better aligns with the
statutory structure of IIRIRA as understood and described by the
Supreme Court.
iii.
In considering guiding Supreme Court precedent, we turn
first to Nielsen v. Preap and conclude that Guerrero Orellana's
argument finds support in the Court's description of § 1226 in
that case. See 586 U.S. at 409. In Preap, the Court clarified
that § 1226(c)'s mandate to detain certain criminal noncitizens is
not a "separate" source of detention authority from § 1226(a), but
rather, "a limit on the authority conferred by subsection (a)"
that curbs the Secretary of Homeland Security's discretion over
the arrest and release of specified criminal noncitizens. See id.
- 42 -Thus, because the detention mandate at § 1226(c) derives from the
general detention authority at § 1226(a), the government's
argument that Guerrero Orellana and class members cannot be
released on parole under § 1226(c) would make the authority for
their detention § 1226, not § 1225. And this is precisely the
argument that the government claims to be arguing against.
Next, we consider Jennings v. Rodriguez and conclude
that Guerrero Orellana's argument aligns with the Supreme Court's
explanation in that case of § 1225 and § 1226 as separate
authorities that apply to different noncitizen groups. See 583
U.S. at 289. In Jennings, the Court explained:
U.S. immigration law authorizes the Government
to detain certain aliens seeking admission
into the country under §§ 1225(b)(1) and
(b)(2). It also authorizes the Government to
detain certain aliens already in the country
pending the outcome of removal proceedings
under §§ 1226(a) and (c).23
Id. This description reinforces the idea that
§ 1225(b)(2)(A) and § 1226 apply to different categories of
noncitizens, undermining the government's contention about the
Laken Riley Act's independent value, which makes sense only if a
noncitizen is subject to both § 1225(b)(2)(A) and § 1226. The
above-quoted language also reinforces our interpretation of the
disputed statutes more broadly. In it, the Court refers to
23Section 1225(b)(1), referenced in the quoted passage from
Jennings, concerns noncitizens subject to expedited removal.
- 43 -§ 1225(b)(2) as the detention authority for noncitizens "seeking
admission into the country" and § 1226 as the detention authority
for those "already in the country."24 Id. The government objects,
arguing that the Supreme Court's language is "ambiguous" and merely
"uncertain dicta." But we see nothing ambiguous about it. And
while we agree with the government that this language was not
essential to the outcome in Jennings (which concerned whether
§§ 1225(b), 1226(a), and (c) gave noncitizens a right to periodic
bond hearings throughout their detention) and thus is likely dicta,
see Arcam Pharm. Corp. v. Faria, 513 F.3d 1, 3 (1st Cir. 2007), it
is not "uncertain," either. Jennings concerned §§ 1225 and 1226
-- the same statutory sections before us here -- and the
above-quoted language served as a summary paragraph following a
reasoned explanation of how those two sections function. See 583
U.S. at 287-89. As a lower court, we must treat the Supreme
24This construction is supported by the titles Congress used
in IIRIRA, too. While we do not elevate titles over statutory
text, they are "'tools available for the resolution of a doubt'
about the meaning of a statute." Dubin, 599 U.S. at 120-21
(quoting Almendarez-Torres v. United States, 523 U.S. 224, 234
(1998)). And here, we consider it notable that the title of
section 303 of IIRIRA, which amended 8 U.S.C. § 1226, specifically
references noncitizens "not lawfully in the United States," in
contrast with the title of section 302, which amended 8 U.S.C.
§ 1225. Compare IIRIRA, § 303, 110 Stat. 3009-585 (titled
"Apprehension and detention of aliens not lawfully in the United
States (revised section [1226])" (emphasis added)), with id.
§ 302, 110 Stat. 3009-579 (titled "Inspection of aliens; expedited
removal of inadmissible arriving aliens; referral for hearing
(revised section [§ 1225])").
- 44 -Court's "carefully considered statements" as "authoritative," even
if they are dicta. Crowe v. Bolduc, 365 F.3d 86, 92 (1st Cir.
2004) (citation modified). Thus, we afford the Court's explanation
in Jennings of the statutory structure of § 1225 and § 1226 "great
weight."25 See id.
In sum, Guerrero Orellana's interpretation of the
disputed statutory provisions here aligns with Supreme Court
precedent explaining how §§ 1225 and 1226 function.26 The
25 We quickly reject the government's argument that Jennings
supports its interpretation of § 1225(b)(2)(A) because the Supreme
Court referred to § 1225(b)(2) in Jennings as a "catchall provision that applies to all applicants for admission not covered by
§ 1225(b)(1)." See 583 U.S. at 287. The government leaves out
the rest of the sentence and the Court's citation. The complete
quotation reads: "[§ 1225(b)(2)] serves as a catchall provision
that applies to all applicants for admission not covered by
§ 1225(b)(1) (with specific exceptions not relevant here). See
§§ 1225(b)(2)(A), (B)." Id. (emphasis added). Because the Supreme
Court noted that there are "specific exceptions" to how this
"catchall provision" functions and cited § 1225(b)(2)(A) directly
while doing so, it is clear that this phrase does not reach as
broadly as the government contends.
26 While the Supreme Court's recent decisions in Mullin v. Al
Otro Lado and Blanche v. Lau were not yet published when the
parties briefed and argued the case before us, those decisions
support our conclusion here, too. See generally Al Otro Lado, 146
S. Ct. 2079; Lau, 146 S. Ct. 1981. In Al Otro Lado, the Court
evaluated the legality of the government's "metering" policy at
the United States-Mexico border. 146 S. Ct. at 2088-90. It held
that a noncitizen "arrives in the United States" as that phrase
appears in 8 U.S.C. §§ 1158(a)(1) and 1225(a), thus triggering an
inspection and opportunity to apply for asylum, "only when he
crosses the border," and not when he tries but fails "to set foot
in this country." Id. at 2086-87, 2090. And in Lau, the Court
held that border officers did not bear the burden of proving "by
clear and convincing evidence" that a lawful permanent resident
returning to the United States following a trip abroad had
committed a crime involving moral turpitude and thus correctly
- 45 -government's interpretation, in contrast, fails to give meaning to
all the language Congress enacted in § 1225(b)(2)(A) and
simultaneously nullifies large swaths of § 1226(c). Thus, we must
reject the government's interpretation.
iv.
