Barbosa Da Cunha v. Freden

majority opinion

25-3141

Barbosa da Cunha v. Freden

United States Court of Appeals

FOR THE

SECOND CIRCUIT

ORDER

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of September, two thousand twenty-six.

Present:

RAYMOND J. LOHIER, JR.,

Chief Judge,

RICHARD J. SULLIVAN,

JOSEPH F. BIANCO,

MICHAEL H. PARK,

WILLIAM J. NARDINI,

STEVEN J. MENASHI,

EUNICE C. LEE,

BETH ROBINSON,

MYRNA PÉREZ,

ALISON J. NATHAN,

SARAH A. L. MERRIAM,

MARIA ARAÚJO KAHN,

MATTHEW A. SCHWARTZ,

Circuit Judges.

Ricardo Aparecido Barbosa Da Cunha,

Petitioner-Appellee,

v. 25-3141

Joseph E. Freden, Deputy Field Office Director, U.S.

Immigration and Customs Enforcement,

Respondent-Appellant.

For Respondent-Appellant: Tiberius T. Davis, Counsel to the Assistant

Attorney General (Brett A. Shumate,

Assistant Attorney General, Civil Division,

Yaakov M. Roth, Principal Deputy Assistant

Attorney General, Drew C. Ensign, Deputy

Assistant Attorney General, Benjamin

Hayes, Senior Counsel to the Assistant

Attorney General, Stephen J. Flynn,

Assistant Director, Jessica R. Lesnau, Trial

Attorney, on the brief), U.S. Department of

Justice, Washington, DC.

For Petitioner-Appellee: Michael K.T. Tan, American Civil Liberties

Union Foundation, San Francisco, CA (My

Khanh Ngo, Oscar Sarabia Roman,

American Civil Liberties Union Foundation,

San Francisco, CA, Judy Rabinovitz, Natalie

Behr, American Civil Liberties Union

Foundation, New York, NY, Amy Belsher,

New York Civil Liberties Union, New York,

NY, Paul O’Dwyer, Law Office of Paul

O’Dwyer, P.C., New York, NY, on the brief).

For Amici Curiae Immigration Law Amit Jain, Roderick & Solange MacArthur Scholars, in support of Petitioner- Justice Center, Washington, DC.

Appellee:

For Amici Curiae American Suchita Mathur, Emma Winger, American

Immigration Council and American Immigration Council, Washington, DC.

Immigration Lawyers Association,

in support of Petitioner-Appellee:

Following disposition of this appeal on April 28, 2026, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

Joseph F. Bianco and Alison J. Nathan, Circuit Judges, joined by Eunice C. Lee, Beth Robinson, Myrna Pérez, and Sarah A. L. Merriam, Circuit Judges, concur by opinion in the denial of rehearing in banc.

Matthew A. Schwartz, Circuit Judge, joined by Richard J. Sullivan, Circuit Judge, concurs by opinion in the denial of rehearing in banc.

Steven J. Menashi, Circuit Judge, joined as to Parts I and II-E by Michael H. Park, Circuit Judge, dissents by opinion from the denial of rehearing in banc.

José A. Cabranes, Circuit Judge, filed a statement with respect to the denial of rehearing in banc.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

25-3141-pr

Barbosa da Cunha v. Freden

BIANCO and NATHAN, Circuit Judges, joined by LEE, ROBINSON, PÉREZ, and MERRIAM, Circuit Judges, concurring in the denial of rehearing en banc:

“The sole question presented by this appeal is whether Section 1226 or Section 1225 governs Petitioner’s detention.” Barbosa da Cunha v. Freden, 175 F.4th 61, 70 (2d Cir. 2026). The government and Judge Menashi in his dissent from the denial of rehearing en banc argue that Section 1225 applies and that Petitioner must be detained without a bond hearing. As articulated by Judge Cabranes, the fanciful contention is “that Congress clearly required the Executive to detain millions of people like Petitioner—parents of American children, owners of American businesses, members of American communities—but that some thirty years passed before anyone noticed. In the meantime, fifteen Congresses stood silently by as five presidents ignored the plain text of the statute. Immigration officials also failed to grasp that Congress had told them to round up people by the millions. The capacity to carry out the largest detention in American history went unbuilt.” Id. at 96 (Cabranes, J., concurring).

For the detailed explanation as to why this contention is wrong given the relevant statutory interpretation, we rest entirely on the underlying panel opinion, id. at 69–96 (majority opinion), and concurrence by Judge Cabranes, id. at 96–99 (Cabranes, J., concurring). The unanimous conclusion we reached follows from the plain text of the Illegal Immigration Reform and Immigrant Responsibility Act and is reinforced by the statute’s context, structure, history, and purpose. It is the same conclusion reached by eight other circuits and a vast majority of district courts around the country. Unsurprisingly, then, a majority of our colleagues concur in the denial of rehearing en banc.

One would not know from reading Judge Menashi’s dissent that this

statutory question was the sole question presented by the appeal. There he advances a wholly separate argument: that Petitioner’s claims are not cognizable in habeas. That was not raised by the government and accordingly not addressed by the panel. We write briefly to respond to this novel argument. 1

1We do not address the novel and unrelated contentions raised by Judge Schwartz in his concurrence in the denial of rehearing en banc. It is not the role of judges to advise

The dissent argues that the panel erred by treating Petitioner’s requested relief as cognizable in habeas, because Petitioner “did not challenge the authority of the government to detain him” and “did not claim he was entitled to release.” Post at 46 (emphasis in original). Instead, the dissent contends that Petitioner “was actually seeking relief akin to a mandatory injunction or mandamus.” Id. at 47. Setting aside that this argument was not raised or briefed—which is reason enough to deny en banc review—the dissent’s argument is incorrect and extreme.

As a factual matter, Petitioner did seek release based on the unlawfulness of his detention. Petitioner claimed that, because he was arrested and detained without the procedural protections afforded by Section 1226, his “continuing detention is therefore unlawful.” App’x at 18. His petition sought “a writ of habeas corpus releasing him immediately from detention, or in the alternative, directing that he be provided with a bond hearing.” App’x at 11. He therefore does not resemble the petitioners in the cases on which the dissent relies. See Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 117 (2020) (“In this case, however, respondent did not ask to be released.”); Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (“Neither respondent seeks an injunction ordering his immediate or speedier release into the community.”); Munaf v. Geren, 553 U.S. 674, 693 (2008) (“[T]he last thing petitioners want is simple release; that would expose them to apprehension by Iraqi authorities for criminal prosecution[.]”).

In any event, the dissent’s single-minded focus on whether Petitioner

sought release is misplaced. “[I]mmediate physical release [is not] the only remedy under the federal writ of habeas corpus.” Trump v. J. G. G., 604 U.S. 670, 672 (2025) (quoting Peyton v. Rowe, 391 U.S. 54, 67 (1968)); see also Boumediene v. Bush, 553 U.S. 723, 779 (2008) (“[R]elease need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.”); Thuraissigiam, 591 U.S. at 137 (noting that Boumediene “reaffirmed that release is . . . not the ‘exclusive’ result of every writ”). The availability of habeas thus does not turn on “whether the [Petitioner] formally request[s] release from confinement[.]” J. G. G., 604 U.S. at 672. The dissent’s cramped contrary view comes largely from postthe government as to its “options to reduce prejudice to its position.” Post at 1. Nor is it judicious to opine on issues that have not, but may someday, come before us as neutral arbiters of the law. See United States v. Fruehauf, 365 U.S. 146, 157 (1961) (“[Advisory] opinions, such advance expressions of legal judgment upon issues which remain unfocused . . . , we have consistently refused to give.”).

conviction cases that established the line between habeas and 42 U.S.C. § 1983, reasoning from principles inapposite here. See, e.g., post at 47–56 (citing Wilkinson, 544 U.S. at 85 (Scalia, J., concurring); Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)).

Although we will not accept the dissent’s invitation to sketch the bounds of “the core of habeas corpus,” post at 56 (quotation marks omitted), we have no doubt that Petitioner’s challenge falls within it. Petitioner alleged that he could not be detained under Section 1225 and that he could only be detained under Section 1226 if the government granted him a bond hearing. App’x at 17–18. He argued, on that basis, that his detention was “unlawful, regardless of what statute might apply to purportedly authorize such detention.” App’x at 20. The district court therefore properly exercised habeas jurisdiction over this case, directing that the government “conduct a constitutionally adequate bond hearing,” and that, “[i]f such bond hearing is not conducted within ten (10) days of the date of this order, Petitioner shall be released from custody.” Barbosa da Cunha v. Moniz, No. 25 Civ. 6532, Dkt. 25 (W.D.N.Y. Oct. 20, 2025). In other words, Petitioner challenged “the legality of his detention,” and the district court granted “conditional release” in order to “allow[] the executive to justify or cure a defect in detention before requiring release.” Thuraissigiam, 591 U.S. at 122. That is exactly what habeas relief is for.

The dissent argues that “compar[ing] the relief the district court ordered to a writ of ‘conditional release’” is “an improper analogy.” Post at 51–52. But conditional release is not an analogy; it is an accurate description of the relief fashioned by the district court. Such relief is standard where a detainee claims that he is “being held pursuant to the erroneous application or interpretation of relevant law.” Boumediene, 553 U.S. at 779 (quotation marks omitted). Conditional release enables courts to exercise their “broad discretion in conditioning a judgment granting habeas relief,” Hilton v. Braunskill, 481 U.S. 770, 775 (1987), and spares courts from “having to choose between ordering an absolute discharge of the prisoner and denying him all relief,” Dowd v. U.S. ex rel. Cook, 340 U.S. 206, 209–10 (1951). This case illustrates these beneﬁts. Instead of requiring the government to release and re-detain Petitioner under the proper statutory provision, the district court gave the government an opportunity to correct its error before requiring release. Habeas thus was not used as a “tool to extort a new hearing from the government,” as the dissent claims, post at 54–55, but as a mechanism for “removing the injury of unjust and illegal conﬁnement,” 3 W.

Blackstone, Commentaries on the Laws of England 137 (1768) (emphasis omitted).

In sum, the petition, in challenging the lawfulness of Petitioner’s detention and requesting release, sought habeas relief, which the district court provided by ordering release absent a prompt bond hearing. The dissent’s novel arguments to the contrary are unpersuasive.

* * *

As to the sole question presented on appeal—whether Section 1225 or

Section 1226 governed Petitioner’s detention—our holding was dictated by the plain text of the statute. Section 1225(b)(2)(A) “applies only to a noncitizen who is both an ‘applicant for admission’ and ‘seeking admission.’” Barbosa da Cunha, 175 F.4th at 74. Petitioner, who entered the United States unlawfully more than two decades ago and has resided here ever since, was not “seeking admission” because he was not “seeking to come inside [the country] from outside.” Id. at 97 (Cabranes, J., concurring). Accordingly, his detention was governed by Section 1226, which entitled him to a bond hearing. The dissent’s “attempt to muddy these textually clear waters deﬁes the statute’s context, structure, history, and purpose[.]” Id. at 96 (majority opinion).

The dissent’s novel argument about the scope of habeas fares no better. According to the dissent, the nine circuits and hundreds of district courts to grant habeas relief to individuals wrongly detained under Section 1225 did not have authority to do so. That is a drastic view that not even the government has advanced in this case.

Because the district court was right on the statutory question and had authority to grant habeas relief, the panel opinion correctly aﬃrmed the decision below and our Court correctly voted to deny rehearing en banc.

SCHWARTZ, Circuit Judge, joined by SULLIVAN, Circuit Judge, concurring in the denial of rehearing en banc:

Although I agree with the analysis in the dissent, I support the decision to

deny rehearing en banc. My “[m]ere substantive disagreement” with the panel

opinion does not warrant the time and effort of full court rehearing. Baker v. Pataki,

85 F.3d 919, 941 (2d Cir. 1996) (Feinberg, J.).

Further, there is a deep and widening circuit split on the nationally important

issue of whether the government may detain aliens like Petitioner under

Section 1225 or Section 1226. In general, issues for “which Supreme Court

resolution is inevitable should not be permitted to tarry in this Court for further

intermediate action, . . . except when the views of this Court would be of real benefit

to the Supreme Court.” Green v. Santa Fe Indus., Inc., 533 F.2d 1309, 1310 (2d Cir.

1976) (per curiam); see also John M. Walker, Jr., Foreword, 21 Quinnipiac L. Rev.

1, 14 (2001) (“[T]he Second Circuit’s approach to in banc review—one that holds

the process in reserve for the exceptional case that is an unlikely candidate for

Supreme Court resolution—is sound, and it will continue to serve this [C]ircuit well

in the years to come.”). As the issue in this case has been thoroughly ventilated—

both in our Circuit and in circuits across the country—en banc consideration would

be unlikely to benefit the Supreme Court. See Eisen v. Carlisle & Jacquelin, 479

F.2d 1005, 1021 (2d Cir. 1973) (Kaufman, J., joined by Friendly, C.J. & Feinberg,

Mansfield & Mulligan, JJ., concurring in the denial of rehearing en banc) (“En banc

consideration . . . would merely serve as an instrument of delay.”), vacated, 417 U.S.

156 (1974).

While awaiting the Supreme Court’s guidance, en banc review is also

unnecessary because the United States still has options to reduce prejudice to its

position as to Petitioner in particular and aliens in general.

As to Petitioner, even though he was temporarily released under Section 1226,

the Attorney General may still “at any time” “revoke [his] bond or parole . . . ,

rearrest [him] under the original warrant, and detain [him].” 8 U.S.C. § 1226(b).

Congress has made the Attorney General’s reasons for such a decision unreviewable

by any court. See id. § 1226(e) (“No court may set aside any action or decision by

the Attorney General under [Section 1226] regarding the detention of any alien or

the revocation or denial of bond or parole.”). Alternatively, the Attorney General

may still refer the case to himself to dispose of it. See 8 C.F.R. § 1003.1(h) (2026).

So the United States may detain Petitioner pending his removal proceedings,

regardless of whether Section 1226 applies.

As to aliens as a group, Congress has given the Attorney General very broad

discretion to choose to detain or release an alien. Under Section 1226, the Attorney

General (1) “may continue to detain [an] arrested alien” or (2) “may release the

alien” on bond or parole “pending a [removal] decision.” 8 U.S.C. § 1226(a)(1)–

(2). In other words, there is no statutory requirement for the United States to offer

an alien the opportunity for bond or parole. Id. § 1226(e). At present, an alien falling

under Section 1226(a) is entitled to request a bond or parole hearing only because of

the regulatory framework the Attorney General has adopted surrounding detention

and release. See 8 C.F.R. §§ 236.1(d), 1003.19 (2026). The Attorney General could

rescind or amend those regulations to reduce the burden on the government.

