By Cyrus D. Mehta and Kaitlyn Field*
In its June 28, 2024 resolution in Loper Vivid Enterprises v. Raimondo, the Supreme Court docket abolished the long-standing Chevron doctrine. Beneath this doctrine, courts had been required to defer to the federal government company’s interpretation of an ambiguous statute. Chief Justice John Roberts, writing for almost all, said that “Chevron is overruled. Courts should train their unbiased judgment in deciding whether or not an company has acted inside its statutory authority, because the APA requires”, however made clear that prior circumstances determined beneath the Chevron framework aren’t mechanically overruled. We have now mentioned Loper Vivid at size in prior blogs (right here, right here, right here and right here).
To this point, Loper Vivid’s affect on federal courts’ dealing with of immigration circumstances has been comparatively delicate beneath the Immigration and Nationality Act (INA) however it has proved a strong software for difficult the Board of Immigration Attraction (BIA)’s reinterpretation of INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A), and INA 236(a), 8 U.S.C. 1226(a) to carry that noncitizens who entered with out inspection (EWI) aren’t eligible for bond. On September 5, 2025, the BIA held in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), {that a} noncitizen respondent who entered the US with out inspection and was positioned in removing proceedings will not be eligible for bond beneath INA 235(b)(2)(A). This BIA resolution was a marked reversal of coverage, as bond had been permitted for noncitizens who entered with out inspection for 3 a long time, because the passage of the Immigration Act of 1996. The choice additionally disregarded INA 236(a), which offers for the discharge on bond of a noncitizen who will not be ineligible beneath the classes prescribed in INA 236(c), which notably excludes respondents who’ve entered with out inspection. Addressing this discrepancy, the BIA said that “nothing within the statutory textual content of part 236(c), together with the textual content of the amendments made by the Laken Riley Act, purports to change or undermine the provisions of part 235(b)(2)(A) of the INA, 8 U.S.C. § 1225(b)(2)(A), requiring that aliens who fall throughout the definition of the statute ‘shall be detained for a continuing beneath part 240’”.
Conscious {that a} federal court docket wouldn’t give deference to its interpretation of the anomaly posed by two competing statutory provisions, INA 235(b)(2)(A) and INA 236(c), the BIA invoked Loper Vivid to conclude that the language beneath INA 235(b)(2)(A) is evident and specific with out regard to the contradiction posed in neighboring INA 236(c), stating: “the statutory textual content of the INA will not be ‘uncertain and ambiguous’ however is as an alternative clear and specific in requiring obligatory detention of all aliens who’re candidates for admission, with out regard to what number of years the alien has been residing in america with out lawful standing. See INA § 235(b)(1), (2), 8 U.S.C. § 1225(b)(1), (2).”
Nevertheless, a string of latest district court docket rulings have relied on Loper Vivid to reject the speculation that noncitizens who entered with out inspection are ineligible for bond as set out in Matter of Yajure Hurtado. These selections invoke Loper Vivid to emphasise that judges should independently interpret INA §§ 235 and 236, fairly than mechanically deferring to the BIA’s interpretation, and arguing that EWIs are eligible for § 236(a) detention and, thus, bond hearings. The courts reasoned that DHS’s new coverage departs from three a long time of constant apply and lacks clear statutory grounding, thereby sustaining bond eligibility for these people. See, for instance, Barco Mercado v. Francis, Guerreno Orellana v. Moniz, and Pizarro Reys v. ICE.
In Buenrostro-Mendez v. Bondi (fifth Cir. 2026) the Fifth Circuit agreed with Yajure Hurtado, holding that noncitizens who entered with out inspection are ineligible for bond. The court docket addressed the statutory discrepancy by stating that “Part 1226(a) undeniably does work unbiased from § 1225(b)(2)(A) as a result of solely § 1226(a) applies to admitted aliens who overstay their visas, develop into deportable on many alternative grounds, or had been admitted erroneously as a result of fraud or another error… Not solely does § 1226(c) sweep in deportable aliens along with the inadmissible aliens coated by § 1225(b)(2)(A)…it additionally eliminates the choice of parole for these to whom it applies.” In a dissenting opinion, Justice Douglas discovered that “Combining the abnormal which means of ‘in search of’ with the statutory definition of ‘admission,’ there is no such thing as a must resort to strained analogies with the school admissions course of to find out the which means of key statutory phrases governing detention.”
Nonetheless, most district courts exterior the Fifth Circuit haven’t been persuaded and proceed to rule in favor of releasing the citizen utilizing their very own unbiased interpretation of the INA beneath Loper Vivid. District court docket circumstances which have cited Buenrostro to this point have primarily completed so to level out that the Fifth Circuit’s holding is an outlier and nonbinding. See, for instance, Aroca v. Mason, Pascual Jose-de-Jose v. Noem, Carlos Roldan Chang v. Noem. In a New Jersey district court docket case, Choose Padin wrote in her opinion that the court docket was “unpersuaded” by the Fifth Circuit’s resolution in Buenrostro, reasoning that “the bulk’s interpretation dangers rendering substantial parts of the statutory scheme superfluous and internally inconsistent”. The Seventh Circuit preliminarily concluded that the U.S. Division of Homeland Safety was not more likely to prevail on its argument that “§ 1225(b)(2)(A) covers any noncitizen who’s unlawfully already in america in addition to those that current themselves at its borders,” Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 (seventh Cir. 2025). Solely a handful of district courts have adopted the reasoning laid out by the Fifth Circuit in Buenrostro. See e.g. D.M.R.D. v. Andrews and Zhuang v. Bondi. Even the Fifth Circuit’s resolution in Buenrostro-Mendez additionally doesn’t preclude launch based mostly on constitutional grounds. In Buenrostro-Mendez, the Fifth Circuit didn’t contemplate whether or not a noncitizen detained beneath 8 U.S.C. § 1225 could also be constitutionally entitled to a bond listening to on the outset of proceedings, and even to launch on constitutional grounds. It additionally leaves intact habeas corpus as a key mechanism for difficult illegal extended detention.
The BIA in Yajure Hurtado invoked Loper Vivid to conclude that the language beneath INA 235(b)(2)(A) is evident and specific to justify the detention of a noncitizen who entered with out inspection with out bond. Paradoxically, the vast majority of courts who’ve additionally invoked Loper Vivid have completed so to justify that they needn’t pay deference to the BIA’s interpretation of INA 235(b)(2)(A) in Yajure Hurtado. An administrative company just like the BIA can not use Loper Vivid to insulate itself from a court docket’s unbiased assessment of the statute. Solely a federal court docket can invoke Loper Vivid to justify why it’s not deferring to the company’s inaccurate interpretation of a statute. Up to now, there have been a whole lot of federal court docket selections that haven’t paid deference to Yajure Hurtado and are additionally not deferring to the Fifth Circuit resolution in Buenrostro-Mendez v. Bondi.
*Kaitlyn Field is a Accomplice at Cyrus D. Mehta & Companions PLLC.