The government next contends that § 1225(b)(2)(A)
mandates Guerrero Orellana's detention even under his own
interpretation of this provision. By remaining in the United
States to apply for cancellation of removal in his removal
charged him with inadmissibility grounds rather than deportability
grounds. 146 S. Ct. at 1985-86, 1990. Although neither case
definitively explains the meaning of "seeking admission" as we
must here, it is noteworthy that the Court's discussions of that
phrase or of the similar phrase "seeking an admission" concern
border and port-of-entry contexts, not contexts in the interior of
the United States. See Al Otro Lado, 146 S. Ct. at 2086-88
(addressing the meaning of "arrives in the United States" in the
context of noncitizens who "seek[] to enter the United States from
Mexico," and describing the origins of DHS's metering policy as a
response to a "surge of aliens seeking admission at ports of entry
along the U.S.-Mexico border (emphases added)); see also Lau, 146
S. Ct. at 1986-87 (determining that Petitioner could be regarded
as "seeking an admission," rather than treated as "admitted" as is
usually the case for returning lawful permanent residents when
Petitioner, who had been criminally charged with trademark
counterfeiting, sought reentry to the United States at an
international airport). Overall, these cases buttress our
conclusions concerning § 1225(b)(2)(A)'s disputed "if clause":
namely, that "seeking admission" means seeking lawful entry into
the United States, and that the examining immigration officer's
determination about whether the noncitizen is entitled to be
admitted is a determination made at the border and ports of entry.
- 46 -proceedings, rather than immediately departing the country, the
government argues, Guerrero Orellana is "seeking admission."
We see several problems with this argument. First, as
Guerrero Orellana points out, § 1225(b)(2)(A) contemplates an
"immigration officer" determining whether the noncitizen seeking
admission is entitled to be admitted -- not an "immigration judge"
in removal proceedings. 8 U.S.C. § 1225(b)(2)(A); see id.
§ 1101(a)(18), (b)(4) (defining "immigration officer" and
"immigration judge" separately). Second, this argument suffers
from the same faulty interpretation of "seeking admission"
addressed throughout this opinion -- we reiterate: seeking
admission means seeking lawful entry. Guerrero Orellana cannot
satisfy that requirement because he is not seeking to enter the
country; he is already present in the United States and is instead
seeking relief from removal. And lastly, this argument mistakenly
equates "lawful status" with "admission." If the immigration judge
presiding over Guerrero Orellana's removal proceedings ultimately
grants him cancellation of removal, he will adjust status to that
of a lawful permanent resident, thus gaining lawful status. But
this will not undo his unlawful entry into the United States.
"Lawful status and admission . . . are distinct concepts in
immigration law." Sanchez v. Mayorkas, 593 U.S. 409, 415 (2021).
One may be "lawfully present in the United States, but nevertheless
- 47 -not 'admitted.'"27 Hernandez Alvarez, 175 F.4th at 1269. Thus,
whether or not Guerrero Orellana wins relief in his removal
proceedings, applying for cancellation of removal is distinct from
seeking admission and does not eliminate his "unlawful entry" into
the United States.28 See Sanchez, 593 U.S. at 415.
27 The dissent's acceptance of the assertion that all
applicants for admission, including those present in the United
States without admission, are "by operation of law seeking
admission" runs headlong into the Supreme Court's explanation of
"admission" and "[l]awful status" as "distinct concepts" in
Sanchez v. Mayorkas. 593 U.S. 409, 415 (2021). The Court
explained:
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.
Id. (emphases added). The dissent's interpretation of § 1225(b)(2)(A) tends to conflate "admission" with "lawful
status." But as Sanchez demonstrates, these concepts are distinct,
and the Supreme Court considers as "not admitted" those noncitizens who, like Guerrero Orellana, "entered the country unlawfully."
Id. That remains true even if they later gain lawful status. Id.
28 The dissent contends that 8 U.S.C. § 1101(a)(13)(C) casts
doubt on our reading of "'seeking admission' as referring only to
those 'trying to gain lawful entry into the United States'" at a
"border or port of entry." Section 1101(a)(13)(C) states:
"An alien lawfully admitted for permanent residence in the United
States shall not be regarded as seeking an admission into
the United States" unless one of six exceptions applies. 8 U.S.C.
§ 1101(a)(13)(C) (emphasis added). The dissent argues that this
provision's framing in the negative -- "shall not be regarded" -- makes "little sense" if our reading of "seeking
admission" is correct because Congress would not have needed to
specify "that aliens who are already admitted are not to be
regarded as 'seeking an admission.'" (First emphasis added.) We
- 48 -see it differently. A permanent resident returning to the United
States after a trip abroad would, were it not for the rule
established in § 1101(a)(13)(C), be understood under our
interpretation of § 1225(b)(2)(A) to be "seeking admission"
because they are trying to lawfully (re)enter the country.
However, the rule in § 1101(a)(13)(C) flips this on its head,
instructing to "not . . . regard[]" returning permanent residents
as "seeking an admission," reflecting the special privileges and
protections afforded to permanent residents. So explained, it
makes sense why Congress phrased § 1101(a)(13)(C) in the negative.
Next, the dissent argues that most of the six enumerated exceptions in § 1101(a)(13)(C)(i)-(vi) "have nothing to do with 'entry,'"
undermining, it contends, our interpretation of "seeking
admission" as something that occurs at a border or port of entry.
But in fact, most of these exceptions are explicitly triggered
when a permanent resident reenters the United States after a trip
abroad. Exceptions (i) and (ii), for example, are triggered by
reentry after lengthy periods outside of the country. See 8 U.S.C.
§ 1101(a)(13)(C)(i), (ii) (concerning "abandon[ment]" of residency
and absences from the United States "in excess of 180 days"). See
Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir. 2005) (if a
"resident is not returning from 'a temporary visit abroad,' [they]
will be deemed to have abandoned permanent resident status"); see
8 U.S.C. § 1101(a)(20), (27)(A); 22 C.F.R. § 42.22. Other exceptions are triggered under circumstances where the noncitizen
has "departed" from the country, thus similarly invoking contexts
of reentry. See 8 U.S.C. § 1101(a)(13)(C)(iii), (iv). And for
still other exceptions that do not explicitly reference "entry,"
observing how they function in practice demonstrates that they,
too, are triggered in just this context. For example, exception
(v) is triggered if the individual "has committed an offense
identified in [§] 1182(a)(2)." This language does not expressly
reference reentering the country, but in Lau, discussed supra note
26, this exception was triggered precisely when Lau, a permanent
resident, presented himself to a border officer at John F. Kennedy
International Airport when reentering the United States after a
trip abroad. 146 S. Ct. at 1986-87. As the dissent rightly notes,
exception (v) played out "in the context of the border and ports
of entry" in Lau because those were the facts of the case. But we
have yet to find a case invoking § 1101(a)(13)(C)(v) outside of
such contexts, see, e.g., de Vega v. Gonzales, 503 F.3d 45, 47-48
(1st Cir. 2007) (similarly concerning a permanent resident
returning from a trip abroad), leading us to conclude that this
exception, like the others, generally occurs when a permanent
resident is seeking to reenter the United States at a border or
- 49 -v.