Accordingly, I concur in the denial of rehearing en banc.

25-3141

Barbosa da Cunha v. Freden

MENASHI, Circuit Judge, joined as to Parts I and II-E by PARK, Circuit Judge, dissenting from the denial of rehearing en banc:

Justice Scalia once identified the “true rule” of statutory

interpretation to follow when a court perceives dissonance between a

statutory definition and the ordinary meaning of a term: “When a

statute includes an explicit definition, we must follow that definition, even if it varies from that term’s ordinary meaning.” Bond v. United States, 572 U.S. 844, 871 (2014) (Scalia, J., concurring in the judgment)

(quoting Stenberg v. Carhart, 530 U.S. 914, 942 (2000)). In Barbosa da Cunha v. Freden, 175 F.4th 61 (2d Cir. 2026), a panel of this court

violated that rule, and today the en banc court declines to correct the error. I dissent from the denial of rehearing en banc.

In Barbosa da Cunha, the panel held that 8 U.S.C. § 1225(b)(2)(A)

“does not apply” to aliens “who are present in the United States after entering the country without inspection and admission, and who

were not apprehended while entering the country or shortly

thereafter.” 175 F.4th at 69. The panel claimed that its conclusion

follows from the “plain text” of the statute. Id.

That is wrong. The statute provides that “in the case of an alien

who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained.” 8 U.S.C.

§ 1225(b)(2)(A) (emphasis added). Congress has directed that, for

purposes of the Immigration and Nationality Act, “[a]n alien present

in the United States who has not been admitted” shall be “deemed”

to be “an applicant for admission.” Id. § 1225(a)(1).

Thus, the statute deems an unadmitted and illegally present

alien to be an applicant for admission. It is true that unadmitted illegal aliens are not actually applying for admission or otherwise seeking

admission to the country because they have already entered illegally.

But under the scheme that Congress enacted, those aliens are

“deemed constructive applicants for admission by operation of

[§ 1225(a)(1)].” Matter of Lemus-Losa, 25 I. & N. Dec. 734, 743 n.6 (BIA 2012). In a legal—albeit “artificial”—sense, those constructive

applicants for admission are “seeking admission” for purposes of the

INA. Id. (alteration omitted). I would rehear this case en banc to give effect to the statute that Congress adopted, including its mandate to

treat unadmitted illegal aliens as applicants for admission for

purposes of the INA.

The panel made an additional error—unrelated to the statutory

interpretation question—by treating the requested relief as cognizable in habeas. The petitioner in this case sought a writ of

habeas corpus. “Habeas is at its core a remedy for unlawful executive

detention,” and “[t]he typical remedy for such detention is, of course, release.” Munaf v. Geren, 553 U.S. 674, 693 (2008). Barbosa da Cunha,

however, did not claim he was entitled to release. He sought a court

order requiring the federal government to (1) reclassify him as an

alien who was not seeking admission and then (2) to offer him the

bond hearing that an alien subject to discretionary detention may

receive. Properly understood, he sought relief akin to a mandatory

injunction or mandamus.

Allowing Barbosa da Cunha to bring such a claim in habeas

“would require us to broaden the scope of habeas relief beyond

recognition.” Wilkinson v. Dotson, 544 U.S. 74, 85 (2005) (Scalia, J., concurring). And that expansion conflicts with Supreme Court

precedent. When an alien sought “a writ directing the [government]

to provide him a new opportunity to apply for asylum,” the Supreme

Court emphasized that such a writ “is not a form of relief that was

available in habeas at the time of the adoption of the Constitution.”

DHS v. Thuraissigiam, 591 U.S. 103, 117 n.13 (2020) (internal quotation marks and alterations omitted). The same conclusion applies here:

The writ of habeas corpus “has never encompassed” the sort of claim

that Barbosa da Cunha has made. Id. at 116 n.12. I would rehear this

case en banc also to clarify that habeas is not available to an alien who seeks not release but statutory reclassification and additional

administrative procedures.

This case “involves one or more questions of exceptional

importance.” Fed. R. App. P. 40(b)(2)(D). If the government has the

correct interpretation of the statute, it would have the significant

“impact of requiring the detention without bond” of unadmitted

illegal aliens. Buenrostro-Mendez v. Bondi, 166 F.4th 494, 517 (5th Cir. 2026) (Douglas, J., dissenting). And the panel opinion “conflicts with” the decisions of other courts of appeals. Fed. R. App. P. 40(b)(2)(C). The panel expressly rejected the holdings of the Fifth and Eighth

Circuits with respect to the same issue. See Barbosa da Cunha, 175 F.4th at 72 (citing Buenrostro-Mendez, 166 F.4th at 508 (majority opinion),

and Avila v. Bondi, 170 F.4th 1128, 1138 (8th Cir. 2026)). Since the panel issued its opinion, the split has deepened. 1 Moreover, by extending

the scope of habeas relief beyond the limits identified in Thuraissigiam, “the panel decision conflicts with a decision of the United States

Supreme Court.” Fed. R. App. P. 40(b)(2)(B).

1 See Lopez-Campos v. Raycraft, 175 F.4th 713, 734-35 (6th Cir. 2026); Hernandez Alvarez v. Warden, 175 F.4th 1258, 1285 (11th Cir. 2026); Santillan Quiroz v. Mullin, 180 F.4th 1226, 1250-51 (10th Cir. 2026); Rodriguez Vazquez v. Bostock, 183 F.4th 1160, 1193 (9th Cir. 2026); Cirrus Rojas v. Olson, 183 F.4th 909, 931 (7th Cir. 2026); Guerrero Orellana v. Moniz, No. 25-2152, 2026 WL 2352042, at *11 (1st Cir. Aug. 13, 2026); Buele Morocho v. Warden, No. 26-1150, 2026 WL 2546223, at *3 (3d Cir. Aug. 28, 2026).

I would rehear the case en banc both to give effect to the statute

that Congress adopted and to respect the historical limits on habeas

relief that the Supreme Court has identified.

This case involves two provisions of 8 U.S.C. § 1225. First, there

is the detention provision: “[I]n the case of an alien who is an

applicant for admission, if the examining immigration officer

determines that an alien seeking admission is not clearly and beyond

a doubt entitled to be admitted, the alien shall be detained for a

proceeding under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). Second, there is the deeming provision: “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.” Id. § 1225(a)(1).

The detention provision requires the detention pending a

removal proceeding of an “applicant for admission” who is “seeking

admission.” The deeming provision requires that an unadmitted

illegal alien such as Barbosa da Cunha be treated as an “applicant for admission.” That is, it requires the unadmitted illegal alien to be

treated as if he were an arriving alien applying for admission to the

United States. The question is whether that constructive applicant for admission, who is not actually arriving and seeking entry, must be

treated as “seeking admission” for purposes of the statute.

The panel concluded that a constructive applicant for

admission is not seeking admission. First, the panel noted that

“‘applicant for admission’ is defined by statute to mean any

noncitizen who is present in the United States and has not been

admitted, or is arriving in the United States.” Barbosa da Cunha, 175

F.4th at 74. Second, the panel noted that “‘admission’ is defined by

statute as ‘the lawful entry of the alien into the United States after inspection and authorization.’” Id. (quoting 8 U.S.C. § 1101(a)(13)(A)). In the absence of a statutory definition, the panel defined “entry” as “the act of entering” and “to ‘enter’” as “to go or come into a material place.” Id. (quoting Entry and Enter, Webster’s Third New

International Dictionary 759, 756 (1993)). Third, the panel said that

“although also not defined in the statute, the term ‘seek’ means … to

‘request’ or ‘ask for,’” and “[t]he term ‘seeking’ is in the present

participle form, which expresses present action.” Id.

Putting these steps together, the panel concluded that the

detention provision “applies only to (1) noncitizens who are present

and have not been admitted, and (2) are requesting (3) lawful entry

into the United States after inspection and authorization.” Id. The

panel applied that conclusion to Barbosa da Cunha, stating that

“although Petitioner is an applicant for admission under the statutory definition because he is present in the country and has never been

admitted, it simply cannot be said that he is ‘seeking admission,’ as

he is not requesting lawful entry into the United States.” Id.

In other words, Barbosa da Cunha (1) is an “applicant for

admission” even though he is not actually requesting admission, but

(2) he is not “seeking admission” because he is not actually requesting admission. The panel recognized that “‘[a]pplicant’ ordinarily means

‘one who applies for something.’” Id. at 75 (quoting Applicant,

Webster’s Third New International Dictionary 105 (1993)). But the

panel explained that the deeming provision “gives ‘applicant for

admission’ an ‘artificial’ meaning, covering ‘constructive’ applicants who never applied for anything.” Id. (quoting Lemus-Losa, 25

I. & N. Dec. at 743 n.6). Those constructive applicants “have not and

could not apply for what the statute defines as ‘admission’—‘lawful

entry into the United States after inspection and authorization by an

immigration officer.’” Id. (alteration omitted) (quoting 8 U.S.C.

§ 1101(a)(13)(A)).

According to the panel, Barbosa da Cunha can “only be an

‘applicant for admission’ because the statute uses ‘applicant’ in a

‘specialized’ way, rather than in its ordinary meaning.” Id. at 76

(quoting Feliciano v. DOT, 605 U.S. 38, 45 (2025)). While the panel

acknowledged that Congress has “deemed” the phrase “‘applicant for

admission’ to cover noncitizens who literally cannot be applying for

or seeking ‘admission,’” the panel said that “the statute is silent on the meaning of ‘seeking’ and ‘applying’ and does not establish a legal fiction as to those terms, leaving them with their ordinary meanings.” Id. And “[u]sing the ordinary meaning of ‘seeking admission,’ no one

would consider an individual who never applied to also be ‘seeking

admission.’” Id.

In the end, the panel held that even though Barbosa da Cunha

is constructively an applicant for admission, the detention provision

does not apply to him unless he is literally seeking admission.

The panel’s logic reflects two errors.

First, the panel misunderstood what it means to seek admission

under the INA. The panel asserted that seeking admission necessarily

involves an attempt to enter the United States by “coming from

outside.” Id. at 74 (quoting United States ex rel. Claussen v. Day, 279 U.S. 398, 401 (1929)). That is incorrect because, as the Board of Immigration Appeals has long recognized, “‘admission’ can include an adjustment

of status despite [an alien’s] illegal entry.” Lopez-Campos, 175 F.4th at 744 (Murphy, J., dissenting) (citing In re Rosas-Ramirez, 22 I. & N. Dec.

616, 617-23 (BIA 1999)). The BIA has rejected the contention that a

statutory reference “to an alien who ‘seeks admission’ applies only to one who is applying for admission at the border.” In re Rodarte-Roman, 23 I. & N. Dec. 905, 908 (BIA 2006) (quoting 8 U.S.C. § 1182(a)(9)(B)(i)(II)). “In the Immigration and Nationality Act, the

term ‘admission’ generally refers to adjustment of status from within

the United States, as well as lawful entry at the border.” Id.; see also Rosas-Ramirez, 22 I. & N. Dec. at 619 (holding that “the phrase ‘after admission’” in 8 U.S.C. § 1227(a)(2)(A)(iii) “includes an alien … who

has been ‘lawfully admitted for permanent residence’ … pursuant to

a grant of adjustment of status”).

We have previously recognized that an alien already present in

the United States may be seeking admission for purposes of the INA.

We explained that “with an adjustment application, the criminal alien

in the United States steps into the shoes of one at the border seeking admission to the United States.” Seepersad v. Sessions, 892 F.3d 121, 124 (2d Cir. 2018). In other words, “an alien within the United States who applies for an adjustment of status is assimilated to the position of an alien outside the United States seeking entry as an immigrant because

an alien may adjust his status only if he is admissible.” Poveda v.

Attorney General, 692 F.3d 1168, 1176 (11th Cir. 2012) (internal

quotation marks omitted).

At the same time, not every alien who seeks an actual entry into

the country is seeking “admission.” An arriving alien at the border

might concede that he is inadmissible based on one of the grounds of

inadmissibility listed in 8 U.S.C. § 1182. The inadmissible alien may

nevertheless apply for asylum and request humanitarian parole into

the country while he litigates his asylum claim. See 8 U.S.C. § 1158(a); id. § 1182(d)(5)(A). This alien would literally be seeking lawful entry to the United States but would not be seeking “admission” under the

INA because “[n]either a grant of parole nor a grant of asylum

qualifies as an ‘admission.’” Lopez-Campos, 175 F.4th at 744 (Murphy,

J., dissenting) (citing 8 U.S.C. § 1101(a)(13)(B)); see also Matter of V-X-, 26 I. & N. Dec. 147, 150-51 (BIA 2013); Sanchez v. Mayorkas, 593 U.S.

409, 415 (2021). 2

So it is wrong to say that “seeking admission” under the INA

necessarily refers to a request to enter from the outside. An alien

present in the United States may seek admission without requesting

to enter, and an alien at the border may request to enter without

seeking admission. The meaning of the word “admission” in the INA

is context-specific, 3 and in context an alien is often seeking admission for purposes of the INA in a constructive rather than ordinary sense.

An alien who requires a determination that he is admissible in order

to receive the immigration benefit he actually wants—such as an

adjustment of status or authorization to remain in the country—will

be considered to be seeking “admission” even if he has already

entered the country.

2 See Sanchez, 593 U.S. at 415 (“On the one hand, a foreign national can be admitted but not in lawful status—think of someone who legally entered the United States on a student visa, but stayed in the country long past graduation. On the other hand, a foreign national can be in lawful status but not admitted—think of someone who entered the country unlawfully,

but then received asylum.”). Nevertheless, an arriving alien—like an

unadmitted illegal alien—is “deemed” to be an “applicant for admission.” 8 U.S.C. § 1225(a).

3 See Lemus-Losa v. Holder, 576 F.3d 752, 757 (7th Cir. 2009) (“We have no reason to disagree with the Board’s position that the word ‘admission’ means different things, depending on the particular part of the INA that is at issue.”); Rosas-Ramirez, 22 I. & N. Dec. at 623 n.5 (“We do not here attempt to resolve the meaning of ‘admission’ in other contexts or under other provisions for adjustment of status.”).

