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Case: 25-3141, 04/28/2026, DktEntry: 78.1, Page 1 of 61
25-3141-pr
Cunha v. Freden
United States Court of Appeals
For the Second Circuit
August Term 2025
Argued: April 6, 2026
Decided: April 28, 2026
No. 25-3141-pr
RICARDO APARECIDO BARBOSA DA CUNHA,
Petitioner-Appellee,
v.
JOSEPH E. FREDEN, Deputy Field Office Director, U.S. Immigration and Customs
Enforcement,
Respondent-Appellant. *
Appeal from the United States District Court
*
The Clerk of Court is respectfully directed to amend the official case caption as set forth
above.
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for the Western District of New York
No. 6:25-cv-6532, Meredith A. Vacca, Judge.
Before: CABRANES, BIANCO, and NATHAN, Circuit Judges.
The government appeals from a grant of a writ of habeas corpus. Petitioner-
Appellee Ricardo Aparecido Barbosa da Cunha (“Petitioner”) is a noncitizen from
Brazil, who entered the United States without inspection and admission in or
around 2005 and has lived in the United States ever since. He applied for asylum
in 2016 and was granted a valid work permit. In September 2025, the government
arrested him on an administrative warrant, placed him in removal proceedings,
and asserted that, while his removal proceedings are pending, he must be detained
pursuant to 8 U.S.C. § 1225(b)(2)(A). After an immigration judge found that he
was subject to mandatory detention under Section 1225(b)(2)(A), Petitioner
brought this habeas petition challenging his detention.
The district court agreed with Petitioner that Section 1225(b)(2)(A) did not
apply to him and that, instead, his detention was governed by 8 U.S.C. § 1226(a),
under which he was eligible for release on bond. Thus, the district court ordered
the government to either provide him with a bond hearing or release him. An
immigration judge held such a hearing and, after determining that Petitioner did
not present a flight risk or danger to persons or property, ordered him released on
bond.
On appeal, the government argues Petitioner is subject to mandatory
detention under Section 1225(b)(2)(A). We disagree. The plain text of both
Sections 1225(b)(2)(A) and 1226(a) make clear that only one applies to a noncitizen
like Petitioner: Section 1226(a). Section 1225(b)(2)(A) does not apply to
noncitizens, such as Petitioner, who are present in the United States after entering
the country without inspection and admission, and who were not apprehended at
2
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or near the border at the time of entry.
This result is dictated by the plain text of these provisions, and further
confirmed by the statute’s context, structure, history, and purpose. It likewise
comports with the Supreme Court’s established understanding of Sections 1225
and 1226. It reflects Executive Branch practice over thirty years and across five
Presidential administrations. Moreover, it explains why Congress has never
challenged that settled practice despite making numerous amendments to the
immigration laws. Finally, even if the government’s newfound interpretation of
Section 1225(b)(2)(A) were plausible—and it is not—we would nonetheless reject
it based on our obligation to construe these statutes in a manner that would avoid
the serious constitutional questions attendant to what would be the broadest mass-
detention-without-bond mandate in our Nation’s history for millions of
noncitizens.
Accordingly, we conclude that Petitioner’s detention is governed by Section
1226(a), not Section 1225(b)(2)(A), and we AFFIRM the district court’s grant of the
writ of habeas corpus.
Judge Cabranes concurs in the judgment and opinion of the Court and files
a separate opinion.
TIBERIUS T. DAVIS, Counsel to the Assistant Attorney
General (Brett A. Shumate, Assistant Attorney General,
Civil Division; Yaakov M. Roth, Principal Deputy
Assistant Attorney General; Drew Ensign, Deputy
Assistant Attorney General; Benjamin Hayes, Senior
Counsel to the Assistant Attorney General; Jessica R.
Lesnau, Trial Attorney, on the brief), U.S. Department of
Justice, Washington, DC, for Respondent-Appellant.
MICHAEL K.T. TAN, American Civil Liberties Union
Foundation, San Francisco, CA (My Khanh Ngo, Oscar
Sarabia Roman, American Civil Liberties Union
3
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Foundation, San Francisco, CA; Judy Rabinovitz, Natalie
Behr, American Civil Liberties Union Foundation, New
York, NY; Amy Belsher, New York Civil Liberties Union,
New York, NY; Paul O’Dwyer, Law Office of Paul
O’Dwyer, PC, New York, NY, on the brief), for Petitioner-
Appellee.
Amit Jain, Roderick & Solange MacArthur Justice Center,
Washington, DC, for Amici Curiae Immigration Law
Scholars, in support of Petitioner-Appellee.
Suchita Mathur and Emma Winger, American
Immigration Council, Washington, DC, for Amici Curiae
American Immigration Council and American Immigration
Lawyers Association, in support of Petitioner-Appellee.
4
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JOSEPH F. BIANCO, Circuit Judge:
Petitioner-Appellee Ricardo Aparecido Barbosa da Cunha
(“Petitioner”) is a noncitizen from Brazil who has lived in the United
States for more than twenty years after entering the country without
inspection and admission. He owns a home in Massachusetts, is
married with two children, and has never been convicted of a crime.
Because he has had an asylum application under agency review since
2016, he was granted legal authorization to work, and he operates a
small construction business. Then, in 2025, immigration officials
arrested Petitioner on his drive to work, detained him, and sought his
removal from the United States.
Petitioner, hoping to return to his family during the removal
proceedings, requested a bond hearing. For nearly thirty years, that
request would have been granted and Petitioner—whom the
government concedes poses no danger to the community nor risk of
flight—would have been released during the pendency of his removal
proceedings, pursuant to 8 U.S.C. § 1226. However, in July 2025, the
government changed that long-settled practice. See U.S. Immigr. &
Customs Enf’t, Interim Guidance Regarding Detention Authority for
Applicants for Admission (July 8, 2025). To justify detaining
noncitizens (or “aliens” 1) who clearly meet the government’s own
criteria for release, the government began arguing that 8 U.S.C.