The government's final argument centers on congressional
intent. It argues that Congress's goal, in enacting IIRIRA, was
to "eliminat[e] preferential treatment for aliens who enter the
country unlawfully" and that its interpretation of § 1225(b)(2)(A)
reflects that intent. Guerrero Orellana's interpretation of
§ 1225(b)(2)(A), the government contends, would require detention
of noncitizens who lawfully "present themselves for inspection at
the border," while "grant[ing] bond hearings to [those] who evade
immigration authorities" and enter unlawfully. And that, it
argues, is just the sort of "perverse incentive" that IIRIRA meant
to eliminate. See Dep't of Homeland Sec. v. Thuraissigiam, 591
U.S. 103, 140 (2020).
Throughout its brief, the government repeatedly asserts
that IIRIRA's goal "was to dispense with the perverse pre-1996
regime under which aliens who entered the United States unlawfully
were given 'equities and privileges in immigration proceedings
that [were] not available to aliens who present[ed] themselves for
inspection' at the border, including the opportunity to request
release on bond." ((Alterations in original) (quoting H.R. Rep.
No. 104-469, pt. 1, at 225 (1996)).) The "equities and privileges"
port of entry, a conclusion which lends support for our
straightforward reading of "seeking admission" in § 1225(b)(2)(A).
- 50 -language that the government quotes comes from a Judiciary
Committee report from 1996. It states:
Comment. -- This subsection is 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. Rather than being a general
statement of congressional intent behind IIRIRA writ-large, this
single-sentence excerpt from a 550-page report constitutes
commentary about the amendment to a particular subsection of the
INA, 8 U.S.C. § 1101(a)(13), which replaced the definition of
"entry" with "admission" and "admitted," as we have discussed in
this opinion. Notably, this commentary states that the amendment
to the definition at § 1101(a)(13) was intended to make certain
changes to "immigration proceedings" but does not even mention the
word "detention." And its silence about any intent to expand
detention in the way the government alleges is telling.
But more telling is IIRIRA itself. Recall that through
IIRIRA, Congress amended the INA to mandate detention of certain
criminal noncitizens in § 1226(c). Immediately after listing the
amended language for § 1226, IIRIRA went on to create a safety
valve of sorts, allowing for delayed implementation of the new
mandatory detention provisions at § 1226(c). See IIRIRA,
- 51 -§ 303(b)(2), 110 Stat. at 3009-586. Specifically, if certain
congressional committees provided written notification of
"insufficient detention space and . . . personnel available to
carry out [§ 1226(c)], as amended," IIRIRA permitted noncitizens
who would have otherwise been subjected to § 1226(c)'s new
mandatory detention provision to be released for up to a two-year
period. See id. Congress included no such provision permitting
delayed implementation of § 1225(b)(2)(A), casting serious doubt
on the government's interpretation of that provision. See id.
§ 302, 110 Stat. at 3009-579 to 3009-584. We will explain.
Around the time of IIRIRA's enactment, the government
estimated that over four million "illegal aliens [were] in the
United States," see H.R. Rep. No. 104-469, pt. 1, at 111, 119, and
approximately half of that population had "entered without
inspection," id. at 111. In comparison, at this same time, there
were just around 100,000 "criminal aliens" incarcerated in the
nation's prisons and around 45,000 "criminal aliens" who were put
in deportation proceedings each year. Id. at 120. Given the 8,500
existing beds in detention centers nationwide at that time, which
allowed for the custody of around 100,000 noncitizens annually,
id. at 123, this meant that the number of noncitizens present in
the United States who had entered without inspection outpaced
"detention capacity by a factor of at least twenty to one."
Immigr. L. Scholars Amici Br. at 17.
- 52 -In light of the massive increase in detention that the
government's reading of § 1225(b)(2)(A) would require, IIRIRA's
complete silence about how to address the resulting detention
capacity gap tells the exact opposite story about congressional
intent. After all, Congress "does not . . . hide elephants in
mouseholes." Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468
(2001). Instead of gearing up to newly detain millions of
noncitizens present in the United States without inspection,
IIRIRA's relatively modest uptick in detention capacity to "9,000
beds" by the end of fiscal year 1997 more logically reflects
Congress's efforts to scale capacity to meet the needs of a
different, smaller-scale expansion of mandatory detention: the
§ 1226(c) provisions. See IIRIRA § 386(a), 110 Stat. at
3009-653.29
III.
Our decision rests on a straightforward interpretation
of the texts at § 1225(b)(2)(A), § 1226 and the other sections of
IIRIRA we have analyzed. But for those still harboring doubts, we
29In addition to the arguments analyzed in detail throughout
this opinion, Guerrero Orellana also argues that the government's
interpretation of § 1225(b)(2)(A) violates class members' due
process rights and urges us to adopt his interpretation of this
provision as a matter of constitutional avoidance. The government
counters that constitutional avoidance is irrelevant because the
statute is unambiguous, and it maintains that, regardless, its
reading of § 1225(b)(2)(A) "does not offend due process." Because
we resolve this case on the statutory grounds before us, we do not
decide the due process issues raised by the parties.
- 53 -add this thought: thirty years of agency practice. Over three
decades, five administrations implemented the disputed statutes
just as we conclude today that their texts require. If IIRIRA's
amendment to § 1225(b)(2)(A) created the largest increase in
mandatory detention in this nation's history, as the government
alleges, Congress, in our view, would not have sat back while the
Executive branch implemented a grossly mistaken interpretation of
that newly-amended provision. The answer driven by the statutory
texts is that Congress had no such understanding. Concluding that
Guerrero Orellana and his fellow class members are governed by
§ 1226, not § 1225(b)(2)(A), we thus affirm.
-Dissenting Opinion Follows- 54 -DUNLAP, Circuit Judge, dissenting. This case touches on
one of the central policy debates currently roiling the
country -- the federal response to illegal immigration and the
government's authority to detain without bail immigrants
unlawfully present in the United States. The role of the
judiciary, however, is not to determine policy but to interpret
the law, see Soto v. United States, 605 U.S. 360, 375 (2025);
Plumley v. S. Container, Inc., 303 F.3d 364, 375 (1st Cir.
2002) -- in this case, two provisions of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). These
provisions are not the model of clarity, leaving this court with
the task of determining their precise interrelationship. Of
course, this court is not the first, nor will it be the last, to
address the abstruse interpretive question presented here;
multiple courts of appeal have already confronted the question,
disagreeing among each other and themselves.30 Recognizing that
many opinions have dissected the relevant provisions in exhaustive
detail and that ours will not be the last word, I explain my
30See Cirrus Rojas v. Olson, No. 25-3127, 2026 WL 2198315
(7th Cir. July 30, 2026); Rodriguez Vazquez v. Bostock, No. 25-6842, 2026 WL 2196424 (9th Cir. July 30, 2026); Santillan Quiroz
v. Mullin, 180 F.4th 1226 (10th Cir. 2026); Hernandez Alvarez v.