Second, the panel misunderstood how the deeming provision

interacts with the detention provision. The panel wrongly asserted

that “‘applicant for admission’ is defined by statute” and therefore

receives a “technical meaning” as a “term of art.” Barbosa da Cunha,

175 F.4th at 74-76 (emphasis added). But the INA does not provide a

definition of “applicant for admission.” That phrase does not appear

in the extensive list of defined statutory terms. See 8 U.S.C. § 1101. The deeming provision simply says that an unadmitted illegal alien “shall

be deemed” to be an applicant for admission even when he has not

actually applied. Id. § 1225(a)(1). 4 The statute thereby directs that the requirements that apply to an actual applicant for admission—an

arriving alien who presents himself for inspection with entry

documents at a port of entry—must also be applied to an unadmitted

alien who is illegally present after avoiding inspection.

Although the unadmitted illegal alien must be treated as if he

were an “applicant for admission,” the phrase “applicant for

admission” itself lacks a statutory definition and therefore receives its plain meaning. The phrase refers to someone who has applied for

admission. 5 The deeming provision tells us to treat an unadmitted

illegal alien as if he has applied for admission. As a result, we must

4 In other words, the deeming provision “does not ‘define’ ‘applicant for admission’” because it says “nothing about what ‘applicants for admission’ means.” Hernandez Alvarez, 175 F.4th at 1288-89 (Lagoa, J., dissenting). Instead, “Congress told us what unadmitted aliens, like Petitioner, are to be treated as.” Id. at 1289. The INA includes numerous deeming provisions that direct how persons, time periods, and locations must be treated. None of those provisions defines a term. See, e.g., 8 U.S.C. § 1182(a)(9)(B)(ii); id. § 1255(g); id. § 1229b(d)(1); id. § 1441; id. § 1182(n)(4)(A).

5 See Barbosa da Cunha, 175 F.4th at 75 (“‘Applicant’ ordinarily means ‘one who applies for something.’”) (quoting Applicant, Webster’s Third New

International Dictionary 105 (1993)).

treat an unadmitted illegal alien as if he is taking the action—seeking admission—that an applicant for admission would be taking. “The

principle is straightforward. When a statute deems ‘A’ to be ‘B,’ it

places A in the legal posture of B as a matter of law, with the

consequences that follow.” Hernandez Alvarez, 175 F.4th at 1289

(Lagoa, J., dissenting).

In this case, the statute deems an unadmitted illegal alien to be

an applicant for admission. We know that the unadmitted illegal alien

has not actually applied for anything—he has instead bypassed the

process of inspection and admission—but we treat him as if he has

applied for admission. So is that alien seeking admission? Of course

he is. People who apply for something are seeking it, so the

constructive applicant for admission must be regarded as seeking

admission. That is what an applicant for admission necessarily does.

“Because we must ‘regard’ the [p]etitioners ‘as’ ‘seeking admission’

under the ordinary meaning of ‘applicant,’ we must regard them as

‘seeking admission’ under [the statutory] language.” Lopez-Campos,

175 F.4th at 741 (Murphy, J., dissenting) (alterations and citation

omitted). “[B]y ‘deeming’ certain immigrants to be ‘applicants for

admission’ under the INA, the law commands us to treat them as if

they were applying for (or seeking) admission wherever the INA uses

those phrases—whether or not they ‘actually’ are doing so.” Id.

(alterations and citation omitted).

The panel’s error can be seen in its own analogy to a baseball

game. The panel imagined the following scenario:

If someone sneaks into Yankee Stadium at the start of the

game with no ticket for admission (and no intention of

ever paying) and he is later found by security in a seat in

the seventh inning, no one would consider that fan to be

“seeking admission” to the game.

Barbosa da Cunha, 175 F.4th at 76. That is correct, as far as it goes. But now imagine that the Yankees had a policy posted at the stadium gate

that stated: “Anyone found inside the stadium without a ticket shall

be deemed to be an applicant for admission to the game.” In light of

the deeming policy, the ticketless fan would be considered to be

seeking admission to the game. And he properly would be charged

the price of admission. The fan could not avoid paying for a ticket on the ground that even though he must be considered an “applicant for

admission” to the game, he is not really seeking admission and would

prefer to remain without paying. That would be an evasion of the

deeming policy. The same logic applies here: Just as the fan who

bypasses the ticket counter to enter the stadium is deemed to be

seeking admission, the alien who bypasses immigration inspectors to

enter the country is deemed to be seeking admission as well.

The panel failed to give effect to the deeming provision. That

provision does not direct that unadmitted illegal aliens be treated “as ‘applicants for admission’ exclusively for that phrase” but rather that unadmitted illegal aliens be treated as applicants for admission

“when interpreting the rest of the INA (including phrases like

‘applying for admission’ or ‘seeking admission’).” Lopez-Campos,

175 F.4th at 741 (Murphy, J., dissenting). According to the logic of the panel opinion, “Congress told us to treat certain immigrants as

‘applicants for admission’ in one paragraph (§ 1225(a)(1)) but then

expected us to not treat those immigrants as ‘applying for admission’

just three paragraphs later (§ 1225(a)(4)).” Id. at 743. That

interpretation makes no sense. The deeming provision provides that

an unadmitted illegal alien must be treated as an applicant for

admission “for purposes of this chapter,” meaning the entire INA.

8 U.S.C. § 1225(a)(1). Whatever requirements the INA applies to an

actual applicant for admission must also be applied to a constructive

applicant for admission. Because an actual applicant for admission is

seeking admission, so is a constructive applicant for admission.

The BIA clarified this aspect of the INA in 2012. In Matter of

Lemus-Losa, the BIA considered a case involving a Mexican citizen

who “entered the United States without inspection, after which he

lived in the United States for approximately 2 years without lawful

status.” 25 I. & N. Dec. at 735. He subsequently “departed from the

United States and returned to Mexico. In 2003, [he] reentered the

United States, again without inspection, and … remained here in

unlawful status.” Id.

The government commenced removal proceedings. Before the

immigration court, Lemus-Losa “conceded removability from the

United States” because he was “present without having been

admitted or paroled,” but “he applied for adjustment of status.” Id.

To qualify for an adjustment, “an applicant must be ‘physically

present in the United States’ and must demonstrate that he or she is

‘admissible to the United States for permanent residence.’” Id.

(quoting 8 U.S.C. § 1255(i)(1), (2)(A)). The immigration judge

concluded that Lemus-Losa was not admissible for permanent

residence “because his history of immigration violations rendered

him inadmissible” pursuant to 8 U.S.C. § 1182(a)(9)(B)(i)(II). Id. That provision provides that an alien who “has been unlawfully present in

the United States for one year or more, and who again seeks admission

within 10 years of the date of such alien’s departure or removal from

the United States, is inadmissible.” 8 U.S.C. § 1182(a)(9)(B)(i)(II)

(emphasis added).

The question before the BIA was whether Lemus-Losa was

“again seek[ing] admission.” Id. The BIA recognized that “[i]n

ordinary parlance, the phrase ‘seeks admission’ connotes a request for permission to enter.” Lemus-Losa, 25 I. & N. Dec. at 743. “The problem, however, is that Congress has defined the concept of an ‘applicant for admission’ in an unconventional sense, to include not just those who

are expressly seeking permission to enter, but also those who are

present in this country without having formally requested or received

such permission.” Id. As a result, “many people who are not actually

requesting permission to enter the United States in the ordinary sense are nevertheless deemed to be ‘seeking admission’ under the

immigration laws.” Id.

The BIA acknowledged that in a “prior decision, confusion

about the proper meaning of the phrase ‘seeks admission’ led us to

commit an error, which we now correct.” Id. at 743 n.6. In the prior

decision, the members of the BIA “declared ourselves ‘at a loss’

to explain Congress’s inclusion of the word ‘again’ in [§ 1182(a)(9)(B)(i)(II)], since the rest of the statutory language did not seem to require the alien to have previously ‘applied for admission’

in the ordinary sense of that phrase.” Id. (quoting In re Lemus-Losa,

24 I. & N. Dec. 373, 376 n.3 (BIA 2007)). The BIA explained that

“[b]ecause we did not then understand that Congress was using the

phrase ‘seeks admission’ as a term of art, we presumed that the word

‘again’ must have been inserted into the statute through a drafting

error.” Id. And here is the crucial point for our case:

What we failed to discern is that all aliens who have

accrued past periods of “unlawful presence” in the

United States have necessarily been “applicants for

admission” at some point in the past. That is, they had

either been true applicants for admission at some point

(in that they had entered the United States with visas or

other entry documents before their presence became

unlawful) or they had entered unlawfully or been

paroled into the United States but were deemed

constructive applicants for admission by operation of [the

deeming provision of § 1225(a)(1)]. Thus, any alien who

applies for admission to the United States after accruing

a prior period of unlawful presence is, in a very

meaningful (if sometimes artificial) sense, “again

seek[ing] admission.”

Id. (second alteration in original). The BIA thus explained that the

deeming provision treats an unadmitted illegal alien as an applicant

for admission. Because an actual applicant for admission would have

been seeking admission, the unadmitted illegal alien is also treated as if he were seeking admission during his period of unlawful presence.

So when an alien with a prior period of unlawful presence reenters

and applies for admission for the first actual time, the INA treats

him as someone “who again seeks admission.” 8 U.S.C. § 1182(a)(9)(B)(i)(II) (emphasis added). The BIA accordingly treated a constructive applicant for admission as someone who was seeking

admission.

The informed judgment of the BIA as to how the INA operates

shows that the panel erred when interpreting the statute. 6 The panel

was correct that Barbosa da Cunha was not “seeking admission” in

an ordinary sense. 7 But it was a mistake to conclude that an alien who

6 See Singh v. Bondi, 139 F.4th 189, 202 n.7 (2d Cir. 2025) (“In an agency case in particular, the reviewing court will go about its task with the agency’s body of experience and informed judgment, among other information, at

its disposal.”) (alteration omitted) (quoting Loper Bright Enters. v. Raimondo, 603 U.S. 369, 374 (2024)).

7 Those opinions that agree with the panel have similarly relied on the ordinary meaning of “seeking admission.” See Lopez-Campos, 175 F.4th at 722-23 (“Contemporary dictionary definitions of ‘seek’ or ‘seeking’ confirm the words’ requirement that the noncitizen engage in some affirmative act

is not actually seeking admission is not constructively seeking

admission for purposes of the INA. As the BIA has recognized, the

deeming provision requires that an unadmitted illegal alien who is

not actually seeking admission be treated as if he were.

The panel dismissed the significance of the BIA’s decision in

Lemus-Losa. The panel wrote that “even if Lemus-Losa were correct, it

would not support the government’s position in this case” because

“even if noncitizens like [Barbosa da Cunha] are construed as having

sought admission at some point in the past, it does not follow that

they are presently seeking admission.” Barbosa da Cunha, 175 F.4th

at 83. The panel argued that “for Lemus-Losa’s interpretation of

Section 1182(a)(9) to work, noncitizens who ‘again seek admission’

must have at some point stopped seeking admission. But merely

departing the country does not necessarily end one’s process of

‘seeking admission’ because, as the BIA recognized, ‘many aliens will

be outside the United States and seeking admission from abroad.’” Id.

(alteration omitted) (quoting Lemus-Losa, 25 I. & N. Dec. at 741).

That response misses the point. If an alien is constructively

seeking admission by virtue of his illegal presence, then he is no

longer seeking admission when he ends his illegal presence. If the

alien later actually applies for admission from abroad, he would be

or attempt towards ‘admission.’”); Hernandez Alvarez, 175 F.4th at 1267-68 (“Congress has not specifically defined ‘seeking.’ The term, which functions as an adjectival modifier of the noun ‘an alien,’ must be afforded its ordinary meaning—indicating an affirmative step of search or pursuit.”); Castañon-Nava v. DHS, 175 F.4th 828, 846 (7th Cir. 2026) (opinion of Lee, J.) (“[P]rominent dictionaries defined the verb ‘to seek’ to mean: ‘to resort to’; ‘to go to’; ‘to go in search of’; ‘look for’; ‘acquire or gain’; ‘aim at’; ‘to make an attempt.’”); Buenrostro-Mendez, 166 F.4th at 511 (Douglas, J., dissenting) (“The ordinary meaning of ‘seek’ requires some present, active action on the seeker’s part.”).

seeking admission for the second time. That was what the BIA

explained: “[A]ny alien who applies for admission to the United

States after accruing a prior period of unlawful presence is … ‘again

seek[ing] admission.’” Lemus-Losa, 25 I. & N. Dec. at 743 n.6 (second

alteration in original). In fact, the alien would not need to leave the country to file a second application. Under the INA, “all aliens who

have accrued past periods of ‘unlawful presence’ in the United States

have necessarily been ‘applicants for admission.’” Id. If after accruing a past period of unlawful presence the alien applied for an adjustment of status, the alien would be “again seek[ing] admission.” Id.

(alteration in original).

In any event, this case does not require a court to decide when

exactly an alien would be again seeking admission. The detention

provision does not require the alien to be seeking admission for a

second time. It requires only that the alien be considered to be

“seeking admission” while he is considered to be an applicant for

admission. 8 U.S.C. § 1225(b)(2)(A). Because Barbosa da Cunha was

unadmitted and illegally present when arrested and inspected, he

was “deemed to be ‘seeking admission’ under the immigration laws.”

Lemus-Losa, 25 I. & N. Dec. at 743. And that means the detention

provision applied to him.

It is common—in the immigration context and elsewhere—that

a statute will treat a person as doing at law something he is not

actually doing. Frequently a “linguistic point is not dispositive.

‘When the American legal system interprets a text, the process often

looks nothing like a straightforward search for linguistic meaning.’

The ultimate objective is to determine the meaning the law assigns to

the text and therefore its legal effect.” United States v. Scott, 990 F.3d

94, 128 (2d Cir. 2021) (Menashi, J., concurring in part and concurring in the judgment) (footnote omitted) (quoting William Baude &

Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1088 (2017)).

When a lawful permanent resident seeks to reenter the country,

for example, Congress has directed that he “shall not be regarded as

seeking an admission into the United States for purposes of the

immigration laws.” 8 U.S.C. § 1101(a)(13)(C). Even though that is

what the lawful permanent resident is actually doing as a matter of

plain meaning, the law treats him as if he were not.

To take another illustrative example, a regulation of the

Department of Transportation determines when an employee has

“refused to take a drug test.” 49 C.F.R. § 40.191(a). The regulation

explains that “[a]s an employee, you have refused to take a drug test

if you” (1) “[f]ail to appear for any test (except a pre-employment test) within a reasonable time,” id. § 40.191(a)(1); (2) “[f]ail to remain at the testing site until the testing process is complete,” id. § 40.191(a)(2); or (3) “[f]ail to provide a sufficient amount of specimen when directed,” id. § 40.191(a)(5). In none of these circumstances has the employee

directly or even necessarily refused to take the drug test. But the

regulation deems the employee to have refused. The regulation later

explains that “[a]s an employee, if you refuse to take a drug test, you incur the consequences specified under DOT agency regulations.” Id.

