The § 1225(b)(2)(A) Split Reaches the Supreme Court: Nine Circuits, Two Holdouts, and a Grant of Certiorari
- Citation
- Rhoney v. Barbosa da Cunha, No. 26-104 (U.S. Oct. 1, 2026) (certiorari granted), on review of Barbosa da Cunha v. Freden, 175 F.4th 61 (2d Cir. 2026)
- Court
- Supreme Court of the United States
- Decided
- Certiorari granted October 1, 2026; merits pending
- Statute
- 8 U.S.C. §§ 1225(a)(1), 1225(b)(2)(A), 1226(a); 28 U.S.C. § 2241
- Holding
- None yet. Nine courts of appeals hold that § 1225(b)(2)(A) does not reach noncitizens who entered without inspection and were arrested in the interior, who are detained under § 1226(a) and may seek release on bond. The Fifth and Eighth Circuits hold the opposite.
For nearly thirty years, a noncitizen who had entered the United States without inspection and was later arrested in the interior was detained under 8 U.S.C. § 1226(a), and could ask an immigration judge for release on bond. In July 2025 the government changed its reading of the statute: every noncitizen present without admission, it now says, is an “applicant for admission” who must be held without bond under § 1225(b)(2)(A). The Board of Immigration Appeals adopted that position in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025). Since then the question has reached eleven federal courts of appeals, and on October 1, 2026 the Supreme Court agreed to decide it.
The scorecard
Nine courts of appeals have rejected the government’s reading. In order of decision: the Second Circuit in Barbosa da Cunha v. Freden, 175 F.4th 61 (2d Cir. Apr. 28, 2026); the Eleventh in Hernandez Alvarez v. Warden, 175 F.4th 1258 (11th Cir. May 6, 2026); the Sixth in Lopez-Campos v. Raycraft, 175 F.4th 713 (6th Cir. May 11, 2026); the Tenth in Santillan Quiroz v. Mullin, 180 F.4th 1226 (10th Cir. June 30, 2026); the Seventh in Cirrus Rojas v. Olson, 183 F.4th 909 (7th Cir. July 30, 2026); the Ninth, the same day, in Rodriguez Vazquez v. Bostock, 183 F.4th 1160 (9th Cir. July 30, 2026), affirming judgment for a class of detainees in Western Washington; the First in Guerrero Orellana v. Moniz, 188 F.4th 1 (1st Cir. Aug. 13, 2026); the Third in Buele Morocho v. Warden, Philadelphia FDC, No. 26-1150 (3d Cir. Aug. 28, 2026); and the Fourth in Lopez Garcia v. Guadian, No. 25-7044 (4th Cir. Sept. 10, 2026). An earlier Seventh Circuit decision, Castañón Nava v. DHS (May 5, 2026), had addressed the question without a majority.
Two courts have accepted the government’s reading: the Fifth Circuit in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. Feb. 6, 2026), and the Eighth in Avila v. Bondi, 170 F.4th 1128 (8th Cir. Mar. 25, 2026). The count is lopsided; the question is not. Seven of the nine decisions rejecting the government’s reading drew a dissent, and so did both decisions accepting it.
The two readings
Section 1225(b)(2)(A) requires detention when “an alien seeking admission is not clearly and beyond a doubt entitled to be admitted.” Section 1225(a)(1) deems a noncitizen “present in the United States who has not been admitted” to be an “applicant for admission.” The government’s argument joins the two: everyone deemed an applicant for admission is, for that reason, seeking admission. The Fifth Circuit agreed, treating “alien seeking admission” and “applicant for admission” as synonymous.
The majority of circuits read the second phrase as doing work of its own. As the Second Circuit put it, § 1225(b)(2)(A) “applies only to a noncitizen who is both an ‘applicant for admission’ and ‘seeking admission.’” A person who crossed the border years ago and has lived in the interior since is not, in fact, seeking admission. The Seventh Circuit put it most directly:
“We hold that Cirrus Rojas is not ‘seeking admission’—and thus not covered by Section 1225(b)(2)(A)—because that is his real-world status.”
People in that position are detained under § 1226(a), and are eligible for bond hearings subject to the statute’s other requirements, such as the mandatory-detention categories of § 1226(c).
The grant of certiorari
On October 1, 2026, the Supreme Court granted certiorari in the Second Circuit case, now captioned Rhoney v. Barbosa da Cunha, No. 26-104. The Second Circuit had denied rehearing en banc six days earlier, on September 25, over a dissent by Judge Menashi. When the en banc Fifth Circuit decided Sosnava Rodriguez v. Vergara on October 23, its dissenting opinions recorded the grant and noted that the petition in Buenrostro-Mendez v. Blanche, No. 26-43, “remains under review.” A petition was also filed from the Sixth Circuit’s decision in Lopez-Campos (No. 25-1415). The Court has not yet decided the case.
The Fifth Circuit’s second answer
The Fifth Circuit has since gone a step further. In Sosnava Rodriguez v. Vergara, the en banc court held, 10–7, that people detained under § 1225(b)(2)(A) have no due-process right to an individualized bond hearing so long as their removal remains a viable prospect. That closes, within the Fifth Circuit, the constitutional route that district courts there had used after Buenrostro-Mendez closed the statutory one. Judge Southwick’s dissent marked what the Supreme Court case means for that holding: “Should the Supreme Court eventually determine that this court was wrong as to the statute, then the constitutional issue we address here will have far less significance.”
What it means while the case is pending
Until the Supreme Court rules, the answer turns on geography. A long-resident noncitizen who entered without inspection and is detained in the First, Second, Third, Fourth, Sixth, Seventh, Ninth, Tenth or Eleventh Circuit is, under binding circuit law, held under § 1226(a) and may seek a bond hearing, unless another provision such as § 1226(c) applies. The same person detained in the Fifth or Eighth Circuit is held under § 1225(b)(2)(A) without one, and in the Fifth Circuit the due-process argument is now foreclosed as well while removal remains a viable prospect. Because the government decides where a person is held, the place of detention can decide whether there is a bond hearing at all.
Filed under Pre-Removal Detention. Published November 8, 2026.