Warden, Fed. Det. Ctr. Miami, 175 F.4th 1258 (11th Cir. 2026);
Lopez-Campos v. Raycraft, 175 F.4th 713 (6th Cir. 2026); Cunha v.
Freden, 175 F.4th 61 (2d Cir. 2026); Avila v. Bondi, 170 F.4th
1128 (8th Cir. 2026); Buenrostro-Mendez v. Bondi, 166 F.4th 494
(5th Cir. 2026); Castañon-Nava v. U.S. Dep't of Homeland Sec., 175
F.4th 828 (7th Cir. 2026).
- 55 -respectful disagreement with my colleagues' thoughtful opinion as
concisely as the question allows.
As the majority rightly identifies, two provisions are
central to the question presented. The first is 8 U.S.C. § 1225.
Section 1225(b)(2)(A) provides, in relevant part: "[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." 8 U.S.C. § 1225(b)(2)(A). Detention under
§ 1225(b)(2)(a) does not allow for release on bond. Id.
Section 1225 further states that "[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
applicant for admission." Id. § 1225(a)(1). The second critical
provision is 8 U.S.C. § 1226. It states that "[o]n 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." Id. § 1226(a). Section 1226 provides
that release on bond or parole is available for aliens detained
under that provision. Id. § 1226(a)(2).
The key question is as follows: Does § 1225(b)(2)(A)
cover aliens illegally present within the United States? Or only
those arriving at the border and ports of entry? The government
- 56 -takes the position that § 1225(b)(2)(A) covers persons present in
the United States unlawfully because § 1225(a)(1) by operation of
law deems such persons to be "applicants for admission" who are
necessarily "seeking admission" under § 1225(b)(2)(A). The
government thus contends that persons in the United States
unlawfully can be held without bond. Petitioner, however, argues
that § 1225(b)(2)(A) only applies to those arriving in the United
States because the phrase "seeking admission" requires an
affirmative act by the alien to seek lawful admission to the United
States at the border or at a port of entry. Petitioner thus
contends that persons unlawfully present in the United States may
only be detained via § 1226, which does allow for release on bond.
Although my colleagues agree with Petitioner after examining the
less-than-pellucid sections of IIRIRA, I conclude that the
government has the better of the argument.
I.
The primary basis for my conclusion is the language of
§ 1225 itself. See Campos-Chaves v. Garland, 602 U.S. 447, 457
(2024) ("As always, we start with the text."); Penobscot Nation v.
Frey, 3 F.4th 484, 490 (1st Cir. 2021). Section 1225(b)(2)(A) on
its face applies to "an alien who is an applicant for admission,"
and mandates that such aliens shall be detained "if the examining
immigration officer determines that an alien seeking admission is
not clearly and beyond a doubt entitled to be admitted . . . ." 8
- 57 -U.S.C. § 1225(b)(2)(A). In turn, § 1225(a)(1) "deem[s]" certain
aliens -- those "present in the United States who [have] not been
admitted" and those "who arrive[] in the United States" -- to be
"applicant[s] for admission" as a matter of law. Id. § 1225(a)(1)
(emphasis added).
A deeming provision treats something as if it were
something else, thereby creating a legal fiction. Sturgeon v.
Frost, 587 U.S. 28, 47 (2019). By creating a legal fiction via
§ 1225(a)(1), Congress has identified a group of persons who have
not affirmatively applied for anything and required that they be
treated as "applicant[s] for admission" simply on the basis that
they are present in the United States without having been admitted.
See Hernandez Alvarez v. Warden, Fed. Det. Ctr. Miami, 175 F.4th
1258, 1288 (11th Cir. 2026) (Lagoa, J., dissenting). "If a person
whom Congress has deemed an applicant for admission is not seeking
admission, it is hard to know what Congress thought it was deeming
him to be." Id. at 1291; see Cirrus Rojas v. Olson, No. 25-3127,
2026 WL 2198315, at *19 (7th Cir. July 30, 2026) (Sykes, J.,
dissenting); Lopez-Campos v. Raycraft, 175 F.4th 713, 741 (6th
Cir. 2026) (Murphy, J., dissenting).
Because § 1225(a)(1) is a deeming provision, the phrase
"seeking admission" in § 1225(b)(2)(A) should not be read as an
independent requirement or qualifier further limiting the
application of that provision; it instead is consonant with the
- 58 -notion that any applicant for admission -- including an alien
present in the United States without admission -- is by operation
of law seeking admission. See Hernandez Alvarez, 175 F.4th at
1295-96 (Lagoa, J., dissenting); Lopez-Campos, 175 F.4th at 741-42
(Murphy, J. dissenting). Indeed, if "seeking admission" were a
separate requirement requiring affirmative action to obtain
admission, Congress could have, as it regularly does in other
contexts, made that clear by using an "is/and" construct -- "[is]
seeking admission [and] is not clearly . . . entitled . . . to be
admitted" -- to indicate multiple conditions in that clause.
Avila v. Bondi, 170 F.4th 1128, 1134-35 (8th Cir. 2026). Congress'
choice not to do so suggests that "seeking admission" is not a
standalone criterion requiring aliens to be making some present,
affirmative action to seek admission. Id.
Section 1225 thus establishes that aliens present in the
United States without admission are "seeking admission."
Hernandez Alvarez, 175 F.4th at 1288-89 (Lagoa, J., dissenting);
see Lopez-Campos, 175 F.4th at 735-36 (Murphy, J., dissenting).
Read together, subsections (a)(1) and (b)(2) lead to the conclusion
that the government's detention authority under subsection (b)(2)
is not limited to those arriving in the United States.
Petitioner, and my colleagues in the majority, would
nevertheless read the "if clause" ("if the examining immigration
officer determines that an alien seeking admission is not clearly
- 59 -and beyond a doubt entitled to be admitted") to impose two separate
requirements -- "one pertaining to 'seeking admission' and one
pertaining to the alien's entitlement to admission," Avila, 170
F.4th at 1133–34 -- that would narrow the application of
§ 1225(b)(2) to those affirmatively seeking admission at the
border or a port of entry. This reading is flawed.
