Juan Rivera v. Robert Guadian

majority opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 25-7044

OSCAR ENRIQUE LOPEZ GARCIA,

Petitioner – Appellee,

ROBERT GUADIAN, in his official capacity as Director of the Washington Field

Office of U.S. Immigration and Customs Enforcement; MARKWAYNE MULLIN,

in his official capacity as Secretary of the U.S. Department of Homeland Security;

TODD BLANCHE, in his official capacity as Attorney General of the United States,

Respondents – Appellants,

and

PAUL PERRY, in his official capacity as Warden of Caroline Detention Facility,

Respondent.

------------------------------IMMIGRATION LAW SCHOLARS; CALIFORNIA; MARYLAND; NEW

YORK; ARIZONA; COLORADO; CONNECTICUT; DELAWARE; HAWAII;

ILLINOIS; MAINE; MASSACHUSETTS; MICHIGAN; MINNESOTA;

NEVADA; NEW JERSEY; OREGON; RHODE ISLAND; VERMONT;

VIRGINIA; WASHINGTON; THE DISTRICT OF COLUMBIA; AMERICAN

IMMIGRATION COUNCIL; AMERICAN IMMIGRATION LAWYERS

ASSOCIATION,

Amici Supporting Appellee.

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No. 25-7050

JUAN JOSE RIVERA,

Petitioner – Appellee,

ROBERT GUADIAN, in his official capacity as Director of the Washington Field

Office of U.S. Immigration and Customs Enforcement; DAVID J. VENTURELLA,

in his official capacity as Acting Director, Immigration and Customs Enforcement,

U.S. Department of Homeland Security; MARKWAYNE MULLIN, in his official

capacity as Secretary of the U.S. Department of Homeland Security; TODD

BLANCHE, in his official capacity as Attorney General of the United States,

Respondents – Appellants,

and

PAUL PERRY, in his official capacity as Warden of Caroline Detention Facility,

Respondent.

------------------------------IMMIGRATION LAW SCHOLARS; CALIFORNIA; MARYLAND; NEW

YORK; ARIZONA; COLORADO; CONNECTICUT; DELAWARE; HAWAII;

ILLINOIS; MAINE; MASSACHUSETTS; MICHIGAN; MINNESOTA;

NEVADA; NEW JERSEY; OREGON; RHODE ISLAND; VERMONT;

VIRGINIA; WASHINGTON; THE DISTRICT OF COLUMBIA; AMERICAN

IMMIGRATION COUNCIL; AMERICAN IMMIGRATION LAWYERS

ASSOCIATION,

Amici Supporting Appellee.

Appeals from the United States District Court for the Eastern District of Virginia, at

Alexandria. Patricia Tolliver Giles, District Judge. (1:25-cv-01764-PTG-WEF; 1:25-cv01793-PTG-WBP)

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Argued: May 5, 2026 Decided: September 10, 2026

Before RUSHING and BERNER, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by published opinion. Judge Berner wrote the opinion, in which Senior Judge

Keenan concurred. Judge Rushing wrote a dissenting opinion.

ARGUED: Benjamin Timothy Hayes, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellants. My Khanh Ngo, AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, San Francisco, California, for Appellees. ON BRIEF: Brett A.

Shumate, Assistant Attorney General, Yaakov M. Roth, Principal Deputy Assistant

Attorney General, Drew C. Ensign, Deputy Assistant Attorney General, Keith I. McManus,

Kohsei Ugumori, Office of Immigration Litigation, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Appellants. Judy Rabinovitz, Natalie Behr, New

York, New York, Michael K.T. Tan, Oscar Sarabia Roman, AMERICAN CIVIL

LIBERTIES UNION FOUNDATION, San Francisco, California; Sarah Beth Pitney, Ava

Benach, Bianca Granados, BENACH PITNEY REILLY LLP, Washington, D.C.; Sophia

Leticia Gregg, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA,

Richmond, Virginia; Simon Y. Sandoval-Moshenberg, MURRAY OSORIO PLLC, Falls

Church, Virginia; Sarnata Reynolds, CEARTAS SOLUTIONS, Takoma Park, Maryland,

for Appellees. Amit Jain, Kathleen Pleiss, RODERICK & SOLANGE MACARTHUR

JUSTICE CENTER, Washington, D.C., for Amici Immigration Law Scholars. Rob Bonta,

Attorney General, Michael L. Newman, Senior Assistant Attorney General, Robin L.

Goldfaden, Supervising Deputy Attorney General, Marissa Malouff, Supervising Deputy

Attorney General, Julia Heming Segal, Deputy Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF CALIFORNIA, San Francisco, California, for Amicus State

of California. Anthony G. Brown, Attorney General, Julia Doyle, Solicitor General,

OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for

Amicus State of Maryland. Letitia James, Attorney General, Barbara D. Underwood,

Solicitor General, Philip J. Levitz, Senior Assistant Solicitor General, Gillian Barna,

Assistant Solicitor General, Julie Dona, OFFICE OF THE ATTORNEY GENERAL OF

NEW YORK, New York, New York, for Amicus State of New York. Kristin K. Mayes,

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix,

Arizona, for Amicus State of Arizona. Philip J. Weiser, Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF COLORADO, Denver, Colorado, for Amicus State of

Colorado. William Tong, Attorney General, OFFICE OF THE ATTORNEY GENERAL

OF CONNECTICUT, Hartford, Connecticut, for Amicus State of Connecticut. Kathleen

Jennings, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

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DELAWARE, Wilmington, Delaware, for Amicus State of Delaware. Brian L. Schwalb,

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF THE DISTRICT OF

COLUMBIA, Washington, D.C., for Amicus District of Columbia. Anne E. Lopez,

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF HAWAI’I, Honolulu,

Hawai’i, for Amicus State of Hawai’i. Kwame Raoul, Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF ILLINOIS, Chicago, Illinois, for Amicus State of Illinois.

Aaron M. Frey, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

MAINE, Augusta, Maine, for Amicus State of Maine. Andrea Joy Campbell, Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF MASSACHUSETTS, Boston,

Massachusetts, for Amicus Commonwealth of Massachusetts. Dana Nessel, Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing,

Michigan, for Amicus State of Michigan. Keith Ellison, Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF MINNESOTA, St. Paul, Minnesota, for Amicus State

of Minnesota. Aaron D. Ford, Attorney General, OFFICE OF THE ATTORNEY

GENERAL OF NEVADA, Carson City, Nevada, for Amicus State of Nevada. Jennifer

Davenport, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW

JERSEY, Trenton, New Jersey, for Amicus State of New Jersey. Dan Rayfield, Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF OREGON, Salem, Oregon, for

Amicus State of Oregon. Peter F. Neronha, Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF RHODE ISLAND, Providence, Rhode Island, for Amicus

State of Rhode Island. Charity R. Clark, Attorney General, OFFICE OF THE ATTORNEY

GENERAL OF VERMONT, Montpelier, Vermont, for Amicus State of Vermont. Jay

Jones, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia, for Amicus Commonwealth of Virginia. Nicholas W. Brown,

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WASHINGTON,

Olympia, Washington, for Amicus State of Washington. Emma Winger, Rebecca Cassler,

Suchita Mathur, AMERICAN IMMIGRATION COUNCIL, Washington, D.C., for Amici

American Immigration Council and American Immigration Lawyers.

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BERNER, Circuit Judge:

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),

enacted by Congress thirty years ago, created the current scheme for detention of

noncitizens pending removal proceedings. One provision of IIRIRA requires that certain

noncitizens be detained throughout their removal proceedings. Another provision allows

for other noncitizens to be released pending removal after a bond hearing before an

immigration judge. The question before us is which part of IIRIRA applies to Petitioners

Oscar Enrique Lopez Garcia and Juan Jose Rivera. There is a growing split among federal

circuit courts of appeal on this question.

Lopez Garcia and Rivera are noncitizens who have lived in the United States for

decades after having entered the country without inspection and authorization. Each was

taken into immigration detention in October 2025 following encounters with immigration

authorities. If either had been detained only four months prior, he would have been

provided a bond hearing before an immigration judge and an opportunity to seek release

on bond pending the outcome of immigration removal proceedings. That is because before

July 2025, noncitizens like Lopez Garcia and Rivera were generally released on bond

unless one or more of the following circumstances applied: the noncitizen had committed

a certain crime, the noncitizen was considered a flight risk, or the noncitizen posed a danger

to his community.

The Government does not contend that any of these circumstances applies to Lopez

Garcia or Rivera. Yet neither was permitted a bond hearing because, starting in July 2025,

the Government began to construe IIRIRA to require all noncitizens who entered the

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country without inspection and authorization be detained throughout their immigration

removal proceedings.

Petitioners Lopez Garcia and Rivera moved for habeas corpus relief in federal

district court. They argued that the Government’s new construction of IIRIRA is wrong

and that they were being detained in violation of their rights to due process. The district

court agreed and granted their petitions. The Government sought expedited appeal, which

this court granted. Today we join the overwhelming majority of circuit courts of appeal

that have considered this question in holding that IIRIRA and its implementing regulations,

properly construed, require noncitizens like Lopez Garcia and Rivera be provided a bond

hearing and be eligible for release pending removal. Accordingly, we affirm the district

court’s grants of habeas relief.

I. Background

Petitioner Oscar Enrique Lopez Garcia came to the United States from Guatemala

as a child in 1996. He entered without inspection and authorization from immigration

authorities. He has lived and worked in Washington, D.C. for more than thirty years. Lopez

Garcia is married and is the father of two United States citizen children. On October 9,

2025, Lopez Garcia was on his way to work when he was detained by agents of the United

States Immigration and Customs Enforcement (ICE) and taken into custody.

Petitioner Juan Jose Rivera left his birthplace of El Salvador and came to the United

States in 2005 at the age of twenty-six. He too entered the country without inspection and

authorization. Rivera has lived and worked in the United States for the past twenty years.

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He has never been arrested or charged with any crime. On October 2, 2025, ICE detained

him near his home in Washington, D.C., and took him into custody.

Following their detention, ICE initiated removal proceedings against Lopez Garcia

and Rivera on the ground that they entered the country without inspection and

authorization. During this time, the men were held at an ICE detention facility in Virginia

without a bond hearing.

A bond hearing is a court proceeding where an immigration judge determines

whether a noncitizen 1 should be detained or released while his immigration proceedings

advance. See 8 C.F.R. §§ 236.1(d), 1003.19, 1236.1(d). If the noncitizen establishes that

he is not a danger to the community or a flight risk, the immigration judge can order his

release. Miranda v. Garland, 34 F.4th 338, 346 (4th Cir. 2022). The immigration judge

may set a bond or place certain conditions on the noncitizen’s release. Id.

Not all noncitizens are eligible for bond during their removal proceedings, however.

Noncitizens who are detained pursuant to 8 U.S.C. § 1226(a) are eligible for bond, while

noncitizens detained pursuant to 8 U.S.C. § 1225(b)(2)(A) are not.

Had they encountered immigration authorities prior to July 2025, the Government

would have detained Lopez Garcia and Rivera pursuant to 8 U.S.C. § 1226(a) and provided

them with a bond hearing. In July 2025, however, the Department of Justice announced

that, going forward, a new construction of the existing immigration laws would be applied

The INA defines the term “alien” as “any person not a citizen or national of the

United States.” 8 U.S.C. § 1101(a)(3). We use the term “noncitizen” as equivalent to the

statutory term “alien.” Nasrallah v. Barr, 590 U.S. 573, 578 n.2 (2020). We use the term

“alien” only when quoting the statute directly.

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to noncitizens who entered the country without authorization or inspection. See U.S.

Immigr. & Customs Enf’t, Interim Guidance Regarding Detention Authority for Applicants

for Admission (July 8, 2025). Under this new construction, the Government would detain

such noncitizens under Section 1225(b)(2)(A), not under Section 1226(a). Thus, Lopez

Garcia and Rivera were subjected to mandatory detention without a bond hearing. Id. 2

Lopez Garcia and Rivera petitioned for habeas corpus relief from a federal district

court, alleging that their detention without a bond hearing was unlawful. They contended

that they should be detained under Section 1226(a), not Section 1225(b)(2)(A), and

provided with a bond hearing. They also claimed that the Government’s failure to provide

a bond hearing violated their rights to due process under the Fifth Amendment of the United

States Constitution.

The district court granted both Lopez Garcia’s and Rivera’s petitions for relief. The

district court concluded in each case that Section 1226(a), not Section 1225(b)(2)(A),

applied to the Petitioners and therefore they were entitled to bond hearings. See Order at 3,

Lopez Garcia v. Perry, No. 1:25-CV-1764, ECF No. 6 (E.D. Va. Nov. 14, 2025); Order at

Following the Government’s changed position, the Board of Immigration Appeals

issued a decision adopting this new construction. See Matter of Yajure Hurtado, 29 I. & N.

Dec. 216 (BIA 2025).

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3, Rivera v. Crawford, No. 1:25-CV-1793, ECF No. 8 (E.D. Va. Nov. 14, 2025). 3 During

the subsequent bond hearings, immigration judges concluded that Lopez Garcia and Rivera

posed no danger to the community or a risk of flight. In November 2025, both men were

released from detention on bond. The Government timely appealed the decisions granting

habeas relief and the cases were consolidated on appeal. We possess jurisdiction under 28

U.S.C. §§ 1291 and 2253(a).

II. Statutory Framework

The Constitution vests Congress with the power to establish requirements for

naturalization. U.S. Const. art. 1, § 8, cl. 4. Congress, not the Executive Branch, possesses

plenary power over the admission and exclusion of noncitizens. Arizona v. United States,

567 U.S. 387, 394–96 (2012). As we are called upon to construe a law enacted by Congress

pursuant to this power, we begin by laying out the statutory context.

A. Immigration & Nationality Act of 1952

The first one hundred years after the founding of the United States of America

marked a period of relatively open borders without federal restrictions on immigration.

The district court granted habeas relief and ordered that the Government provide

the Petitioners “with a standard bond hearing pursuant to 8 U.S.C. § 1226(a).” See, e.g.,

Parties’ Joint Appendix 81. In its decision, however, the district court improperly inverted

the burden of proof at bond hearings. To clarify, it is the Petitioner, not the Government,

who bears the burden under the processes established by the Attorney General to

demonstrate he is not a danger to the community nor a flight risk. Miranda v. Garland, 34

F.4th 338, 356 (4th Cir. 2022).

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Padilla v. Kentucky, 559 U.S. 356, 360 (2010). It was not until the late 1800s that Congress

began to enact laws restricting entry into the United States and providing for the brief

detention of those arriving at our borders. Id. Throughout the late nineteenth and early

twentieth centuries, Congress passed a patchwork of immigration laws, including the

predecessor statutes to Section 1225 and Section 1226, the statutes at issue in this case.

Historically, our immigration laws have always distinguished between immigrants

who recently arrive at our borders and those already present in the United States, even those

who entered unlawfully. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212

(1953); accord Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“The distinction between a[ ]

[noncitizen] who has effected an entry into the United States and one who has never entered

runs throughout immigration law.”). This distinction is rooted in part in the Due Process

Clause of the United States Constitution, which applies to all “persons” within the United

States. See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (“The fourteenth amendment to

the constitution is not confined to the protection of citizens” but rather applies “to all

persons within the territorial jurisdiction, without regard to any differences of race, of

color, or of nationality[.]”); accord Zadvydas, 533 U.S. at 693.

This distinction has long applied to detention during removal proceedings. The

Immigration Act of 1893 first provided for brief mandatory detention for those arriving in

the United States who were not “clearly and beyond doubt entitled to admission.” Section

5, 27 Stat. 569, 570. The language of this statute echoes in its modern-day equivalent,

Section 1225. Starting in 1891 and continuing until June 2025, Section 1225(b)(2)(A) and

its predecessor statutes have been applied to immigrants at our borders. See Brief for

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Immigration Law Scholars as Amicus Curiae at 7–13. For nearly as long, our immigration

laws also permitted noncitizens apprehended within the United States to be released

pending removal proceedings, regardless of how they entered our country. See Lindsay

Nash, Resurrecting Immigration Releases, 135 Yale L.J. 1533, 1586–1607 (2026).

In 1952, Congress enacted the Immigration and Nationality Act (INA) to compile

the various provisions of immigration law into a single comprehensive federal statutory

framework. Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 587 (2011); see also United

States v. Sanchez-Garcia, 98 F.4th 90, 94 (4th Cir. 2024). Notably, the INA preserved the

long-held “distinction between those [noncitizens] who have come to our shores seeking

admission . . . and those who are within the United States after an entry, irrespective of its

legality.” Leng May Ma v. Barber, 357 U.S. 185, 187 (1958).