§ 40.191(c). Those consequences apply not only to those who have

actually refused the test but also to those who have constructively

refused. See, e.g., Bass v. Fed. Motor Carrier Safety Admin., 817

F. Supp. 3d 1, 4 (D.D.C. 2025) (explaining that an employee was

“deemed to have refused the second drug test” because he left “the

collection site before a drug testing process [was] complete”) (internal quotation marks omitted).

A statute in Massachusetts requires an optometrist registered

under state law to apply for and to take an examination if he wants to engage in “the use and prescription of therapeutic pharmaceutical

agents.” Mass. Gen. Laws ch. 112, § 68C(b). The statute then provides

that “[a]n optometrist licensed in another jurisdiction shall be deemed an applicant under this section by the board of registration in

optometry.” Id. § 68C(c) (emphasis added). The board then requires

those constructive applicants to meet the standards set for actual

applicants. See id.

It makes sense that Massachusetts would treat an optometrist

with an out-of-state license as if he were seeking the same permission to practice that Massachusetts requires of in-state licensees. It makes sense that the Yankees would treat a fan who snuck by the ticket

counter as if he were seeking a paid ticket to the game. And it makes

sense that Congress would treat an alien who entered the United

States without being admitted as if he were seeking a lawful entry to

the country. What does not make sense is the panel’s inconsistent

interpretation of the INA. The panel’s view is that an unadmitted

illegal alien is treated as an “applicant for admission” by virtue of his unlawful presence but, at the same time, he cannot be treated as

“seeking admission” unless he has literally applied for admission at

the border. Yet Congress directed that an unadmitted illegal alien

must be treated as an applicant for admission for purposes of the INA. It violates that mandate to refuse to treat that alien as if he were doing what all applicants for admission are necessarily doing: seeking

admission.

The panel offered several other arguments to defend its

inconsistent application of the deeming provision. None is

persuasive. First, the panel offered a counterintuitive and implausible interpretation of the phrase “or otherwise” in 8 U.S.C. § 1225(a)(3).

But that provision indicates that an applicant for admission is

necessarily seeking admission. Second, the panel insisted that the

government’s interpretation renders part of the detention provision

superfluous. But the panel’s interpretation creates a much worse

superfluity problem. Third, the panel claimed to find support for its

position in the opinion of the Supreme Court in Jennings v. Rodriguez, 583 U.S. 281 (2018). But that decision undermines the panel’s

interpretation of the detention provision. Fourth, the panel insisted

that the executive branch interpreted the detention provision

contemporaneously with its enactment not to apply to unadmitted

illegal aliens. But the opposite is true. Fifth, the panel relied on the canon of constitutional avoidance. But the government’s

interpretation of the detention provision raises no constitutional

problems.

The panel sought support for its interpretation of the detention

provision in other provisions of the INA. But the statutory context

shows that its interpretation is wrong.

The panel identified 8 U.S.C. § 1225(a)(3), which provides that

“[a]ll aliens (including alien crewmen) who are applicants for

admission or otherwise seeking admission or readmission to or

transit through the United States shall be inspected by immigration

officers.” The government argues that § 1225(a)(3) supports its

interpretation of the detention provision because the language

“applicants for admission or otherwise seeking admission” indicates

that applicants for admission are a subset of those who are seeking

admission. And that means that applicants for admission are

necessarily seeking admission.

The panel acknowledged that “the government is correct that

‘or otherwise’ can sometimes mean ‘in a different way or manner.’”

Barbosa da Cunha, 175 F.4th at 78. When the librarian says not to

“engage in loud conversation or otherwise disrupt the library

atmosphere,” she has identified loud conversation as one way to

disrupt the library atmosphere. But the panel said that the same

phrase “can also simply ‘refer to something that is different from

something already mentioned.’” 8 The online dictionary on which the

panel relied gives this example: “Intentionally or otherwise, they never told her about the party.” That sentence conveys that they never told

her about the party either intentionally or in another way that was not intentional—such as accidentally or unwittingly.

The panel decided that § 1225(a)(3) reflects the latter

disjunctive usage based on its own question-begging assertion that

“‘applicant for admission’ is not narrower or more specific than ‘alien seeking admission.’” Barbosa da Cunha, 175 F.4th at 79. The panel

concluded that § 1225(a)(3) “applies to applicants for admission, and

also applies to three further categories of noncitizens, which may

overlap with but are not the same as ‘applicant for admission.’” Id.

at 80. But the concession that the categories overlap undermines the

panel’s argument. If the categories overlap, then it cannot be said that the statute uses the phrase “or otherwise” to “refer to something that is different” from being an applicant for admission. Id. at 78. If what follows “or otherwise” overlaps with what precedes it, then the

8Barbosa da Cunha, 175 F.4th at 78 (quoting Or otherwise, Merriam-Webster Online, https://perma.cc/9F9H-PH6Q).

phrase is being used in the conjunctive sense to refer to a “subsetsuperset” relationship. Id. 9

In fact, a subset-superset relationship is exactly what

§ 1225(a)(3) describes. The panel was wrong that “applicant for

admission” is a more “general” term than the “more specific”

category of “seeking admission.” Id. at 79-80. Even circuits that have ultimately agreed with the panel recognize that “a non-applicant for

admission may nevertheless be seeking admission.” Lopez-Campos,

175 F.4th at 727. An “arriving alien who is a stowaway,” for example,

“is not eligible to apply for admission” and “[i]n no case may a

stowaway be considered an applicant for admission.” 8 U.S.C.

§ 1225(a)(2). But such an alien may nevertheless be “otherwise

seeking admission,” in which case he must be inspected by an

immigration officer pursuant to § 1225(a)(3) and will be determined

to be inadmissible. See id. § 1182(a)(6)(D); 8 C.F.R. § 235.1(f)(4).

The same goes for alien crewmen. With the passage of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), the Immigration and Naturalization Service recognized

that § 1225(a)(3) “now clearly requires the inspection of all alien

crewmen seeking admission or readmission to or transit through the

United States.” 10 An arriving alien crewman must be inspected

9 Moreover, the panel’s interpretation renders the word “otherwise”

superfluous. “[T]he same reading would be accomplished if the statute

simply read ‘who are applicants for admission or seeking admission.’”

Guerrero Orellana, 2026 WL 2352042, at *22 (Dunlap, J., dissenting). “It is our duty ‘to give effect, if possible, to every clause and word of a statute.’” United States v. Menasche, 348 U.S. 528, 538-39 (1955) (quoting Inhabitants of Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)).

10 Inspection of Alien Crewmembers; 90-Day Modified Inspection

Procedure, 62 Fed. Reg. 43676, 43677 (Aug. 15, 1997).

pursuant to § 1225(a)(3) and must be determined to be “admissible.”

8 U.S.C. § 1282(a); see also 8 C.F.R. § 252.1(c) (explaining that an alien crewman must “establish to the satisfaction of the inspecting officer

that he or she is not inadmissible under any provision of the law”); id. § 252.3(b)(2) (describing an alien crewman who “[s]eeks admission

for a period of less than 29 days”). If the alien crewman receives a

conditional permit to land temporarily in the United States, the

immigration officer endorses a form “to show the date and place of

admission and the type of conditional landing permit.” Id. § 252.1(e)

(emphasis added). But although the alien crewman is seeking

admission in the form of such a permit, he is not an applicant for

admission because an alien “permitted to land temporarily as an alien

crewman shall not be considered to have been admitted.” 8 U.S.C.

§ 1101(a)(13)(B). So by applying for the permit, the alien is not an

applicant for admission. But such an alien must be inspected because

he is otherwise seeking admission.

A similar framework applies to a lawful permanent resident

under some circumstances. “An alien lawfully admitted for

permanent residence in the United States” will generally “not be

regarded as seeking an admission into the United States for purposes

of the immigration laws.” Id. § 1101(a)(13)(C). But he becomes

regarded as seeking admission if, for example, he “has been absent

from the United States for a continuous period in excess of 180 days”

or “has engaged in illegal activity after having departed the United

States.” Id. § 1101(a)(13)(C)(ii)-(iii). Those “lawful permanent

residents who fall under any of 8 U.S.C. § 1101(a)(13)(C)’s

scenarios … are not ‘applicants for admission’ but may still ‘seek

admission’ in [those] circumstances.” Lopez-Campos, 175 F.4th at 727.

The alien who has already been admitted for permanent residence but

is treated as seeking admission is not an applicant for admission. But

he must be inspected as an alien “otherwise seeking admission” and

must be determined to be admissible before reentering the country.

8 U.S.C. § 1225(a)(3).

The conclusion of the panel that applicants for admission are

not a subset of those aliens seeking admission was based on its own

linguistic assumptions rather than the legal framework of the INA.

The treatment of stowaways and crewmen in § 1225 itself illustrates

the point. Most aliens seeking admission will be applicants for

admission, but not every alien seeking admission is such an applicant. That is why the INA refers to aliens “who are applicants for admission or otherwise seeking admission.” Id. Applicants for admission are a

subset of aliens seeking admission.

The panel suggested that the government’s reading of the

detention provision creates a superfluity problem by understanding

the phrases “applicant for admission” and “seeking admission” each

to refer to the same category of people. See Barbosa da Cunha, 175 F.4th at 75. As just explained, the two terms are not coextensive because

some aliens are seeking admission without being applicants for

admission. To the extent that the detention provision applies to an

“alien seeking admission” only “in the case of an alien who is an

applicant for admission,” however, the combination of the two terms

creates some redundancy. Yet “that redundancy does not give this

court a ‘license to rewrite another portion of the statute contrary to its text.’” Buenrostro-Mendez, 166 F.4th at 503 (alteration omitted)

(quoting Barton v. Barr, 590 U.S. 222, 239 (2020)).

In fact, “there is ‘no canon of interpretation that forbids

interpreting different words used in different parts of the same statute to mean roughly the same thing.’” Id. (quoting Jennings, 583 U.S. at

303). And the exceptions to the detention provision “illustrate that

this particular statute was drafted with redundancy from the start.”

Hernandez Alvarez, 175 F.4th at 1296 (Lagoa, J., dissenting). For

example, § 1225(b)(2)(B)(iii) provides that the detention provision

“shall not apply” to an alien “who is a stowaway.” 8 U.S.C.

§ 1225(b)(2)(B)(iii). Earlier in the same section, however, the statute provides that “[i]n no case may a stowaway be considered an

applicant for admission.” Id. § 1225(a)(2). Because the detention

provision applies only “in the case of an alien who is an applicant for admission,” id. § 1225(b)(2)(A), it could not apply to a stowaway even without the express exception of § 1225(b)(2)(B)(iii). But Congress

inserted that express exception anyway. And Congress inserted

another express exception for an alien “who is a crewman,” id.

§ 1225(b)(2)(B)(i), even though a crewman is not an applicant for

admission either, see supra Part I-D-1.

These express exceptions create redundancy because the

exceptions overlap with categories of aliens already excluded from

the category of “applicants for admission.” But “some overlap is

common in laws of this kind that set forth qualifications to obtain a

government benefit” or indeed to obtain entry to the United States.

Loving v. IRS, 742 F.3d 1013, 1019 (D.C. Cir. 2014) (Kavanaugh, J.).

Legislators “sometimes employ overlap or redundancy so as to

remove any doubt and make doubly sure” who will be entitled to

what. Id. The Supreme Court has explained that “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,” and the Court “has often recognized:

‘Sometimes the better overall reading of the statute contains some

redundancy.’” Barton, 590 U.S. at 239 (quoting Rimini St., Inc. v. Oracle USA, Inc., 586 U.S. 334, 346 (2019)). 11

Even so, the panel’s interpretation “creates a far worse

surplusage problem than the one it purports to solve.” Hernandez

Alvarez, 175 F.4th at 1296 (Lagoa, J., dissenting). At the outset of

§ 1225, Congress inserted the deeming provision of § 1225(a)(1) to

provide that an unadmitted illegal alien “shall be deemed for

purposes of this chapter an applicant for admission.” 8 U.S.C.

§ 1225(a)(1). According to the panel’s interpretation, however,

Congress proceeded to insert the phrase “seeking admission”

throughout § 1225 in order to ensure that unadmitted illegal aliens

would be excluded from every operative provision in § 1225 in which

the phrase “applicant for admission” appears.

There are two such provisions in § 1225. First, the statute directs

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.” Id. § 1225(a)(5) (emphasis added). According to the

reasoning of the panel, this provision would not apply to a

constructive applicant for admission. Because the unadmitted illegal

11 See also Cirrus Rojas, 183 F.4th at 935 (Sykes, J., dissenting) (“[W]hen an old and complex statute like the INA has been repeatedly amended and is riddled with legal fictions, terms of art, and redundancies, incongruities are sure to exist. As Judge Learned Hand said a century ago, our immigration laws are ‘so confused, contradictory, minute, and manifold’ that they

‘inevitably produce such caprices.’”) (alteration omitted) (quoting United States ex rel. Georgas v. Day, 43 F.2d 917, 919 (2d Cir. 1930)).

alien is not actually seeking admission, he would not need to provide

information about doing so under oath. 12

Second, the statute directs that “[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

[removal] proceeding.” 8 U.S.C. § 1225(b)(2)(A) (emphasis added).

According to the panel, this provision also does not apply because the unadmitted illegal alien is not seeking admission. But if neither of these provisions applies, then no provision of § 1225 applies to an

unadmitted illegal alien who is a constructive applicant for

admission. It would make no sense for Congress to have opened that

section by announcing that such aliens must be treated as applicants

for admission and then to write operative provisions that never apply

to them.

It is true that the term applicant for admission—without an

accompanying seeking admission—“appears once in § 1229a, in

§ 1229a(c)(2), to define the burden applicants for admission bear in

removal proceedings.” Buenrostro-Mendez, 166 F.4th at 504 n.10. “But

if this is the only reason ‘applicant for admission’ extends beyond

‘arriving aliens,’ then why would Congress not merely specify in

[§ 1229a(c)(2)] that the provision applies to both arriving aliens and those already present?” Id. It is “a bizarre construction” under which “Congress established a broad definition [of ‘applicant for

12 The provision also undermines the panel’s interpretation because in § 1225(a)(5) “Congress used the phrase ‘seeking admission’ simply to

describe the state of an applicant.” Buele Morocho, 2026 WL 2546223, at *18 (Mascott, J., dissenting). This provision clearly does not describe “[a]liens ‘seeking admission’” as a “subset standing apart from a broader applicant class.” Id.

admission’] in § 1225 but, despite repeatedly using the term in § 1225, used the full breadth of the definition only in a corollary provision in a completely independent section of the code.” Id. We must reject

such a bizarre construction in favor of a sensible one “because it is our role to make sense rather than nonsense out of the corpus juris.” W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 101 (1991) (Scalia, J.).