While giving lip service to fact that § 1225(b)(1) is a
deeming provision, the majority's analysis assumes as a given the
premise -- incorrect, in my view -- that we are engaged primarily
in a definitional exercise, parsing the words "seeking" and
"admission" to determine whether an alien already in the country
can be viewed as trying to gain lawful entry after inspection and
authorization. This analysis is beside the point because
§ 1225(a)(1) expressly creates a legal fiction, deeming a person
to be an applicant for admission who would not otherwise be
considered an applicant seeking admission. See Cirrus Rojas, 2026
WL 2198315, at *20-21 (Sykes, J., dissenting). The majority's
analysis nullifies the "shall be deemed" language of the statute.
8 U.S.C. § 1225(a)(1); see Sturgeon, 587 U.S. at 47. Even though
Congress did not define "what 'applicants for admission' means,"
it did tell "us what unadmitted aliens, like Petitioner, are to be
treated as." Hernandez Alvarez, 175 F.4th at 1289 (Lagoa, J.,
dissenting). Stated another way, we need not decide as a matter
of first impression whether Petitioner fits within certain
- 60 -parameters because the statute instructs us to treat him as though
he does.31
The majority asserts that my treatment of the deeming
clause as a deeming clause "violates the applicable rules of
statutory construction the Supreme Court mandates lower courts
must follow." If such a rule, demanding that deeming clauses be
functionally treated as definitional in nature, exists, I am
unaware of any Supreme Court authority to that point; the majority
surely has not identified it. Indeed, the majority then curiously
notes, in a footnote, that they "need not decide" whether
31Even accepting for the sake of argument that we are engaged
in a definitional exercise rather than giving effect to a deeming
provision, the statutory context casts some doubt on the majority's interpretation of "seeking admission" as referring only to those
"trying to gain lawful entry into the United States after
inspection and authorization by an immigration officer" at the
border or a port of entry. In § 1101(a)(13)(C), Congress specified
that "[a]n alien lawfully admitted for permanent residence in the
United States shall not be regarded as seeking an admission into
the United States for purposes of the immigration laws unless" the
alien satisfies any one of six enumerated subsections. 8 U.S.C.
§ 1101(a)(13)(C) (emphasis added). If "seeking admission" were as
limited as the majority posits, this provision would make little
sense. First, there would be no reason for Congress to frame the
provision in the negative; Congress would have had no need to say
that aliens who are already admitted are not to be regarded as
"seeking an admission" -- it would be self-evident that admitted
legal permanent residents are not "seeking" "lawful entry."
Second, the provision articulates several ways in which admitted
legal permanent residents can be considered as "seeking an
admission," most of which have nothing to do with "entry," see id.
§ 1101(a)(13)(C)(i)-(v), and the final of which expressly applies
to those entering "without" inspection and authorization, id.
§ 1101(a)(13)(C)(vi). See Lopez-Campos, 175 F.4th at 752 (Murphy,
J., dissenting). I do not think the definitional exercise engaged
in by the majority is as cut and dried as my colleagues assert.
- 61 -§ 1225(a)(1) is, in fact, a "deeming provision," rather than a
"definitional provision." I would prefer to take the statutory
language at face value.32
The majority further asserts that my reasoning requires
a logical leap because it links "deeming" certain persons to be
applicants for admission with the conclusion that those persons
are also thereby "seeking admission." But my colleagues offer no
other explanation for the deeming provision. The question here is
whether the legal fiction created by § 1225(a)(1) "carries
consequences, or whether it is a label and nothing more."
Hernandez Alvarez, 175 F.4th at 1288 (Lagoa, J., dissenting). By
my read, the answer is simple: to give meaning to the deeming
32To be clear, § 1225(a)(1) does not simply define "applicant
for admission" as it is used in the statute. See Hernandez
Alvarez, 175 F.4th at 1287-88 (Lagoa, J., dissenting). If Congress
wanted to define "applicant for admission," it could have done so
by foregoing the term "deemed" and instead stating that an
applicant for admission "means" an alien in the United States who
has not been admitted or who arrives in the United States. The
definitional subsections invoked by the majority prove this point.
Section 1101(a)(13)(A), for example, says that the terms
"admission" and "admitted" "mean . . . the lawful entry of the
alien into the United States after inspection and authorization
. . . ." (emphasis added). Likewise, § 1101(a)(18) says that
"[t]he term 'immigration officer' means any employee
. . . designated by the Attorney General . . . to perform the
functions of an immigration officer specified by this chapter or
any section of this title." (emphasis added). Congress is capable
of telling us when it intends to define terms versus when it
intends to create legal fictions. Similarly, the majority invokes,
in support of its conclusion, various statutory titles. To the
extent that the majority grants statutory titles persuasive
weight, I note that § 1225(a)(1) is titled "Aliens treated as
applicants for admission." (emphasis added).
- 62 -clause is to attach to it the consequences attendant. Nor am I
convinced that, under Sturgeon, the statute must expressly state
the consequences of the deeming language to read it as I do. In
the words of the Supreme Court, "[t]he key word here is 'deemed.'"
Sturgeon, 587 U.S. at 47. As Judge Lagoa has thoroughly explained,
"even on its most sympathetic reading, the deeming clause in
Sturgeon did not displace the ordinary meaning of the deemed
category." Hernandez Alvarez, 175 F.4th at 1289 (Lagoa, J.,
dissenting).
But what about the surplusage canon? Both Petitioner
and the majority contend that the government's construction
renders the words "seeking admission" superfluous. I agree with
my colleagues that the surplusage canon is an important guiding
principle; but, as my colleagues also rightly acknowledge, the
"anti-surplusage canon is not an iron rule." Mullin v. Al Otro
Lado, 146 S.Ct. 2079, 2092 (2026); see A. Scalia & B. Garner,
Reading Law 176-77 (2012). As the Supreme Court has observed in
the context of immigration laws, the existence of redundancy is
unfortunately common. See Pugin v. Garland, 599 U.S. 600, 609
(2023). Here, where the deeming provision expressly collapses the
distinction between those aliens present without admission within
the United States and those arriving in the United States, the
"statutory context . . . rebut[s] the idea that each" phrase
within the statute "must have wholly independent meaning." Al
- 63 -Otro Lado, 146 S.Ct. at 2093. The term "alien seeking admission"
simply appears to be a (rather inartful) reference back to the
term "applicant for admission." See Avila, 170 F.4th at 1135;
Buenrostro-Mendez v. Bondi, 166 F.4th 494, 503 (5th Cir. 2026);
Hernandez Alvarez, 175 F.4th at 1295-96 (Lagoa, J., dissenting);
Castañon-Nava v. U.S. Dep't of Homeland Sec., 175 F.4th 828, 872-73
(7th Cir. 2026) (Kirsch, J., dissenting).