B. The Illegal Immigration Reform & Immigrant Responsibility Act of 1996

Though Congress has amended this statutory framework multiple times since 1952,

the INA has endured and continues to govern our immigration system. Kansas v. Garcia,

589 U.S. 191, 195 (2020). This appeal calls upon us to interpret certain amendments

Congress made to the INA through the passage of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 (1996).

IIRIRA “overhauled numerous sections” of the INA, including the immigration

removal processes. Orquera v. Ashcroft, 357 F.3d 413, 417 (4th Cir. 2003); see also

William v. Gonzales, 499 F.3d 329, 330 (4th Cir. 2007). Prior to 1996, the United States

maintained two entirely different processes for removing noncitizens: “deportation

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proceedings” and “exclusionary proceedings.” Noncitizens present in the United States,

regardless of whether they entered the country legally, were removed through “deportation

proceedings.” See 8 U.S.C. § 1252(a)(1) (1995). Noncitizens arriving at the border were

subject to “exclusionary proceedings.” See id. U.S.C. § 1225(a)–(b) (1995).

Before IIRIRA, the process and rights accorded to noncitizens turned on whether

the individual was physically present in the United States. Following IIRIRA, these

distinctions turn instead on lawful entry to the United States. IIRIRA uses the terms,

“admission” and “admitted,” to describe “the lawful entry of the [noncitizen] into the

United States after inspection and authorization by an immigration officer.” 8 U.S.C.

§ 1101(a)(13)(A). Today, all noncitizens, regardless of whether they are in the country or

arriving at the border, are subject to a single removal process under 8 U.S.C. § 1229a. This

process is known as “removal proceedings.”

A noncitizen is considered “removable” if he 1) was never lawfully admitted to the

United States and is charged as “inadmissible” under Section 1182, or 2) was lawfully

admitted to the United States but is now charged as “deportable” for some reason, such as

committing a crime or overstaying a visa, under Section 1227. Id. § 1229a(e)(2). Those

who are “inadmissible” and those who are “deportable” bear different burdens of proof

during removal proceedings: Noncitizens who have not been lawfully admitted must

establish that they are “clearly and beyond a doubt entitled to be admitted.” Id.

§ 1229a(c)(2). In contrast, noncitizens who have been admitted need only show “by clear

and convincing evidence” that they are present in the United States lawfully. Id.

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To summarize: Prior to IIRIRA, noncitizens present in the United States without

inspection and authorization were subject to deportation proceedings, and subject to the

same burden of proof as those lawfully in the country. Following IIRIRA, noncitizens who

entered the country without inspection and authorization bear the same burden of proof in

removal proceedings as noncitizens arriving at the border.

Our focus today is on the detention provisions of IIRIRA during these removal

proceedings. Two sections of IIRIRA, 8 U.S.C. §§ 1225 and 1226, govern the detention of

noncitizens. Section 1225 requires mandatory detention for certain noncitizens whereas

Section 1226 allows for other noncitizens to be released on bond pending the outcome of

their removal proceedings.

Under Section 1225(b)(2)(A), “an alien who is an applicant for admission, if the

examining immigration officer determines that an alien seeking is not clearly and beyond

a doubt entitled to be admitted, the alien shall be detained” pending removal proceedings.

8 U.S.C. § 1225(b)(2)(A). Section 1226 provides that, in the case of a noncitizen arrested

and detained within the United States, “an alien may [be] release[d]” on “bond.” 8 U.S.C.

§ 1226(a).

This case calls upon us to determine which statutory section applies to noncitizens

like the Petitioners who have 1) not been lawfully admitted to the United States and 2) are

arrested and detained within the United States. The Government argues that Section

1225(b)(2)(A) applies because the Petitioners, having not been lawfully admitted to the

country, are applicants for admission seeking to be admitted. The Government further

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points to IIRIRA’s focus on lawful entry, rather than physical presence, as evidence of

congressional intent to change the scope of the detention provisions.

The Petitioners assert that Section 1226(a) applies because they were arrested and

detained within the United States and are not currently seeking admission into the country.

They argue that this reading of the statute is consistent with the plain text of the statute and

the universal interpretation of the statute over the past thirty years.

With this statutory framework in mind, we turn to the question before us on appeal:

whether the district court properly granted habeas relief to Lopez Garcia and Rivera when

it concluded that Section 1226 governed their detention and that they were, therefore,

entitled to a bond hearing. We review a district court’s grant of habeas relief de novo with

respect to issues of law and for clear error with respect to findings of fact. Wolfe v. Clarke,

691 F.3d 410, 413, 423 (4th Cir. 2012).

III. Analysis

For nearly three decades, all three branches of the federal government interpreted

Section 1226 to apply to noncitizens—like Petitioners Lopez Garcia and Rivera—present

in the United States without inspection and admission, and Section 1225 to apply to

noncitizens arriving at our borders. The Petitioners are among thousands of noncitizens in

the United States swept up and detained without bond as a result of the Government’s

newly adopted construction of Section 1225. “To no one’s surprise and as the

[G]overnment has acknowledged, this change in policy has led to a ‘tsunami’ of habeas

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petitions” filed across the country. Buenrostro-Mendez v. Bondi, 166 F.4th 494, 509 n.3

(5th Cir. 2026) (Douglas, J., dissenting).

In response to this tsunami, hundreds of federal district courts have considered the

question we consider today. The overwhelming majority—over five hundred—rejected the

Government’s new construction and sided with the petitioners in over twenty thousand

individual cases. 4 The debate has now reached every numbered United States court of

appeals and has led to a circuit split. The First, Second, Third, Sixth, Seventh, Ninth, Tenth,

and Eleventh Circuits concluded that Section 1226 applies to noncitizens inside our

country, like the Petitioners, and that they must thus be provided a bond hearing. Guerrero

Orellana v. Moniz, --- F.4th ---, 2026 WL 2352042 (1st Cir. Aug. 13, 2026); Barbosa da

Cunha v. Freden, 175 F.4th 61 (2d Cir. 2026); Buele Morocho v. Warden Philadelphia

FDC, --- F.4th ---, 2026 WL 2546223 (3d Cir. Aug. 28, 2026); Lopez-Campos v. Raycraft,

175 F.4th 713 (6th Cir. 2026); Cirrus Rojas v. Olson, 183 F.4th 909 (7th Cir. 2026);

Rodriguez Vazquez v. Bostock, 183 F.4th 1160 (9th Cir. 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). The Fifth and Eighth Circuits ruled, on the other hand, that

Section 1225 applies to all noncitizens who have not been admitted to the United States

In the midst of this dramatic increase in workload, district courts across the country

have admirably risen to the occasion, issuing carefully researched and meticulously

analyzed opinions. Though too numerous to recognize individually, their work on this topic

has greatly aided our review. See, e.g., Rodriguez v. Bostock, 802 F. Supp. 3d 1297 (W.D.

Wash. 2025); Pablo Sequen v. Albarran, 806 F. Supp. 3d 1069 (N.D. Cal. 2025); Lopez

Benitez v. Francis, 795 F. Supp. 3d 475 (S.D.N.Y. 2025).

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and therefore they must be detained without bond. Buenrostro-Mendez v. Bondi, 166 F.4th

494 (5th Cir. 2026) (concluding that Section 1225 applies); Avila v. Bondi, 170 F.4th 1128

(8th Cir. 2026). We benefit from the careful consideration and thoughtful analysis of our

colleagues.

As is readily apparent from the circuit split, the statutory provisions before us lack

clarity. When faced with an unclear statute, we must “use every tool at [our] disposal [to]

determine the best reading of the statute[.]” Loper Bright Enters. v. Raimondo, 603 U.S.

369, 400 (2024). These tools are known as the canons of statutory interpretation.

Valladares v. Ray, 130 F.4th 74, 80–81 (4th Cir. 2025).

Putting all of our tools of statutory construction to work, we hold that Section 1226,

not Section 1225, applies to noncitizens who, like the Petitioners, have been present in the

United States for years regardless of how they entered our country. Our holding accords

with the text, structure, context, and purpose of the INA as well as its universally accepted

application for the past three decades. Though the Government’s construction finds some

support in the text, it suffers several fatal defects. It renders entire portions of the INA

meaningless, calls into question amendments to the statute in the intervening decades,

including the recent passage of the Laken Riley Act, and raises significant constitutional

concerns.

If we were to agree with the Government’s construction, we would need to conclude

that, in passing IIRIRA thirty years ago, Congress intended to direct the single largest mass

detention of human beings in our nation’s history. Section 1225 simply “cannot bear the

weight of the millions of noncitizens it would potentially subject to detention without

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bond.” Santillan Quiroz, 180 F.4th at 1242; see also Learning Res., Inc. v. Trump, 607 U.S.

229, 240 (2026). We therefore affirm the district court’s grants of habeas relief.

A. Plain Text

As with all questions of statutory interpretation, we begin with the text of the statute.

Copley v. United States, 959 F.3d 118, 123 (4th Cir. 2020). We look to “the language itself,

the specific context in which that language is used, and the broader context of the statute

as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

We first consider whether the plain text of Section 1226(a) applies to noncitizens

like the Petitioners. We find that it does.

We then consider whether the plain text of Section 1225(b)(2)(A) applies to

Petitioners, thereby displacing Section 1226(a) as the controlling detention provision. This

requires us to delve into and consider a number of statutory provisions in Section 1225.

Because we conclude that the plain text of Section 1225(b)(2)(A) is ambiguous, we then

turn to principles of statutory construction to determine the best reading of the statute.

i. Section 1226

We begin by examining the plain text of Section 1226. Section 1226(a) authorizes

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.” 8 U.S.C.

§ 1226(a). “Except as provided in subsection” 1226(c), a noncitizen arrested under Section

1226 can be released on bond or conditional parole during removal proceedings. Id.

§ 1226(a)(1)–(2).

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The word “removed” in Section 1226(a) applies broadly to both inadmissible

noncitizens present without authorization and now charged as inadmissible, like

Petitioners, and previously admitted noncitizens who are now charged as deportable. This

plain reading is supported by the text of other INA sections as well. Where Congress cared

to distinguish between inadmissible and deportable noncitizens, it did so. See, e.g., id.

§ 1229a(c)(2) (distinguishing the burden of proof in removal proceedings for those who

are inadmissible and those who are deportable).

The plain reading of Section 1226(a)—that it applies to noncitizens present in the

United States without inspection and authorization—is further affirmed through the

exceptions contained in Section 1226(c), which explicitly call for the mandatory detention

of noncitizens present in the country without lawful admission who commit certain crimes.

8 U.S.C. § 1226(c)(1)(E). When Congress provides “specific exceptions” to a general rule,

it “proves” that the general rule applies in all other circumstances. Shady Grove Orthopedic

Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 400 (2010). Otherwise, “the statutory

exceptions would be unnecessary.” Id.

Section 1226(c) “carves out a statutory category of [noncitizens] who may not be

released under § 1226(a).” Jennings v. Rodriguez, 583 U.S. 281, 289 (2018). This category

includes both noncitizens who are deportable because they committed a crime enumerated

in the statute and noncitizens who are inadmissible because they committed these crimes

within the United States. See 8 U.S.C. §§ 1226(c)(1)(A)–(D). Congress amended Section

1226 with the passage of the Laken Riley Act in 2025. The Laken Riley Act added yet

another carve-out to Section 1226(a) for noncitizens who are present in the United States

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without being admitted or paroled and have been charged with, arrested for, convicted of,

or have admitted committing a set of enumerated crimes. 8 U.S.C. § 1226(c)(1)(E)(i)–(ii).

Section 1226 unambiguously applies to noncitizens, like the Petitioners, who are

present in the United States without being admitted or paroled. The Petitioners were

detained inside the United States after living here for decades and they have never

committed any of the crimes enumerated in Section 1226(c). By its plain text, therefore,

Section 1226(a) applies to the Petitioners.

The Government argues however that Section 1226(a) cannot apply to Petitioners

because the plain reading of Section 1226 conflicts with the text of Section 1225(b)(2)(A).

We now turn to that section.

ii. Section 1225

The Government argues that Section 1225(b)(2)(A) applies to the Petitioners. The

text of Section 1225(b)(2)(A) provides that “an applicant for admission” must be detained

during removal proceedings “if the examining immigration officer determines that an alien

seeking admission is not clearly and beyond a doubt entitled to be admitted[.]” 8 U.S.C. §

1225(b)(2)(A). Detention under this subsection is mandatory and therefore such applicants

are not given an opportunity for a bond hearing. 5

A noncitizen detained under this subsection can be released only through a

mechanism known as “parole” for “urgent humanitarian reasons or significant public

benefit,” pursuant to 8 U.S.C. § 1182(d)(5)(A). Parole creates its own legal fiction. If a

noncitizen is paroled, he is not considered to have been “admitted” into the United States,

and he is treated “as if [he was] stopped at the border.” Dep’t of Homeland Sec. v.

Thuraissigiam, 591 U.S. 103, 139 (2020) (quoting Mezei, 345 U.S. at 215).

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By its terms, Section 1225(b)(2)(A) only applies where three conditions are met.

The noncitizen must: 1) be an applicant for admission; 2) be seeking admission; and 3) not

clearly and beyond a doubt be entitled to be admitted according to the examining

immigration officer. The Petitioners do not contest that the first and third conditions apply.

They contest only the second. They argue that they cannot be “seeking admission” because

they entered the country thirty years ago. The Government, on the other hand, asserts that

all applicants for admission are necessarily seeking admission. We discuss each condition

below.

Applicant for admission. Section 1225(a)(1) provides that a noncitizen “present in

the United States who has not been admitted or who arrives in the United States,” “whether

or not at a designated port of arrival,” “shall be deemed for purposes of this chapter an

applicant for admission.” 8 U.S.C. § 1225(a)(1). The statute uses the phrase, “applicant for

admission,” to divide all noncitizens who come to the United States into two groups: those

who have been lawfully admitted after inspection by an immigration officer, and those who

have not been lawfully admitted. Under the plain text of the statute, the Petitioners are

applicants for admission by virtue of being present in the United States without having

been inspected and admitted by an immigration officer. 6

Clearly and beyond a doubt entitled to be admitted. The Petitioners also concede

that they are unable to establish that they are clearly and beyond a doubt entitled to be

admitted. In fact, because they entered the country without inspection and admission by an

The district court concluded incorrectly that the Petitioners were not applicants for

admission.

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immigration officer, the plain text of the statute tells us that the Petitioners are inadmissible.

Section 1182(a) provides a list of noncitizens who are “inadmissible,” and therefore

“ineligible to receive visas and ineligible to be admitted to the United States,” including

noncitizens who are present in the United States without being admitted or paroled, or those

who arrive in the United States at any location other than those designated by the Attorney

General. 8 U.S.C. § 1182(a)(6)(A).

Seeking admission. The only dispute is the meaning of the phrase “seeking

admission” in Section 1225(b)(2)(A). Recall that the relevant text reads:

[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 [S]ection 1229a of this title.

8 U.S.C. § 1225(b)(2)(A) (emphasis added).

The Government’s construction requires us to interpret “applicant for admission”

and “alien seeking admission” as synonymous. Relying on the everyday meaning of the

word, “applicant,” and borrowing an analogy from the Fifth Circuit, the Government

analogizes to a college applicant. See Buenrostro-Mendez, 166 F.4th at 502. Under the

Government’s analogy, a college applicant is applying to college and therefore is

necessarily seeking admission to that college. Applying this analogy to the situation before

us, the Petitioners must be seeking admission because they are applicants for admission.

The Petitioners argue that Section 1225(b)(2)(A) only applies to applicants for

admission who are actively “seeking admission” by requesting lawful entry at the border.

As the Petitioners cannot seek admission because they are already inside the country,

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Section 1225(b)(2)(A) does not apply to them. Under this interpretation, an apt analogy

would be to a moviegoer who sneaks into the theater without paying for a ticket and

watches half the film. The moviegoer cannot be said to be “seeking” to enter the theater

when he is already inside. Rather, he is requesting to remain.

This is where our sister circuits have split. It is worth spending a moment to tease

out their disagreement over how properly to interpret the phrase “applicant for admission.”

Section 1225(a)(1) states that all noncitizens “present in the United States who ha[ve] not

been admitted or who arrive[ ] in the United States,” whether or not “at a designated port

of arrival,” “shall be deemed for purposes of this chapter an applicant for admission.” 8

U.S.C. § 1225(a)(1).

The majority of courts have interpreted this phrase as a definitional provision,

defining a statutory term of art: “applicant for admission.” See, e.g., Barbosa da Cunha,

175 F.4th at 75; Lopez-Campos, 175 F.4th at 722–23. Both the Government and the

Petitioners urge us to adopt this interpretation as well.

“When Congress takes the trouble to define the term it uses,” courts are obligated

to use that definition rather than the ordinary meaning of the term of art wherever it appears

in the text. Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 59 (2024).