§ 1225(b)(2)(A) prohibits the setting of bond for all inadmissible
noncitizens, like Petitioner, unlawfully present in the United States—
1
“The term ‘alien’ means any person not a citizen or national of the United
States.” 8 U.S.C. § 1101(3).
5
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by all accounts, millions of men, women, and children. The
government claims that mandatory detention must continue
regardless of how long removal proceedings take—even if the
noncitizen poses no danger to the community or risk of flight.
That is not what the law says. Today, although we part ways
with two other circuits that have addressed this question, we join the
overwhelming majority of federal judges across the Nation to
consider it and conclude that the government’s novel interpretation
of the immigration statutes defies their plain text. That text makes
clear that Section 1226(a) governs detention of noncitizens like
Petitioner. Section 1225(b)(2)(A) does not apply to such noncitizens,
who are present in the United States after entering the country
without inspection and admission, and who were not apprehended
while entering the country or shortly thereafter.
This result is dictated by the plain text of these provisions, and
further confirmed by the statute’s context, structure, history, and
purpose. It likewise comports with the Supreme Court’s established
understanding of Sections 1225 and 1226. It reflects Executive Branch
practice over thirty years and across five Presidential administrations.
Moreover, it explains why Congress has never challenged that settled
practice despite making numerous amendments to the immigration
laws. Finally, even if the government’s newfound interpretation of
Section 1225(b)(2)(A) were plausible—and it is not—we would
nonetheless reject it based on our obligation to construe these statutes
in a manner that would avoid the serious constitutional questions
attendant to what would be the broadest mass-detention-without-
bond mandate in our Nation’s history for millions of noncitizens.
6
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To be clear, our holding does not alter Section 1225(b)’s
mandate that the government detain noncitizens who are
apprehended for removal proceedings while entering the country or
shortly thereafter, nor Section 1226(c)’s mandate that the government
detain noncitizens on certain criminal or terrorism-related grounds.
Instead, consistent with the plain text of the statutory provisions at
issue here, our holding allows noncitizens like Petitioner, who are
already present in the United States and are determined not to be a
flight risk or danger to the community, to be released on bond under
Section 1226(a) while their removal proceedings are pending.
Accordingly, we conclude that Petitioner’s detention is
governed by Section 1226(a), not Section 1225(b)(2)(A), and we
AFFIRM the district court’s grant of the writ of habeas corpus.
BACKGROUND
Petitioner, a citizen of Brazil, entered the United States without
inspection and admission over twenty years ago (in either 2004 or
2005) and has remained here ever since. In 2016, he applied for
asylum and was granted work authorization while his application
was under review. He lives in Massachusetts with his wife and two
U.S.-citizen children, owns his home, and owns and runs a small
construction business. Petitioner has never been arrested for or
charged with a crime.
On September 26, 2025, officers from U.S. Immigration and
Customs Enforcement (“ICE”) arrested Petitioner while he was
driving to work in Norwood, Massachusetts, pursuant to an
administrative warrant that cited Section 236 of the Immigration and
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Nationality Act (“INA”) (i.e., 8 U.S.C. § 1226) as the basis for his arrest.
The United States Department of Homeland Security (“DHS” or the
“Agency”) initiated removal proceedings pursuant to 8 U.S.C.
§ 1229a, and charged Petitioner with inadmissibility under 8 U.S.C.
§ 1182(a)(6)(A)(i) (presence in the United States without being
admitted or paroled) and 8 U.S.C. § 1182(a)(7)(A)(i)(I) (lack of
documentation). Petitioner requested a bond hearing, which an
immigration judge denied based on a determination that he was
subject to mandatory detention under Section 1225(b)(2)(A), and thus
ineligible for bond under Section 1226(a). Petitioner then filed a
habeas petition, 2 arguing that his putative detention under Section
1225(b)(2)(A) violated Section 1226, its associated regulations, and the
Fifth Amendment’s Due Process Clause. The respondent is Joseph E.
Freden, a deputy field office director for ICE. The district court
granted the petition and ordered the government to either provide a
bond hearing or release Petitioner within ten days. An immigration
judge, recognizing that Petitioner presents no danger to persons or
property or risk of flight, released him on bond.
DISCUSSION
The sole question presented by this appeal is whether Section
1226 or Section 1225 governs Petitioner’s detention. If Section 1226
applies, then Petitioner is eligible for release on bond pending the
2
Petitioner initially filed his petition in the District of Massachusetts, but
the petition was transferred to the Western District of New York, on consent
of the parties, because he had already been transported to an ICE detention
facility in Buffalo.
8
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duration of his removal proceedings, including adjudication of his
requests for asylum and cancellation of removal. If Section 1225
applies, then he must be detained during the removal process with no
opportunity for release on bond.
We review de novo a district court’s grant of a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. Black v. Decker, 103
F.4th 133, 142 (2d Cir. 2024). We likewise review questions of
statutory interpretation de novo. Giovinco v. Pullen, 118 F.4th 527, 530
(2d Cir. 2024).
We interpret statutes “based on the traditional tools of
statutory construction, not individual policy preferences.” Loper
Bright Enters. v. Raimondo, 603 U.S. 369, 403 (2024). We begin “by
examining the language of [the] statute, starting with the common
meaning of the words in it.” Puello v. Bureau of Citizenship & Immigr.
Servs., 511 F.3d 324, 328 (2d Cir. 2007). We “interpret the relevant
words not in a vacuum, but with reference to the statutory context,
structure, history, and purpose.” Abramski v. United States, 573 U.S.
169, 179 (2014) (internal quotation marks and citation omitted); see also
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness or
ambiguity of statutory language is determined by reference to the
language itself, the specific context in which that language is used,
and the broader context of the statute as a whole.”).
“When the statutory text is plain and unambiguous, our sole
function is to enforce it according to its terms.” United States v. Bedi,
15 F.4th 222, 226 (2d Cir. 2021) (internal quotation marks and citations
omitted); see also Peralta-Taveras v. Att’y Gen., 488 F.3d 580, 584 (2d Cir.
