For years, detention authority in removal proceedings followed a functional distinction that practitioners understood well. Noncitizens apprehended at the border or a port of entry were processed under 8 U.S.C. § 1225(b) as “applicants for admission” and were subject to mandatory detention without a bond hearing. By contrast, individuals arrested in the interior— even those who had originally entered without inspection—were typically detained under 8 U.S.C. § 1226(a), which authorizes discretionary detention and provides jurisdiction for immigration judges to conduct bond hearings.

After Congress amended the Immigration and Nationality Act in 1996, that distinction largely held across administrations. Long-term residents placed in removal proceedings were routinely afforded bond hearings under § 1226(a). Mandatory detention under § 1225(b) was generally limited to individuals stopped at or near the border.

The government’s 2025 shift in position disrupted that settled practice. DHS began arguing that any person who entered without lawful admission remains, as a matter of statutory definition, an “applicant for admission” under § 1225(a)(1) until removal proceedings are completed. Under that interpretation, such individuals are deemed to be “seeking admission” throughout their proceedings and therefore fall within § 1225(b)’s mandatory detention language—“shall be detained”—regardless of how long they have lived in the United States.

District courts across multiple jurisdictions rejected that reading. In habeas proceedings, judges repeatedly concluded that the government’s approach collapses the statutory distinction between §§ 1225 and 1226 and departs from decades of consistent agency practice. Many courts ordered bond hearings under § 1226(a), and constitutional due process concerns were frequently raised in cases involving prolonged detention without individualized review.

The Fifth Circuit’s decision in Buenrostro-Mendez v. Bondi (Nos. 25-20496, 25-40701) is the first appellate ruling to endorse the government’s position. In a 2–1 opinion, the court held that the statutory text compels mandatory detention for noncitizens who entered without lawful admission and remain in removal proceedings.

Judge Edith Jones, writing for the majority and joined by Judge Duncan, focused on the definitional provision in § 1225(a)(1), which states that individuals who have not been admitted are “applicants for admission.” The court reasoned that if such individuals are not “clearly and beyond a doubt” entitled to admission, § 1225(b) directs that they “shall be detained.” In the majority’s view, this language is unambiguous and leaves no room to rely on past agency practice to narrow its scope.

The petitioners—Mexican nationals who entered without inspection in 2001 and 2009 and had lived in Texas for many years—were detained in 2025 and denied bond hearings. The Fifth Circuit concluded that their detention properly fell under § 1225(b), rejecting the argument that “seeking admission” requires a present, affirmative attempt to enter at a port of entry. Instead, the court held that individuals who lack lawful admission remain in the legal posture of applicants for admission until proceedings conclude.

Judge Dana Douglas dissented. She emphasized that the majority’s interpretation effectively extends border-based detention authority into the interior and eliminates the practical distinction between §§ 1225 and 1226. In her view, Congress did not clearly indicate an intent to mandate detention without bond for long-settled residents through the language at issue. She would have maintained the traditional understanding that interior arrests fall under § 1226(a), preserving access to bond hearings.

For practitioners, the immediate impact is geographic. Within the Fifth Circuit—Texas, Louisiana, and Mississippi—the government now has binding appellate authority to place certain long-term residents who entered without inspection into mandatory detention under § 1225(b). Immigration judges in those jurisdictions will lack bond jurisdiction in cases where DHS charges detention under that provision.

Outside the Fifth Circuit, district courts have continued to grant habeas relief in similar cases, and litigation remains active. However, the existence of appellate authority increases the likelihood that other circuits will confront the issue soon. In the meantime, detention outcomes may vary significantly depending on where a client is apprehended as well as where DHS, in its sole discretion, decides to move detainees after they are taken into custody.