In any event, the surplusage canon raises a larger
problem for Petitioner, given the intentional breadth of the
deeming provision in § 1225(a)(1). A statute must generally be
construed to give effect to every provision. Corley v. United
States, 556 U.S. 303, 314 (2009). Petitioner, however, effectively
reads a substantial portion of subsection (a)(1) out of the
statute. Buenrostro-Mendez, 166 F.4th at 504; Hernandez Alvarez,
175 F.4th at 1296-97 (Lagoa, J., dissenting). According to
Petitioner's argument, Congress broadly deemed all "alien[s]
present in the United States who ha[ve] not been admitted" to be
"applicant[s] for admission," 8 U.S.C. § 1225(a)(1), but
thereafter qualified the term "applicant for admission" throughout
§ 1225 such that the provision only applies to those who "arrive[]
in the United States," id.; see Hernandez Alvarez, 175 F.4th at
1296-97 (Lagoa, J., dissenting).33 But § 1225(a)(1) was not
The majority argues that the deeming clause retains its
33
full meaning in ancillary provisions in different sections of the
- 64 -limited to aliens who arrive in the United States. 8 U.S.C.
§ 1225(a)(1). We should not adopt a reading that renders much of
the deeming provision in § 1225(a)(1) a dead letter.
Buenrostro-Mendez, 166 F.4th at 504; see Hernandez Alvarez, 175
F.4th at 1296-97 (Lagoa, J., dissenting). "[R]edundancy in a
single sentence is a minor interpretive cost. Nullifying the reach
of a deeming provision across an entire statutory section is not."
Hernandez Alvarez, 175 F.4th at 1297 (Lagoa, J., dissenting).
Petitioner's reading of § 1225 also gives rise to a
related problem -- Congress' decision not to use a narrow term
("arriving aliens") it frequently used elsewhere when it intended
a narrower reading. See Dep't of Homeland Sec. v. MacLean, 574
U.S. 383, 391 (2015) ("Congress generally acts intentionally when
INA, such as § 1229a(c)(2). But narrowing the deeming provision's
relevance to these provisions would be an illogical outcome. See
Buenrostro-Mendez, 166 F.4th at 504 n.10. "[I]t is a bizarre
construction to suggest that Congress established a broad
definition in § 1225 but, despite repeatedly using the term in
§ 1225, used the full breadth of the definition only in a corollary provision in a completely independent section of the code." Id.
The majority further suggests that the provision would retain
meaning in § 1225 by virtue of its use in § 1225(a)(3) -- but that
reading, otherwise convenient to the majority, simply undermines
their broader point. Section 1225(a)(3) requires applicants for
admission (including, the majority says, persons present in the
United States) to be inspected by immigration officers; but
elsewhere, to escape the implications of § 1225(a)(5) using the
terms "applicants for admission" and "seeking admission"
apparently interchangeably, the majority argues that any
inspection by immigration officers occurs at the border. In any
event, it seems to be less than a natural reading for § 1225(a)(1)
to define "applicant for admission" so broadly simply for purposes
of one sub-provision.
- 65 -it uses particular language in one section of a statute but omits
it in another."); Penobscot Nation, 3 F.4th at 505. If
§ 1225(b)(2)(A) were limited to arriving aliens, as Petitioner
argues, then Congress could have used the phrase "arriving alien,"
as it frequently did where that limitation was intended.
Buenrostro-Mendez, 166 F.4th at 504 (citing 8 U.S.C.
§§ 1225(a)(2), (c)(1), (d)(2)); Lopez-Campos, 175 F.4th at 752-53
(Murphy, J., dissenting) ("In nearly every other context, when
Congress sought to limit a provision's reach to those arriving at
the border, it used a phrase like 'arriving in the United
States.'"); Castañon-Nava, 175 F.4th at 875 (Kirsch, J.,
dissenting). Congress' choice to adopt a broad deeming provision,
and to forego using the specific term "arriving alien," indicates
that it did not so limit § 1225(b)(2)(a).
II.
Looking to context, related provisions support this
interpretation of the statute. See Yates v. United States, 574
U.S. 528, 537 (2015) ("[S]tatutory language is determined not only
by reference to the language itself, but as well by the specific
context in which that language is used, and the broader context of
the statute as a whole." (citation modified)); Penobscot Nation,
3 F.4th at 504-05. Viewing § 1225 alongside § 1226 -- the
provision primarily relied upon by Petitioner -- the statutory
scheme as a whole reinforces my conclusion.
- 66 -I look first to § 1225(a)(3), which specifies that
"[a]ll aliens . . . who are applicants for admission or otherwise
seeking admission or readmission to or transit through the United
States shall be inspected by immigration officers." 8 U.S.C.
§ 1225(a)(3) (emphasis added). This language strongly suggests
that applicants for admission are deemed to be seeking admission.
The word "otherwise" is a catch-all identifying that the items
preceding it are subsumed by what comes after -- that is, it
indicates a sub-set/super-set relationship. Hernandez Alvarez,
175 F.4th at 1292 (Lagoa, J., dissenting). If "otherwise" is read
to mean simply "something that is different from something already
mentioned," rather than to indicate a sub-set/super-set
relationship, it would effectively read that word out of the
statute: the same reading would be accomplished if the statute
simply read "who are applicants for admission or seeking
admission." See Buenrostro-Mendez, 166 F.4th at 503-504.34 The
natural reading of "otherwise" is the most persuasive one. See
Lopez-Campos, 175 F.4th at 747-48 (Murphy, J., dissenting);
34Indeed, where Congress uses the term "or otherwise" in the
very same subsection that it twice uses the term "or," the former
must mean something different from the latter. 8 U.S.C.
§ 1225(a)(3) ("who are applicants for admission or otherwise
seeking admission or readmission to or transit through the United
States . . ." (emphases added)); A. Scalia & B. Garner, Reading
Law 170–171 (2012) (explaining that different terms typically
carry different meanings).
- 67 -Hernandez Alvarez, 175 F.4th at 1292-93 (Lagoa, J., dissenting);
Castañon-Nava, 175 F.4th at 874 (Kirsch, J., dissenting).
I am not persuaded that Helsinn Healthcare S.A. v. Teva
Pharmaceuticals USA, Inc., 586 U.S. 123 (2019), compels a different
conclusion. See Lopez-Campos, 175 F.4th at 749-50 (Murphy, J.,
dissenting). Helsinn is a case about reenactment, not about the
best reading of "or otherwise." Hernandez Alvarez, 175 F.4th at
1293. Helsinn simply concluded that the addition of the word
"otherwise" by amendment to a long-standing statutory term did not
narrow a term the Supreme Court had previously interpreted. 586
U.S. at 131-32. By contrast, when Congress passed IIRIRA in 1996,
Congress completely overhauled § 1225, including by introducing
and defining a new statutory term "applicant for admission."