2007) (“[T]he well-established rules of statutory construction . . .
9
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instruct that [the court’s] inquiry begins with the plain language of
the statute and where the statutory language provides a clear answer,
it ends there as well.”) (internal quotation marks and citation
omitted). “If the statutory language is ambiguous, however, we
resort first to canons of statutory construction, and, if the statutory
meaning remains ambiguous, to legislative history, to see if these
interpretive clues clearly reveal Congress’s intent.” Mizrahi v.
Gonzales, 492 F.3d 156, 158 (2d Cir. 2007) (alteration adopted) (internal
quotation marks and citation omitted). When interpreting an
ambiguous statute, one of the available canons of statutory
construction is that of constitutional avoidance, “which provides that
if one of two competing statutory interpretations would raise a
multitude of constitutional problems, the other should prevail.”
Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492,
519 (2d Cir. 2017) (internal quotation marks and citation omitted).
As set forth below, based on the plain language of Section 1225
and Section 1226, we agree with the district court that Petitioner’s
detention is governed by Section 1226 and that he is entitled to a bond
hearing. That determination is reinforced by the statutory context,
structure, history, and purpose, as well as the nearly three decades of
Executive Branch practice enforcing the immigration laws with that
understanding and the accompanying congressional silence in light
of that practice. Finally, even if the statutory language was
ambiguous, we would reach the same conclusion under the doctrine
of constitutional avoidance.
Our holding is consistent with the decisions of over 370 district
judges across the Nation who (as of mid-February 2026) have also
10
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rejected the government’s position. In other words, over ninety
percent of district court judges have sided with Petitioner. See
American Immigration Council and American Immigration Lawyers
Association Amici Br. at 5 n.6 (citing Kyle Cheney, Even Trump’s Own
Appointees are Ruling Against ICE’s Mass Detention Strategy, POLITICO
(Feb. 12, 2026) [https://tinyurl.com/yc7e5sbd]). Indeed, in this Circuit,
as of mid-February 2026, the government has prevailed in only
approximately fifteen cases, while losing in approximately 145 cases.
Id. at 27–32. The Seventh Circuit has preliminarily reached the same
conclusion in reviewing a stay motion. See Castañon-Nava v. U.S. Dep’t
of Homeland Sec., 161 F.4th 1048, 1062 (7th Cir. 2025). Although
divided panels in two other circuits have agreed with the
government, see Buenrostro-Mendez v. Bondi, 166 F.4th 494, 508 (5th
Cir. 2026); Avila v. Bondi, 170 F.4th 1128, 1138 (8th Cir. 2026), we
respectfully find the statutory analysis in those decisions, which
largely mirrors the government’s flawed arguments in this case, to be
unpersuasive for the reasons discussed below.
I. Statutory Text
As is required, our analysis begins with the statutory text of the
key provisions at issue. See United States v. Helm, 58 F.4th 75, 90 (2d
Cir. 2023). We first analyze Section 1226(a), which was cited in
Petitioner’s warrant as the basis for the arrest, and then turn to Section
1225(b)(2)(A).
A. Section 1226(a)
An analysis of the plain text of Section 1226(a) demonstrates
that it clearly applies to Petitioner. The provision provides:
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On a warrant issued by the Attorney General, an alien
may be arrested and detained pending a decision on
whether the alien is to be removed from the United
States.
8 U.S.C. § 1226(a).
In 1996, Congress passed the Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”), amending portions of the
Immigration and Nationality Act of 1952 (“INA”). Pub. L. No. 104-
208, 110 Stat. 3009. “IIRIRA eliminated the bright-line distinction
between exclusion and deportation, merging the two into
proceedings for ‘removal’ and replacing the definition of ‘entry’ with
that for ‘admission.’” Cruz-Miguel v. Holder, 650 F.3d 189, 197 (2d Cir.
2011). IIRIRA distinguished between noncitizens who are
“inadmissible” and those who are “deportable”: “inadmissible
aliens” are removable because they are “ineligible to be admitted to
the United States,” while “deportable aliens” are noncitizens subject
to removal after previously being admitted. Compare 8 U.S.C.
§ 1182(a), with id. § 1227(a). Thus, removal proceedings cover
noncitizens who are both inadmissible and deportable. See id.
§ 1229a(a)(1) (directing the immigration judge to “conduct
proceedings for deciding the inadmissibility or deportability of an
alien”); see also id. § 1229a(a)(2), (c)(2)(A), (e)(2)(A) (referring to
charges and determinations of inadmissibility).
Under Section 1226(a), detention is discretionary and “the
Attorney General . . . may release the alien on bond . . . or conditional
parole,” id. § 1226(a)(2)(A)–(B), with the exception of noncitizens
involved in certain criminal or terrorism-related activity, id. § 1226(c).
12
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Moreover, a noncitizen detained under Section 1226 may appeal the
Agency’s custody determinations, including the setting of bond, to an
immigration judge, and may appeal an immigration judge’s
redetermination to the Board of Immigration Appeals (“BIA”). 8
C.F.R. § 1003.19(a), (f); id. § 1236.1(d)(1).
Here, it is undisputed that Petitioner (1) was served a warrant
issued by the Attorney General, (2) is a noncitizen, (3) is subject to a
decision on whether he is to be removed from the country, and
(4) does not fall within any of the enumerated grounds for mandatory
detention under Section 1226(c). Thus, the Attorney General may
release Petitioner on bond under the plain language of Section
1226(a).
The government argues that Section 1226(a) applies only to
“aliens who were admitted to the country but later become
deportable and are subject to removal proceedings under [Section]
1229a—for example, admitted aliens who overstay or otherwise
violate the terms of their visas.” Appellant’s Br. at 11. But the
government’s position is untenable based on the plain text of the
statute, which obviously does not limit its application to that
narrower category of noncitizens. To the contrary, the release
authority in Section 1226 applies to “an alien . . . pending a decision
on whether the alien is to be removed”—a word that sweeps in both
inadmissible and deportable aliens, as discussed above. 8 U.S.C.