Conversely, where Congress does not define a term of art, we look to the “ordinary,

contemporary, common meaning” of the word. Othi v. Holder, 734 F.3d 259, 265 (4th Cir.

2023) (quoting United States v. Powell, 680 F.3d 350, 355 (4th Cir. 2012)). Under this

reading, Congress has separately defined the phrase, “applicant for admission,” and the

word, “admission.” It did not define the word “seeking.”

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The Government argues that, even as a definitional provision, we should still give

the ordinary meaning to the word, “applicant.” As an applicant is ordinarily “seeking

admission,” so too must the Petitioners. If “applicant for admission” is indeed a definition,

however, then we cannot separate out each word in the phrase to rely on their ordinary

meanings. Under this reading, “applicant for admission” is comparable to a label. This is

the approach taken by the First, Second, Third, Sixth, Seventh, Ninth, Tenth, and Eleventh

Circuits. 7

There is, however, a different way to read the phrase “applicant for admission,” not

as definitional provision but rather as a deeming provision. This is the approach of our

dissenting colleague and the dissenting judges in the opinions of the Third, Sixth, and

Eleventh Circuits. 8 This is not the approach taken by the Government or by the Fifth or

Eighth Circuits. Legislatures sometimes use deeming provisions when “‘it is necessary to

establish a legal fiction’ either by ‘deeming something to be what it is not’ or ‘by deeming

something not to be what it is.” Sturgeon v. Frost, 587 U.S. 28, 47 (2019) (quoting Black’s

Law Dictionary 504 (10th ed. 2014)).

Guerrero Orellana, 2026 WL 2352042, at *6–10; Barbosa da Cunha, 175 F.4th

at 75–78; Buele Morocho, 2026 WL 2546223, at *3; Hernandez Alvarez, 175 F.4th at

1266–70; Lopez-Campos, 175 F.4th at 722–24; Cirrus Rojas, 183 F.4th at 918–22;

Rodriguez Vazquez, 183 F.4th at 1173–1179; Santillan Quiroz, 180 F.4th at 1238–43; see

also Castañon-Nava, 175 F.4th at 845–46 (Lee, J.).

Buele Morocho, 2026 WL 2546223, at *15 (Mascott, J., dissenting); Hernandez

Alvarez, 175 F.4th at 1288–91 (Lagoa, J., dissenting); Lopez-Campos, 175 F.4th at 740–42

(Murphy, J., dissenting).

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We find merit to both interpretations. In contrast to the statutorily defined term

“admission,” the phrase “applicant for admission” is not included in the INA’s definitional

section. Compare 8 U.S.C. § 1101(a)(13) with 8 U.S.C. § 1225(a)(1). Moreover, when

Congress defines a term of art, it generally uses words like “means” or “is” to signal that it

is doing so. United States v. Helton, 944 F.3d 198, 206 n.5 (4th Cir. 2019); see also

Helvering v. Morgan’s Inc., 293 U.S. 121, 125 n.1 (1934) (“The natural distinction would

be that where ‘means’ is employed, the term and its definition are to be interchangeable

equivalents[.]”). By contrast, Section 1225(a)(1) uses the word “deemed,” suggesting that

the intention was, in fact, to deem. The statute says that both noncitizens arriving in the

United States and those present in the United States without being admitted “shall be

deemed” applicants for admission. 8 U.S.C. § 1225(a)(1) (emphasis added). The title of

Section 1225(a)(1), “Aliens treated as applicants for admission,” also signals as much. Id.

(emphasis added). Certainly, referring to noncitizens, like the Petitioners, who have lived

in our country for decades and are not in fact applying for admission, as “applicants for

admission” suggests the creation of a legal fiction, as one would expect a deeming

provision to do.

Reading this phrase as a deeming provision does not square with the plain text,

however. First, Section 1225(a)(1) does not just include people like the Petitioners who are

not “applicants for admission,” unless designated so by a legal fiction. Rather, the statute

applies the label “applicant for admission” to every noncitizen who comes to the United

States, many of whom are in fact presenting themselves for inspection at the border and

requesting lawful entry (applying for admission) into the country. “There would be no need

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for Congress to provide” that such noncitizens “be deemed” applicants for admission “if

the former actually equated to the latter.” Hedin v. Thompson, 355 F.3d 746, 749 (4th Cir.

2004). Because Section 1225(a)(1) includes both people who are, by the ordinary meaning

of the phrase, applicants for admission as well as those who must be designated as such for

purposes of the law, the phrase “applicants for admission” might be best understood as a

term of art.

Second, while there is an inherent logic to treating deeming provisions and

definitional provisions differently, this concept has not been developed as a canon of

statutory interpretation. Despite the pervasiveness of legislatively created legal fictions,

there exists no common approach that courts apply when interpreting deeming provisions,

including the extent to which a legal fiction embodies every quality of the thing it is deemed

to be. This is especially important because “seeking” remains undefined in the statute.

How expansively we should treat a deeming provision is a sticking point for the

courts that have considered this question. Does being deemed an applicant for admission

mean that an individual is also deemed to be seeking admission? Does being deemed an

applicant for admission mean that an individual is also deemed to have in fact submitted

an application for admission? Does it mean that a noncitizen is also deemed capable of

withdrawing her application despite never having submitted one in the first place? If a

noncitizen is not seeking admission, but seeking something else entirely, should she

nonetheless also be deemed to be seeking admission? Our dissenting colleague, and the

dissenting judges from the First, Third, Sixth, Seventh, Ninth, and Eleventh Circuits

interpret this possible deeming provision expansively, imputing every characteristic of the

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everyday plain meaning of “applicant for admission” to noncitizens like the Petitioners.

Guerrero Orellana, 2026 WL 2352042, at *19 (Dunlap, J., dissenting); Buele Morocho,

2026 WL 2546223, at *15 (Mascott, J., dissenting) Lopez-Campos, 175 F.4th at 740–42

(Murphy, J., dissenting); Cirrus Rojas, 183 F.4th at 933 (Sykes, J., dissenting); Rodriguez

Vazquez, 183 F.4th at 1194–96 (Bea, J., dissenting); Hernandez Alvarez, 175 F.4th at

1288–91 (Lagoa, J., dissenting). Tellingly, they cite no cases to support this approach. But

see Torres v. Barr, 976 F.3d 918, 927 (9th Cir. 2020) (en banc) (rejecting the argument

that an “applicant for admission” should be “deemed to have made an actual application

for admission”).

Throughout the United States Code, the word “deemed” is used in different ways.

Sometimes, it creates a legal fiction. See, e.g., Sturgeon, 587 U.S. at 47 (citing 16 U.S.C.

§ 3103(c)). Elsewhere, it defines a term of art. See, e.g., TC Heartland LLC v. Kraft Food

Grps. Brand LLC, 581 U.S. 258, 262 (2017) (citing 28 U.S.C. § 1391(c)). Even the INA

itself uses the word “deemed” inconsistently. See, e.g., 8 U.S.C. § 1101(a)(42) (providing

that certain individuals “shall be deemed to have been persecuted on account of political

opinion” (emphasis added)); 8 U.S.C. § 1103(a)(3) (permitting the Secretary of Homeland

Security discretion to “perform such other acts as he deems necessary for carrying out his

authority under the provisions of this chapter” (emphasis added)). Given the various

competing uses of the word “deemed,” it cannot do the work our dissenting colleagues

suggest, altogether upending the historical practice and understanding of our nation’s

immigration laws.

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Third, and significantly, even if Congress did intend to create a legal fiction by

“deeming” the Petitioners to be “applicants for admission,” it did not “deem” them to be

“seeking admission,” “applying for admission,” or to have “submitted an application for

admission.” Each of these phrases appears elsewhere in the statute. Standing alone and

unmodified, “applicants for admission” plainly applies to the Petitioners because they are

present in the United States without inspection and authorization. Section 1225(b)(2)(A),

however, modifies the phrase “applicant for admission” by adding the additional phrase,

“seeking admission.”

That modification is important, and this court’s precedent in Hedin v. Thompson

illustrates why. Hedin concerned the proper construction of the Health Professions

Education Partnerships Act. 355 F.3d at 748. One section of that statute provided that

“[a]ctive service” in the Commissioned Corps of the United States Public Health Service

“shall be deemed to be active military service in the Armed Forces of the United States for

purposes of all laws related to discrimination on the basis of race, color, sex, ethnicity, age,

religion, and disability.” Id. (quoting 42 U.S.C. § 213(f)). This deeming provision created

a legal fiction whereby someone who was not serving in the military was nonetheless

“deemed to be” serving in the military for the narrow purpose articulated by Congress. Id.

at 748–49. Where the phrase “active service” stood alone and unmodified, Hedin treated it

as a deeming provision that included individuals serving in the Public Health Service. Id.

at 749. Here too, where “applicants for admission” is unmodified, the phrase includes

noncitizens like the Petitioners who are present without inspection and admission. See, e.g.,

8 U.S.C. § 1229a.

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Not all references to “active service” in the Health Professions Education

Partnerships Act, however, refer to those in the Public Health Service. In interpreting the

statute, the Hedin court noted that, where the statute sought to “address[ ] a certain kind of

‘active service,’ including military-type service, it expressly modifies the term ‘active

service’ to indicate this limitation.” 355 F.3d at 749. For example, where the statute

provides for “active service in time of war,” the deeming provision does not apply. Id.

(quoting 42 U.S.C. § 213(a)). Nor does the legal fiction expand to encompass qualities of

traditional military service. Where, for instance, “active service” is modified to add “in

such grade or any higher grade in the Reserve Corps,” the legal fiction does not extend to

members of the Public Health Service. Id. (quoting 42 U.S.C. § 211(j)(2)). Similarly, the

phrase “applicant for admission” in Section 1225(b)(2)(A) is modified to add “seeking

admission.” Applying the reasoning of Hedin, even if we were to accept that the phrase is

a deeming provision, it would not follow that the Petitioners are seeking admission.

Thus, though Section 1226(a) unambiguously applies to the Petitioners, we are

confronted with two layers of ambiguity in Section 1225(b)(2)(A). First, whether the

phrase, “applicant for admission,” is a definitional or deeming provision. Second, assuming

it is a deeming provision, the impact of the modifying phrase, “seeking admission.” The

Government asks us to read “an alien seeking admission” as synonymous with “applicant

for admission.” The Petitioners counter that “seeking admission” must be read to apply

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only to a subset of applicants for admission, those who take affirmative steps towards

lawful entry. Both readings are plausible based upon the plain text. 9

To resolve this ambiguity, we must turn to customary interpretive tools to determine

the best reading of the text. First, we consider the canons of surplusage and meaningful

variation, which direct courts to consider which interpretation of the statute gives most

effect to the words chosen by Congress. Second, we look to the statute as a whole to situate

the isolated provisions in the broader context of the law. Third, we consider the statutory

and legislative history of the INA and IIRIRA. Fourth, we discuss the longstanding,

universal interpretation of the statutes. Fifth, we apply what is known as the elephants-inmouseholes canon, whereby courts decline to read sweeping mandates into ambiguous

language. Finally, we consider the principles of constitutional avoidance, which require

courts to interpret statutes to avoid unnecessarily implicating constitutional issues.

The Government argues that two other provisions of the statute, Sections

1225(a)(3) and 1225(a)(5), overcome this ambiguity. We disagree.

Section 1225(a)(3) requires immigration officers to inspect “[a]ll aliens . . . who are

applicants for admission or otherwise seeking admission.” 8 U.S.C. § 1225(a)(3). The

Government argues “or otherwise” establishes that all applicants for admission are seeking

admission. As our colleagues at the Second Circuit have explained, however, “or

otherwise” does not always create a subset relationship. Barbosa da Cunha, 175 F.4th at

78–79 (citing Helsinn Healthcare S.A. v. Teva Pharms. USA, Inc., 586 U.S. 123, 125

(2019) (rejecting the same argument proffered by the Government in the context of a

different statute, 35 U.S.C. § 102(a)(1))). “Or otherwise” is context-dependent and does

not cure the ambiguity of this statute.

Section 1225(a)(5) 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). As our colleagues in the Tenth Circuit aptly noted, “[a]ll that subsection (a)(5)

demonstrates is that applicants for admission can be seeking admission, not that they must

be.” Santillan Quiroz, 180 F.4th at 1245.

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These canons of statutory interpretation all lead to the same conclusion: Section

1226 governs the detention of noncitizens like the Petitioners.

B. Giving Effect to Each Word

It is a “cardinal principle of statutory construction that we must give effect, if

possible, to every clause and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404

(2000) (quoting United States v. Menasche, 348 U.S. 528, 538–39 (1955)). This canon is

known as the canon against surplusage. It requires us to construe a statute “so that no part

will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S.

303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)). Though this canon is

not “an iron rule,” Mullin v. Al Otro Lado, 609 U.S. ---, 146 S. Ct. 2079, 2092 (2026),

where, as here, there are multiple possible interpretations of a statute and one would avoid

creating surplusage, the canon is “strongest.” Marx v. Gen. Revenue Corp., 568 U.S. 371,

386 (2013).

The Government’s interpretation of Section 1225(b)(2)(A) collapses two distinct

phrases, “applicant for admission” and “seeking admission,” into one. If that construction

were to hold water—that an applicant for admission is necessarily seeking admission—

there would no reason to include the phrase “seeking admission.” It would be pure

surplusage. Had Congress not included that phrase, then the plain text of Section

1225(b)(2)(A) would support the Government’s position. The provision would read as

follows: Mandatory detention is required in the case of any “applicant for admission, if the

examining immigration officer determines that [the] alien seeking admission is not clearly

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and beyond a doubt entitled to be admitted.” This is not what the statute says, however.

The flaw in the Government’s construction is thus evident; it requires us to write an entire

phrase—seeking admission—out of the sentence. See United States v. Taylor, 596 U.S.

845, 857 (2022) (“[W]e do not lightly assume Congress adopts two separate clauses in the

same law to perform the same work.”).

The Petitioners’ reading, by contrast, gives meaning to each word in Section

1225(b)(2)(A). This corresponds with another commonly applied canon of statutory

construction: the meaningful variation canon. Generally, where Congress uses different

terms, it “suggests a variation in meaning.” Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 170 (2012). Where a statute employs “one term in

one place, and a materially different term in another, the presumption is that the different

term denotes a different idea.” Valladares, 130 F.4th at 82 (quoting S.W. Airlines Co. v.

Saxon, 596 U.S. 450, 457–58 (2012)). Applying this canon, an “applicant for admission”

is not necessarily “seeking admission.” Under the Petitioners’ reading, “seeking

admission” describes the active and ongoing conduct of certain applicants for admission:

those physically attempting to come into the United States, typically at a border or port of

entry, and presenting themselves for inspection and authorization to lawfully enter. 10 While

Like the Tenth Circuit, we do not interpret “seeking admission” to be “limited to

the literal moments that a noncitizen is filling out a form or speaking with an immigration

official to request admission. . . . It is enough that some pending request for admission

remains open or ongoing because it indicates the process of securing admission is still

active.” Santillan Quiroz, 180 F.4th at 1239.

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the Petitioners are applicants for admission, they have been living in the United States for

decades and are not presently seeking admission under this reading.

Beyond merely writing words out of Section 1225(b)(2)(A), the Government’s

reading that Section 1226(a) does not apply also renders entire portions of Section 1226(c)

“void” or, at the very least, “insignificant.” Corley, 556 U.S. at 314; see also Bilski v.

Kappos, 561 U.S. 593, 607–08 (2010). When IIRIRA was enacted, Congress explicitly

carved out four groups of noncitizens under Section 1226(c). While these noncitizens

would otherwise be subject to discretionary detention under Section 1226(a), the statute

requires that they be mandatorily detained pending removal proceedings. Two of these

groups include noncitizens lawfully admitted into the United States but now “deportable”

because they committed certain crimes. See 8 U.S.C. § 1226(c)(1)(B)–(C). The other two

groups include those who have not been lawfully admitted into the United States and are

now “inadmissible” because they committed certain crimes. See 8 U.S.C. § 1226(c)(1)(A),

(D). Section 1226(c) is recognized as “a limit on the authority conferred by subsection (a)”

of Section 1226, the very statute the Government would have us find does not apply here.

Nielsen v. Preap, 586 U.S. 392, 409 (2019). As we have explained, these carveouts are

strong evidence that Section 1226(a) applies to both noncitizens who have been admitted

but are now deportable and to those who are present in the United States without being

inspected and authorized who are inadmissible, like Petitioners. If all applicants for

admission were already subject to mandatory detention, then these carveouts would be

largely unnecessary.

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The recent passage of the Laken Riley Act further confirms this interpretation.