Unlike in Helsinn, the "or otherwise" clause of § 1225(a)(3) was
not merely tagged on to "the exact language used in its predecessor
statute . . . ." Id. at 131. Helsinn does not change the
conclusion that, given its best reading, "[t]he use of 'or
otherwise' suggests that 'applicants for admission' are a subset
of those seeking admission." Buenrostro-Mendez, 166 F.4th at
503.35
The majority's parole illustration does not prove
35
otherwise. It does not follow that, simply because parole is not
the equivalent of admission, parolees are only "applicant[s] for
admission" and are not also seeking admission. Receiving advance
parole is not incompatible with seeking admission. Section 1182
expressly states that parole can be offered to "any alien applying
- 68 -Section 1225(a)(5), which provides that "[a]n applicant
for admission may be required to state under oath any information
sought by an immigration officer regarding the purposes and
intentions of the applicant in seeking admission to the United
States," 8 U.S.C. § 1225(a)(5) (emphasis added), leads to the same
conclusion. It, too, "strongly suggests that those who are
applicants for admission are 'seeking admission,'"
Buenrostro-Mendez, 166 F.4th at 503, because "Congress did not
treat 'seeking admission' as a separate condition the applicant
may or may not satisfy" but instead "presupposed the connection,"
Hernandez Alvarez, 175 F.4th at 1294 (Lagoa, J., dissenting). The
majority rejects this reading because the provision refers to an
immigration officer (suggesting that it applies only to the border
and ports of entry) and uses the permissive word "may." But
immigration officers can ask unlawfully present aliens these
questions as well, id.; see 8 U.S.C. § 1225(a)(3), and the use of
the word "may" means only that the questions are not mandatory,
for admission to the United States." 8 U.S.C. § 1182(d)(5)(A);
see also 8 C.F.R. § 212.5(c). An alien's entry under parole is
not in lieu of admission, but is instead a temporary approval to
enter the country. The code confirms this understanding: after a
term of parole concludes, a parolee then "shall continue to be
dealt with in the same manner as that of any other applicant for
admission to the United States." 8 U.S.C. § 1182(d)(5)(A). Parole
simply allows certain aliens who are seeking admission to be
released into the United States. Because parolees are not excluded
from the category of those "seeking admission," "applicant for
admission" does not necessarily encompass persons not "seeking
admission."
- 69 -not that they are applicable only in certain contexts,
Lopez-Campos, 175 F.4th at 750-51 (Murphy, J., dissenting).
The government's reading finds further support in
§ 1182(a)(9)(B)(i)(I), which provides that any alien "who
. . . was unlawfully present in the United States for a period of
more than 180 days but less than 1 year, voluntarily departed the
United States . . . and again seeks admission within 3 years of
the date of such alien's departure or removal" is inadmissible. 8
U.S.C. § 1182(a)(9)(B)(i)(I). (emphasis added). The use of the
word "again" indicates that those who have been unlawfully present
in the United States are deemed to have sought admission -- whether
or not they took any affirmative action to do so. Lopez-Campos,
175 F.4th at 752 (Murphy, J., dissenting). "[T]he word 'again' in
this provision would serve no purpose unless the prior unlawful
presence itself qualified as the first time that the immigrant was
'seeking admission.'" Id.
Petitioner points to § 1226, which -- as noted
above -- provides that, "[o]n 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,"
with release on bond or conditional parole generally available
(subject to some limitations to which I will turn momentarily). 8
U.S.C. § 1226(a). On its face, § 1226 applies to Petitioner here,
because he is an "alien." Petitioner suggests that, because § 1226
- 70 -can apply, § 1225 must be construed to avoid any overlap. I am
not persuaded by Petitioner's effort to limit § 1225's
application. First, it is well established that courts "give
effect to two statutes that overlap, so long as each reaches some
distinct cases." J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l,
Inc., 534 U.S. 124, 144 (2001); see Bruno Proj. Rescue Inc. v.
CDC, No. 25-1801, 2026 WL 2017744, at *6 (1st Cir. July 13, 2026).
In this case, both statutes can be given effect under the
government's reading. "Section 1226(a) undeniably does work
independent from § 1225(b)(2)(a) because only § 1226(a) applies to
admitted aliens who overstay their visas, become deportable on
many different grounds, or were admitted erroneously due to fraud
or some other error." Buenrostro-Mendez, 166 F.4th at 504-05; see
Hernandez Alvarez, 175 F.4th at 1297 (Lagoa, J., dissenting).
Second, because the two provisions overlap but reach distinct
cases, the more specific -- here, § 1225 -- controls and the
general "must be taken to affect only such cases within its general
language as are not within the provisions of the
particular . . . ." RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 566 U.S. 639, 646 (2012) (quoting United States v. Chase,
135 U.S. 255, 260 (1890)).
Both the majority and Petitioner rely specifically on
§ 1226(c), which specifies that certain aliens are ineligible for
bond, arguing that there would be no need for Congress to have
- 71 -specified that certain aliens unlawfully present in the United
States are ineligible for bond under § 1226(c) if those aliens are
already subject to mandatory detention under § 1225(b)(2)(a).
This argument is not as persuasive as they contend; some of the
exclusions apply to individuals arriving in the United States,
see, e.g., 8 U.S.C. § 1226(c)(1)(A), (D), and thus would overlap
with § 1225 even under Petitioner's reading. In any event,
§ 1226(c) is not rendered irrelevant by the government's reading.
"Not only does § 1226(c) sweep in deportable aliens in addition to
the inadmissible aliens covered by § 1225(b)(2)(A), see 8 U.S.C.
§ 1226(c)(1)(B)-(C), it also eliminates the option of parole for
those to whom it applies." Buenrostro-Mendez, 166 F.4th at 505;
see Hernandez Alvarez, 175 F.4th at 1297 (Lagoa, J., dissenting).
Again, therefore, the two provisions overlap but serve distinct
purposes -- which is permissible, and not even necessarily
uncommon. See RadLAX Gateway Hotel, LLC, 566 U.S. at 645-46.
As to the amendments to § 1226(c) from the Laken Riley
Act specifically, it is noteworthy that those amendments were
adopted "at a time when the Executive was still declining to
exercise its full enforcement authority under the INA," and
therefore had direct and immediate effect by requiring "the
detention without bond or parole of certain aliens the
administration was then treating as bond-eligible."
Buenrostro-Mendez, 166 F.4th at 505; see Hernandez Alvarez, 175
- 72 -F.4th at 1297 (Lagoa, J., dissenting). The majority dismisses
this point because the government does not cite any evidence of
Congress' intent, and posits that Congress could have addressed
such a problem via different means. My point, however, is a
limited one: Regardless of Congress' intent, there is no reasonable
dispute that the Laken Riley Act had the effect I have described;
this is enough to give the amendments to § 1226(c) meaning. And
the fact that Congress could have chosen to amend some other
provision to accomplish the same goal proves nothing; Congress has
the right to achieve a result by one of any multitude of paths,
not just one. See Wagner v. Fed. Election Comm'n, 717 F.3d 1007,
1012 (D.C. Cir. 2013).
