Fifth Circuit Holds Noncitizens Present Without Admission Are Subject to Mandatory Detention Without Bond During Removal Proceedings

The decision

On February 6, 2026, a panel of the U.S. Court of Appeals for the Fifth Circuit held that two noncitizens who entered the United States unlawfully years ago and were arrested in the interior in 2025 are subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A) while their removal proceedings are pending, and are not eligible for release on bond under 8 U.S.C. § 1226(a). The court reversed two orders of the U.S. District Court for the Southern District of Texas that had granted the petitioners’ habeas petitions and ordered bond hearings. In the opinion’s words: “We REVERSE the district courts’ orders to provide petitioners with bond hearings or release them and REMAND for further proceedings consistent with this opinion.”

Judge Edith H. Jones wrote the opinion for a panel of Judges Jones, Duncan and Douglas. Judge Dana M. Douglas dissented.

Background

The opinion describes the statutory framework. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provided in § 1225(a)(1) that an alien present in the United States who has not been admitted, or who arrives in the United States, “shall be deemed for purposes of this chapter an applicant for admission.” Section 1225(b)(2)(A) provides that if an examining immigration officer determines that “an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained” for a removal proceeding. Section 1226(a), by contrast, permits but does not require release on bond, and § 1226(c), expanded by the Laken Riley Act in 2025, makes certain criminal aliens ineligible for bond and parole.

According to the opinion, from 1997 to 2025 successive administrations and many immigration judges treated unadmitted aliens as subject to § 1226(a). In July 2025, the Board of Immigration Appeals decided Matter of Yajure Hurtado, concluding that aliens who entered without inspection are subject to mandatory detention under § 1225(b)(2) regardless of how long they have lived in the country.

The two petitioners are citizens of Mexico who entered the United States unlawfully in 2009 and 2001. DHS encountered each in 2025, determined each was inadmissible as present without admission or parole, commenced removal proceedings and directed detention under § 1225(b)(2)(A). Each filed a habeas petition in the Southern District of Texas alleging violations of the INA, the Fifth Amendment and the Administrative Procedure Act. Both district courts granted the petitions, reasoning that “seeking admission” is in the present tense and applies only to individuals actively seeking admission when apprehended, so that § 1226(a) governed. Both petitioners then received bond hearings and were released. The government appealed; the appeals were consolidated and expedited, and the court received amicus briefs.

The court’s reasoning

Reviewing de novo, the court noted that the petitioners conceded they are applicants for admission under § 1225(a)(1) and did not dispute that, if § 1225(b)(2)(A) applies, it requires detention without bond eligibility. “The statute unambiguously provides for mandatory detention,” the court wrote. The dispute was whether the phrase “seeking admission” narrows the provision to aliens actively pursuing lawful entry and submitting to inspection.

Ordinary meaning

The court held that an applicant for admission is necessarily seeking admission. Drawing on dictionary definitions of “apply” and “seek,” it reasoned that a person who applies for something is seeking it, comparing a college applicant who is understood to be seeking admission while the application is pending. Rejecting the present-tense argument, the court wrote: “The petitioners are deemed, by statute, to be applicants for admission pending the resolution of removal proceedings. While they remain applicants, they are presently seeking admission.”

Redundancy and the rest of § 1225

To the argument that this reading makes “seeking admission” redundant, the court responded, quoting Barton v. Barr, that redundancy gives no “license to rewrite . . . another portion of the statute contrary to its text,” and, quoting Jennings v. Rodriguez, that no canon forbids reading different words in the same statute to mean roughly the same thing. It found confirmation in § 1225(a)(3), which requires inspection of all aliens “who are applicants for admission or otherwise seeking admission”; the court wrote that “or otherwise” suggests applicants for admission are a subset of those seeking admission.

Section 1226 and the Laken Riley Act

The court held that its reading does not render § 1226 superfluous. Only § 1226(a) reaches admitted aliens who overstay visas, become deportable or were improperly admitted; § 1226(c) covers deportable as well as inadmissible aliens and also eliminates parole. As to the Laken Riley Act, the court reasoned that Congress enacted it in January 2025, when the executive was still treating the covered aliens as bond-eligible, so it had substantial effect when passed.

Jennings

The court rejected reliance on a passage in Jennings describing § 1225(b) as applying to aliens seeking admission and § 1226 to aliens already in the country, characterizing it as a general description: “At most, the language petitioners cite is dicta.” It added that § 1226’s application to aliens inside the country does not preclude § 1225 from also applying, and that Jennings elsewhere described § 1225(b) as applying to “aliens seeking entry into the United States” and equated that group with applicants for admission.

Past practice, legislative history and purpose

The court gave no weight to twenty-nine years of contrary executive practice: “The text says what it says, regardless of the decisions of prior Administrations.” Citing Pereira v. Sessions, it wrote that consistent practice cannot vindicate a reading inconsistent with plain text. Quoting Garland v. Cargill, the court declined to speculate about why Congress deferred implementation of § 1226(c) but not § 1225(b)(2)(A). It concluded that the government’s reading better honors IIRIRA’s goal of eliminating the advantage previously held by unlawful entrants: “It seems strange to suggest that Congress would have preserved bond hearings exclusively for unlawful entrants.”

Other arguments

The court described the petitioners’ fears of abuse of detention as “wholly speculative” and stated that Zadvydas v. Davis “has no direct application to aliens who are detained and being given due process during removal proceedings.”

Separate opinions

Judge Douglas dissented. She would have held that “seeking admission” limits § 1225(b)(2)(A) to noncitizens actively seeking to enter the country, leaving those apprehended in the interior under § 1226(a) and eligible for bond. The dissent argued that on the government’s reading the phrase “alien seeking admission” does no independent work, and that the ordinary meaning of “seek” “requires some present, active action on the seeker’s part.” It contended that the majority’s reading renders several § 1226 provisions, including the Laken Riley Act amendments, largely unnecessary; that the Jennings description of the two sections binds the circuit whether dicta or not; and that the statutes’ titles, the history tracing § 1225(b)(2)(A) to the Immigration Act of 1893, the government’s nearly thirty years of contrary practice and 1997 regulations, and the “elephants in mouseholes” canon all point the other way. She closed that “the government’s proposed reading of the statute would mean that, for purposes of immigration detention, the border is now everywhere.”

Status

The court reversed the district courts’ orders and remanded for further proceedings consistent with its opinion. The opinion does not say what happens to the two petitioners, who had received bond hearings and been released before the appeal was decided. The opinion states that both petitioners appealed to the BIA and have sought or plan to seek cancellation of removal and adjustment of status.