Congress enacted the Laken Riley Act in January 2025, a mere six months before the

Government announced its new construction of the INA. When Congress amends a statute,

“we presume it intends its amendments to have real and substantial effect.” Stone v. INS,

514 U.S. 386, 397 (1995). The Laken Riley Act amended parts of both Sections 1226 and

1225. See Laken Riley Act, Pub. L. No. 119-1, 139 Stat. 3 (2025). Relevant here, Congress

amended Section 1226(c) to mandate the detention of noncitizens who are “inadmissible”

because they are present in the United States without admission and have committed or are

suspected of committing certain crimes. See 8 U.S.C. § 1226(c)(1)(E). Under the

Government’s interpretation, these noncitizens would already have been subject to

mandatory detention under Section 1225(b)(2)(A). The Laken Riley Act amendment would

therefore have no effect.

The Government proffers two responses.

First, the Government argues that the Laken Riley Act amendment to Section 1226

was intended to remove the option of parole for those already mandatorily detained under

Section 1225. This interpretation lacks basis in the text of the statute. Section 1226(c)(1)(E)

does not mention parole. Nor does Section 1226(c) eliminate the possibility of release.

Section 1226(c)(4) explicitly permits the Attorney General to release noncitizens that are

mandatorily detained under Section 1226(c) under certain circumstances, including where

the Attorney General determines that the noncitizen poses no danger to the community or

risk of flight. 8 U.S.C. § 1226(c)(4).

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Had Congress intended only to eliminate the availability of parole for those already

mandatorily detained under Section 1225, it would have either done so through an

amendment to that section of the statute, or by adding an additional exception to those

already enumerated in 8 U.S.C. § 1182(d)(5), which governs parole. Further undermining

the Government’s argument, Congress did in fact amend Section 1225(b) when it passed

the Laken Riley Act to permit state attorneys general to sue the Secretary of Homeland

Security to enforce the act. Id. § 1225(b)(3). Yet, Congress did not address mandatory

detention for noncitizens who are present in the country unlawfully in that subsection.

Second, the Government asserts that Congress included the Laken Riley Act’s

Section 1226 amendment because, at the time, the Executive Branch was improperly

providing noncitizens like the Petitioners with bond hearings rather than mandatorily

detaining them. This argument exposes the flaws in the Government’s position, however.

If Congress sought to correct the Executive Branch’s misunderstanding, it surely would

have done so in a more explicit manner. In interpreting statutes, “Congress’[s] failure to

repeal or revise [the statute] in the face of such administrative interpretation [is] persuasive

evidence that that interpretation is the one intended by Congress.” CBS, Inc. v. FCC, 453

U.S. 367, 385 (1981) (quoting Zemel v. Rusk, 381 U.S. 1, 11 (1965)). Far from informing

the Executive Branch that it was acting in defiance of legislative command, the passage of

the Laken Riley Act affirms the longstanding practice of detaining noncitizens like the

Petitioners under Section 1226.

The canons of surplusage and meaningful variation, therefore, counsel that Section

1226 is the best reading of the statute.

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C. Construing the Statute as a Whole

Another pillar of statutory interpretation is that courts must “construe statutes, not

isolated provisions.” Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson,

559 U.S. 280, 290 (2010) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 568 (1995)).

The Government’s one-size-fits-all approach to “applicants for admission” makes little

sense when viewing the statute as a whole. The statute does not equate the phrase “applicant

for admission” with “seeking admission.” Rather, it delineates between those applicants

for admission who are—or should be regarded as—seeking admission and those who are

not.

First, while noncitizens can apply for admission, the statute also provides for

noncitizens to apply for a host of other forms of relief and status that allow a noncitizen to

come to or remain in the United States even if they have not or cannot be admitted. Second,

read together, Sections 1225 and 1226 create a graduated, risk-dependent approach to the

detention of noncitizens. Reading the statute as a whole confirms that the Petitioners are

not seeking admission, but other forms of lawful relief, and fall properly within Section

1226(a).

i. Seeking what?

The statute distinguishes between noncitizens who are seeking admission and those

seeking to enter or remain in the country through another mechanism. Applicants for

admission can be—and indeed, most often are—applying for legal status or relief other

than “admission” as defined by the statute.

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Though it seems counterintuitive, “admission” to the United States and lawful

presence in the United States are not the same. Take the example of a stowaway, a

noncitizen who has traveled on a boat or plane without a ticket and arrives in the United

States. Under the statute, a stowaway cannot be “considered an applicant for admission”

and is “not eligible to apply for admission.” 8 U.S.C. § 1225(a)(2). A stowaway can,

however, “apply for asylum” if she has a “credible fear of persecution[.]” Id. A stowaway

may thus gain lawful presence in the United States if granted asylum but cannot be

admitted.

Noncitizens can also apply for “relief or protection from removal.” Id.

§ 1229a(c)(4). They can, for example, apply for Temporary Protected Status (TPS) to

protect themselves from removal if their country of origin has been specifically designated

as one facing a particularly dire situation, usually an ongoing conflict, natural disaster, or

other extraordinary condition. Id. § 1254a. Similarly, Deferred Action for Childhood

Arrivals (DACA) is a program that provides protection against removal for certain

noncitizens who arrived in the United States as children. Cancellation of removal and

adjustment of status are available to noncitizens who have lived in this country without

lawful status for decades so long as they are “of good moral character” and their removal

would result in hardship. Id. § 1229b(b)(1). Adjustment of status is also available under

the Violence Against Women Act (VAWA) to noncitizens who crossed the border

unlawfully and were subsequently subjected to “extreme cruelty by a spouse or parent who

is or was a United States citizen.” Id. § 1229b(b)(2)(A)(i)(I).

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Lawful status and admission are thus “distinct concepts in immigration law.”

Sanchez v. Mayorkas, 593 U.S. 409, 415 (2021). A noncitizen can gain lawful status or the

ability to remain in the United States without being “admitted” as that word is defined by

the statute. It is these forms of relief, not admission, that the Petitioners seek.

ii. Detention categories

The Government argues that adopting the Petitioners’ interpretation creates difficult

line-drawing questions as to when a noncitizen falls within Section 1225 rather than within

Section 1226. Reading the statute as a whole makes clear that Congress already drew those

lines when it created four categories to govern the detention of applicants for admission

during removal proceedings. In doing so, Congress largely reincorporated the structure of

pre-IIRIRA statutes and explicitly stated where it deviated from these predecessor statutes.

Though three of these categories plainly include noncitizens, like the Petitioners, who are

present in the country without authorization, the phrase “seeking admission” does not

appear in any of them. We discuss each category below.

Noncitizens subject to expedited removal. First, Congress created a process known

as expedited removal. 8 U.S.C. § 1225(b)(1). Expedited removal allows immigration

officers to inspect and remove a subset of noncitizens quickly without the extensive

procedures generally provided in removal proceedings. Id. Expedited removal applies to

two groups of noncitizens. First, it covers noncitizens arriving in the United States who are

inadmissible. Id. § 1225(b)(1)(A)(i). Second, the Attorney General has discretion to

designate for expedited removal noncitizens who have “not been admitted or paroled into

the United States” and who have not “affirmatively shown” that they have “been physically

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present in the United States continuously for the 2-year period immediately prior to the

date of the determination of inadmissibility[.]” Id. § 1225(b)(1)(A)(iii).

Expedited removal, therefore, applies only to certain inadmissible noncitizens

arriving in the United States or noncitizens who recently crossed the border without

inspection. Given the abbreviated procedures it provides, expedited removal “operates on

a short timeline. Decisions and removals often occur within days, and sometimes sooner.”

Make the Road New York v. Mullin, 179 F.4th 16, 22 (D.C. Cir. 2026). Noncitizens subject

to expedited removal are mandatorily detained without the possibility of bond pending their

removal proceedings. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV). These noncitizens are

inadmissible and can only apply for asylum. Id. § 1225(b)(1)(A)(i). Though this subsection

plainly applies to applicants for admission who have crossed the border unlawfully, the

section does not suggest that these applicants are “seeking admission.”

Arriving noncitizens seeking admission. Second, Congress provided that all other

noncitizens arriving in this country and seeking lawful entry are subject to Section

1225(b)(2). Like those subject to Section 1225(b)(1), these noncitizens recently arrived in

the United States but have not demonstrated that they are “entitled to be admitted.” 8 U.S.C.

§1225(b)(2)(A). Because they are actively seeking lawful entry, unlike the applicants for

admission covered in Section 1225(b)(1)(A)(iii), these noncitizens are granted the full

benefits of normal removal proceedings under Section 1229a (as opposed to expedited

removal proceedings). Id. § 1225(b)(2)(A). Noncitizens in this category are subject to

mandatory detention. Id. These applicants can legally seek admission, asylum, and other

legal statuses during their removal proceedings. This is the only category of the four

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enumerated by Congress that explicitly applies to noncitizens who are “seeking

admission.” Id.

As we have explained, where Congress intended to create a legal fiction that an

applicant for admission who crossed the border without inspection and authorization

should nonetheless be regarded as “seeking admission,” it did so explicitly. Take for

example, a lawful permanent resident who left the United States on a trip to Mexico.

Instead of crossing at a port of entry upon his return, the lawful permanent resident decided

to skip the lines and cross by foot back into the United States. A lawful permanent resident

who is present in the United States without inspection and authorization is deemed an

applicant for admission. See 8 U.S.C. § 1225(a)(1). In our example, the lawful permanent

resident clearly is not “seeking lawful entry.” He snuck back into the United States. He is

then apprehended just a few miles after crossing the border. Under the plain text of the

statute, he would be subject to Section 1225(b)(2)(A)’s expedited removal proceedings.

The statute, however, instructs us to treat this lawful permanent resident differently

than other noncitizens who cross the border unlawfully. Though the lawful permanent

resident crossed the border unlawfully without authorization, the statute tells us to

“regard[ ]” him as “seeking an admission.” 8 U.S.C. § 1101(a)(13)(C)(vi). This subsection

is instructive. It demonstrates that where Congress intends to create a legal fiction that an

applicant for admission who has crossed the border unlawfully is “seeking admission,” it

does so explicitly. By contrast, the statute does not state that applicants for admission, like

the Petitioner, who have crossed the border unlawfully should be regarded as “seeking

admission.”

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Noncitizens apprehended and detained in the United States. This brings us to the

third category: noncitizens subject to Section 1226(a). As we have discussed, Section

1226(a) applies to noncitizens apprehended and detained in the country. Supra Section

III.A.i. By its plain language, the statute applies to both noncitizens lawfully admitted into

the United States but now deportable as well as noncitizens present in the United States

without authorization, like the Petitioners. 8 U.S.C. §1226(a). This section carries forward

the pre-IIRIRA discretionary detention framework for both groups of noncitizens. Both

groups are subject to regular removal proceedings.

Those noncitizens who are present without inspection and authorization, like the

Petitioners, cannot seek admission during the removal proceedings. They are

“inadmissible” because they entered the United States without seeking lawful entry. They

can, however, seek asylum and other forms of relief to remain in the country. During the

pendency of their proceedings, these noncitizens are subject to discretionary detention. Id.

Discretionary detention recognizes that these noncitizens are more likely to have extensive

ties to the United States and their potential risk level can more readily be assessed. Again,

though its plain language applies to applicants for admission like the Petitioners, this

section also does not include any reference to “seeking admission.”

Noncitizens apprehended in the United States who have committed certain crimes.

Finally, in the fourth category, Congress created certain exceptions to discretionary

detention under Section 1226(c). By its plain language, this section also applies to certain

noncitizens who are present without inspection and authorization. See 8 U.S.C.

§ 1226(c)(1)(A), (D), (E). These applicants for admission cannot be released on bond

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during the pendency of their removal proceedings. Instead, they are mandatorily detained

under Section 1226(c) because they committed certain crimes. Id. § 1226(c). Once more,

this section does not use the phrase, “seeking admission,” in reference to these applicants

for admission.

Viewing the statute through this broader lens, Congress thus created a graduated

framework, taking into consideration the noncitizens’ risk and ties to their communities, to

govern detention pending removal proceedings. The Petitioners have been present in the

United States for decades without being admitted or paroled and are therefore not subject

to Section 1225(b)(1)(A). They are not, in fact, seeking admission nor has the statute

deemed them to be doing so, and are therefore not subject to Section 1225(b)(2)(A). Nor

have they committed any criminal acts, and therefore are not subject to Section 1226(c).

Rather, given their extensive ties and lack of risk to their communities, the Petitioners are

subject to Section 1226(a) and therefore must be provided a bond hearing.

D. Statutory and Legislative History

The Government rests much of its argument on legislative history. In attempting to

overcome the best reading of the statute, the Government extrapolates from a single

sentence in the thousands of pages of legislative history that one purpose of IIRIRA was to

“replace certain aspects” of the prior statutory framework that afforded those unlawfully

present in the United States with “equities and privileges in immigration proceedings that

are not available to [noncitizens] who present themselves for inspection at a port of entry.”

See H.R. Rep. No. 104-469, pt. 1, at 225 (1996). The Government argues that a narrow

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reading of “seeking admission” would defeat Congress’s purpose when it labeled

individuals like the Petitioners applicants for admission and would create perverse

incentives to reward noncitizens who enter the country unlawfully. Not so.

As a threshold matter, “[w]e cannot replace the actual text with speculation as to

Congress’[s] intent.” Magwood v. Patterson, 561 U.S. 320, 334 (2010). The Government

is correct that, in enacting IIRIRA, Congress altered certain aspects of the historical

distinction between these two groups. As we have explained, Congress grouped noncitizens

already present inside the United States without admission and those arriving at the border

together under the same label: applicant for admission. 8 U.S.C. § 1225(a)(1). Congress

created the process of expedited removal for a subset of these noncitizens. 8 U.S.C.

§ 1225(b)(1)(A)(iii). Congress also replaced the prior dual-track scheme of deportation and

exclusionary proceedings with a single procedure for removal. See 8 U.S.C. § 1229a.

Congress established respective burdens of proof for applicants for admission subject to

removal based on inadmissibility and noncitizens who are subject to removal based on

deportability, providing for the same burden to apply to individuals present in the country

without authorization and those just arriving. 8 U.S.C. §1229a(c)(2).

IIRIRA therefore made significant moves toward equalizing the treatment of

noncitizens present in the country unlawfully and those who have just arrived. There is,

however, nothing in the statutory text, structure, or history of IIRIRA to suggest that

Congress intended, as the Government asserts, to eliminate every distinction between these

groups. There is, rather, plenty of proof to the contrary. In fact, the same part of the

legislative history cited by the Government states that Congress sought only to alter

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“certain aspects” of this differential treatment. H.R. Rep. No. 104-469, pt. 1, at 225

(emphasis added).

With respect to the detention statutes specifically, the legislative history indicates

that Congress intended to maintain the prior distinctions. The legislative history report cited

by the Government emphasizes that Section 1226 “restates” the pre-IIRIRA Section

1252(a)(1) “regarding the authority of the Attorney General to arrest, detain, and release

on bond [a noncitizen] who is not lawfully in the United States.” H.R. Rep. No. 104-469,

pt. 1, at 229. The predecessor statute to Section 1226 provided for a bond hearing for

noncitizens present in the United States without inspection and authorization. 8 U.S.C.

§ 1252(a)(1) (1995). The legislative history makes no mention of narrowing bond

eligibility for such noncitizens.

Moreover, the legislative changes enacted in IIRIRA indicate that Congress

intended to broaden the scope of the bond eligibility provisions to continue to apply to the

same noncitizens it had applied to historically. “When Congress amends legislation, [we]

presume it intends the change to have real and substantial effect.” Van Buren v. United

States, 593 U.S. 374, 393 (2021) (quoting Ross v. Blake, 578 U.S. 632, 641–42 (2016)).

The predecessor statute to Section 1226 used the phrase “[p]ending a determination of

deportability” consistent with the prior statute’s dual-track framework for deportation and

exclusionary proceedings. See 8 U.S.C. § 1252(a)(1) (1995). In IIRIRA, Congress

explicitly removed the word “deportability,” replacing it with the word, “removed.”

8 U.S.C. § 1226(a). The use of “removed” broadens the section to encompass IIRIRA’s

newly defined categories of both inadmissible and deportable noncitizens. With this

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change, Congress ensured that this same procedure continues to apply to noncitizens like

the Petitioners.

The statutory and legislative history of IIRIRA also reflects Congress’s purpose in

enacting Section 1225(b). The House Report on IIRIRA describes Section 1225(b) as

“establish[ing] new procedures for the inspection and in some cases removal of aliens

arriving in the United States.” H.R. Rep. No. 104-828, at 209 (1996). Section 1225(b) also

traces its roots to prior statutory provisions. The Immigration Act of 1893 states, “it shall

be the duty of every inspector of arriving alien immigrants to detain for a special

inquiry . . . every person who may not appear to him to be clearly and beyond doubt entitled

to admission.” 27 Stat. 569, 570. The language of this predecessor statute echoes in the

formulation of Section 1225(b)(2)(A): “[I]f the examining immigration officer determines

that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted,

the alien shall be detained for a [removal] proceeding[.]” Seeking admission is not

surplusage. Rather, it is an essential phrase that limits the application of the subsection to

noncitizens at the border.