The more sensible view is that the detention provision—just as

it uses the redundant phrase “not clearly and beyond a doubt”—

“describes the same alien twice: once using the operative term in the

introductory clause and once using ordinary English in the operative

clause. That is a doublet, not surplusage.” Hernandez Alvarez, 175 F.4th at 1296 (Lagoa, J., dissenting). A doublet reflects “two ways of saying the same thing that reinforce its meaning,” and “the presumption

against surplusage does not apply to doublets.” Doe v. Boland, 698

F.3d 877, 881 (6th Cir. 2012) (Sutton, J.). “Doublet redundancy in a

single sentence is a minor interpretive cost,” while “[n]ullifying the reach of a deeming provision across an entire statutory section is not.” Hernandez Alvarez, 175 F.4th at 1297 (Lagoa, J., dissenting). That

explanation is preferable to the interpretation of the panel under

which the deeming provision serves no meaningful purpose and the

reference to an “applicant for admission” in the detention provision

“ultimately is surplusage.” Buele Morocho, 2026 WL 2546223, at *17

(Mascott, J., dissenting).

The panel asserted that “the Supreme Court has long

understood IIRIRA exactly how Petitioner does.” Barbosa da Cunha,

175 F.4th at 84 (citing Jennings, 583 U.S. at 287). That would be big

news if it were true. After all, “vertical stare decisis is absolute” and would preclude alternative views from the circuit courts. Ramos v.

Louisiana, 590 U.S. 83, 124 n.5 (2020) (Kavanaugh, J., concurring in

part). But it is not true. The Supreme Court has not addressed the

question in this case, which is why there is a circuit split.

In Jennings, the Supreme Court observed that “at the Nation’s

borders and ports of entry,” the government “must determine

whether an alien seeking to enter the country is admissible.” Jennings, 583 U.S. at 287. The Court then described the statutory scheme. It

noted that “an alien who ‘arrives in the United States,’ or ‘is present’ in this country but ‘has not been admitted,’ is treated as ‘an applicant for admission,’” id. (quoting 8 U.S.C. § 1225(a)(1)), and that

“[a]pplicants for admission must ‘be inspected by immigration

officers’ to ensure that they may be admitted into the country

consistent with U.S. immigration law,” id. (quoting 8 U.S.C.

§ 1225(a)(3)). Later on, the Court wrote that “immigration law

authorizes the Government to detain certain aliens seeking admission

into the country under §§ 1225(b)(1) and (b)(2)” and that “[i]t also

authorizes the Government to detain certain aliens already in the

country pending the outcome of removal proceedings under

§§ 1226(a) and (c).” Id. at 289. Based on this language, the panel

concluded that the Supreme Court has already held that § 1225

governs the detention of aliens at the border and § 1226 governs the

detention of aliens already inside the country.

The Supreme Court has “cautioned that ‘general language in

judicial opinions should be read as referring in context to

circumstances similar to the circumstances then before the Court and

not referring to quite different circumstances that the Court was not

then considering.’” Olivier v. City of Brandon, 607 U.S. 552, 565 (2026) (quoting Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264, 278 (2023)). And in Jennings the Supreme Court was not considering the

application of § 1225 to constructive applicants for admission.

Even so, nothing in Jennings supports the panel’s interpretation.

The Supreme Court said that the government may “detain certain

aliens seeking admission into the country under §§ 1225(b)(1) and

(b)(2)” and may “detain certain aliens already in the country pending

the outcome of removal proceedings under §§ 1226(a) and (c).”

Jennings, 583 U.S. at 289. That description is entirely consistent with the view that the category of “aliens seeking admission” includes not

only arriving aliens at the border but also those unadmitted aliens

who are constructively treated as applicants for admission—in the

same way as arriving aliens—because they have not been admitted.

Those applicants for admission are also “aliens seeking admission.”

Only the panel’s question-begging assumption that an applicant for

admission is not seeking admission could lead to the conclusion that

Jennings endorses its interpretation.

In fact, Jennings undermines the panel’s argument. The

Supreme Court said that the detention provision of § 1225(b)(2)

“serves as a catchall provision that applies to all applicants for

admission not covered by § 1225(b)(1).” Id. at 287 (emphasis added).

The panel agrees that Barbosa da Cunha is (1) an applicant for

admission and (2) not covered by § 1225(b)(1), which applies to

“aliens arriving in the United States,” 8 U.S.C. § 1225(b)(1), and to

unadmitted illegal aliens who have been continuously present for less

than two years, see id. § 1225(b)(1)(A)(iii)(II). The Jennings opinion therefore anticipates that an applicant for admission such as Barbosa

da Cunha must fall under the “catchall provision” of § 1225(b)(2)

because he is not covered by § 1225(b)(1). The Supreme Court in

Jennings explained that “applicants for admission fall into one of two

categories, those covered by § 1225(b)(1) and those covered by

§ 1225(b)(2).” Jennings, 583 U.S. at 287. 13

The panel assumed that the distinction was that § 1225 applies

to aliens at the border and § 1226 applies to aliens already inside the country. But the INA relies instead on the distinction between

unadmitted aliens—whether or not inside the country—and admitted

aliens. We know that § 1226(a) and § 1226(c) do not apply to all aliens who are already in the country. An alien might be paroled into the

country, for example, but “parole of such alien shall not be regarded

as an admission.” 8 U.S.C. § 1182(d)(5)(A). The paroled alien,

although inside the country, remains an applicant for admission and

may later be detained pursuant to § 1225. The Court recognized as

much in Jennings. See Jennings, 583 U.S. at 288 (explaining that “when the purpose of the parole has been served, ‘the alien shall forthwith

return or be returned to the custody from which he was paroled and

thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States’”)

(quoting 8 U.S.C. § 1182(d)(5)(A)). Rather than endorsing the

interpretation of the panel, Jennings relied on the key distinction

between unadmitted and admitted aliens. 14

13 The Jennings approach under which all applicants for admission are

covered by § 1225 makes much more sense than the panel’s approach under which (1) only two types of applicants for admission—arriving aliens

and unadmitted illegal aliens who have been present for less than two

years—are covered by § 1225, and (2) a third type of applicants for

admission—unadmitted illegal aliens who have been present for two years or more—is not covered by § 1225 at all but falls under § 1226.

14The Immigration and Naturalization Service estimated that “[a]bout 2.1 million, or 41 percent, of the total undocumented population in 1996 are nonimmigrant overstays. That is, they entered legally on a temporary basis and failed to depart.” Immigration and Naturalization Service, U.S.

The panel claimed that “the Executive Branch has for nearly

three decades acted inconsistently with the newfound interpretation”

that it advanced in this case. Barbosa da Cunha, 175 F.4th at 91. I agree that while we must “exercise independent judgment in determining

the meaning of statutory provisions,” in exercising that judgment

“interpretations issued contemporaneously with the statute at issue,

and which have remained consistent over time, may be especially

useful in determining the statute’s meaning.” Loper Bright, 603 U.S. at 394. 15

At the same time, “a ‘long-established practice’ does not justify

a rule that denies statutory text its fairest reading.” Armstrong v.

Exceptional Child Ctr., Inc., 575 U.S. 320, 329 (2015). The panel

acknowledged that principle by stating that “[i]f judges could add to, remodel, update, or detract from old statutory terms inspired only by

extratextual sources and our own imaginations, we would risk

amending statutes outside the legislative process reserved for the

people’s representatives.” Barbosa da Cunha, 175 F.4th at 96 (quoting

Bostock v. Clayton County, 590 U.S. 644, 654-55 (2020)). In Bostock, the

Department of Justice, Illegal Alien Resident Population (last modified Aug. 11, 1999), https://perma.cc/QV9N-FP73. So the population of admitted illegal aliens was significant when Congress revised these statutes—which meant that the detention authority of § 1226 would apply to a large

population not covered by § 1225. See Chen v. Almodovar, No. 25-CV-9670, 2026 WL 100761, at *4 (S.D.N.Y. Jan. 14, 2026) (identifying the categories of aliens subject to § 1225(b)(1), § 1225(b)(2), § 1226(a), and § 1226(c)). 15 See also Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 916 (2017) (“Under the traditional

interpretive approach, American courts ‘respected’ longstanding and

contemporaneous executive interpretations of law as part of a practice of deferring to longstanding and contemporaneous interpretation generally.”).

Supreme Court “did not hesitate to reject what had been the decadesold agency and judicial view of Title VII when it held that the text

unambiguously covered sexual-orientation discrimination.” LopezCampos, 175 F.4th at 758 (Murphy, J., dissenting). So a longstanding

executive branch interpretation is not always decisive.

In this case, however, the evidence on which the panel relied

does not establish that the executive branch previously maintained a

longstanding interpretation contrary to the view that an unadmitted

illegal alien is subject to detention under § 1225(b)(2). The panel

opinion quoted a sentence from the agency responses to comments

when the Immigration and Naturalization Service promulgated an

interim rule in 1997. In that sentence, the INS wrote: “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.” 16 Because the INS wrote that an unadmitted illegal

alien will be eligible for bond, the panel concluded that the INS must have understood unadmitted illegal aliens to be detained pursuant to

the discretionary detention provision of § 1226(a) rather than the

mandatory detention provision of § 1225(b)(2).

But that conclusion contradicts the actual rule that the INS

adopted. Under § 1225(b)(1)(A)(iii), the Attorney General has the

discretion to subject to the expedited removal procedures of

§ 1225(b)(1) an alien “who has not been admitted or paroled into the

United States”—that is, an unadmitted illegal alien—who has not

shown that he has been “physically present in the United States

16Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997).

continuously for the 2-year period” prior to a determination of

inadmissibility. 8 U.S.C. § 1225(b)(1)(A)(iii)(II). The Attorney General exercised that discretion in the rule on which the panel relied. The

rule stated that aliens who “have entered the United States without

having been admitted or paroled”—that is, unadmitted illegal

aliens—“who have not established to the satisfaction of the

immigration officer that they have been physically present in the

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

the date of determination of inadmissibility” will be subject to “the

provisions of section 235(b)(1) of the Act.” 62 Fed. Reg. at 10355.

Section 235(b)(1) of the INA is the expedited removal provision

codified at 8 U.S.C. § 1225(b)(1). Then the rule continued:

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 the 2-year period immediately prior to the date

of determination of inadmissibility shall be detained in

accordance with section 235(b)(2) of the Act for a proceeding

under section 240 of the Act.

Id. (emphasis added). Section 235(b)(2) of the INA is the detention

provision of § 1225(b)(2). So this is a contemporaneous interpretation of the government—issued when the detention provision was

adopted—stating that an unadmitted illegal alien is subject either to

expedited removal under § 1225(b)(1) or to the detention provision of

§ 1225(b)(2). See Jennings, 583 U.S. at 287 (“[A]pplicants for admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2).”). And this remains the interpretation of the executive branch. The current regulation continues to provide that an

unadmitted illegal alien is either subject to expedited removal or

“shall be detained” pending removal proceedings “in accordance

with” § 1225(b)(2). 8 C.F.R. § 235.3(b)(1)(ii). Thus, the “regulation

enacted in 1997 that is still on the books today provides the same

interpretation of § 1225(b)(2)(A) for which the government advocates,” providing “further evidence of the executive branch’s

original understanding of IIRIRA.” Rodriguez Vazquez, 183 F.4th at

1200 (Bea, J., dissenting). The understanding the executive branch

expressed in 1996 is consistent with its position in 2026.

The panel assumed that because an unadmitted illegal alien

received a bond hearing, the government must have understood the

alien to be detained pursuant to § 1226(a) rather than § 1225(b)(2). But the contemporaneous interpretation on which the panel relied said

the opposite: An unadmitted illegal alien is subject either to expedited removal under § 1225(b)(1) or to detention pending removal

proceedings under the detention provision of § 1225(b)(2).

What to make of the sentence in the commentary accompanying the 1997 interim rule stating that unadmitted illegal

aliens “will be eligible for bond and bond redetermination”? Perhaps

the government was exercising a type of enforcement discretion

because it lacked the resources to mandatorily detain every alien

subject to § 1225(b)(2). Both the executive branch and the Supreme

Court have recognized that “[d]ue to consistent and significant

funding shortfalls, … DHS has never had ‘sufficient detention

capacity to maintain in custody every single person described in

section 1225.’” 17 The government’s “enforcement discretion over

arrests and prosecutions extends to the immigration context,” United

States v. Texas, 599 U.S. 670, 679 (2023), and the Supreme Court has

approved the exercise of such enforcement discretion even when a

17 Biden v. Texas, 597 U.S. 785, 792 (2022) (quoting DHS, Explanation of the Decision to Terminate the Migrant Protection Protocols 28 (Oct. 29, 2021), https://perma.cc/YY2P-EM88).

statute uses mandatory language such as “shall,” id. at 682. The

Supreme Court has expressly reserved judgment on “whether the

detention requirement in section 1225(b)(2)(A) is subject to principles of law enforcement discretion,” and the government has previously

argued that it is. Biden, 597 U.S. at 803 n.5.

That question is not before us in this case, which concerns

whether an unadmitted illegal alien is subject to the detention

provision of § 1225(b)(2) in the first place. The point here is that the government’s previous exercise of enforcement discretion is not

probative of the meaning of § 1225(b)(2). The panel believed that by

stating that an unadmitted illegal alien may receive a bond hearing,

the government had interpreted § 1225(b)(2) not to apply to such an

alien. But the panel failed to read the actual rule on which it relied, which expressly stated that an unadmitted illegal alien—because he

is an applicant for admission—is subject to detention under

§ 1225(b)(2).

To justify its counterintuitive reading of the detention

provision, the panel invoked the canon of constitutional avoidance.

Pursuant to the canon, “[w]hen ‘a serious doubt’ is raised about the

constitutionality of an Act of Congress, ‘it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’” Jennings, 583

U.S. at 296 (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). The panel explained that “even if there were ambiguity in the statutory text, we would reject the government’s interpretation because of the grave

constitutional concerns it raises.” Barbosa da Cunha, 175 F.4th at 93.