§ 1226(a) (emphasis added). If Congress had wanted to limit Section
1226(a)(2) only to those noncitizens charged with deportability as
opposed to inadmissibility, it would have said so, as it did repeatedly
in other parts of IIRIRA. See Blake v. Carbone, 489 F.3d 88, 96 n.6 (2d
13
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Cir. 2007) (“IIRIRA consolidated [deportation and exclusion]
proceedings into removal proceedings. Nevertheless, the distinction
between deportable and excludable (also referred to as inadmissible)
persons remains.”). “We must presume that the legislature says in a
statute what it means and means in a statute what it says there.” Dodd
v. United States, 545 U.S. 353, 357 (2005) (alteration adopted) (internal
quotation marks and citation omitted); see also Magwood v. Patterson,
561 U.S. 320, 334 (2010) (“We cannot replace the actual text with
speculation as to Congress’ intent.”).
In sum, Section 1226(a) plainly applies to noncitizens, like
Petitioner, who are present in the United States, but charged as
inadmissible for entering the country without inspection and
admission. Although the government seeks to sidestep the clear
language in Section 1226(a) and support its mandatory-detention
position by pointing to Section 1225(b)(2)(a), we now examine how
the plain text of that statute likewise soundly defeats the
government’s position.
B. Section 1225(b)(2)(A)
The government asserts that Petitioner’s mandatory detention
is lawful pursuant to Section 1225(b)(2)(A), which provides:
Subject to subparagraphs (B) and (C), in the case of an
alien who is an applicant for admission, if the 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 proceeding
under section 1229a of this title.
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8 U.S.C. § 1225(b)(2)(A). According to the government, “[u]nder the
plain language of § 1225(b)(2), DHS is required to detain all aliens,
like Petitioner, who are present in the United States without
admission and are subject to removal proceedings—regardless of
how long the alien has been in the United States or how far inland
from the border they managed to migrate before being detained.”
Appellant’s Br. at 21. We disagree.
The government contends that Petitioner is subject to
mandatory detention because he is an “applicant for admission” who
“is not clearly and beyond a doubt entitled to be admitted.”
However, the government’s proposed statutory construction suffers
from a fatal defect: it disregards the second requirement for this
provision to apply. Section 1225(b)(2)(A) applies “in the case of an
alien who is an applicant for admission” and provides for detention
of “an alien seeking admission.” It therefore applies only to a
noncitizen who is both an “applicant for admission” and who is
“seeking admission.” Petitioner may be an “applicant for admission,”
but he is not “seeking admission.”
First, “applicant for admission” is defined by statute to mean
any noncitizen who is present in the United States and has not been
admitted, or is arriving in the United States. 8 U.S.C. § 1225(a)(1).
More specifically, Section 1225(a)(1) provides:
An alien present in the United States who has not been
admitted or who arrives in the United States (whether or
not at a designated port of arrival and including an alien
who is brought to the United States after having been
interdicted in international or United States waters) shall
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be deemed for purposes of this chapter an applicant for
admission.
Id.
Second, “admission” is defined by statute as “the lawful entry
of the alien into the United States after inspection and authorization.”
Id. § 1101(a)(13)(A). “Entry,” which has no statutory definition,
commonly means “the act of entering.” Entry, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 759 (1993); see also Entry, BLACK’S LAW
DICTIONARY (7th ed. 1999) (“Immigration. Any entrance of an alien
into the United States, whether voluntary or involuntary.”). And to
“enter” means “to go or come into a material place.” Enter, WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 756 (1993). That common
meaning was articulated by the Supreme Court long ago, when it
noted that “‘entry’ by its own force implies a coming from outside.”
United States ex rel. Claussen v. Day, 279 U.S. 398, 401 (1929); see also
United States ex rel. Volpe v. Smith, 289 U.S. 422, 425 (1933) (defining
“entry” as the “coming of an alien from a foreign country into the
United States”).
Third, although also not defined in the statute, the term “seek”
means, as the government agrees, to “request” or “ask for.”
Appellant’s Br. at 26–27 (quoting Seek, WEBSTER’S NEW WORLD
COLLEGE DICTIONARY 1299 (4th ed.)); see also Seek, MERRIAM WEBSTER
ONLINE, https://www.merriam-webster.com/dictionary/seek [https://
perma.cc/XRA7-RPYF] (last visited Apr. 27, 2026) (defining “seek” as,
inter alia, “to go in search of; look for” or “to try to acquire or gain;
aim at” or “to make an attempt”). The term “seeking” is in the present
participle form, which expresses present action. See Present Participle,
16
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WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1794 (1993).
Together, Section 1225(b)(2) therefore applies only to
(1) noncitizens who are present and have not been admitted, and
(2) are requesting (3) lawful entry into the United States after
inspection and authorization. Here, although Petitioner is an
applicant for admission under the statutory definition because he is
present in the country and has never been admitted, it simply cannot
be said that he is “seeking admission,” as he is not requesting lawful
entry into the United States.
By total contrast, Petitioner entered the interior unlawfully
twenty years ago and is now seeking only relief from removal.
Therefore, because Section 1225(b)(2)(A) applies only to a noncitizen
who is both an “applicant for admission” and “seeking admission,” it
does not apply to Petitioner. See also Castañon-Nava, 161 F.4th at 1061
(“[W]hile a noncitizen arrested in the Midwest might qualify as ‘an
alien present in the United States who had not been admitted,’
§ 1225(a)(1), the mandatory detention provision upon which
Defendants rely, limits its scope to an ‘applicant for admission’ who
is ‘seeking admission,’ § 1225(b)(2)(A).”). Instead, Section
1225(b)(2)(A) applies to those noncitizens who present themselves at
a port of entry for admission, or who cross the physical border into
the United States but are apprehended at the “threshold of initial
entry.” Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 107, 140
(2020) (holding that a noncitizen “apprehended just 25 yards from the
border” had not effected an “entry”); see also Leng May Ma v. Barber,
357 U.S. 185, 189 (1958) (treating noncitizens paroled into the country
“as [if] stopped at the boundary line”).
