© Legal professional Farhad Sethna, 2025
Reference: BIA choice – Matter of Q Li, 29 I&N Dec. 66 (BIA) 2025)
Because the Board of Immigration Appeals (BIA) issued Matter of Q Li on Could 15, 2025, immigration judges throughout the nation are denying bond to virtually all aliens in removing (deportation) proceedings who entered the USA with out inspection and authorized admission. Matter of Q Li doesn’t apply to aliens who have been inspected at a Port of Entry and legally admitted, on another visa standing or exemption from such standing (instance – Canadian residents). These aliens proceed to be eligible for launch on ICE custody on bond, except after all, they’re foreclosed by another immigration or authorized obstacle, for instance, a prison conviction or arrest on sure prison costs.
Briefly, in Matter of Q Li, the Board of Immigration Appeals held that an alien, who’s arrested and detained with no warrant, whereas arriving at america, whether or not or not at a port of entry, and subsequently positioned in removing proceedings is deemed to be detained below part 235 (b) of the Immigration and Nationality Act (INA), and is subsequently ineligible for any subsequent launch on bond below part 236 (a) of the INA.
Matter of Q Li goes on to increase the bar on launch on bond to anybody who was allowed into the USA below a grant of parole, if that parole was subsequently terminated. This returns such alien again into the standing she or he held earlier than parole was granted, and if the alien is subsequently an arriving alien, part 235(b) will apply, and therefore, the alien is just not eligible for such bond.
In Q Li, the respondent argued that she was not detained below part 235(b) of the INA, however as an alternative was detained below part 236(a) of the INA, which permits for launch on bond.
Nonetheless, it’s an aphorism within the legislation that “unhealthy information make unhealthy legislation.“. So it’s with Q Li. Q Li entered america, and was arrested promptly on entry, (the choice states: ‘A Division of Homeland Safety (“DHS”) officer encountered her roughly 5.4 miles away from a delegated port of entry and 100 yards north of the border.) She was held by US Customs and Border Safety (CBP) and subsequently launched on parole the subsequent day.
Whereas Q Li was on parole, she reported repeatedly to ICE. In October 2024, Interpol despatched DHS a “pink discover” that Q Li was needed in Spain for journey doc forgery and human smuggling. Therefore, when Q Li reported to her subsequent DHS check-in at an ICE workplace, DHS officers took her into custody and issued her a discover to seem for removing proceedings, and a discover of custody willpower.
Q Li requested a custody re-determination. (i.e., a bond) from an immigration decide. The immigration decide denied bond, and therefore Q Li appealed. This choice arises as a consequence of Q Li‘s attraction to the BIA.
The BIA holds that any alien who’s a “applicant for admission” is just not eligible for launch on bond as soon as positioned in removing proceedings.
The Board additionally held at any applicant who entered the nation, was detained by ICE, and was subsequently launched on parole can be topic to necessary detention if that parole standing is revoked, as a result of the alien, then reverts again to the unique standing she or he held earlier than parole was granted, i.e., an applicant for admission who has entered with out inspection.
The Board additionally cited two US Supreme Courtroom circumstances in help of this proposition. Citing DHS v. Thuraissigiam, 591 U.S. 103, 140 (2020) , the Supreme Courtroom held that INA 235 (a) applies to any alien who tries to enter the nation illegally. [(an alien “who tries to enter the country illegally is treated as an ‘applicant for admission.’”]
The Board additional quoted from Zadvydas v. Davis, 533 U.S. 678, 693 (2001), [“an alien who is detained shortly after unlawful entry cannot be said to have ‘effected an entry,’”], and is thus, per the Board’s interpretation in the identical place as an alien searching for admission at a port of entry.
The Board additionally admitted that in different contexts, the time period “arriving” utilized to aliens who’re apprehended simply contained in the southern border, and never at a port of entry, on the identical day that the alien crossed into america. [“Similarly, we have held, in other contexts, that the term “arriving” applies to aliens, like the respondent, “who [are] apprehended” simply inside “the southern border, and never at some extent of entry, on the identical day [they] crossed into america.” Matter of M-D-C-V-, 28 I&N Dec. 18, 23
(BIA 2020).”]
Lastly, in what seems to be the clincher, the Board holds that “….we maintain that an applicant for admission who’s arrested and detained with no warrant whereas arriving in america, whether or not or not at a port of entry, and subsequently positioned in removing proceedings is detained below part 235(b) of the INA, 8 U.S.C. § 1225(b), and is ineligible for any subsequent launch on bond below part 236(a) of the INA….”
The entire forgoing distinguishes the case of Q Li from that of different aliens who don’t discover themselves in the identical circumstances.
To clarify: Q Li applies solely to aliens with the next explicit traits:
- Unauthorized or undocumented entry into america.
- Coming into both at a port or entry, or between ports of entry (for the latter, meaning, unlawful or illegal entry)
3. Missing legitimate documentation to enter america (meaning, with no legitimate US visa or visa waiver eligible)
- Both apprehended upon entry into america, or very shortly thereafter, throughout the similar day, and inside proximity to the border.
- Detained by USCBP and paroled Into america.