Though the Government’s argument rests heavily on legislative history, we disagree

that the legislative history tips in the Government’s favor. Rather, the statutory and

legislative history both demonstrate that Congress intended for “seeking admission” to

have a meaning different from and in addition to “applicant for admission.” Seeking

admission is a modifier indicating an additional element that must be met, not a

characteristic imputed to every applicant for admission.

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E. Longstanding Interpretation

The universal, longstanding interpretation of the detention statutes at issue also

confirms that Section 1226(a) governs the detention of the Petitioners. “[T]he longstanding

practice of the government—like any other interpretive aid—can inform a court’s

determination of what the law is.” Loper Bright Enters., 603 U.S. at 386.

Since the passage of IIRIRA in 1996, 8 U.S.C. § 1226(a) has been universally

understood to govern the detention of noncitizens, like Lopez Garcia and Rivera, who are

already in the country, regardless of whether they entered the country lawfully. By contrast,

8 U.S.C. § 1225(b)(2)(A), which does not allow for a bond hearing in advance of removal,

has been understood to govern the detention of noncitizens “seeking admission into the

country” at the border. Jennings, 583 U.S. at 289. Thus, absent certain exceptions, it was

always the case prior to July 2025 that whether a noncitizen would receive a bond hearing

or be subject to mandatory detention turned on whether the noncitizen was already in the

country or was seeking to enter at the border.

For three decades, the Executive Branch interpreted the statute in a manner that is

contrary to its current position. See 8 C.F.R. §§ 1003.19(a) & (h)(2), 1236.1(d); 62 Fed.

Reg. 10323. Previously when it has detained noncitizens present in the United States

without authorization, it has universally done so under Section 1226. The Executive

Branch’s longstanding practice is particularly significant “when [it] was issued roughly

contemporaneously with the enactment of the statute and remained consistent over time.”

Loper Bright, 603 U.S. at 386. In 1997, the Executive Branch promulgated a federal

regulation implementing these statutes. Implementing Immigration Statutes, 62 Fed. Reg.

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10312, 10323 (Mar. 6, 1997). During the rulemaking process, the Executive Branch

explained that “aliens who are present without having been admitted or paroled,” like the

Petitioners, “will be eligible” for bond under Section 1226. Id.

Five presidential administrations, including the first Trump Administration, acted

in accordance with this interpretation of the statute. This too provides weighty evidence in

support of the Petitioners’ position that their detention should be subject to Section 1226(a)

and, therefore, they should be provided a bond hearing.

F. Elephants in Mouseholes

Lest we not lose the forest for the proverbial statutory trees, it is important to state

the real-world implications of the Government’s argument. Accepting the Government’s

construction would mean that Congress mandated the detention of millions of people and

upended the longstanding distinction, grounded in the Due Process Clause of the

Constitution, between those arriving at our borders and those already present in our

country. Yet no one took notice for three decades. It is axiomatic that Congress “does not

alter the fundamental details of a regulatory scheme in vague terms or ancillary

provisions.” Whitman v. Am. Trucking Ass’ns., Inc., 531 U.S. 457, 468 (2001). Congress

“does not, one might say, hide elephants in mouseholes.” Id. As we have shown, the statute

is riddled with ambiguity. We can safely assume that Congress would not have enacted

such an historically unprecedented change without greater clarity.

Nestled in the ambiguity in Section 1225, the Government asserts that Congress

transformed our nation’s immigration detention system. Before June 2025, it was

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well-established that noncitizens who have “passed through our gates, even illegally, may

be expelled only after proceedings conforming to traditional standards of fairness

encompassed in due process of law.” Mezei, 345 U.S. at 212. These principles have been

reaffirmed by the Supreme Court after the enactment of IIRIRA. When a noncitizen enters

the country, “the legal circumstances change[ ] . . . whether their presence here is lawful,

unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693.

This history and tradition notwithstanding, the Government contends that Congress

summarily did away with these procedural safeguards for millions of people without so

much as a passing reference. Had Congress truly intended to extinguish every difference

between noncitizens arriving at the border and those present in the country without

authorization, we would expect more than simple statutory silence. See Learning Res., Inc.,

607 U.S. at 242–47.

The Government concedes that in 1996, the year IIRIRA was enacted,

approximately two million people would have been newly subject to mandatory detention

under its construction of the statute. That number today is estimated to be six million.

Under the Government’s new statutory construction, then, we are being urged to hold that

Congress authorized the detention without bond of millions of people and did so without

so much as a mention of the logistical difficulties—or moral implications—of such a

massive undertaking.

Congress’s silence with respect to this purported detention mandate contrasts

sharply with its well-articulated concerns about IIRIRA’s more modest expansion of

mandatory detention under Section 1226(c). Congress anticipated that Section 1226(c)

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could result in the mandatory detention of an additional 45,000 noncitizens in any given

year. H.R. Rep. No. 104–469, pt. 1, at 118, 120, 123. Congress expressed concern that such

an increase would place significant strain on existing detention resources and therefore

provided for delayed implementation to allow time to scale up the nation’s detention

resources. See Pub. L. No. 104-208, § 303(b)(2), 110 Stat. 3009, 586–87 (1996). Faced

with the practical realities of a sudden increase in the number of noncitizens detained, the

Executive Branch did, in fact, delay implementation of the Section 1226(c) detention

provisions for two years. See Margaret H. Taylor, The 1996 Immigration Act: Detention

and Related Issues, 74 Interpreter Releases 209, 216–17 (1997). Congress’s silence,

particularly when coupled with its express concern about the impact of mandatory

detention on a considerably smaller scale, speaks volumes. It is difficult to imagine a larger

proverbial elephant.

Yet, somehow, this elephant escaped the notice of all three branches of our federal

government for decades. While past practice does not justify disregard of clear statutory

language, see Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 329 (2015), there

is no clear language to disregard here. The longstanding, universal interpretation and

application of this statutory language also counsels against crediting the Government’s

newfound construction. See Monsalvo v. Bondi, 604 U.S. 712, 728 (2025) (explaining that

IIRIRA “should be read in light of the government’s longstanding regulatory practice”).

“When an agency claims to discover in a long-extant statute an unheralded power,” we

“greet its announcement with a measure of skepticism.” Util. Air Regul. Grp. v. EPA, 573

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U.S. 302, 324 (2014). The actions of fifteen Congresses, the Supreme Court, and five

presidential administrations for thirty years confirm that no such elephant exists.

G. Constitutional Avoidance

Our examination of the text of the statute also cannot ignore the grave constitutional

implications of the Government’s construction. The Government urges us to adopt a

construction of an ambiguous statute that would subject millions of people living and

working in the United States to mandatory detention with no recourse to the constitutional

protections that have long been held to apply to them. Where an “otherwise acceptable

construction of a statute would raise serious constitutional problems, and where an

alternative interpretation of the statute is ‘fairly possible,’” courts are “obligated to construe

the statute to avoid such problems.” INS v. St. Cyr, 533 U.S. 289, 299–300 (2001) (citation

omitted); see also Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–49 (1936).

The Fifth Amendment guarantees that “[n]o person shall . . . be deprived of life,

liberty, or property without due process of law.” U.S. Const. amend. V. “Freedom from

imprisonment—from government custody, detention, or other forms of physical restraint—

lies at the heart of the liberty that [the Due Process Clause] protects.” Zadvydas, 533 U.S.

at 690; see also Demore v. Kim, 538 U.S. 510, 531 (2003). While detention during removal

proceedings “is a constitutionally permissible part of that process,” the government’s

“ability to detain noncitizens is not limitless.” Lopez-Campos, 175 F.4th at 732. As we

have explained, our immigration laws have always distinguished between noncitizens “on

the threshold of initial entry” and those who have “passed through our gates.” Mezei, 345

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U.S. at 212. It is also foundational to our immigration laws that the Fifth Amendment

protects the due process rights of those present in the United States regardless of whether

they entered lawfully. See, e.g., Yamataya v. Fisher, 189 U.S. 86, 100–01 (1903); Reno v.

Flores, 507 U.S. 292, 306 (1993).

This is a textbook case for constitutional avoidance. The Government’s novel

construction would implicate the constitutional due process rights of millions of

noncitizens in our country, many of whom have lived, worked, and become integral parts

of their communities, for years. The district court’s interpretation is not only fairly possible;

it has been the universal interpretation of the statute for decades.

To the extent that Section 1225(b)(2)(A) is ambiguous, the canons of statutory

interpretation all point to the same conclusion: Section 1226(a) properly governs the

detention of noncitizens like the Petitioners who are present in the United States, regardless

of how they came to be in our country.

IV. Conclusion

Mass detention of marginalized individuals without due process harkens back to

some of the darkest moments in our country’s history. In 1892, Congress enacted the Geary

Act, which called for the mandatory detention of and “hard labor” for Chinese persons who

were “adjudged to be not lawfully entitled to be or remain in the United States[.]” Geary

Act, 27 Stat. 25, § 4. Thousands of Chinese persons were unconstitutionally detained under

this Act in violation of their due process rights. See Wong Wing v. United States, 163 U.S.

228, 232–35 (1896). Fifty years later, with racial animus masquerading as national interest,

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the government ordered the mass detention of all individuals of Japanese descent present

in the United States during World War II. Nearly 120,000 people were sent to internment

camps within our borders. United States v. Hohri, 482 U.S. 64, 66 (1987).

The stain of these detentions on our nation—and the judiciary’s abdication of its

obligation to protect basic freedoms—continues to haunt us. See, e.g., Trump v. Hawaii,

585 U.S. 667, 710 (2018) (stating that the Supreme Court decision affirming executive

policies on Japanese internment “was gravely wrong the day it was decided, has been

overruled in the court of history, and—to be clear—‘has no place in law under the

Constitution’” (internal quotation marks omitted)). Those shameful and abhorrent past

detentions were limited in scope in comparison to the mandatory detention that the

Government urges us today to find that Congress established thirty years ago in an

ambiguously worded statutory provision. We decline to do so.

For the reasons set forth above, we affirm the district court’s grants of habeas relief.

Section 1226 properly governs the detention of the Petitioners. Oscar Enrique Lopez Garcia

and Juan Jose Rivera could not be detained pending the outcome of their removal

proceedings without the opportunity to argue for their release at a bond hearing.

AFFIRMED

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RUSHING, Circuit Judge, dissenting:

This appeal presents a question of statutory interpretation: Does 8 U.S.C.

§ 1225(b)(2)(A), which requires the Department of Homeland Security (DHS) to detain

certain aliens for removal proceedings, apply to aliens who are present in the United States

without having been lawfully admitted? The decision whether to mandate detention

pending removal lies with Congress. “Our role” is simply “to interpret the language of the

statute” that Congress enacted. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 461

(2002). That means considering the “statutory text, context, and history.” Musacchio v.

United States, 577 U.S. 237, 246 (2016). Those considerations establish that Section

1225(b)(2)(A) requires DHS to detain aliens who are present in the country without having

been lawfully admitted—like Petitioners—during their removal proceedings. Because the

majority holds otherwise, I respectfully dissent. 1

A. Statutory Text

“As always, we start with the text.” Campos-Chaves v. Garland, 144 S. Ct. 1637,

1647 (2024). When interpreting a statute, we “begin with the language employed by

Congress and the assumption that the ordinary meaning of that language accurately

expresses the legislative purpose.” Morales v. Trans World Airlines, Inc., 504 U.S. 374,

383 (1992) (internal quotation marks omitted). “[W]ords generally should be interpreted

Binding precedent from the Supreme Court and this Court holds that 8 U.S.C.

§ 1252(b)(9) does not deprive us of jurisdiction to decide legal challenges to immigration

detention procedures. See Jennings v. Rodriguez, 583 U.S. 281, 292–295 (2018)

(plurality); id. at 876 (Breyer, J., dissenting); Miranda v. Garland, 34 F.4th 338, 353 n.6

(4th Cir. 2022). But see Jennings, 583 U.S. at 315–326 (Thomas, J., concurring).

Accordingly, I address the merits.

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as taking their ordinary, contemporary, common meaning at the time Congress enacted the

statute.” Wisc. Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018) (internal quotation

marks and ellipsis omitted). Of course, when Congress defines a statutory term, “we must

follow that definition, even if it varies from a term’s ordinary meaning.” Van Buren v.

United States, 141 S. Ct. 1648, 1657 (2021) (internal quotation marks omitted).

1. Text of Section 1225(b)(2)(A)

Section 1225(b)(2)(A) reads in full:

Subject to subparagraphs (B) and (C), in the case of an alien

who is an applicant for admission, if the examining

immigration officer determines that an alien seeking admission

is not clearly and beyond a doubt entitled to be admitted, the

alien shall be detained for a proceeding under section 1229a of

this title.

8 U.S.C. § 1225(b)(2)(A). The operative clause of the sentence dictates that “the alien shall

be detained” for a removal proceeding “if” one condition is satisfied: “the examining

immigration officer determines that an alien seeking admission is not clearly and beyond a

doubt entitled to be admitted.” Id. Two prefatory clauses modify the operative clause.

The first carves out the exceptions in subparagraphs (B) and (C) of Section 1225(b)(2),

which do not apply here. The second identifies who this provision concerns: “an alien who

is an applicant for admission.” Id.

Petitioners concede they are “applicant[s] for admission,” but dispute that they are

“alien[s] seeking admission.” So we must determine the meaning of those phrases. The

INA defines “alien” as “any person not a citizen or national of the United States.” 8 U.S.C.

§ 1101(a)(3). It defines “admission” to mean “with respect to an alien, the lawful entry of

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the alien into the United States after inspection and authorization by an immigration

officer.” Id. § 1101(a)(13)(A). The INA does not define “applicant” or “seeking,” so we

give those words their ordinary meaning. An “applicant” is “a person who applies,” and

“apply” means “to make a formal request.” Webster’s New World College Dictionary 67

(3d ed. 1988); see Merriam Webster’s Collegiate Dictionary 56–57 (10th ed. 1993)

(defining “applicant” as “one who applies,” and “apply” as “to make an appeal or request”).

“Seek” means “to request; ask for.” Webster’s New World College Dictionary 1215; see

Merriam Webster’s Collegiate Dictionary 1057 (defining “seek” as “to ask for:

REQUEST”). So an “applicant” is a person who requests, and “seeking” is requesting.

See also The American Heritage Dictionary of the English Language 89 (3d ed. 1992)

(“apply” means “[t]o request or seek assistance, employment, or admission” (emphasis

added)).

The result is straightforward: “applicant for admission” and “alien seeking

admission” both refer to an alien who requests lawful entry into the United States. In other

words, an applicant for admission is seeking admission. It’s that simple.

2. Text of Section 1225(a)(1)

Section 1225(a)(1) is also relevant here. It states as follows:

An alien present in the United States who has not been

admitted or who arrives in the United States (whether or not at

a designated port of arrival and including an alien who is

brought to the United States after having been interdicted in

international or United States waters) shall be deemed for

purposes of this chapter an applicant for admission.

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8 U.S.C. § 1225(a)(1). Petitioners admit that, pursuant to this provision, they are

“applicant[s] for admission” because they are aliens who entered the country unlawfully,

making them “alien[s] present in the United States who ha[ve] not been admitted.” Id.; see

id. § 1101(13)(A) (defining “admitted” as “lawful entry”). Of course, Petitioners are not

actually applying for entry, much less lawful entry; they entered the country illegally and

have lived here for years. But Section 1225(a)(1) tells us that an individual in that position

nevertheless is to be considered an “applicant for admission.”

To understand how Section 1225(a)(1) functions, we must examine its text, which

directs that an alien present in the United States who has not been admitted or who arrives

in the country “shall be deemed . . . an applicant for admission.” “Deem” means “[t]o

regard as; consider.” American Heritage Dictionary 487; see also Black’s Law Dictionary

415 (6th ed. 1990) (“To hold; consider; adjudge; believe; condemn; determine; treat as if;

construe.”). The title of the paragraph conveys the same meaning: “Aliens treated as

applicants for admission.” 8 U.S.C. § 1225(a)(1) (emphasis added). Therefore, an alien

arriving in the United States or present without having been lawfully admitted shall be

considered—regarded as, treated as—an applicant for lawful entry. Such a person shall be

considered an applicant for admission whether or not he is actually seeking lawful entry.