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We cannot ignore the phrase “seeking admission,” as the
government’s interpretation would have us do. Doing so would
render it “mere surplus,” Hechavarria v. Sessions, 891 F.3d 49, 55 (2d
Cir. 2018), as amended (May 22, 2018), and “[i]t is our duty to give
effect, if possible, to every clause and word of a statute,” id. (quoting
United States v. Menasche, 348 U.S. 528, 538–39 (1955)). Here, it is
possible to give effect to each term, as each has a clear statutory
definition or, if undefined by the statute, an ordinary, judicially-
settled meaning. See Feliciano v. Dep’t of Transp., 605 U.S. 38, 45 (2025).
The government’s arguments to the contrary neither ameliorate
this superfluity problem nor overcome the plain text. First, the
government, relying on the analysis in the Fifth Circuit and Eighth
Circuit majority opinions, argues that “the ordinary meanings of the
phrases ‘applicant for admission’ and ‘seeking admission’ are the
same.” Appellant’s Rule 28(j) Ltr. (Mar. 26, 2026) at 1 (internal
quotation marks and citation omitted); see Buenrostro-Mendez, 166
F.4th at 502 (“There is no material disjunction—by the terms of the
statute or the English language—between the concept of ‘applying’
for something and ‘seeking’ something. When a person applies for
something, they are necessarily seeking it. . . . The everyday meaning
of the statute’s terms confirms that being an ‘applicant for admission’
is not a condition independent from ‘seeking admission.’”) (internal
quotation marks and citations omitted); see also Avila, 170 F.4th at 1134
(“[W]e agree with the Fifth Circuit that the ordinary meanings of the
phrases ‘applicant for admission’ and ‘seeking admission’ are the
same.”).
That argument, however, mistakenly assumes that the statute
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uses the ordinary meaning of “applicant for admission.” It does not.
Instead, it introduces an explicit definition and we must follow the
statute. See Digit. Realty Tr., Inc. v. Somers, 583 U.S. 149, 160 (2018).
“Applicant” ordinarily means “one who applies for
something.” Applicant, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 105 (1993). However, Section 1225(a)(1) gives “applicant
for admission” an “artificial” meaning, covering “constructive”
applicants who never applied for anything. See Matter of Lemus-Losa,
25 I. & N. Dec. 734, 743 n.6 (B.I.A. 2012). That must be the case,
because the statutory meaning of “applicant for admission” extends
to noncitizens who have not and could not apply for what the statute
defines as “admission”—“lawful entry . . . into the United States after
inspection and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A). A noncitizen like Petitioner is unlawfully present,
and thus an “applicant for admission,” but indisputably never sought
or applied for lawful entry after inspection and authorization, and is
not doing so now. To the contrary, he evaded immigration inspectors,
snuck into the country, and today applies only for non-admission
forms of relief, including asylum and cancellation of removal.
Petitioner can therefore only be an “applicant for admission” because
the statute uses “applicant” in a “specialized” way, rather than in its
ordinary meaning. Feliciano, 605 U.S. at 45.
Congress reinforced this artificiality by using the word
“deemed” in Section 1225(a). To “deem” a term is to “treat [it] as if
(1) it were really something else, or (2) it has qualities that it does not
have.” Deem, BLACK’S LAW DICTIONARY (7th ed. 1999); see also Shi
Liang Lin v. U.S. Dep’t of Just., 494 F.3d 296, 307 n.9 (2d Cir. 2007) (en
19
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banc). Congress therefore traditionally uses “deem” to “establish a
legal fiction either positively by ‘deeming’ something to be what it is
not or negatively by ‘deeming’ something not to be what it is.” Shi
Liang Lin, 494 F.3d at 307 n.9 (internal quotation marks and citations
omitted). “All other uses of the word should be avoided.” Id.
(internal quotation marks and citations omitted); see also Sturgeon v.
Frost, 587 U.S. 28, 47 (2019) (adopting this definition of “deemed”).
Thus, Congress here deemed, “abracadabra-style,” Sturgeon,
587 U.S. at 47, “applicant for admission” to cover noncitizens who
literally cannot be applying for or seeking “admission.” By contrast,
the statute is silent on the meaning of “seeking” and “applying” and
does not establish a legal fiction as to those terms, leaving them with
their ordinary meanings. See Feliciano, 605 U.S. at 45. We therefore
cannot “abracadabra-style” deem Petitioner to be “seeking
admission.”
It is precisely because Congress employed a statutory term of
art for “applicant for admission” but not for “seeking admission” that
the analogy to an applicant for college, relied upon heavily by the
government and our two sister circuits, is inapposite. See, e.g.,
Buenrostro-Mendez, 166 F.4th at 502 (“Just as an applicant to a college
seeks admission, an applicant for admission to the United States is
‘seeking admission’ to the same, regardless [of] whether the person
actively engages in further affirmative acts to gain admission.”);
accord Avila, 170 F.4th at 1134. Where a statute deems a term to have
a particularized meaning, an analogy to its use in everyday
conversation is of limited help. Even sticking with it, though, for the
college analogy to make sense here, a college would have to deem an
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individual physically located on its campus at any point in time to be
an “applicant for admission” to that college, including an individual
who had never filed an application and had no intention of doing so.
But giving “applicant for admission” such a technical meaning would
not automatically affect the ordinary meaning of “seeking admission”
merely because the two phrases appear similar. 3 Using the ordinary
meaning of “seeking admission,” no one would consider an
individual who never applied to also be “seeking admission” to the
college. Here is a better analogy. If someone sneaks into Yankee
Stadium at the start of the game with no ticket for admission (and no
intention of ever paying) and he is later found by security in a seat in
the seventh inning, no one would consider that fan to be “seeking
admission” to the game.
