Cunha v. Freden: The Second Circuit Becomes the First Court of Appeals to Reject the § 1225(b) Mandatory-Detention Theory
- Citation
- Cunha v. Freden, No. 25-3141-pr (2d Cir. Apr. 28, 2026)
- Court
- U.S. Court of Appeals for the Second Circuit
- Decided
- April 28, 2026
- Statute
- 8 U.S.C. §§ 1225(b)(2)(A), 1226(a); 28 U.S.C. § 2241; Fifth Amendment Due Process Clause
- Holding
- A noncitizen who entered without inspection and has lived in the interior is detained under § 1226(a) — and is therefore eligible for a bond hearing — not under the no-bond mandatory-detention regime of § 1225(b)(2)(A). The grant of habeas relief was affirmed.
For thirty years and across five administrations, the government treated noncitizens arrested in the interior of the country as detained under 8 U.S.C. § 1226(a), the discretionary custody provision that carries with it the possibility of release on bond. In July 2025 that settled understanding was abruptly reversed. A Department of Homeland Security guidance memorandum, soon ratified by the Board of Immigration Appeals in Matter of Yajure Hurtado, recast every noncitizen who had entered without inspection — however long ago, however deep their community ties — as an “applicant for admission” subject to mandatory, no-bond detention under § 1225(b)(2)(A). Cunha v. Freden is the first decision of any United States court of appeals to hold that reading unlawful.
The petitioner
Ricardo Aparecido Barbosa da Cunha entered the United States without inspection around 2005. He applied for asylum, was granted work authorization, bought a home, ran a small business, and accumulated no criminal record. When ICE arrested him in 2025 it declined to give him a bond hearing, asserting that the new classification placed him beyond the reach of § 1226(a) altogether. He petitioned for a writ of habeas corpus under § 2241; the district court ordered the government to hold a bond hearing or release him; an immigration judge then found him neither a danger nor a flight risk and released him. The government appealed.
The court’s reasoning
The panel rejected the government’s interpretation on every available ground. The text of § 1225(b), it held, is addressed to those who arrive at or are apprehended near the border — people in the act of seeking admission — not to long-settled residents discovered in the interior. The statutory structure confirms it: § 1226 is the provision Congress wrote for noncitizens already present and in removal proceedings, and reading § 1225(b) to swallow that category would render much of § 1226 superfluous. The history pointed the same way; so did thirty years of unbroken executive practice. And to the extent any ambiguity remained, the panel invoked the doctrine of constitutional avoidance, observing that the government’s reading would authorize what it called the broadest scheme of mass detention without bond in the Nation’s history.
“An applicant for admission is one who is seeking admission. A person who entered the country two decades ago and has lived here ever since is not, in any ordinary sense of the words, doing so.”
Why it matters
The classification question is the central detention battle of the 2025–26 enforcement era because it determines whether tens of thousands of long-resident noncitizens get a bond hearing at all. Cunha places the Second Circuit squarely against the Fifth Circuit’s contrary decision in Buenrostro-Mendez v. Bondi and the Eighth Circuit’s in Herrera Avila v. Bondi, and alongside the Eleventh Circuit’s roughly contemporaneous ruling. The result is a clean, acknowledged circuit split on a question of enormous practical consequence — precisely the kind of split that tends to draw the Supreme Court’s attention. For petitioners detained within the Second Circuit, Cunha restores the bond hearing as a matter of right; for everyone else, it sharpens the case for eventual review.
Filed under Pre-Removal Detention. Published April 28, 2026.