Thus, if an alien doesn’t meet all of the above standards as could be decided from a cautious studying of Matter of Q Li, that alien is not topic to necessary detention below part 235(b) of the INA. The board itself has famous, as quoted above, that an applicant for admission who’s arrested and detained with no warrant whereas arriving within the United State is just not eligible for any subsequent launch on bond. The important thing phrase within the Board’s willpower is “whereas”…that phrase connotes a generally held that means, “within the act of”.
Subsequently, distinguishing Q Li from any variety of circumstances wherein aliens have been not too long ago detained by ICE, and immigration courts have denied their requests for launch on bond, the next sample emerges:
Aliens who entered america
1. Illegally with none sort of inspection,
2. Have been by no means apprehended the border,
3. Have traveled into the inside of america, and
4. Have been in america for not less than two years or extra (primarily based on the expanded definition of expedited removing), are
NOT “candidates for admission” and consequently, are eligible for launch on bond.
The Supreme Courtroom clearly restricted the category of “candidates for admission” as follows:
1. Anybody who tries to enter the nation illegally. Thuraissigiam, 591 U.S. 103, 140
(2020) ; and
- Any alien who was detained shortly after illegal entry. Zadvydas v. Davis, 533 U.S. 678, 693 (2001)
Thus, by the Supreme Courtroom’s personal definition, aliens who will not be within the precise act of making an attempt to enter america illegally will not be candidates for admission. (Should meet each necessities, within the precise act and unlawful entry).
Likewise, aliens who will not be detained shortly after illegal entry are once more not aliens searching for admission. (Should meet each necessities, detained shortly and illegal entry)
Subsequently, Matter of Q Li is legitimate solely insofar because it restricts launch on bond for a sure class of aliens, those that entered illegally, have been detained on the border, and subsequently paroled into america. Different aliens who will not be comparable located, should be eligible for bond.
Aliens who’ve entered america with none detection, and have lived and labored right here for years, and at the moment are detected and detained by ICE, and positioned in removing proceedings thus stay eligible for bond.
Publish-script – “cease the presses” addition:
Laborious on the heels of drafting this text relating to Q Li, the BIA issued a brand new choice in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025) on September 5, 2025.
In Yajure Hurtado, the Board determined that below a plain language studying of INA part 235 (b)(2)(A), immigration judges lack any authority by any means to listen to bond requests or to grant bond to aliens who’re current in america with out admission
The lynchpin of this choice rests on whether or not or not an alien is an “applicant for admission”.
As I mentioned in analyzing Matter of Q Li, above, the Supreme Courtroom has held that somebody who’s within the act of truly making an attempt to enter america is handled as an applicant for admission. Likewise, the Supreme Courtroom held that an alien is detained shortly after illegal entry can’t be set to have affected an entry, and is subsequently additionally an applicant for admission. The “applicant for admission” commonplace is thus outlined by what it clearly appears to be – the precise motion of the alien making an attempt to enter the USA. The Supreme Courtroom has clearly truncated that occasion to be both on the time of entry, or shortly thereafter. It doesn’t apply to an alien who’s arrested and detained years and years after entry, nor does it apply to somebody who has already been granted TPS or another legitimate type of non permanent standing in america, whether or not or not that standing is legally illegally revoked by the DHS.
In reality, the controversy over the DHS’ unlawful revocation of TPS to Venezuelans remains to be a matter of litigation on the courts.
In Yajure Hurtado, the respondent is certainly a citizen of Venezuela. He obtained a grant of TPS from the USW authorities, and that standing expired on April 2, 2025. He was promptly arrested by DHS, in its quest to deport as many aliens as potential from america, the legislation however.
Therefore, whereas Yajure Hurtado experiences to shut off a possible loophole that Q Li had left open, as defined above, that authorized avenue nonetheless exists, due to the 2 Supreme Courtroom choices which the BIA cited in its ruling and that I mentioned above.
Certainly, it’s price noting that the ruling in Yajure Hurtado was issued by a panel of three BIA judges which is totally completely different from the panel which dominated in earlier in Q Li.
I’m positive that this can NOT be the final phrase on whether or not or not IJ’s have the authority to listen to bond requests. Keep tuned……..
© Farhad Sethna, Legal professional, 2025
Farhad Sethna has practiced legislation for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, each from the College of Akron. Since 1996, he has additionally been an adjunct professor of Immigration Legislation on the College of Akron, College of Legislation, in Akron, Ohio, the place he wrote and continues to make use of his personal immigration textbook. Legal professional Sethna is a frequent speaker at Persevering with Authorized Schooling {and professional} improvement seminars on numerous immigration-related matters. His apply is restricted to immigration and small enterprise. He has received awards for excellence in instructing and for pro-bono service. With places of work in Cuyahoga Falls, Ohio, Legal professional Sethna represents shoppers in all forms of immigration circumstances earlier than federal businesses and the immigration courts nationwide. A personal pilot, it’s Farhad’s objective to fly to every of Ohio’s 88 county airports. Our quantity is: (330) 384-8000. Please ship your basic immigration inquiries to farhad@sethnalaw.com. We are going to attempt to reply as many questions as potential.