Even if it were appropriate in this context—and it is not—the
government’s ordinary meaning analysis is not even persuasive on its
own terms. The government contends that “applicant for admission”
is a subset of “alien seeking admission,” such that all those who are
“seeking admission” must also be “applicants for admission.” This is
incorrect. The difference between the two phrases is their temporal
scope. While an “applicant for admission” may be either someone
applying right now or someone who applied in the past, a noncitizen
“seeking” admission refers only to a noncitizen currently seeking
admission.
3
The government acknowledges, as it must, that the phrases are not
literally synonymous, as noncitizens may be “seeking admission” without
being “applicants for admission” in the sense of Section 1225(a)(1). See
Appellant’s Br. at 27–28.
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As we have already explained, “alien seeking admission” is a
present participle, which “denotes the verb’s action as being in
progress or incomplete at the time expressed by the sentence’s
principal verb.” THE CHICAGO MANUAL OF STYLE ¶ 5.114 (18th ed.
2024). Here, as the government conceded at oral argument, that
principal verb is “is,” such that “alien seeking admission” means an
“alien who is seeking admission.” This is reinforced by the statute’s
parallel use of “alien who is an applicant for admission” earlier in the
same sentence, and by the fact that “the examining immigration
officer determines [whether] an alien seeking admission is . . . entitled
to be admitted.” 8 U.S.C. § 1225(b)(2)(A) (emphasis added). 4 When
the statute says, “alien seeking admission,” it therefore refers to a
noncitizen who is seeking admission right now, not one who sought
admission in the past but no longer is. See Carr v. United States, 560
U.S. 438, 448 (2010) (“Consistent with normal usage, we have
frequently looked to Congress’ choice of verb tense to ascertain a
statute’s temporal reach.”).
In contrast, the noun “applicant” lacks a defined “temporal
scope.” Robinson, 519 U.S. at 344. In other words, like most nouns,
the word does not refer to any particular time period. For example, a
job “applicant” can refer to individuals who are no longer applying,
such as “[u]nsuccessful applicants or those who turn down a job
4
Similarly, subsection (b)(2)(B) creates multiple exceptions for noncitizens
using the present tense “is.” 8 U.S.C. § 1225(b)(2)(B). And subsection
(b)(2)(C) uses the parallel construction “an alien . . . who is arriving on
land” to describe a subset of noncitizens covered by subsection (b)(2)(A).
Id. § 1225(b)(2)(C).
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offer.” Id. Thus, employing the ordinary meaning of the terms, not
everyone who is an “applicant for admission” is necessarily “seeking
admission.” While those “seeking admission” must be doing so in
the present, “applicants for admission” may be presently “seeking”
admission but need not be—as Petitioner’s case illustrates.
The government’s faulty analogy of a student applying to
college again helps illuminate the difference. It would be natural to
say that “the college rejected the applicant,” referring to a student
whose application had already been denied. However, no one would
say that “the college rejected the person who is seeking admission.”
It would instead be natural to say that “the college rejected the person
who was seeking admission” or “sought admission.” Since the statute
is written to refer to those “seeking admission,” the government’s
college-applicant analogy cuts against its argument.
Finally, if the government were right that “applicant for
admission” is a subset of “seeking admission,” there would have been
no reason for Congress to use both. The government argues that
“applicant for admission” has some meaning because it narrows the
scope of “seeking admission” in Section 1225(b)(2)(A). But Congress
could have achieved the same outcome by using “applicant for
admission” alone and omitting “seeking admission” entirely. See
Biden v. Texas, 597 U.S. 785, 798 (2022) (“If Congress had wanted the
provision to have that effect, it could have said so in words far simpler
than those that it wrote.”). It did not do so, and it is not our role to
second-guess that choice by unilaterally editing the statute now.
In contrast, Petitioner’s interpretation provides a clear
explanation for what role both terms play in the statute. Only because
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the statute includes both terms does it authorize bond for noncitizens
who fit into only one category but mandate detention for noncitizens
who fit into both. As we discuss further below regarding the structure
and purpose of these provisions, Congress did not intend to mandate
detention of noncitizens “seeking admission” who are not “applicants
for admission,” such as noncitizens who apply for a visa at a consulate
abroad. See Lemus-Losa, 25 I. & N. Dec. at 741. Nor did Congress
intend to mandate detention of noncitizens who are “applicants for
admission” but not “seeking admission,” such as illegal entrants, like
Petitioner, who have nonetheless lived in the United States for a
substantial time. That result makes sense, as the strong rationale for
detaining noncitizens who are both “applicants for admission” and
“seeking admission” does not apply to noncitizens who are one but
not the other.
In sum, our commonsense reading of the text in Section
1225(b)(2)(A) squares with the plain meaning of “seeking admission”
and gives effect to each clause and word that Congress chose to write.
II. Other IIRIRA Provisions
Given Section 1225(b)(2)(A)’s straightforward text, the
government attempts to cobble together language from other parts of
IIRIRA with similar phrases or terms—including Sections 1225(a)(3),
1225(a)(4), 1225(a)(5), 1182(a)(9)(B)(i)(I), and 1225(b)(2)(B)(iii)—and
argues that inferences drawn from those provisions shed light on
congressional intent with respect to the language in Section
1225(b)(2)(A), and support the government’s position. We reject each
argument in turn.
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A. Section 1225(a)(3)
Section 1225(a)(3) provides for inspection of “[a]ll aliens . . .
who are applicants for admission or otherwise seeking admission or
readmission to or transit through the United States.” 8 U.S.C.
§ 1225(a)(3). From the phrase “or otherwise,” the government infers
that “applicants for admission” must be a subset of “seeking
admission.” However, that is only one possible meaning of “or
otherwise,” and is one that fits poorly with the statute here.