The panel said that the government’s interpretation raises

“constitutional alarms” for three reasons. Id. at 94. First, “[w]hile

noncitizens can be detained temporarily to ‘give immigration officials time to determine an alien’s status without running the risk of the

alien’s either absconding or engaging in criminal activity,’ that is not what is going on here, where detention is mandatory regardless of

these risks.” Id. (alteration and citation omitted) (quoting Jennings, 583 U.S. at 286). The panel saw “no basis for subjecting all noncitizens in Petitioner’s shoes to categorical detention without bond.” Id. Second, “[t]he government’s interpretation would also likely subject

Petitioner to unconstitutionally prolonged detention” because his

removal proceedings could take a long time. Id. Third, “[t]hese

concerns are compounded by the fact that noncitizens have no right

to counsel and are therefore often unrepresented in removal

proceedings. Unlike criminals detained for punitive purposes,

noncitizens like Petitioner thus lack the ability to reliably challenge their detention or the conditions in which they are being held.” Id.

(citation omitted).

None of these points reflects plausible constitutional violations.

I will address the panel’s concerns in reverse order. First, “[i]t is well known that immigrants in this country ‘have no specific right to

counsel’ in immigration proceedings, even for life-altering proceedings such as detention and removal.” Watson v. United States,

865 F.3d 123, 136 (2d Cir. 2017) (Katzman, C.J., concurring in part and dissenting in part) (quoting Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008)). The panel did not and could not say otherwise. But the panel

invented a quasi-right to counsel by suggesting that the lack of

counsel could “compound[]” other constitutional concerns. Even

taken on its own terms, the panel opinion said that the lack of a right to counsel was relevant only insofar as there are other actual

constitutional concerns with the government’s interpretation. But

there are no actual concerns.

Second, to support its view that the government’s

interpretation would subject Barbosa da Cunha to unconstitutionally

prolonged detention, the panel invoked Demore v. Kim. In Demore, the

Supreme Court said that detention pursuant to § 1226(c)—another

mandatory detention provision of the INA—“lasts roughly a month

and a half in the vast majority of cases in which [§ 1226(c)] is invoked, and about five months in the minority of cases in which the alien

chooses to appeal.” 538 U.S. 510, 530 (2003). As the panel noted, “[t]he Court explained that proceedings against ‘criminal aliens’ are

typically completed so swiftly because they are prioritized by the

Agency over the mine run of removal cases.” Barbosa da Cunha,

175 F.4th at 95 (quoting Demore, 538 U.S. at 530 n.13). The panel then speculated that “[i]f the government is right that Section 1225(b)(2)(A) mandates detention of millions of non-criminal noncitizens, there is

no reason to think that removal can be completed so swiftly for all or even most of those detained.” Id. To support that speculation, the

panel cited the finding of the Vera Institute of Justice that “the average wait time today for an initial decision in removal proceedings is more than two years.” Id. at 95 n.12. 18

There are three problems with the panel’s analysis. The first

problem is that the statistic on which the panel relied is misleading. The government maintains a priority calendar for detained aliens, so

the time to completion of removal proceedings for detained aliens is

significantly shorter than for non-detained aliens. “Since its creation in 1983,” the Executive Office for Immigration Review “has prioritized

all cases involving individuals in detention or custody, regardless of

18 The Vera Institute of Justice is a think tank that aims “[t]o end the criminalization and mass incarceration of people of color, immigrants, and people experiencing poverty.” Vera Institute of Justice, About Us,

https://perma.cc/UP9T-FVJJ.

the custodian.” 19 EOIR maintains “a performance metric” for

immigration adjudicators “that ‘ninety-five percent (95%) of all nonstatus detained removal cases should be completed within 60 days of

filing of the Notice to Appear (NTA), reopening or recalendaring of

the case, remand from the Board of Immigration Appeals (BIA), or

notification of detention.’” 20 And a report of the Government

Accountability Office “records the actual ‘median number of days

from case start to initial completion’ for detained aliens for fiscal years 2016 through 2023. In 2023 it was 47 days; in 2022 it was 50 days; in

2021 it was 50 days; in 2020 it was 92 days; in 2019 it was 52 days; in 2018 it was 39 days; and in 2017 it was 40 days.” 21

As in Demore, the government prioritizes removal proceedings

for detained aliens. So there is the same reason to believe that such an alien will be detained for only a “limited period.” Demore, 538 U.S. at 526. If in the future the government were unable to maintain its

priority calendar, that could be the subject of a future as-applied

challenge to determine whether and to what extent the administrative

changes presented a constitutional problem. But a federal court

cannot invent a constitutional violation based on speculation that the government might not be able to meet the metrics it has met until

19 Mahdawi v. Trump, 183 F.4th 103, 134 (2d Cir. 2026) (Menashi, J.,

concurring) (quoting Executive Office for Immigration Review, U.S.

Department of Justice, PM 25-47: Case Priorities and Immigration Court Performance Measures at 2 (Sept. 12, 2025), https://perma.cc/K99B-Z2B9). 20Id. (alteration omitted) (quoting Executive Office for Immigration

Review, supra note 19, at 7).

21 Id. (alteration and footnote omitted) (quoting Government

Accountability Office, GAO-25-106867: Immigration Courts: Actions

Needed to Track and Report Noncitizens’ Hearing Appearances (Dec. 19,

2024), https://perma.cc/7CWR-3A7N).

now. “A federal court does not sit to render a decision on hypothetical facts,” Wheeler v. Barrera, 417 U.S. 402, 426-27 (1974), because

“conjectural results are too remote and uncertain to furnish materials for judicial determination,” Chadwick v. Kelly, 187 U.S. 540, 547 (1903).

The second problem is that the panel misunderstood the

holding of Demore. The Supreme Court has explained why the

detention in Demore raised no constitutional concerns while the

detention it previously considered in Zadvydas v. Davis, 533 U.S. 678

(2001), did raise such concerns:

In Demore v. Kim, we distinguished § 1226(c) from the

statutory provision in Zadvydas by pointing out that

detention under § 1226(c) has “a definite termination

point”: the conclusion of removal proceedings. As we

made clear there, that “definite termination point”—and

not some arbitrary time limit devised by courts—marks

the end of the Government’s detention authority under

§ 1226(c).

Jennings, 583 U.S. at 304 (citation omitted) (quoting Demore, 538 U.S. at 529). In Demore, the Court acknowledged that an indefinite detention may raise constitutional concerns, but it held that the detention in that case was permissible precisely because a detention under § 1226(c) is

neither “indefinite” nor “potentially permanent.” 538 U.S. at 528

(quoting Zadvydas, 533 U.S. at 690-91). The fact that a § 1226(c)

detention has “a definite termination point” made it “materially

different” from the sort of detention that raised constitutional

concerns in Zadvydas. Id. at 528-29. Indeed, Zadvydas itself recognized the distinction. The Court distinguished the provision at issue in that case from § 1226(c) based on the indefiniteness of the detention:

“[I]mportantly,” said the Court, “post-removal-period detention,

unlike detention pending a determination of removability or during the

subsequent 90-day removal period, has no obvious termination

point.” Zadvydas, 533 U.S. at 697 (emphasis added).

The panel sought to recast Demore as if it announced a

constitutional rule based on the length of an immigration detention.

The Court in Demore expressly held, however, that a mandatory

detention pending removal proceedings is constitutional because

such a detention is not “indefinite” but has a “definite termination

point.” 538 U.S. at 529. The decisions of the Supreme Court

consistently reflect the view that “[t]he indefiniteness of the

detention—not its mere length—implicate[s] the Due Process

Clause.” Black v. Almodovar, 156 F.4th 171, 183 (2d Cir. 2025) (Menashi, J., dissenting from the denial of rehearing en banc).

The detention provision in this case, § 1225(b)(2), authorizes

detention only pending removal proceedings. Like the mandatory

detention pending removal proceedings at issue in Demore, a

detention under § 1225(b)(2) has a “definite termination point.”

Demore, 538 U.S. at 529. The holding of Demore—that mandatory

detention pending removal proceedings creates no constitutional

problem—resolves any challenge to a detention under § 1225(b)(2).

The third problem is that our circuit’s case law has already

addressed what happens when a mandatory detention pending

removal proceedings becomes “unreasonably prolonged.” Black v.

Decker, 103 F.4th 133, 138 (2d Cir. 2024). Even assuming that our court has taken the correct side of a circuit split, 22 our court did not purport to hold that mandatory detention pending removal proceedings

pursuant to § 1226(c) by itself raised constitutional concerns. “Far

22 But see Genalo v. Black, No. 25-886, 2026 WL 1718025 (U.S. June 15, 2026) (granting certiorari on the question), appeal dismissed per stipulation, 2026 WL 2752021 (U.S. Sept. 16, 2026).

from invalidating § 1226(c) and upending its policy of mandatory

detention, the Black panel held that, as a remedy for an as-applied

challenge to unreasonably prolonged detention, a district court

properly ordered the government to justify an individual petitioner’s

continued § 1226(c) detention at a bond hearing.” Black, 156 F.4th at

192 (Chin & Carney, JJ., statement in support of the denial of

rehearing en banc) (internal quotation marks, emphasis, and citations

omitted).

Our court did not say that the mandatory detention statute was

unconstitutional. Rather, our court held that the remedy of a bond

hearing is available in an as-applied challenge once a specific

detention has become unreasonably prolonged. See Mahdawi,

183 F.4th at 121 (“[I]n the event that removal proceedings involving a detained individual are unreasonably prolonged, this Court’s

precedent provides that a petitioner may file a habeas petition and

challenge his detention ‘on the ground that it has reached an

unreasonable length.’”) (alteration and footnote omitted) (quoting

Velasco Lopez v. Decker, 978 F.3d 842, 852 (2d Cir. 2020)). The

availability of this as-applied remedy should lessen the purported

constitutional concerns with a mandatory detention statute. But the

panel in this case went further than our court did in Black or Velasco Lopez to hold that a mandatory detention provision, on its face,

“sounds constitutional alarms” based on the mere possibility that it

might someday authorize lengthy detentions. Barbosa da Cunha, 175

F.4th at 94.

Third, the panel said that a statute that subjects aliens such as

Barbosa da Cunha to “categorical detention without bond” would

violate the Constitution because Barbosa da Cunha, “like many

unlawfully present noncitizens, presents no risk of flight nor any

danger to the community.” Id. Such a statute would apparently “raise

serious constitutional questions, especially because the government

has failed to explain how it would bear a ‘reasonable relation’ to any legitimate, non-punitive purpose.” Id. at 95 (quoting Zadvydas, 533

U.S. at 690).

This argument proves too much. The panel did not dispute that

if Barbosa da Cunha arrived at the border and presented himself for

inspection, the government would properly detain him pursuant to

§ 1225(b)(2). See, e.g., Abdyl-Salam v. Blanche, No. 26-CV-1132, 2026 WL 2030067, at *2 (W.D.N.Y. July 13, 2026) (concluding that even under

Barbosa da Cunha “aliens who were encountered at or near the border”

are detained pursuant to § 1225(b)(2)). And if Barbosa da Cunha—in

addition to being a constructive applicant for admission based on his

illegal presence—became an actual applicant for admission by

seeking an adjustment of status, the government also could detain

him pursuant to § 1225(b)(2). But in neither of these circumstances

would the government be required to establish a risk of flight or

danger to the community. If the arriving alien or the literal applicant may permissibly be detained—without a showing that he is a flight

risk or dangerous—then what makes the detention of an unadmitted

illegal alien uniquely illegitimate and punitive?

Underlying the panel opinion is the suspicion that § 1225(b)(2)

is facially unconstitutional. The panel argued that “[w]hatever the

duration of detention, it must still serve its purported immigration

purpose, which must outweigh the individual’s constitutionally

protected interest in avoiding physical restraint.” Barbosa da Cunha,

175 F.4th at 94-95 (internal quotation marks, alteration, and citation omitted). The panel concluded that “[i]n Demore, that justification was satisfied because Section 1226(c) applies only to ‘criminal aliens.’” Id. at 95 (citing Demore, 538 U.S. at 517-23). But § 1225(b)(2) does not

apply only to criminal aliens, and there is no way to read that statute

to so limit its scope. Based on the logic of the panel opinion, therefore, § 1225(b)(2) is unconstitutional.

That is an extraordinary suggestion—and it is obviously

incorrect. “Detention during removal proceedings is a constitutionally permissible part of that process.” Demore, 538 U.S. at 531. Congress may constitutionally require the continued detention

of an alien pending removal proceedings even when the government

has “made no determination that [an individual alien] posed either a

danger to society or a flight risk.” Id. at 514. The government may

“deny bail to the detainees ‘by reference to the legislative scheme’

even without any finding of flight risk.” Id. at 524 (quoting Carlson v. Landon, 342 U.S. 524, 543 (1952)). The “Court’s longstanding view” is

“that the Government may constitutionally detain deportable aliens

during the limited period necessary for their removal proceedings.”

Id. at 526. Congress does not need to mandate individualized

determinations to conclude that such detention prevents those aliens

“from fleeing prior to or during their removal proceedings.” Id. at 528. The panel might prefer even more individualized hearings than the

current immigration framework allows, but the Supreme Court has

“emphasized that ‘reasonable presumptions and generic rules,’ even

when made by the [executive branch] rather than Congress, are not

necessarily impermissible exercises of Congress’ traditional power to

legislate with respect to aliens.” Id. at 526 (quoting Reno v. Flores, 507 U.S. 292, 313 (1993)).

The panel failed to establish a plausible constitutional concern

with the government’s interpretation of § 1225(b)(2) because (1) an

alien has no constitutional right to counsel in immigration

proceedings, (2) neither empirical evidence nor the statute itself

suggests that a detention pending removal proceedings will be

unreasonably prolonged, and in any event our court has addressed

such a possibility through as-applied challenges, and (3) it is

constitutional for Congress to require the detention of deportable

aliens pending removal proceedings without individualized determinations of dangerousness or risk of flight.

The second basic error of the panel was to exercise habeas

jurisdiction over this case. Barbosa da Cunha filed a habeas petition

in the district court pursuant to 28 U.S.C. § 2241. See Barbosa da Cunha v. Freden, No. 25-CV-6532, 2025 WL 3280575, at *1 (W.D.N.Y. Nov. 25,

2025). But his habeas petition did not challenge the authority of the

government to detain him. Rather, in his removal proceedings Barbosa

da Cunha “requested a bond hearing, which an immigration judge

denied based on a determination that he was subject to mandatory

detention under Section 1225(b)(2)(A).” Barbosa da Cunha, 175 F.4th at 70. He then filed a habeas petition asking a federal court to order the government to reclassify him as subject to discretionary detention

under § 1226(a) and accordingly to provide him a bond hearing. The

district court ruled that his “application for habeas relief is granted to the extent that the [c]ourt finds he is detained under 8 U.S.C. § 1226(a) and is therefore entitled to a bond hearing under the relevant

regulations.” Barbosa da Cunha, 2025 WL 3280575, at *7 (citation and

capitalization omitted). The district court “ordered that [the

government] hold a bond hearing for [Barbosa da Cunha] within ten

(10) days of the date of this order.” Id. (capitalization omitted).