For example, an alien “who arrives in the United States . . . not at a designated port of

arrival” is actually avoiding lawful entry and not applying for anything. Id. But Section

1225(a)(1) tells us, for purposes of Chapter 12, to treat that person as “an applicant” for

lawful entry.

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The Supreme Court has understood the word “deemed” this way in a similarly

phrased statute. In Sturgeon v. Frost, the Court considered a statute that provides: “‘Only

those lands within the boundaries of any conservation system unit which are public lands

(as such term is defined in this Act) shall be deemed to be included as a portion of such

unit.’” 139 S. Ct. 1066, 1076 (2019) (quoting 16 U.S.C. § 3103(c)) (emphasis added). “As

a matter of geography, both public and non-public lands” fell within unit boundaries. Id.

at 1081. But because of the deeming language, “as a matter of law, only public lands would

be viewed as doing so.” Id. As the Supreme Court explained, the term “deemed” “is used

in legal materials ‘[t]o treat (something) as if . . . it were really something else,’” such as

“by ‘deeming something to be what it is not’ or by ‘deeming something not to be what it

is.’” Id. (quoting Black’s Law Dictionary 504 (10th ed. 2014)). In Sturgeon, the statutory

phrase “[o]nly . . . public lands . . . shall be deemed to be included,” 16 U.S.C. § 3103(c),

meant that “only public lands . . . would be considered part of” a conservation system unit,

“even though” non-public lands also “in fact fall within [the unit’s] geographic

boundaries,” Sturgeon, 139 S. Ct. at 1077 (emphasis added). As a result, non-public lands

located inside system units were “declared outside them” for legal purposes, such that those

lands were “no longer subject to the” National Park Service’s authority over system units.

Id. at 1081. Thus, “deeming something to be what it is not” has real effect; it is not merely

a matter of labeling. Id. (internal quotation marks omitted).

The same is true here. An alien present in the United States who has not been

admitted isn’t actually applying for lawful entry. And an arriving alien may not be either—

he may be sneaking across the border or seeking lawful status, not admission. But as a

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matter of law for purposes of Chapter 12, all such individuals are to be regarded as

applicants for admission.

3. Putting it all together

Reading Section 1225(a)(1) and (b)(2)(A) together definitively answers the question

presented. Section 1225(a)(1) tells us to “deem[]” Petitioners to be applicants for

admission. Section 1225(b)(2)(A), which applies “in the case of an alien who is an

applicant for admission,” therefore applies to Petitioners. As already discussed, an

applicant for admission is an alien seeking lawful entry into the country. See 8 U.S.C.

§ 1101(13)(A) (defining “admission”); American Heritage Dictionary 89 (“apply” means

“[t]o request or seek”). As applicants for admission, Petitioners are “alien[s] seeking

admission.” 8 U.S.C. § 1225(b)(2)(A); see Jimenez-Rodriguez v. Garland, 996 F.3d 190,

194 n.2 (4th Cir. 2021) (explaining that, because the petitioner was an “‘alien present in

the United States who has not been admitted,’” “he qualifies as someone ‘seeking

admission’” (first quoting 8 U.S.C. § 1225(a)(1), then quoting id. § 1182(d)(3)(A)(ii))).

And they concede that an immigration officer determined that Petitioners are “not clearly

and beyond a doubt entitled to be admitted.” 8 U.S.C. § 1225(b)(2)(A). Section

1225(b)(2)(A) therefore requires DHS to detain Petitioners for removal proceedings.

4. Petitioners’ error in reading Section 1225(a)(1)

Petitioners and the majority disagree with this straightforward interpretation of the

statutory language. Principally, Petitioners contend that “applicant” does not carry its

ordinary meaning in Section 1225, and so, although Section 1225(a)(1) declares them to

be “applicants for admission,” they nevertheless are not “seeking admission.” Their

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approach misreads Section 1225(a)(1) as a definition of the phrase “applicant for

admission” and thereby strips that provision of its deeming function.

First, Petitioners and the majority err by construing “applicant for admission” as a

term of art that Section 1225(a)(1) defines. Section 1225(a)(1) does not articulate a new

meaning for the phrase “applicant for admission,” introduced by the word “means” or “is.”

See Groman v. Comm’r, 302 U.S. 82, 86 (1937) (concluding that the relevant section “is

not a definition” because “when an exclusive definition is intended the word ‘means’ is

employed”); Burgess v. United States, 553 U.S. 124, 130 (2008) (“As a rule, [a] definition

which declares what a term ‘means’ . . . excludes any meaning that is not stated.” (internal

quotation marks omitted)). Consider, by contrast, the INA section titled “Definitions,”

which repeatedly defines statutory terms for purposes of the immigration laws by saying,

“[T]he term [X] means [Y].” 8 U.S.C. § 1101(a)(1)–(h). Notably, Section 1225(a)(1) is

not located in Section 1101(a), where Congress defined terms “[a]s used in” Chapter 12.

Id. § 1101(a). Nor did Congress write Section 1225(a)(1) like it did those definitions.

Doing so would have been simple enough; the provision would say, “For purposes of this

chapter, ‘applicant for admission’ means an alien present in the United States who has not

been admitted or who arrives in the United States (whether or not at a designated port of

arrival and including an alien who is brought to the United States after having been

interdicted in international or United States waters).” Of course, that is not what Congress

wrote.

Congress’s choice to describe two categories of aliens who “shall be deemed”

applicants for admission does not define the term “applicant[s] for admission.” Consider

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an example. The sentence, “Tomatoes and cucumbers shall be deemed vegetables” does

not define the term “vegetables.” Rather, it means that tomatoes and cucumbers shall be

treated as though they are vegetables, despite being botanical fruits. The deeming sentence

alters how we regard tomatoes and cucumbers; it does not alter the definition of vegetables

or limit the meaning of “vegetables” to solely “tomatoes and cucumbers.” A vegetable

remains a vegetable, and the deemed foods must be considered vegetables. The same

would be true no matter what are deemed to be vegetables—be they botanical fruits,

legumes, or chocolate chip cookies. The meaning of the term “vegetables” does not change

in any of these scenarios, and its definition must be found elsewhere.

Likewise here, “applicant for admission” isn’t defined to mean the two groups of

aliens described in Section 1225(a)(1). The provision instead tells us how to regard those

two groups of aliens for purposes of Chapter 12. Just as “vegetables” keeps its ordinary

meaning, “applicant for admission” retains its definition as supplied by Section

1101(a)(13) and contemporary dictionaries. Section 1225(a)(1)’s deeming language

conveys that, whatever “applicant for admission” means and whoever else it includes, the

two identified groups of aliens shall be regarded as applicants for admission too.

The majority posits that Section 1225(a)(1) is not a “deeming provision” because

some of the aliens it identifies “are in fact . . . applying for admission[] into the country,”

and there is “‘no need for Congress to provide’” that those aliens “‘be deemed’ applicants

for admission” when they qualify as “applicants for admission” under “the ordinary

meaning of the phrase.” Maj. Op. 24–25 (quoting Hedin v. Thompson, 355 F.3d 746, 749

(4th Cir. 2004)). In Hedin, on which the majority relies, this Court considered a provision

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that states, “‘Active service of commissioned officers of the [Public Health] Service shall

be deemed to be active military service in the Armed Forces of the United States for

purposes of all laws related to discrimination on the basis of race, color, sex, ethnicity, age,

religion, and disability.’” 355 F.3d at 748 (quoting 42 U.S.C. § 213(f)). We rejected the

argument that “active service” meant “active military service” because that interpretation

would obviate the need for Congress to “deem” active service to be active military service.

Id. at 748–749.

The comparison to Hedin is inapt because Section 1225(a)(1) indisputably covers

aliens who would not be “applicants for admission” within the ordinary meaning of that

phrase. An “alien present in the United States who has not been admitted” is not actually

applying for lawful entry. 8 U.S.C. § 1225(a)(1). Nor is an alien “who arrives in the United

States . . . not at a designated port of arrival.” Id. The parenthetical phrase “whether or

not at a designated port of arrival” sweeps in some aliens who, upon arriving at a designated

port of arrival, actually do request lawful admission. Id. But that fact does not eliminate

the need for the deeming provision or counsel against reading the statute according to its

plain text. 2

The majority also claims that “the word ‘deemed’ is used in different ways”

throughout the INA and the United States Code more generally. Maj. Op. 26. Even if that

Later, the majority relies on Hedin’s observation that when the broader statutory

scheme at issue in that case “addresse[d] a certain kind of ‘active service,’ including

military-type service, it expressly modifie[d] the term ‘active service’ to indicate this

limitation.” 355 F.3d at 749; see Maj. Op. 27–28. The cited laws that utilized the modified

term were not discrimination laws, so the deeming provision did not apply to them, a point

the majority overlooks in its attempt to analogize this case to that one.

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were true, it does not absolve us of our responsibility to decipher how the word functions

in the context of Section 1225(a)(1). 3 Like all English speakers, Congress occasionally

uses the same word in different ways, but we may not throw up our hands at the prospect

of interpreting the written text. See, e.g., Pulsifer v. United States, 144 S. Ct. 718, 736

(2024) (observing Congress’s differing use of conjunctions even within the same statutory

section). As explained above, the word “deem” means “regard as; consider”; “treat as if.”

American Heritage Dictionary 487; Black’s Law Dictionary 415; 8 U.S.C. § 1225(a)(1)

(title). And in Sturgeon, the Supreme Court demonstrated how to interpret and apply a

similarly worded provision.

Second, by construing Section 1225(a)(1) as a definition, Petitioners and the

majority treat “applicant for admission” as a mere label, draining it of meaning and

neutering Section 1225(a)(1)’s deeming function. Section 1225(a)(1) does more than

dictate that every time we see the phrase “applicant for admission” we should understand

it to include aliens arriving or present in the country without admission. By instructing that

those aliens “shall be deemed” applicants for admission, Section 1225(a)(1) places those

aliens in the posture of applicants for admission, with all that entails. As Sturgeon

demonstrates, deeming one thing to be another as a matter of law has consequences. See

The majority cites TC Heartland LLC v. Kraft Food Groups Brands LLC, 581 U.S.

258 (2017), for the proposition that the word “deemed” sometimes “defines a term of art.”

Maj. Op. 26. That’s not quite right. In TC Heartland, the Supreme Court considered

statutes that defined the words “residence” and “reside” and then “deemed” a corporation

to reside in the defined place for venue purposes. 581 U.S. at 262–263, 265–266, 269. The

word “deemed” created the legal fiction that a corporation “resides” anywhere; it did not

define the term “resides” or “residence.” See id. at 262, 266–267.

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139 S. Ct. at 1081. Otherwise, “[t]here is no reason” “to create a special legal fiction” in

the first place. Id. at 1083.

Put differently, Section 1225(a)(1) does not say that aliens arriving or present in the

United States who have not been admitted “shall be called” applicants for admission. It

says they “shall be deemed” applicants for admission. And an applicant for admission is

an alien who “request[s]” or “seek[s]” lawful entry to the country. American Heritage

Dictionary 89; see Webster’s New World College Dictionary 67; 8 U.S.C.

§ 1101(a)(13)(A). As an applicant for admission, therefore, an alien who illegally entered

the country is necessarily considered to be “seeking admission.” 8 U.S.C. § 1225(b)(2)(A).

Petitioners insist that they are not “alien[s] seeking admission” for purposes of

Section 1225(b)(2)(A) because they are not actually seeking lawful entry to the country.

That argument ignores the effect of Section 1225(a)(1). The statute deems aliens who

actually are not applying for admission to be so. By deeming Petitioners to be persons

who apply for admission, Section 1225(a)(1) deems them to be persons who seek

admission. Any other conclusion disregards the ordinary meaning of the words “applicant”

and “seeking.” See Webster’s New World College Dictionary 67, 1215; American

Heritage Dictionary 89; Merriam Webster’s Collegiate Dictionary 56, 1057. There is no

indication that Congress has assigned specialized definitions to those words in this context,

therefore the ordinary meanings apply. Accordingly, although aliens present in the United

States who have not been admitted are not actually applying for or seeking admission to

the country, Section 1225(a)(1) tell us to regard them as though they are.

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5. Petitioners’ surplusage objection

Petitioners object that this reading is fatally flawed because it renders “seeking

admission” and “applicant for admission” duplicative in Section 1225(b)(2)(A). That

argument lacks force.

As the Supreme Court has acknowledged, “[t]he anti-surplusage canon is useful, but

it is ‘subordinate to the cardinal canon that a legislature says in a statute what it means and

means in a statute what it says there.’” Mullin v. Al Otro Lado, 146 S. Ct. 2079, 2093

(2026) (quoting U.S. Postal Serv. v. Konan, 146 S. Ct. 736, 746 (2026)); see id. at 2092

(“The anti-surplusage canon is not an iron rule.”). “[E]ven excellent writers do not always

trim every unnecessary word, and the same is true of Congress.” Id. at 2092. “Sometimes

the better overall reading of the statute contains some redundancy.” Rimini Street, Inc. v.

Oracle USA, Inc., 139 S. Ct. 873, 881 (2019).

So it is here. Section 1225(b)(2)(A) uses different words to refer to synonymous

concepts. Cf. Tyler v. Cain, 533 U.S. 656, 664 (2001) (“Congress, needless to say, is

permitted to use synonyms in a statute.”). The statute mentions the same alien twice: once

in the prefatory clause as “an alien who is an applicant for admission” and once in the

operative clause as “an alien seeking admission.” 4 As previously discussed, an applicant

is one who seeks. Because the terms’ ordinary meanings overlap, there is some redundancy

between them. But as the Supreme Court has repeatedly observed when interpreting the

As the Eighth Circuit has explained, Congress did not structure Section

1225(b)(2)(A) such that “applicant for admission” and “alien seeking admission” are

independent conditions that must be separately satisfied for detention under the statute.

See Avila v. Bondi, 170 F.4th 1128, 1134–1135 (8th Cir. 2026).

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immigration laws, “redundancies are common in statutory drafting—sometimes in a

congressional effort to be doubly sure, sometimes because of congressional inadvertence

or lack of foresight, or sometimes simply because of the shortcomings of human

communication.” Barton v. Barr, 140 S. Ct. 1442, 1453 (2020); see also Pugin v. Garland,

143 S. Ct. 1833, 1842 (2023) (same); Al Otro Lado, 146 S. Ct. at 2092–2093 (“[E]xamples

of redundancy [are not] uncommon.” (internal quotation marks omitted)). And “if forced

to choose between an interpretation that entails some redundancy and one that contradicts

what words usually mean, we [sh]ould choose the former.” Al Otro Lado, 146 S. Ct. at

2094.

Indeed, Congress used this “belt and suspenders approach” another time in this very

same statutory paragraph. Atl. Richfield Co. v. Christian, 590 U.S. 1, 14 n.5 (2020).

Section 1225(a)(2) provides that “[i]n no case may a stowaway be considered an applicant

for admission.” 8 U.S.C. § 1225(a)(2). Because Section 1225(b)(2)(A) applies only to “an

alien who is an applicant for admission,” it could never apply to stowaways. But Congress

expressly exempted them anyway. See id. § 1225(b)(2)(B)(iii) (“Subparagraph (A) shall

not apply to an alien . . . who is a stowaway.”); id. § 1225(b)(2)(A) (“Subject to

subparagraphs (B) and (C) . . .”). The repetition is redundant and unnecessary, but it does

not nullify Congress’s intent to exclude stowaways from Section 1225(b)(2)(A), it clarifies

it. With respect to the INA, then, “rigorous application of the canon [against surplusage]

does not seem a particularly useful guide to a fair construction of the statute.” King v.

Burwell, 576 U.S. 473, 491 (2015).

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The construction espoused by Petitioners and the majority, moreover, “creates a far

worse surplusage problem than the one it purports to solve.” Hernandez Alvarez v.

Warden, 175 F.4th 1258, 1296 (11th Cir. 2026) (Lagoa, J., dissenting). In their view, only

aliens arriving at a designated port of entry and “presenting themselves for inspection and

authorization to lawfully enter” are “seeking admission.” Maj. Op. 31. Under that reading,

the bulk of Section 1225(a)(1)—the part deeming aliens present in the United States who

have not been admitted and those who arrive between designated ports of entry as

“applicant[s] for admission”—does no work in Section 1225. That’s because every

provision that applies to an applicant for admission also uses the phrase “seeking

admission,” which, in Petitioners’ and the majority’s view, narrows the group to only those

aliens arriving at a designated port of arrival pursuing lawful entry. See 8 U.S.C.

§ 1225(a)(3), (a)(5), (b)(2)(A). 5 Indeed, their construction renders Section 1225(b)(2)(A)’s

prefatory clause—“in the case of an alien who is an applicant for admission”—entirely

superfluous.