Although the government is correct that “or otherwise” can
sometimes mean “in a different way or manner,” it can also simply
“refer to something that is different from something already
mentioned.” Or otherwise, MERRIAM-WEBSTER ONLINE, https://www.
merriam-webster.com/dictionary/or%20otherwise [https://perma.cc/
9F9H-PH6Q] (last visited Apr. 27, 2026); see also Otherwise, WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 1598 (1993) (defining
otherwise as “in a different way or manner,” but also as “in different
circumstances,” “under other conditions,” and “in other respects”).
The Supreme Court has rejected the argument that “or
otherwise” mandates the subset-superset interpretation urged by the
government. Particularly, in Helsinn Healthcare S.A. v. Teva
Pharmaceuticals USA, Inc., the Court considered language in the
America Invents Act, 35 U.S.C. § 102(a)(1), barring patents on any
invention that was “in public use, on sale, or otherwise available to the
public before the effective filing date of the claimed invention.” 586
U.S. 123, 125 (2019) (emphasis added). The plaintiff argued that “or
otherwise” must mean that “on sale” is just one way of describing
something “available to the public,” and that the statute therefore
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only covers sales to the public, not to private buyers. Id. at 132. The
Court disagreed, explaining that, “[l]ike other such phrases,
‘otherwise available to the public’ captures material that does not fit
neatly into the statute’s enumerated categories but is nevertheless
meant to be covered.” Id. Thus, the Court rejected the plaintiff’s
contention that such a construction “reads ‘otherwise’ out of the
statute,” and concluded that the statute covers even sales that do not
“make the claimed invention available to the public.” Id.
Similarly, the Supreme Court has long rejected arguments that
the phrase “or otherwise” in criminal residual clauses means that
language after the catchall limits the types of crimes enumerated
before the catchall. Therefore, a criminal statute covering “burglary,”
as well as conduct that “or otherwise” involves a “serious potential
risk” of harm, covers even burglaries that involve no actual risk of
harm at all. Taylor v. United States, 495 U.S. 575, 597 (1990). That result
was possible only because burglary is not a mere subset of harmful
conduct.
As these cases illustrate, determining whether a particular
catchall phrase is “conjunctive” or “disjunctive” requires a context-
specific approach. See Flora v. United States, 362 U.S. 145, 149–50
(1960). Here, the text and context strongly suggest that “or otherwise”
in Section 1225(a)(3) has its disjunctive meaning. In the government’s
cited cases, the statutes at issue were structured to set forth a list of
specific examples followed by an “or otherwise” catchall clause. For
example, Kleber and Villarreal interpreted a section of the Age
Discrimination in Employment Act making it unlawful “to limit,
segregate, or classify his employees in any way which would deprive
26
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or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee.” Kleber v.
CareFusion Corp., 914 F.3d 480, 482 (7th Cir. 2019) (quoting 29 U.S.C.
§ 623(a)(2)); see also Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958,
963 (11th Cir. 2016) (en banc). Similarly, Wynn interpreted a provision
of the Foreign Agents Registration Act covering persons “engaged in
or about to engage in any acts which constitute or will constitute a
violation of any provision of this subchapter, or regulations issued
thereunder, or whenever any agent of a foreign principal fails to
comply with any of the provisions of this subchapter or the
regulations issued thereunder, or otherwise is in violation of the
subchapter.” Att’y Gen. v. Wynn, 104 F.4th 348, 353–54 (D.C. Cir. 2024)
(emphasis added) (quoting 22 U.S.C. § 618(f)). Such texts easily
warrant a subset-superset interpretation. When Congress uses “a list
of specific items separated by commas and followed by a general or
collective term,” it raises the “inference . . . that Congress remained
focused on the common attribute when it used the catchall phrase.”
Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225 (2008) (discussing the
similar, but distinct, ejusdem generis canon).
By contrast, “applicant for admission” is not narrower or more
specific than “alien seeking admission,” nor does the statute
enumerate multiple examples of “seeking admission.” In fact, it does
the opposite, beginning with the general “applicant for admission”
and then following “or otherwise” with a more specific list—“seeking
admission or readmission to or transit through the United States.”
8 U.S.C. § 1225(a)(3). Petitioner’s interpretation thus fits well with
that framework—Section 1225(a)(3) applies to applicants for
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admission, and also applies to three further categories of noncitizens,
which may overlap with but are not the same as “applicant for
admission.”
B. Section 1225(a)(4)
Section 1225(a)(4) omits “applicant for admission” entirely,
instead providing that “[a]n alien applying for admission may . . . be
permitted to withdraw the application for admission and depart
immediately from the United States.” 8 U.S.C. § 1225(a)(4). The
government nevertheless argues that the fact that a noncitizen
“applying for admission” can withdraw his application shows that
“applying for admission” is the same as being an “applicant for
admission.”
As an initial matter, this argument is circular, assuming the
very point it aims to prove (that “alien applying for admission” is
synonymous with “applicant for admission”). But even more
fundamentally, the text of Section 1225(a)(4) undermines the
government’s argument. Where Congress wanted to write a tailored
provision that applies only to those noncitizens currently seeking
“lawful entry,” it used “alien applying for admission” (a present
participle) instead of “applicant for admission” (a noun).
Grammatically, the section works only if, as explained above, the
implied finite verb corresponding to “applying” is the present-tense
“is.” It would make no sense for a noncitizen who was rather than is
applying for admission to withdraw his application—there would be
nothing to withdraw.
Petitioner’s interpretation of Section 1225(a)(4) also fits well
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with its function. The section allows a noncitizen to voluntarily
depart and thereby avoid the initiation of removal proceedings, after
which the noncitizen would be subject to a strict waiting period before
reapplying for admission. See 8 U.S.C. § 1182(a)(9)(B)(i) (setting the
waiting period at three years for those who voluntarily depart prior
to removal proceedings, but ten years for those who do not). The
Agency’s own regulations confirm that this voluntary withdrawal
provision is available “only [to] an arriving alien.” 8 C.F.R.