The Supreme Court has identified cases in which “the nature of

the relief sought by the habeas petitioners suggests that habeas is not appropriate.” Munaf, 553 U.S. at 693. It has explained that “[h]abeas

is at its core a remedy for unlawful executive detention,” and “[t]he

typical remedy for such detention is, of course, release.” Id. In this case, Barbosa da Cunha did not claim he was entitled to release but

asked the district court to order the government to reclassify him and to hold a bond hearing. 23 By requesting that the district court order the government to take actions other than release, Barbosa da Cunha

was actually seeking relief akin to a mandatory injunction or

mandamus. Cf. Miguel v. McCarl, 291 U.S. 442, 452 (1934) (“The

mandatory injunction here prayed for is in effect equivalent to a writ of mandamus, and governed by like considerations.”).

Allowing an alien to bring such a claim in habeas “would

require us to broaden the scope of habeas relief beyond recognition.”

Wilkinson, 544 U.S. at 85 (Scalia, J., concurring). And it would

contradict the holding of the Supreme Court in Thuraissigiam. In that

case, the Supreme Court held that the relief an alien “sought in the

habeas petition and still seeks—a writ directing [the government] to

provide him a new opportunity to apply for asylum—is not a form of

relief that was available in habeas at the time of the adoption of the Constitution.” Thuraissigiam, 591 U.S. at 117 n.13 (internal quotation marks, alteration, and citation omitted). The same reasoning applies

here: “[T]he writ has never encompassed [Barbosa da Cunha’s]

claims.” Id. at 116 n.12.

At the founding, the writ of habeas corpus “simply provided a

means of contesting the lawfulness of restraint and securing release.”

23 His petition asked the district court to “[i]ssue a Writ of Habeas Corpus ordering Respondents to release Petitioner immediately, or, in the

alternative, provide Petitioner with a bond hearing.” App’x 20. The petition thereby recognized that the purported injury he sought to remedy was the denial of a bond hearing rather than the detention itself.

Id. at 117 (emphasis added). “Blackstone wrote that habeas was a

means to ‘remove the injury of unjust and illegal confinement.’” Id.

(alteration omitted) (quoting 3 William Blackstone, Commentaries

*137). “Justice Story described the ‘common law’ writ the same way,”

explaining that habeas “is the appropriate remedy to ascertain

whether any person is rightfully in confinement or not.” Id. (alteration omitted) (quoting 3 Commentaries on the Constitution of the United

States § 1333, at 206 (1833)). Habeas allowed a detainee to challenge

an unlawful confinement and to obtain release.

While the availability of the writ has expanded since the

founding, 24 the Supreme Court has emphasized that it remains a

mechanism for obtaining release from unlawful custody. See Preiser v.

Rodriguez, 411 U.S. 475, 484 (1973) (“It is clear … from the commonlaw history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal

custody.”); see also Munaf, 553 U.S. at 693.

To understand Barbosa da Cunha as seeking habeas relief

“would extend the writ of habeas corpus far beyond its scope ‘when

the Constitution was drafted and ratified.’” Thuraissigiam, 591 U.S. at 107 (quoting Boumediene, 553 U.S. at 746). “Indeed, [Barbosa da

Cunha’s] use of the writ would have been unrecognizable at that time.

Habeas has traditionally been a means to secure release from unlawful

detention, but [he] invokes the writ to achieve an entirely different

end.” Id. Barbosa da Cunha sought to be classified as an alien detained

24 See, e.g., Boumediene v. Bush, 553 U.S. 723, 826-27 (2008) (Scalia, J., dissenting) (“Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.”).

under § 1226 rather than § 1225. And if he obtained that relief, he

could then receive a bond hearing from the executive branch. And

following that hearing, the executive branch might or might not

release him on bond pending his removal proceedings.

In requesting this relief, Barbosa da Cunha resembles the

petitioner in Thuraissigiam. In Thuraissigiam, the immigration detainee sought relief he labeled “habeas,” but the Supreme Court explained

that he had invoked the “writ to achieve an entirely different end,

namely, to obtain additional administrative review of his asylum

claim and ultimately to obtain authorization to stay in this country.” Id. In his brief, the detainee stated “that ‘he requests an entirely

ordinary habeas remedy: conditional release pending a lawful

adjudication.’” Id. at 117 n.13. The Supreme Court first noted that the detainee did not mention release in his petition, but it emphasized

that “the critical point is that what he sought in the habeas petition and still seeks—a writ directing the Department to provide him a new

opportunity to apply for asylum—is not a form of relief that was

available in habeas at the time of the adoption of the Constitution.”

Id. (internal quotation marks, alterations, and citation omitted). The Court concluded that, historically, “the writ has never encompassed

respondent’s claims.” Id. at 116 n.12.

The cases that have addressed challenges to conditions of

confinement also show that a claim is cognizable in habeas only when

the proper remedy is release. In those cases, the Supreme Court has

indicated that a detained prisoner cannot use habeas to challenge the

conditions of his confinement as distinct from the fact of his

confinement. Formally, the Supreme Court has reserved judgment on

the question. 25 But the Court has “repeatedly permitted prisoners to

bring § 1983 actions challenging the conditions of their confinement.” Wilkinson, 544 U.S. at 84 (citing Cooper v. Pate, 378 U.S. 546 (1964), and Wilwording v. Swenson, 404 U.S. 249, 251 (1971)). So the Court has

avoided allowing conditions-of-confinement claims in habeas but has

squarely held that such “actions may be brought under § 1983.” Id. at

76 (emphasis added). 26

Justice Scalia wrote separately in Wilkinson to “note that a

contrary holding”—allowing claims not seeking release to be brought

in habeas—“would require [the Court] to broaden the scope of habeas

relief beyond recognition.” 544 U.S. at 85 (Scalia, J., concurring). It would conflict with the historical scope of the writ “to say that the

habeas statute authorizes federal courts to order relief that neither

terminates custody, accelerates the future date of release from

custody, nor reduces the level of custody.” Id. at 86. “A holding that,”

25 See Ziglar v. Abbasi, 582 U.S. 120, 144 (2017) (“[W]e have left open the question whether [detainees] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus.”); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.”).

26 See also Nelson v. Campbell, 541 U.S. 637, 643 (2004) (“[C]onstitutional claims that merely challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall outside of that core and may be brought pursuant to § 1983 in the first instance.”);

Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus and a complaint under … § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus; requests for relief turning on circumstances of

confinement may be presented in a § 1983 action.”) (citations omitted).

for example, “judicial immersion in the administration of

discretionary parole lies at the ‘core of habeas’ would utterly sever the writ from its common-law roots.” Id.

Our court has suggested an answer to the question that the

Supreme Court has reserved. We have held that “at least where a

petitioner alleges unconstitutional conditions that are irremediable

but for the release of the petitioner, such conditions of confinement

claims are cognizable under habeas.” Diaz v. Kopp, 146 F.4th 301, 307-08 (2d Cir. 2025) (second emphasis added). That holding confined

habeas relief to cases in which release is a necessary remedy. In other words, habeas may be used to challenge conditions of confinement if

release is the only possible remedy. If the harm may be addressed by

a remedy other than release, then habeas is improper. That view

prevails in several circuits. 27 And it shows that Barbosa da Cunha

was not properly seeking habeas relief in this case.

27 See Hope v. Warden York Cnty. Prison, 972 F.3d 310, 324-25 (3d Cir. 2020) (“We are satisfied that their § 2241 claim seeking only release on the basis that unconstitutional confinement conditions require it is not improper.”); Timms v. Attorney General, 93 F.4th 187, 191 n.8 (4th Cir. 2024) (“The Supreme Court has not yet decided whether detainees can challenge their confinement conditions via a habeas petition. In several unpublished

decisions, we have held that claims challenging conditions of confinement cannot be brought in habeas petitions.”) (citations omitted); Spencer v. Haynes, 774 F.3d 467, 470 (8th Cir. 2014) (“Spencer’s constitutional claim relates to the conditions of his confinement. Consequently, a habeas petition is not the proper claim to remedy his alleged injury.”) (citation omitted); Nettles v. Grounds, 830 F.3d 922, 930 (9th Cir. 2016) (“We read these

statements [from the Supreme Court] as strongly suggesting that habeas is available only for state prisoner claims that lie at the core of habeas (and is the exclusive remedy for such claims), while § 1983 is the exclusive remedy for state prisoner claims that do not lie at the core of habeas.”).

One might compare the relief the district court ordered to a writ

of “conditional release” issued to a prisoner who successfully

challenged his conviction in habeas. See Herrera v. Collins, 506 U.S. 390, 403 (1993) (“The typical relief granted in federal habeas corpus is a

conditional order of release unless the State elects to retry the

successful habeas petitioner.”). The panel suggested this comparison.

See Barbosa da Cunha, 175 F.4th at 70 (“The district court granted the petition and ordered the government to either provide a bond hearing

or release Petitioner within ten days.”). But that is an improper

analogy for two reasons.

First, if conditional release were generally available in habeas,

the conditions-of-confinement cases would be wrongly decided. The

petitioner would always be able to seek an order that the government

must fix the conditions of confinement or allow release. Any claim

could be recast as a request for conditional release. But the request for such an order is not actually a request for release; it is a request for an injunction directing the government to do something other than

release, namely to rectify the conditions of confinement. Barbosa da

Cunha made that sort of request here. Even though his request was

framed as conditional release, his prayer for relief would be satisfied if he were reclassified and then given a bond hearing. The bond

hearing would entitle him only to apply for a release on bond. And

even if he obtained release on bond following the hearing, the

“Attorney General at any time may revoke” that bond before

proceeding to “rearrest the alien under the original warrant, and

detain [him].” 8 U.S.C. § 1226(b).

By awarding such relief, a district court is directing how the

government must administer its detention of the petitioner—as it does

when addressing a conditions-of-confinement claim—not deciding

whether the government has the authority to detain him. Because

Barbosa da Cunha challenges the manner of administration rather

than the authority to detain, the relief that he “seeks—a writ [directing the federal government to reclassify him and give him a bond

hearing]—is not a form of relief that was available in habeas at the

time of the adoption of the Constitution.” Thuraissigiam, 591 U.S. at

117 n.13.

Second, a prisoner detained pursuant to an unlawful conviction

or sentence does not bring a habeas petition seeking a new trial. He

seeks release from his unlawful confinement. If he prevails, the

judgment against him is deemed to be “invalid,” and “[c]onditional

writs [merely] enable habeas courts to give [the government] time to

replace an invalid judgment with a valid one.” Wilkinson, 544 U.S. at

87 (Scalia, J., concurring). In other words, “the prisoner who shows

that his sentencing was unconstitutional is actually entitled to release, because the judgment pursuant to which he is confined has been

invalidated; the conditional writ serves only to ‘delay the release in order to provide the [government] an opportunity to correct the

constitutional violation.’” Id. at 86 (alteration omitted) (quoting Hilton v. Braunskill, 481 U.S. 770, 775 (1987)).

Barbosa da Cunha occupies a very different position. When he

was first detained, he “requested a bond hearing, which an

immigration judge denied based on a determination that he was

subject to mandatory detention under Section 1225(b)(2)(A), and thus

ineligible for bond under Section 1226(a),” and after that denial he

“filed a habeas petition.” Barbosa da Cunha, 175 F.4th at 70. If he had initially received the non-release remedy of a bond hearing, he would

have received all the relief to which he claimed to be entitled in his habeas petition. And that relief would not have been based on a

showing that he was “entitled to release.” Wilkinson, 544 U.S. at 86

(Scalia, J., concurring).

In other words, if Barbosa da Cunha prevailed on the

interpretive question in this case—showing that he is not subject to

mandatory detention under § 1225(b)(2)—he still “has not established

a right to release, and so cannot obtain habeas relief—conditional or

otherwise.” Id. at 87. Instead, Barbosa da Cunha would be reclassified as detained under § 1226(a). That reclassification would get him a

bond hearing. But even that would not entitle him to release. And

even if the hearing resulted in his release on bond, the Attorney

General could revoke his bond and redetain him, see 8 U.S.C.

§ 1226(b), and there would be no judicial review of the Attorney

General’s decision, see id. § 1226(e) (“The Attorney General’s

discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention of

any alien or the revocation or denial of bond or parole.”) (emphasis

added); see also Mahdawi, 183 F.4th at 124-33 (Menashi, J., concurring) (discussing § 1226(e)).

Barbosa da Cunha does not resemble the prisoner who receives

a conditional writ of habeas corpus. If that prisoner prevails and the government takes no further action, he is released from custody

because the judgment against him is “invalid.” By contrast, if Barbosa da Cunha prevails and the government takes no further action, he is

sorted into a different statutory provision that still permits the

government to keep him detained. The panel may have characterized

the habeas remedy in this case as a conditional writ. But

“[c]onditional writs are not an all-purpose weapon with which

federal habeas courts can extort from the [government] custodian

forms of relief short of release, whether a new parole hearing or a new

mattress in the applicant’s cell.” Wilkinson, 544 U.S. at 87 (Scalia, J., concurring). That is how the district court employed the habeas

remedy in this case: as a tool to extort a new hearing from the

government even though Barbosa da Cunha did not establish an

entitlement to release. Our court erred by allowing the district court to do so.

In this litigation, Barbosa da Cunha has sought to use the writ

in the way that the Supreme Court rejected in Wilkinson. In that case, two prisoners were “serving lengthy terms in Ohio prisons.” Id. at 76

(majority opinion). One prisoner, Dotson, “began to serve a life

sentence in 1981,” and in 2000 a parole officer “determined that he

should not receive further consideration for parole for at least five

more years.” Id. But “[i]n reaching this conclusion about Dotson’s

parole eligibility, the officer used parole guidelines first adopted in 1998, after Dotson began to serve his term.” Id. at 76-77. Dotson

argued “that the retroactive application of these new, harsher

guidelines to his preguidelines case violates the Constitution’s Ex Post Facto and Due Process Clauses.” Id. at 77. He asked a federal district court to issue a “declaration” and “permanent injunction ordering

prison officials to grant him an ‘immediate parole hearing in

accordance with the statutory laws and administrative rules in place

when he committed his crimes.’” Id. (alteration omitted). Johnson, the other prisoner in the case, brought similar claims. See id.