Thus, on Petitioners’ reading, Congress took pains to include aliens present in the

United States who have not been admitted and those arriving between ports of entry in the

class of “applicants for admission” at the beginning of Section 1225 but then specifically

excluded those groups “from every operative consequence in the section where the phrase

The majority may respond that Section 1225(a)(3) mentions aliens “seeking

admission” in the alternative, such that all “applicants for admission” remain subject to

“inspect[ion] by immigration officers” even under its reading. 8 U.S.C. § 1225(a)(3). If

that were the case, the mismatch it would create between inspection authority and the other

provisions of Section 1225 would be further cause for skepticism about the majority’s

construction.

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appears.” Hernandez Alvarez, 175 F.4th at 1296–1297 (Lagoa, J., dissenting); see

Buenrostro-Mendez v. Bondi, 166 F.4th 494, 504 & n.10 (5th Cir. 2026). That makes little

sense. And redundancy in one sentence in Section 1225(b)(2)(A) “is not a license to . . .

eviscerate another portion of the statute,” namely Section 1225(a)(1), “contrary to its text.”

Barton, 140 S. Ct. at 1453.

Equally troubling, the construction that Petitioners and the majority embrace makes

Section 1225(b)(2) conflict with itself. Recall that they construe Section 1225(b)(2)(A)’s

detention provision to reach only aliens arriving at a designated port of entry “presenting

themselves for inspection and authorization to lawfully enter.” Maj. Op. 31. Then consider

subparagraph (C), which states that some “alien[s] described in subparagraph (A) [are]

arriving on land . . . not at a designated port of arrival.” 8 U.S.C. § 1225(b)(2)(C). An

alien arriving in the United States “not at a designated port of arrival” is not pursuing lawful

entry but rather is attempting to evade inspection by entering the country elsewhere. Id.

Congress expressly included that alien among those “described in subparagraph (A),” id.,

meaning that alien is “seeking admission,” id. § 1225(b)(2)(A). Yet if “seeking admission”

means what the majority and Petitioners claim—“affirmative steps towards lawful entry”

by presenting oneself for “inspection and authorization,” Maj. Op. 29, 31—an alien

arriving “not at a designated port of arrival” would not qualify, 8 U.S.C. § 1225(b)(2)(C).

Section 1225(b)(2)(C) reveals that “seeking admission” is not as limited as Petitioners and

the majority claim.

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B. Statutory Context

Several features of the statutory context confirm that an applicant for admission is

seeking admission. The statutory context also demonstrates that Congress did not limit

Section 1225(b)(2)(A) to aliens arriving in the United States as Petitioners contend.

Petitioners’ contrary argument about Section 1226 is not sufficiently weighty to overcome

the text and context of Section 1225.

1. Applicants for admission and seeking admission

Congress used “applicant for admission” and “seeking admission” together in two

other provisions of Section 1225, each of which confirms that applicants for admission are

seeking admission.

Inspection: Section 1225(a)(3) provides, “All aliens (including alien crewmen) who

are applicants for admission or otherwise seeking admission or readmission to or transit

through the United States shall be inspected by immigration officers.” 8 U.S.C.

§ 1225(a)(3) (emphasis added). The phrase “or otherwise” implies a relationship between

the phrases it connects. When used this way, the principal meaning of “otherwise” is “in

a different way or manner.” Merriam Webster’s Collegiate Dictionary 823 (as in, “glossed

over or [otherwise] handled”); see Webster’s New World College Dictionary 959 (“in

another manner”). The most natural reading of Section 1225(a)(3), then, indicates that

being an “applicant[] for admission” is one “way or manner” of “seeking admission” and

that aliens also can seek admission in “a different way or manner.” See Lopez-Campos v.

Raycraft, 175 F.4th 713, 747 (6th Cir. 2026) (Murphy, J., dissenting) (“[T]he paragraph

conveys that being an ‘applicant for admission’ is one of several ways of ‘seeking

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admission.’”). In other words, applicants for admission are included in the broader group

of aliens seeking admission.

Congress used “or otherwise” the same way elsewhere in the same statute that

enacted Section 1225(a)(3), the Illegal Immigrant Reform and Immigrant Responsibility

Act (IIRIRA). For example, one provision reaches anyone who “murders or otherwise

causes death, bodily injury, or serious bodily injury to an individual.” Pub. L. No. 104-208, Div. C, Title II, § 203(e)(2)(E)(i), 110 Stat. 3009-567 (1996). Murder is a way of

causing death—it is included within the broader term that follows “or otherwise.” Another

provision authorizes States to “prohibit or otherwise limit or restrict” alien eligibility for

public assistance programs. 8 U.S.C. § 1624(a). Prohibiting is a way of limiting—again,

the first term is included within the broader term that follows “or otherwise.” This

consistent usage suggests a consistent meaning. See Sorenson v. Sec’y of Treasury, 475

U.S. 851, 860 (1986) (“The normal rule of statutory construction assumes that identical

words used in different parts of the same act are intended to have the same meaning.”

(internal quotation marks omitted)). And applying that meaning to Section 1225(a)(3),

“applicants for admission” are “seeking admission.”

Statements: Two paragraphs later, Section 1225(a)(5) provides, “An applicant for

admission may be required to state under oath any information sought by an immigration

officer regarding the purposes and intentions of the applicant in seeking admission to the

United States, including the applicant’s intended length of stay and whether the applicant

intends to remain permanently or become a United States citizen, and whether the applicant

is inadmissible.” 8 U.S.C. § 1225(a)(5) (emphases added). This provision presumes that

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an “applicant for admission” is “seeking admission.” Obviously, “[o]ne cannot have

purposes and intentions in seeking admission without seeking admission.” Hernandez

Alvarez, 175 F.4th at 1294 (Lagoa, J., dissenting). Like Section 1225(a)(3), Section

1225(a)(5) also supports the interpretation dictated by the ordinary meaning of the terms:

applicants for admission are seeking admission. 6

Moving beyond Section 1225 itself, other provisions of the INA use the phrase

“seeking admission” or “applying for admission” in ways that include aliens present in the

country after unlawful entry.

Parole: Consider, for example, the parole provision. It gives the Secretary of

Homeland Security discretion to “parole into the United States temporarily under such

conditions as he may prescribe only on a case-by-case basis for urgent humanitarian

reasons or significant public benefit any alien applying for admission to the United States.”

8 U.S.C. § 1182(d)(5)(A) (emphasis added). Such parole, however, does not constitute “an

admission,” and when an alien’s parole ends, “his case shall continue to be dealt with in

the same manner as that of any other applicant for admission to the United States.” Id.

(emphasis added). The circuit courts to have addressed this provision agree that it

authorizes parole relief for aliens present in the country after an illegal entry because they

The majority adopts the Tenth Circuit’s assertion that Section 1225(a)(5) shows

“‘that applicants for admission can be seeking admission, not that they must be.’” Maj.

Op. 29 n.9 (quoting Santillan Quiroz v. Mullin, 180 F.4th 1226, 1245 (10th Cir. 2026)).

That conclusion, however, is based not on the text of the statute but on a hypothetical

sentence that does not parallel Section 1225(a)(5)’s structure because it omits the

“regarding” clause and, particularly, the use of a definite article to refer back to “the

applicant.” See Santillan Quiroz, 180 F.4th at 1245.

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are “applicants for admission.” See Cruz-Miguel v. Holder, 650 F.3d 189, 198 (2d Cir.

2011); Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1116 (9th Cir. 2007). Thus, under

the parole provision, aliens present in the country after unlawful entry are “alien[s]

applying for admission” because they are “applicant[s] for admission.” 8 U.S.C.

§ 1182(d)(5)(A). “It would be incongruous” to hold that an alien present in the country

after an illegal entry qualifies “as an ‘alien applying for admission’ under the parole

provision . . . but not an ‘alien seeking admission’ under the detention provision.” LopezCampos, 175 F.4th at 751 (Murphy, J., dissenting).

Lawful Permanent Residents: The INA’s definition of “admission” includes an

exception for aliens who are lawfully admitted for permanent residence and seek to reenter

the country after a trip abroad. “An 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” a listed carveout applies. 8 U.S.C.

§ 1101(a)(13)(C) (emphasis added). One carveout treats this lawful permanent resident

“as seeking an admission” if he “is attempting to enter at a time or place other than as

designated by immigration officers or has not been admitted to the United States after

inspection and authorization by an immigration officer.” Id. § 1101(a)(13)(C)(vi)

(emphasis added). In other words, this provision clarifies that a lawful permanent resident

who, on return to this country, sneaks in without inspection is treated as “seeking an

admission” even though he is already present in the country. See Lopez-Campos, 175 F.4th

at 752 (Murphy, J., dissenting). Such a resident is in the same position as Petitioners: After

entering the country illegally, both groups are “regarded as” seeking admission. This

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provision further confirms that the law sometimes treats aliens present after an illegal entry

as “seeking admission,” and it undermines Petitioners’ reading of that phrase, which

reaches only aliens who request lawful entry after inspection at a designated port of arrival.

2. Arriving aliens in Section 1225

Statutory context also demonstrates that if Congress intended to limit Section

1225(b)(2)(A) to arriving aliens as Petitioners contend, it would have done so expressly as

it did elsewhere in Section 1225. “Where Congress includes particular language in one

section of a statute but omits it in another section of the same Act, it is generally presumed

that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”

Nken v. Holder, 556 U.S. 418, 430 (2009) (internal quotation marks and brackets omitted).

In Section 1225, Congress repeatedly distinguished between arriving aliens and

those present here. In subsection (a), Congress identified both “present” aliens and those

who “arrive[]” in the United States as applicants for admission. 8 U.S.C. § 1225(a)(1).

The expedited removal process in subsection (b)(1) then distinguishes between them. In

one provision, it authorizes immigration officers to order the speedy removal of aliens

“arriving in the United States.” Id. § 1225(b)(1)(A)(i); see also id. § 1225(b)(1)(A)(ii)

(regarding asylum claims by aliens “arriving in the United States”). In another provision,

it authorizes the Attorney General to apply the expedited removal process to a subset of

aliens who have been “present in the United States” for a certain period of time. Id.

§ 1225(b)(1)(A)(iii)(II). Later in Section 1225, Congress provided for the removal of “an

arriving alien” who is suspected to be inadmissible on certain security-related grounds. Id.

§ 1225(c)(1). And in Section 1225(b)(2) itself, Congress specified that, in the case of an

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alien “arriving on land” from a contiguous foreign territory, the Attorney General may

return the alien to that territory pending removal proceedings. Id. § 1225(b)(2)(C).

By contrast, the detention provision in Section 1225(b)(2)(A) draws no distinction

between arriving aliens and those present in the United States. It covers any “alien who is

an applicant for admission.” Id. § 1225(b)(2)(A); see Jennings, 583 U.S. at 287 (Section

1225(b)(2) “serves as a catchall provision that applies to all applicants for admission not

covered by § 1225(b)(1).”). Congress expressly limited other parts of Section 1225 to

arriving aliens. But it did not do so here. 7 We can safely “presume[]” that Congress acted

“intentionally and purposely” to convey that Section 1225(b)(2)(A) is not limited to

arriving aliens. Nken, 556 U.S. at 430 (internal quotation marks omitted).

Petitioners and the majority assert that the phrase “seeking admission” accomplishes

the result of limiting Section 1225(b)(2)(A) to arriving aliens. But that position is difficult

to square with the four parts of Section 1225 discussed above, where Congress specifically

said “an alien . . . who is arriving” or “arriving alien” when that was what it meant. See 8

U.S.C. § 1225(b)(1)(A)(i), (ii); id. § 1225(b)(2)(C); id. § 1225(c)(1). Those provisions are

strong evidence that Congress did not use the materially different phrase “alien seeking

admission” when it meant “arriving alien.” We must honor Congress’s conspicuous choice

not to limit the detention provision to aliens who are “arriving.”

The majority foists its own “graduated framework” of “[d]etention [c]ategories”

onto Title 8 of the U.S. Code. Maj Op. 36, 40. Within its framework, the majority

characterizes Section 1225(b)(2) as applying to “[a]rriving noncitizens seeking admission.”

Maj. Op. 38. But Congress did not limit Section 1225(b)(2) to “arriving” aliens; the

majority plucks that word out of thin air and inserts it into the text.

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Petitioners repeat their refrain that “seeking admission” can only happen at the

border because that is where “entry” occurs. See 8 U.S.C. § 1101(13)(A) (defining

“admission” as “lawful entry”). But that argument again fails to give effect to the deeming

function of Section 1225(a)(1). In Section 1225(a)(1), Congress instructed that an “alien

present in the United States”—who is not at the border but has already crossed it—shall be

deemed an applicant for lawful entry. Id. § 1225(a)(1); id. § 1101(13)(A). For purposes

of Chapter 12, then, we must regard an alien who has already entered this country illegally

and remains present here as though he were applying to enter. The “deeming” is necessary

precisely because that person is not actually attempting to enter the country, or to do so

legally. Petitioners’ argument that entry occurs at the border simply fights against what

Congress has decreed. We must consider that alien, who is “present” in the United States,

to be requesting entry because Congress has so instructed. Id. § 1225(a)(1).

3. Section 1226

The majority reasons that applying Section 1225(b)(2)(A)’s mandatory detention

provision to aliens like Petitioners would render portions of Section 1226(c) “largely

unnecessary.” Maj. Op. 32. Of course, a provision that is partly necessary is not

“meaningless” or “superfluous,” which is the threshold for the interpretive canon on which

the majority relies. Bilski v. Kappos, 561 U.S. 593, 607–608 (2010); see Corley v. United

States, 556 U.S. 303, 314 (2009); Maj. Op. 32 (citing Bilski and Corley). In any event,

Section 1226 does not counsel a different reading of Section 1225.

Section 1226 authorizes the Attorney General to arrest and detain “an alien” pending

removal proceedings and permits release on bond “[e]xcept as provided in subsection (c).”

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8 U.S.C. § 1226(a). Because Section 1226 applies to “an alien” without qualification, it

covers a much broader group than Section 1225(b)(2), including inadmissible aliens who

were admitted erroneously or because of fraud, aliens who overstay their visas, and others

who become deportable on many different grounds. See Buenrostro-Mendez, 166 F.4th at

504–505. For certain “criminal aliens,” Section 1226(c) eliminates the possibility of bond

and requires the Attorney General to “take [them] into custody.” 8 U.S.C. § 1226(c).

These include aliens who are “deportable” by reason of certain acts and offenses, id.

§ 1226(c)(1)(B), (C), (D), and those who are “inadmissible” who have committed or been

charged with certain acts or offenses, id. § 1226(c)(1)(A), (D), (E). Each subparagraph

applies to some aliens beyond the reach of Section 1225(b)(2)(A) and is therefore not

superfluous. In addition, Section 1226(c) imposes a more restrictive release regime than

Section 1225(b)(2)(A). Aliens detained under Section 1225(b)(2)(A), including those

present without having been admitted, are generally eligible for parole under Section

1182(d)(5)(A). Aliens described in Section 1226(c) are not. See id. § 1226(c)(4). “[T]he

two provisions are ‘not superfluous’ under any interpretation.” Lopez-Campos, 175 F.4th

at 753 (Murphy, J., dissenting) (quoting Nielsen v. Preap, 586 U.S. 392, 415 (2019)).

What about the Laken Riley Act, which Congress passed in 2025? See Pub. L. No.

119-1, 139 Stat. 3 (2025). Among other things, the Act added a new ground of mandatory

detention in subparagraph (E) of Section 1226(c)(1) for inadmissible aliens who committed

or are charged with certain crimes. See 8 U.S.C. § 1226(c)(1)(E). As previously

mentioned, newly enacted subparagraph (E) applies to some aliens beyond the reach of

Section 1225(b)(2)(A)—for example, aliens who have procured admission into the United

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States by fraud. See id.; id. § 1182(a)(6)(C). However, subparagraph (E) overlaps with

existing law in some respects, even under Petitioners’ interpretation. For example,

subparagraph (E) requires that arriving aliens who are inadmissible because they lack

documentation or make misrepresentations shall be detained if they admit committing

certain offenses. Id. § 1226(c)(1)(E). But even under Petitioners’ reading, all arriving

aliens who are inadmissible because they lack documentation or make misrepresentations

must be expeditiously removed or otherwise detained, even if they haven’t committed any

other criminal offense. See id. § 1225(b)(1)(A)(i), (B)(ii), (B)(iii)(IV).

The majority focuses on subparagraph (E)’s application to aliens who are present in

the United States without being admitted or paroled. See id. § 1226(c)(1)(E); id.

