Hernandez Alvarez v. Warden: The Eleventh Circuit Confines § 1225(b) to Those Actually “Seeking Admission”
- Citation
- Hernandez Alvarez v. Warden, FDC Miami, 175 F.4th 1258 (11th Cir. 2026) (Nos. 25-14065 & 25-14075) (consolidated with Cerro Perez) (Marcus, J., joined by Rosenbaum, J.; Lagoa, J., dissenting)
- Court
- U.S. Court of Appeals for the Eleventh Circuit
- Decided
- May 6, 2026
- Statute
- 8 U.S.C. §§ 1225(b)(2)(A), 1226; 28 U.S.C. § 2241
- Holding
- Section 1225(b)(2)(A) no-bond detention is limited to noncitizens actually seeking admission. Failure to depart does not convert a long-present resident into an applicant “seeking admission.” Habeas relief affirmed; the court declined to decide whether Congress could authorize such detention.
Update, November 8, 2026. The count in the section headed “The split, now three to two” reflects May 2026. By September 2026 nine courts of appeals had rejected the government’s reading and two had accepted it, and on October 1, 2026 the Supreme Court granted certiorari in the Second Circuit case, Rhoney v. Barbosa da Cunha, No. 26-104. See The § 1225(b)(2)(A) Split Reaches the Supreme Court.
If Cunha opened the appellate rejection of the 2025 reclassification, the Eleventh Circuit’s decision eight days later in Hernandez Alvarez v. Warden widened it. Two noncitizens, Fidencio Hernandez Alvarez and Ismael Cerro Perez, were each arrested after routine traffic stops in the Southeast and detained without any bond hearing. A district court had held they were detained under § 1226 and were therefore bond-eligible; the government appealed, insisting that as people present without lawful admission they were “applicants for admission” subject to mandatory detention under § 1225(b)(2)(A).
Seeking admission, not merely present
Writing for the court, the panel drew the distinction the government had tried to collapse. An “applicant for admission” subject to the no-bond regime of § 1225(b)(2)(A), it held, is one who is genuinely seeking admission — in the ordinary case, an arriving noncitizen presenting at a port of entry or apprehended in the act of crossing — not a person who has lived in the interior for years and is encountered there. The government’s theory that a noncitizen’s failure to self-deport somehow renders him a present and continuing applicant for admission found no footing in the statute.
Notably, the court did not reach the constitutional question. It held only that the Immigration and Nationality Act, as written, does not authorize the detention the government sought to impose — expressly declining to decide whether Congress could mandate no-bond detention of long-resident noncitizens if it chose to. That restraint leaves the heavier due-process question for another day while still delivering relief on statutory grounds.
“We do not hold that Congress is without the power to authorize the detention of unadmitted aliens who are simply present in the country. That question is not before us. We hold only that Congress has not done so under the provisions found in the INA.”
The split, now three to two
Hernandez Alvarez aligned the Eleventh Circuit with the Second (Cunha) and against the Fifth (Buenrostro-Mendez) and Eighth (Herrera Avila). With the Sixth Circuit’s Lopez-Campos v. Raycraft arriving days later on the same side as the Second and Eleventh, the alignment among the courts of appeals to have spoken is lopsided but genuinely divided. For detainees held at Krome and the other Southeastern facilities that feed the Eleventh Circuit, the practical consequence is immediate: the bond hearing is back. For the law as a whole, the decision is one more weight on the scale tilting toward Supreme Court review.
Filed under Pre-Removal Detention. Published May 6, 2026.