“Both prisoners brought” their cases under § 1983. Id. But the

district court “concluded that a § 1983 action does not lie and that the prisoner would have to seek relief through a habeas corpus suit.” Id.

The Supreme Court upheld the reversal of that decision, holding that

the claims could proceed under § 1983. See id. at 82. The Court

explained that “Dotson and Johnson seek relief that will render

invalid the state procedures used to deny parole eligibility (Dotson)

and parole suitability (Johnson). Neither respondent seeks an

injunction ordering his immediate or speedier release into the

community.” Id. (citation omitted). In particular, “[s]uccess for

Dotson does not mean immediate release from confinement or a

shorter stay in prison; it means at most new eligibility review, which at most will speed consideration of a new parole application.” Id.

Likewise, “[s]uccess for Johnson means at most a new parole hearing

at which Ohio parole authorities may, in their discretion, decline to

shorten his prison term.” Id. “Because neither prisoner’s claim would

necessarily spell speedier release, neither lies at ‘the core of habeas corpus.’” Id. (quoting Preiser, 411 U.S. at 489).

The Court held that the prisoners’ claims were not properly

considered habeas claims because the prisoners did not claim an

entitlement to release. The prisoners instead sought new hearings

under lawful parole standards. As in this case, those new hearings

could have increased the likelihood of eventual release. But because the requested relief would not “necessarily spell speedier release,” the

Supreme Court concluded that § 1983 rather than habeas was the

proper avenue for seeking it. The same reasoning applies to Barbosa

da Cunha. He requested a bond hearing that would increase the

possibility of release but not necessarily result in release. He is just like the prisoners in Wilkinson.

The panel opinion contradicts Wilkinson and subsequent

decisions of the Supreme Court. Because the relief Barbosa da Cunha

sought “is not a form of relief that was available in habeas at the time of the adoption of the Constitution,” the district court lacked habeas jurisdiction and the petition should have been either dismissed or

construed as a request for injunctive relief against the government.

Thuraissigiam, 591 U.S. at 117 n.13.

The distinction between habeas relief, on the one hand, and

injunctive or mandamus relief, on the other, is not a mere formality.

First, the Suspension Clause restricts the authority of Congress

to make traditional habeas remedies unavailable. See Boumediene, 553

U.S. at 771 (“If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the

requirements of the Suspension Clause.”). For that reason, a court will interpret the jurisdictional bars in the INA differently depending on

whether those bars are understood to deny an avenue for relief that

was available in habeas when the Constitution was adopted. 28 By

contrast, the Suspension Clause does not limit the authority of

Congress to withdraw jurisdiction over non-habeas claims such as

claims for injunctive relief. As a result, understanding whether the

claim of an immigration detainee is properly considered in habeas

will affect how much a court will respect the jurisdictional bars in the INA.

Second, if a petitioner prevails on a habeas claim, then he is

automatically entitled to relief. “[W]here probable ground is shown

that the party is in custody under or by color of authority of the

United States, and is imprisoned without just cause, and, therefore,

has a right to be delivered, the writ of habeas corpus then becomes a

28 See, e.g., Demore, 538 U.S. at 537 (O’Connor, J., concurring in part and concurring in the judgment) (“Because § 1226(e) plainly deprives courts of federal habeas jurisdiction over claims that mandatory detention under § 1226(c) is unconstitutional, one could conceivably argue that such a repeal violates the Suspension Clause.”).

writ of right which may not be denied, as it ought to be granted to every man who is unlawfully committed or detained in prison or otherwise

restrained of his liberty.” Ex parte Lange, 85 U.S. 163, 183 (1873)

(emphasis added).

When the decision to award relief depends on equitable

considerations, however, relief is not automatic. 29 “[I]t is not the

province of a court of equity to interfere for the prevention of an act merely because it is illegal.” Ward v. City of Little Rock, 41 Ark. 526, 531 (1883). The “equity tradition” has “developed a series of doctrines to limit equitable powers—principles about what equity will not do.” 30

Among those doctrines is the principle that “[i]t is not within the

jurisdiction of a court of equity to interfere with the public duties of the departments of government” because “[i]ts jurisdiction pertains

only to questions of the maintenance of civil rights [and] property

rights.” Heffran v. Hutchins, 160 Ill. 550, 554 (1896). 31

29 While a remedy such as mandamus is legal, the right to such a remedy will “turn on equitable considerations.” United States ex rel. Girard Tr. Co. v. Helvering, 301 U.S. 540, 543 (1937); see In re Skinner & Eddy Corp., 265 U.S. 86, 96 (1924) (“Although classed as a legal remedy, in issuing it a court must be largely controlled by equitable principles.”); United States ex rel. Arant v. Lane, 249 U.S. 367, 371 (1919) (“This court has lately said that while mandamus is classed as a legal remedy, it is a remedial process, which is awarded not as a matter of right, but in the exercise of a sound judicial discretion and upon equitable principles.”); Duncan Townsite Co. v. Lane, 245 U.S. 308, 312 (1917).

30Aditya Bamzai & Samuel L. Bray, Debs and the Federal Equity Jurisdiction, 98 Notre Dame L. Rev. 699, 709 (2022).

31See 1 John Norton Pomeroy, A Treatise on Equitable Remedies § 337, at 595 (1905) (“[C]ourts hesitate to interfere with the executive branch of the government in matters affecting the performance of its functions.”); see also Taylor v. Kercheval, 82 F. 497, 500 (C.C.D. Ind. 1897) (“Injury to property, actual or threatened, is the foundation of chancery jurisdiction. It is not

In this case, even the panel agreed that Barbosa da Cunha was

not entitled to release. The question was which authority the

government should invoke to detain him. By ordering the

government to rely on § 1226(a), the panel did not vindicate a “civil

right,” a private right to a particular statutory classification, or any clear statutory entitlement to a bond hearing. 32 Instead, the panel

issued a decision that directs how the government administers the

immigration system. Equitable considerations require a court to do

more before engaging in “this sort of judicial immersion in the

administration” of immigration procedures. Wilkinson, 544 U.S. at 86

(Scalia, J., concurring). “An injunction is an exercise of a court’s

equitable authority, to be ordered only after taking into account all of the circumstances that bear on the need for prospective relief.” Salazar v. Buono, 559 U.S. 700, 714 (2010). Such “[e]quitable relief is not

granted as a matter of course, and a court should be particularly

cautious when contemplating relief that implicates public interests.”

Id. (citation omitted).

concerned with matters of a political nature.”) (quoting Muhler v. Hedekin, 20 N.E. 700, 701 (Ind. 1889)); Sheridan v. Colvin, 78 Ill. 237, 247 (1875) (“It is elementary law, that the subject matter of the jurisdiction of the court of chancery is civil property. The court is conversant only with questions of property and the maintenance of civil rights. … The court has no

jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property. Nor do matters of a political character come within the jurisdiction of the court of chancery.”).

32 Cf. FS Credit Opportunities Corp. v. Saba Cap. Master Fund, Ltd., 146 S. Ct. 1546, 1553 (2026) (“To create a private right, a statute must use rightscreating language aimed at protecting a particular class of persons.

Language that focuses on the person regulated rather than the individuals protected does not fit the bill.”) (internal quotation marks, alteration, and citations omitted).

It is especially important to consider the equities in this context.

The Constitution requires special caution before a court orders

injunctive relief against the government with regard to enforcement

of the immigration laws. See Biden, 597 U.S. at 805-06 (identifying “the context of immigration law, where ‘the dynamic nature of relations

with other countries requires the Executive Branch to ensure that

enforcement policies are consistent with this Nation’s foreign

policy’”) (alteration omitted) (quoting Arizona v. United States, 567

U.S. 387, 397 (2012)). By entertaining a request for injunctive relief against the government as if it were a proper habeas remedy, the

panel sidestepped these equitable considerations. I would rehear the

case en banc to clarify that traditional equitable considerations apply to such a request for relief.

“[T]he refusal to consider arguments not raised is a sound

prudential practice, rather than a statutory or constitutional mandate, and there are times when prudence dictates the contrary.” Davis v.

United States, 512 U.S. 452, 464 (1994) (Scalia, J., concurring). “While ‘courts normally decide only questions presented by the parties,’ we

are not ‘hidebound by the precise arguments of counsel,’” In re

TransCare Corp., 81 F.4th 37, 61 (2d Cir. 2023) (Menashi, J., dissenting in part) (citation omitted) (quoting United States v. Sineneng-Smith, 590 U.S. 371, 376, 380 (2020)), and we “have ‘discretion to consider

arguments waived or forfeited below because our waiver and

forfeiture doctrine is entirely prudential,’” id. (quoting United States v. Gomez, 877 F.3d 76, 95 (2d Cir. 2017)). “[W]e have exercised our

discretion to review waived or abandoned arguments ‘where the

argument presents a question of law and there is no need for

additional fact-finding.’” Tarpon Bay Partners LLC v. Zerez Holdings

Corp., 79 F.4th 206, 232 n.25 (2d Cir. 2023) (alteration omitted) (quoting

Sniado v. Bank Aus. AG, 378 F.3d 210, 213 (2d Cir. 2004)). The habeas

argument here presents a question of law and requires no additional

fact-finding.

The courts of appeals will rehear a case en banc and seek

supplemental briefing from the parties to address a question that the

panel did not consider. 33 I would have followed that course here.

* * *

Congress “deemed” an “alien present in the United States who

has not been admitted” to be an “applicant for admission.” 8 U.S.C.

§ 1225(a)(1). Even though the unadmitted and illegally present alien

is not literally an applicant for admission, the statute requires the

government—and a court—to treat him as one. Unadmitted illegal

aliens are “deemed constructive applicants for admission by operation

of [§ 1225(a)(1)] of the [INA].” Lemus-Losa, 25 I. & N. Dec. at 743 n.6. If we follow that statutory directive, this case becomes straightforward. An applicant for admission is seeking admission. So

pursuant to § 1225(a)(1), an “alien present in the United States who

has not been admitted” is seeking admission. Under § 1225(b)(2)(A),

therefore, if such an alien “is not clearly and beyond a doubt entitled

33 See, e.g., United States v. Campbell, 26 F.4th 860, 865 (11th Cir. 2022) (noting that the court “asked the parties in our en banc briefing notice” to consider “the good-faith exception to the exclusionary rule,” which “neither

addressed” before the panel); Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (noting that “[i]n considering the petition for rehearing en banc, we requested that the parties provide supplemental briefing as to whether there is a conflict between a single factor rule and the REAL ID Act,” which the parties had not previously argued); United States v. White, 863 F.3d 784, 787 (8th Cir. 2017) (noting that for the en banc rehearing, “[t]he parties submitted supplemental briefing” on whether a prior precedent “should

remain good law” and if not how a different standard would apply).

to be admitted, the alien shall be detained for a [removal]

proceeding.”

The panel avoided that straightforward result by artificially

limiting the reach of the deeming provision that Congress enacted.

According to the panel, an unadmitted illegal alien will be deemed to

be an applicant for admission only for purposes of that statutory label but will not be treated as an applicant for admission unless the alien is literally applying for admission. Because a constructive applicant for admission is not literally seeking admission, the panel concluded that a constructive applicant cannot be treated the way an actual applicant would be. Under the panel’s interpretation, there is no operative

provision of § 1225 that treats an unadmitted illegal alien as an

applicant for admission. That is an indefensibly constrained reading

of the deeming provision that fails to respect the choice of Congress

to treat an alien who has not been admitted as if he were applying for admission.

The panel dressed up its atextual interpretation of the INA with

the language of textualism and citations to online dictionaries—even

though “dictionary definitions” are “largely unhelpful” when “the

interpretive question presented here is best answered by reference to

the statutory classification that pervades the INA.” Cirrus Rojas, 183 F.4th at 935 (Sykes, J., dissenting). The panel insisted that its reliance on such extra-statutory sources represented faithful adherence to the

statute. It said that “[i]f judges could add to, remodel, update, or

detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside

the legislative process reserved for the people’s representatives.”

Barbosa da Cunha, 175 F.4th at 96 (quoting Bostock, 590 U.S. at 654-55).

“[B]ut no one should be fooled.” Bostock, 590 U.S. at 685 (Alito,

J., dissenting). The panel’s opinion “is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated.” Id. Justice Scalia decried “the judge-empowering consequences” of an “interpretive rule” that

“[w]hen there is ‘dissonance’ between the statutory definition and the ordinary meaning of the defined word, the latter may prevail.” Bond,

572 U.S. at 871 (Scalia, J., concurring in the judgment). In his view, “the true rule is entirely clear: ‘When a statute includes an explicit definition, we must follow that definition, even if it varies from that term’s ordinary meaning.’” Id. (quoting Stenberg, 530 U.S. at 942).

Rather than follow the express directive of Congress to treat an

unadmitted illegal alien as if he were an applicant for admission, the panel opportunistically replaced the constructive understanding of

the statutory terms with its own literal understanding. To do

otherwise, it announced, “would send a seismic shock through our

immigration detention system and society, straining our already

overcrowded detention infrastructure, incarcerating millions, separating families, and disrupting communities.” Barbosa da Cunha,

175 F.4th at 93. It concluded that Congress cannot achieve such a

policy “in such an indirect and ambiguous way.” Id. But “[i]magine

what future courts can do with that judge-empowering principle:

Whatever has improbably broad, deeply serious, and apparently

unnecessary consequences [must be] ambiguous!” Bond, 572 U.S. at 870

(Scalia, J., concurring in the judgment). In my view, “policy concerns cannot trump the best interpretation of the statutory text.” Patel v.

Garland, 596 U.S. 328, 346 (2022).

I would rehear this case en banc to give effect to the deeming

provision throughout the INA. “After all, only the words on the page

constitute the law adopted by Congress and approved by the

President.” Bostock, 590 U.S. at 654. The decision of the panel to

replace the deeming provision with its own literalistic definitions

effectively amends the statute “outside the legislative process

reserved for the people’s representatives.” Id. at 655. And I would

rehear the case en banc for the additional reason that the panel opinion “broaden[s] the scope of habeas relief beyond recognition” by

entertaining a request for injunctive relief against the government as if it were relief traditionally available in habeas. Wilkinson, 544 U.S. at 85 (Scalia, J., concurring). Because the court declines to correct these errors, I dissent.

Barbosa da Cunha v. Freden

No. 25-3141

Separate Statement of José A. Cabranes, Senior Circuit Judge

As a senior judge, I am not authorized to vote on motions for en banc review. That said, I take this opportunity to express my solidarity with the views expressed by my colleagues, Judges Bianco and Nathan, in their opinion concurring in the denial of rehearing en banc.

Barbosa Da Cunha v. Freden

Authorities cited

Opinion · public domain