§ 1182(a)(6)(A). In the majority’s view, if Section 1225(b)(2)(A) already requires that

those aliens be detained pending removal, then there was no need for Congress to add in

subparagraph (E) that they must be detained if they have committed or are charged with

certain crimes. While this clause is another instance of overlap in subparagraph (E), it is

not superfluous because it eliminates the possibility of parole that would otherwise be

available to these individuals under Section 1182(d)(5)(A). Moreover, Congress enacted

the Laken Riley Act at a time when DHS had long followed a practice of offering bond

pending removal to aliens present in this country who had entered unlawfully, even those

charged with serious crimes. Lopez-Campos, 175 F.4th at 754 (Murphy, J., dissenting).

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No circuit court had opined on the practice. 8 Given that legal landscape, when Congress

clarified that the Attorney General must take into custody individuals covered by

subparagraph (E), its action changed the status quo.

At bottom, however, the intent of the 119th Congress when it passed the Laken

Riley Act in 2025 cannot tell us the meaning of the detention provision in Section

1225(b)(2)(A), which a different Congress enacted in 1996. See Rodriguez Vazquez v.

Bostock, 183 F.4th 1160, 1207–1208 (9th Cir. 2026) (Bea, J., dissenting) (“[I]t is wellestablished that ‘the views of a subsequent Congress form a hazardous basis for inferring

the intent of an earlier one.’” (quoting Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 520

(1992))). The fact that the 119th Congress did not undertake a more sweeping revision of

Section 1225 or 1226 “to correct the Executive Branch’s misunderstanding,” Maj. Op. 34,

tells us only what that Congress intended to accomplish in 2025. It tells us nothing about

what Section 1225(b)(2)(A) meant decades earlier when it was enacted, which is the

meaning that continues to control until Congress amends it. See Wisc. Cent. Ltd., 585 U.S.

at 284 (“Until [Congress] exercises that power, the people may rely on the original meaning

of the written law.”); Watson v. Republican Nat’l Comm., 146 S. Ct. 2165, 2189 (2026)

(Alito, J., dissenting) (“Statutes enacted decades after the fact are seldom probative” of

“what the statute meant at the time it became law.”).

The majority claims that “all three branches of the federal government” have for

decades interpreted Section 1226 to apply to aliens present in the country after illegal entry

and Section 1225 to apply only to arriving aliens. Maj. Op. 14. But the majority does not

cite a single federal court holding as much, or even addressing the question presented,

before this year.

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4. Constitutional avoidance

The majority invokes the constitutional-doubt canon, which advises that “where a

statute is susceptible of two constructions, by one of which grave and doubtful

constitutional questions arise and by the other of which such questions are avoided, our

duty is to adopt the latter.” U.S. ex rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366,

408 (1909). The canon has no place here because the correct interpretation of the detention

provision at Section 1225(b)(2)(A) does not “raise[] serious constitutional doubts.”

Jennings, 583 U.S. at 286; see Demore v. Kim, 538 U.S. 510, 526 (2003) (describing the

Supreme Court’s “longstanding view that the Government may constitutionally detain

deportable aliens during the limited period necessary for their removal proceedings”).

Indeed, the majority does not specify what it considers to be the serious constitutional

problem posed by this interpretation. Instead it gestures at two inflated concerns that

shrivel upon the slightest scrutiny.

First, the majority asserts that the Government’s interpretation would subject aliens

present in the country after illegal entry “to mandatory detention with no recourse to the

constitutional protections that have long been held to apply to them.” Maj. Op. 49. That

is incorrect. The Government’s interpretation would require that aliens not clearly and

beyond a doubt entitled to be admitted be detained without bond (but with the possibility

of parole) during their removal proceedings. The majority undertakes no analysis of

whether detaining these aliens with the option of parole instead of bond during the

pendency of their removal proceedings would violate any due process rights they have

concerning that temporary detention. Instead, the majority appears to assume that any

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detention of these aliens pending their removal would violate the Due Process Clause. That

is wrong. See Demore, 538 U.S. at 531 (“Detention during removal proceedings is a

constitutionally permissible part of that process” for aliens present in the United States.);

see also id. at 523–531 (holding that due process does not require individual bond hearings

for criminal aliens detained pending removal pursuant to Section 1226(c)); Reno v. Flores,

507 U.S. 292, 303–306 (1993) (holding that due process does not require individual “best

interest” hearings for juvenile aliens detained pending removal); Carlson v. Landon, 342

U.S. 524, 537–542 (1952) (holding that due process does not require individual

dangerousness or flight-risk findings to detain communist aliens pending removal). The

Government’s interpretation of Section 1225(b)(2)(A) does not curtail the constitutional

limits on detention, which continue to apply. See, e.g., Zadvydas v. Davis, 533 U.S. 678,

690 (2001) (“A statute permitting indefinite detention of an alien would raise a serious

constitutional problem.”).

Second, the majority asserts that the Government’s interpretation does away with

“well-established” “procedural safeguards” that apply before aliens “who have ‘passed

through our gates, even illegally, may be expelled.’” Maj. Op. 47 (quoting Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206, 212 (1953)). That is false. Neither party’s

interpretation of the detention provision in Section 1225 has any effect on the procedural

safeguards that DHS and the Executive Office for Immigration Review must follow before

ordering a person removed from the country. See 8 U.S.C. § 1229a; 8 C.F.R. §§ 241.1–

241.15, 1240.1–1240.17.

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The majority clearly has strong views about what it considers the “moral

implications” of denying individuals bond during their removal proceedings. Maj. Op. 47;

see id. at 50–51 (comparing detention during removal proceedings to “internment camps”).

But application of the constitutional-doubt canon must be grounded in the Constitution.

C. Statutory History

Statutory history also aligns with the conclusion dictated by the text and context:

applicants for admission are seeking admission and Section 1225(b)(2)(A) reaches beyond

aliens arriving at designated ports of entry. Petitioners’ speculation about congressional

silence and reliance on agency practice cannot overcome the uniform direction of these

authoritative guides to statutory meaning.

1. IIRIRA

The changes that Congress made to the mandatory detention provision in IIRIRA

refute Petitioners’ argument that it applies only to aliens at the border. Before 1996, the

detention provision applied only to arriving aliens. Congress had used various

formulations to communicate this limitation. As the majority recounts, the Immigration

Act of 1893 provided: “[I]t shall be the duty of every inspector of arriving alien immigrants

to detain for a special inquiry . . . every person who may not appear to him to be clearly

and beyond doubt entitled to admission.” § 5, 27 Stat. 569, 570 (emphasis added). In the

Immigration Act of 1903, Congress stated the detention obligation thusly: “Every alien

who may not appear to the examining immigrant inspector at the port of arrival to be

clearly and beyond a doubt entitled to land shall be detained for examination in relation

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thereto by a board of special inquiry.” Pub. L. No. 57-162, § 24, 32 Stat. 1213, 1219–1220

(emphases added).

The INA of 1952 carried this language forward, stating: “Every alien (other than

an alien crewman) . . . who may not appear to the examining immigration officer at the

port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further

inquiry to be conducted by a special inquiry officer.” Pub. L. No. 82-414, § 235(b), 66

Stat. 163, 199 (emphases added). Congress revised this text in early 1996, a few months

before it enacted the current language of Section 1225(b)(2)(A) in IIRIRA. The amended

provision continued to cover only arriving aliens. It provided: “[I]f the examining

immigration officer determines that an alien seeking entry is not clearly and beyond a doubt

entitled to enter, the alien shall be detained for a hearing before a special inquiry officer.”

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 422(a), 110

Stat. 1214, 1271 (1996) (amending 8 U.S.C. § 1225(b)) (emphases added). The word

“entry” was defined to mean “any coming of an alien into the United States, from a foreign

port or place or from an outlying possession[.]” 8 U.S.C. § 1101(a)(13) (1994).

In IIRIRA, Congress departed from all those prior constructions of the mandatory

detention provision. It abandoned any reference to “arriving alien immigrants,” “the port

of arrival,” “land[ing],” and “entry.” Instead, Congress for the first time grouped aliens

present without having been lawfully admitted together with arriving aliens, including

those arriving away from a lawful port of entry. It enacted a provision deeming them all

“applicants for admission.” 8 U.S.C. § 1225(a)(1). And then it specified that the detention

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mandate applies to that group: “in the case of an alien who is an applicant for admission.”

Id. § 1225(b)(2)(A).

“[W]hen Congress acts to amend a statute, we presume it intends its amendment to

have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397 (1995). If Congress had

meant to keep the detention provision limited to arriving aliens, it could have used any of

the prior statutory formulations. See Lopez-Campos, 175 F.4th at 755 (Murphy, J.,

dissenting). But it did not. Congress instead conspicuously diverged from “a century of

settled drafting” to craft a different mandatory detention provision that reaches

“applicant[s] for admission,” a group that includes aliens present in the country without

having been lawfully admitted. Hernandez Alvarez, 175 F.4th at 1298 (Lagoa, J.,

dissenting); see 8 U.S.C. § 1225(a)(1), (b)(2)(A). Petitioners and the majority would give

this amendment no effect. The detention provision’s statutory history strongly indicates

that Petitioners’ construction is incorrect.

2. Clear statement

The majority objects that Congress would not have enacted such a significant

change to our nation’s immigration detention system “without greater clarity.” Maj. Op.

46. After all, Congress “does not alter the fundamental details of a regulatory scheme in

vague terms or ancillary provisions.” Whitman v. Am. Trucking Associations, 531 U.S.

457, 468 (2001). But Congress did speak clearly in IIRIRA when it jettisoned all prior

formulations of the detention provision that applied solely to arriving aliens and explicitly

extended that provision to cover aliens present in the country who have not been admitted.

And Congress made this change exactly where we would expect it to do so; Section 1225

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is no “ancillary provision[]” or “mousehole[].” Maj. Op. 46 (internal quotation marks

omitted). Congress opened Section 1225 with a clear statement that aliens present in the

United States who have not been admitted shall be deemed applicants for admission. 8

U.S.C. § 1225(a)(1). Then it amended the detention provision itself—not some marginal

clause elsewhere—to clarify that it now applies “in the case of an alien who is an applicant

for admission.” Id. § 1225(b)(2)(A).

Nor is this a situation where Congress has delegated significant discretion to an

executive agency, which delegation sometimes requires a clear statement from Congress.

See Learning Res., Inc. v. Trump, 146 S. Ct. 628, 638–639 (2026). Rather, Congress has

imposed a restraint on the Executive by mandating the detention of all aliens covered by

Section 1225(b)(2)(A) instead of leaving the Executive with discretion over detention

decisions. Consider Section 1226, which affords the Attorney General substantial

discretion to detain non-criminal aliens arrested under that section or release them on bond

or conditional parole. 8 U.S.C. § 1226(a), (b); see id. § 1226(e) (“The Attorney General’s

discretionary judgment regarding the application of this section shall not be subject to

review.”). In Section 1225(b)(2)(A), by contrast, Congress circumscribed the Executive’s

discretion when it comes to applicants for admission.

3. Inference from congressional silence

Petitioners and the majority next attribute meaning to congressional silence based

on inferences from legislative history. When Congress enacted IIRIRA, some

representatives opined that Section 1226(c) would require the detention of approximately

45,000 criminal aliens each year. Maj. Op. 48 (citing H.R. Rep. No. 104-469, pt. 1, at 118,

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120, 123). So IIRIRA allowed the Attorney General to delay implementation of Section

1226(c) for two years. Maj. Op. 48 (citing Pub. L. No. 104-208, § 303(b)(2), 110 Stat.

3009, 586–587 (1996)). At the same time, some representatives reported that there were

approximately two million aliens in the United States who had entered the country illegally.

Response Br. 49 n.13 (citing H.R. Rep. No. 104-469, pt. 1, at 111). The majority finds it

“difficult to imagine” that Congress would have expressed concern about “the impact of

mandatory detention” under Section 1226(c) while remaining silent about the strain on

detention resources that the Government’s interpretation of Section 1225(b)(2)(A)

supposedly entails. Maj. Op. 48.

This kind of speculation is a poor basis for judicial decisionmaking. For one thing,

it favors neither side because the Government “has never had sufficient detention capacity

to maintain in custody every single person described in section 1225,” under any

interpretation. Biden v. Texas, 142 S. Ct. 2528, 2535 (2022) (internal quotation marks

omitted). For another matter, inferences could just as easily be drawn the opposite

direction. Perhaps Congress read Section 1225(b)(2)(A) to grant the Executive “more

enforcement discretion over arrests” than Section 1226(c). Lopez-Campos, 175 F.4th at

756 (Murphy, J., dissenting) (internal quotation marks omitted). After all, Section 1226(c)

requires the Attorney General to “take into custody” a covered criminal alien “when the

alien is released” from criminal custody. 8 U.S.C. § 1226(c)(1). Section 1225(b)(2)(A),

by contrast, requires detention only after a determination by “the examining immigration

officer.” Id. § 1225(b)(2)(A). Or perhaps Congress thought the broader parole provision

it adopted would alleviate detention capacity concerns. See Lopez-Campos, 175 F.4th at

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756 (Murphy, J., dissenting) (noting that the parole provision Congress adopted is broader

than “the narrow version in the House Report” on which Petitioners and the majority rely).

More fundamentally, this argument must be rejected because courts are not at liberty

to “replace the actual text [of a statute] with speculation as to Congress’ intent.” Oklahoma

v. Castro-Huerto, 142 S. Ct. 2486, 2496 (2022) (internal quotation marks omitted).

“Congress expresses itself as a body through the text it enacts.” FS Credit Opportunities

Corp. v. Saba Cap. Master Fund, Ltd, 146 S. Ct. 1546, 1558 (2026). The text of the law

therefore “controls over purported legislative intentions unmoored from any statutory

text.” Castro-Huerto, 142 S. Ct. at 2496; see also Henson v. Santander Consumer USA

Inc., 582 U.S. 79, 89 (2017) (rejecting purposive speculation in favor of “apply[ing]

faithfully the law Congress has written”).

4. Agency practice

Finally, Petitioners and the majority emphasize that, for three decades, the

Executive has detained aliens present in the United States without admission under Section

1226(a)’s discretionary scheme rather than Section 1225(b)(2)(A)’s mandatory scheme.

This practice tells us nothing about the meaning of the latter statute. Cf. Pereira v. Sessions,

585 U.S. 198, 204–205 (2018) (rejecting an interpretation of the INA that reflected 21 years

of government practice); Pub. Emps. Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 171 (1989)

(“Even contemporaneous and longstanding agency interpretations must fall to the extent

they conflict with statutory language.”).

“Courts must exercise their independent judgment” in interpreting the law. Loper

Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024). Although an agency’s reasoned

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interpretation can be persuasive in determining a statute’s meaning, see id. at 2262, here

Petitioners have not identified any reasoned agency decision adopting their construction of

Section 1225(b)(2)(A). Rather, the relevant agencies announced their policy of

nonenforcement in one conclusory sentence soon after IIRIRA’s enactment. See 62 Fed.

Reg. 10312-01, 10323 (Mar. 6, 1997) (“Despite being applicants for admission, aliens who

are present without having been admitted or paroled (formerly referred to as aliens who

entered without inspection) will be eligible for bond and bond redetermination.”). At the

same time, the agencies adopted a regulation, still in force, that applies Section 1225(b)(2)

to mandate detention for certain aliens present in the country who have not been admitted,

thereby acknowledging the Executive’s authority under that provision even if exercising it

only in part. See 8 C.F.R. § 235.3(b)(1)(ii) (requiring detention “in accordance with section

235(b)(2) of the Act” for an “alien who was not inspected and admitted or paroled into the

United States but who establishes that he or she has been continuously physically present

in the United States” for two years).

Neither “authority granted by Congress” nor a mandate issued by Congress can

“evaporate through lack of administrative exercise.” Bankamerica Corp. v. United States,

462 U.S. 122, 131 (1983) (internal quotation marks and brackets omitted). “We know that

unquestioned powers are sometimes unexercised from lack of funds, motives of

expediency, or the competition of more immediately important concerns.” United States

v. Morton Salt Co., 338 U.S. 632, 647–648 (1950). That the Executive long preferred the

flexibility of Section 1226(a) over the rigidity of Section 1225(b)(2)(A) is unsurprising and

is not evidence that the latter authority was never conferred. Nor can such exercises of

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executive discretion alter the meaning of the statutory text Congress enacted and that this

Court must faithfully apply.

* * *

In sum, the statutory text, context, and history supply a ready answer to the question

presented. Section 1225(b)(2)(A) requires the Government to detain aliens who illegally

entered the United States pending the outcome of their removal proceedings. Petitioners,

therefore, have failed to show that they are “in custody in violation of the . . . laws . . . of

the United States.” 28 U.S.C. § 2241(c)(3). Accordingly, I would deny their habeas

petitions and reverse the district court’s judgments.

Juan Rivera v. Robert Guadian

Authorities cited

Opinion · public domain