III.
I turn finally to two additional considerations, namely,
pertinent Supreme Court precedent and congressional intent.
Neither leads me to reject the government's position.
First, the Supreme Court's discussions of §§ 1225 and
1226 do not compel acceptance of Petitioner's reading. The
majority cites Nielsen v. Preap, 586 U.S. 392, 409 (2019), for the
proposition that § 1226(c) is not a source of detention authority
but rather derives from § 1226(a); thus, the argument goes, the
government must concede that § 1226(a) applies if it also argues
that the elimination of parole applies under § 1226(c). But Preap
simply reinforces the point, already made, that §§ 1225 and 1226
- 73 -overlap; it does not suggest that § 1225 is inapplicable.
Buenrostro-Mendez, 166 F.4th at 505 n.12. The majority also cites
Jennings v. Rodriguez, noting that Jennings observes that § 1225
applies to "certain aliens seeking admission into the country" and
§ 1226 applies to "certain aliens already in the country." 583
U.S. 281, 289 (2018). So much is true; but, like Preap, Jennings
does not compel the conclusion that § 1225(b)(2)(A) and § 1226 are
mutually exclusive. As an initial matter, the language in Jennings
is drawn from the court's background discussion, rather than the
Court's analysis. See Buenrostro-Mendez, 166 F.4th at 505-06. In
any event, Jennings' dicta -- to the extent it reflects any legal
reasoning -- is not as clear as Petitioner and the majority
suggest. "While Jennings states that § 1226 generally authorizes
the Government to detain 'certain aliens already in the country,'
this does not preclude other statutory provisions -- such as
§ 1225(b)(2)(A) -- from also applying to such aliens." Avila, 170
F.4th at 1136 (quoting Jennings, 583 U.S. at 289) (citations
omitted). And Jennings also stated that "§ 1225(b) applies
primarily to aliens seeking entry into the United States
('applicants for admission' in the language of the statute)." 583
U.S. at 297. This language cuts against Petitioner and the
majority, as it equates "seeking entry" with "applicants for
admission." Buenrostro-Mendez, 166 F.4th at 506; Hernandez
- 74 -Alvarez, 175 F.4th at 1298 (Lagoa, J., dissenting). The Supreme
Court has not answered the question before us.36
Second, and finally, I do not find the parties' competing
arguments regarding legislative intent particularly enlightening.
See Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J.,
concurring in the judgment). Many of the arguments are in
counterpoise: "The government and Petitioner offer directly
contradictory excerpts from the legislative record." Hernandez
Alvarez, 175 F.4th at 1299 (Lagoa, J., dissenting). Other
arguments are simply speculative. I give one example: Petitioner
emphasized -- and the majority agrees -- that it would make no
sense for Congress to delay implementation of the provision
requiring mandatory detention for aliens who are inadmissible or
The majority's reliance on other Supreme Court cases is
36
likewise of no avail. The majority invokes Sanchez v. Mayorkas,
593 U.S. 409 (2021), for the proposition that "admission" and
"lawful status" are "distinct concepts." Id. at 415. I do not
disagree that these concepts are distinct; I simply follow
Congress' directive in § 1225(a)(1) to treat aliens present in the
United States without admission as "applicants for admission."
Finally, I put no weight on the fact that the Supreme Court's
discussion of "seeking admission" in Mullin v. Al Otro Lado, 146
S.Ct. 2079 (2026), and Blanche v. Lau, 146 S.Ct. 1981 (2026),
occurred in the context of the border and ports of entry. That is
not at all surprising, because the facts of the cases involved the
border and ports of entry. Al Otro Lado, 146 S.Ct. at 2087, 2091;
Lau, 146 S.Ct. at 1985-87. The majority substantially overreads
those cases; the Supreme Court did not say or imply in either case
that the application of § 1225 in this context excludes its
application in other contexts. To the contrary, in Lau, the
Supreme Court appeared to use the terms "applicant for admission"
and "seeking an admission" interchangeably, 146 S.Ct. at 1987-88,
further undermining the majority's conclusion.
- 75 -deportable on criminal grounds under § 1226(c) because of the
purported need to increase detention facilities, but to not delay
implementation of a broader detention policy under
§ 1225(b)(2)(A). But there are various reasons Congress may have
made this determination. See Avila, 170 F.4th at 1137-38;
Buenrostro-Mendez, 166 F.4th at 507-08. For example, aliens who
satisfy the criminal grounds for mandatory detention and are
subject to removal proceedings are often incarcerated, so they are
comparatively easy to identify and remove; thus, a surge in demand
for detention space could readily be anticipated. On the other
hand, in the absence of strong, on-the-streets immigration
enforcement in the 1990s, Congress may have had little reason to
expect that there would be a similarly dramatic increase in the
number of immigrants without criminal records requiring detention.
In fact, in 1995, approximately two-thirds of the aliens who were
removed had committed crimes. See 1996 Statistical Yearbook of
the Immigration and Naturalization Service, U.S. Dep't of Just.,
at 171.37 Because the number of aliens deported in 1995 in the
absence of a preceding criminal detention was less than those
expected to be deported after a criminal detention, id; see H.R.
Rep. No. 104-469, pt. 1 at 118-120, 123 (1996), Congress' choice
37 Available at the following website: https://ohss.dhs.gov/sites/default/files/2023-12/ins_yearbook_immigration_statistics_1996.pdf
[https://perma.cc/HX72-W7MG].
- 76 -not to delay enforcement may have been altogether logical. The
point is, we cannot divine Congress' expectations. Speculation as
to Congress' choice is not a sound basis for reaching a conclusion
contrary to the best reading of the statute. See Garland v.
Cargill, 602 U.S. 406, 428 (2024); Penobscot Nation v. Mills, 861
F.3d 324, 335 (1st Cir. 2017) (citing Henson v. Santander Consumer
USA Inc., 582 U.S. 79, 89 (2017)), withdrawn by 954 F.3d 453 (1st
Cir. 2020) and aff'd en banc by 3 F.4th 484 (1st Cir 2021).
IV.
Much more could be said but no more need be said to
explain the fundamental basis for my conclusion that my worthy
colleagues have not reached the best possible reading of the
relevant statutory provisions. I share Judge Sykes' view that
little is to be gained by rehashing the arguments further; the
debate -- now well refined -- will doubtless be resolved by the
Supreme Court. Cirrus Rojas, 2026 WL 2198315, at *21 (Sykes, J.,
dissenting). I respectfully dissent.
- 77 -