§ 1240.1(d). That makes sense. There is simply no reason for a
noncitizen who unlawfully entered twenty years ago to request
permission from the Attorney General to “withdraw” anything,
because he never submitted anything in the first place.
That reading aligns with the Agency’s own interpretation of
“applying for admission” in other sections. For example, Section
1182(h) allows certain noncitizens who have committed a crime
involving moral turpitude to apply for a waiver of inadmissibility if
the Attorney General “has consented to the alien’s applying . . . for
admission to the United States.” 8 U.S.C. § 1182(h)(2). As the Agency
has explained, being an “’applicant for admission’ under [Section
1125(a)(1)] is distinguishable from ‘applying . . . for admission to the
United States’ within the meaning of [Section 1182(h)].” Matter of Y-
N-P-, 26 I. & N. Dec. 10, 13 (B.I.A. 2012). The Section 1125(a)(1)
language “merely entitles [a noncitizen] to a removal hearing,”
“despite her actual presence in the United States.” Id. By contrast,
the phrase “applying . . . for admission” in Section 1182(h) refers only
to those noncitizens who “have some basis for being admitted” and
are not already present. Id. (emphasis in original). Where a
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noncitizen like Petitioner “does not contend that there is any basis for
[his] admission to the United States,” and instead “is requesting that
the Attorney General exercise his discretion to cancel [his] removal”
or provide asylum, he is not applying for (or seeking) admission. Id.;
see also Garcia-Mendez v. Lynch, 788 F.3d 1058, 1065 (9th Cir. 2015)
(adopting Matter of Y-N-P- at Chevron step two); Arevalo v. Att’y Gen.,
872 F.3d 1184, 1195 (11th Cir. 2017) (same); Torres v. Barr, 976 F.3d 918,
929 (9th Cir. 2020) (invoking Matter of Y-N-P- for the principle that the
“deeming provision of § 1225(a)(1) ‘merely’ determines a
respondent’s legal status for purposes of removal proceedings”).
That interpretation is correct. Not all applicants for admission are
applying for or seeking admission at all points in time. To hold
otherwise would disregard the distinctions that Congress wrote into
the statutes.
C. Section 1225(a)(5)
The government also turns to Section 1225(a)(5), at least in its
reply brief. 5 That section permits immigration officers to require
applicants for admission to “state under oath any information sought
by an immigration officer regarding the purposes and intentions of
the applicant in seeking admission to the United States.” 8 U.S.C.
5
Generally, we would not consider an argument not raised in an
appellant’s opening brief. See Tripathy v. McKoy, 103 F.4th 106, 118 (2d Cir.
2024). However, given our preference for resolving disputes on the merits
and the importance of the question presented, we exercise our discretion to
consider the substance of the government’s argument about Section
1225(a)(5).
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§ 1225(a)(5). The government argues that this means all applicants for
admission are necessarily “seeking admission.”
The text does not bear this weight. Instead, Section 1225(a)(5)
provides that applicants for admission “may be required to state
under oath” certain information, implicitly recognizing that some
applicants for admission will not be required to do so. Id. (emphasis
added); see also Yoo v. United States, 43 F.4th 64, 72 (2d Cir. 2022) (“The
use of the word ‘may’—in contrast to words like ‘shall’ or ‘must’—
authorizes, rather than commands.”). That makes sense, because
much of the information described—intended length of stay and
intent to remain permanently—applies to only a subset of applicants
for admission, such as those who are seeking temporary
nonimmigrant visas. See, e.g., USCIS Form I-134, Declaration of
Financial Support, at 5–6 (Jan. 20, 2025) (requesting an applicant’s
anticipated length of stay and certification of ability “to pay for
necessary expenses for the duration of [the applicant’s] temporary
stay in the United States”); USCIS Form I-192, Application for
Advance Permission to Enter as a Nonimmigrant, at 6 (Jan. 20, 2025)
(“Approximate Length of Stay in the United States”). It would be
absurd for an immigration officer to ask someone like Petitioner—
who entered unlawfully and has been living here for twenty years—
to attest to his “intended length of stay.” Section 1225(a)(5) is
therefore consistent with the notion that some, but not all, applicants
for admission are seeking admission. Just like Section 1225(b)(2)(A),
Section 1225(a)(5) applies only to such noncitizens, who may be
required to attest to their “purposes and intentions . . . in seeking
admission.”
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Again, Petitioner is not presently “seeking admission,” despite
being deemed an applicant for admission. And Section 1225(a)(5)
makes perfect sense as a matter of grammar and logic, even
acknowledging that not all applicants for admission are also seeking
admission. This subsection therefore does nothing to push the
government’s argument forward.
D. Section 1182(a)(9)(B)(i)(I)
The government also raises Section 1182(a)(9)(B)(i)(I), which
renders inadmissible certain noncitizens who were “unlawfully
present in the United States” and “again seek[] admission” after they
depart or are removed. 8 U.S.C. § 1182(a)(9)(B)(i)(I). Even though the
government focuses on subsection (B)(i)(I), “again seeks admission”
is used in two other subsections within Section 1182(a)(9). Because
Section 1182(a)(9)(B)(i)(I) does not explicitly exclude noncitizens who
initially entered the United States unlawfully, the government reads
“again” to mean that all such noncitizens must have at some point
sought admission by operation of law. The government then takes
the additional step of inferring that if such noncitizens once sought
admission, they must still be seeking admission in the present.
Although the Agency has espoused that view of Section
1182(a)(9) for some time, see Lemus-Losa, 25 I. & N. Dec. at 743 n.6, it
is such a counterintuitive reading of the text that the Agency initially
held that “the word ‘again’ [w]as an apparent drafting mistake that
has no bearing on the” scope of § 1182(a)(9), In Re Lemus-Losa, 24 I. &
N. Dec. 373, 376 n.3 (B.I.A. 2007). In any event, we are not bound by
the BIA’s interpretation of Section 1182(a)(9). See Loper Bright Enters.,
32
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603 U.S. at 385–86, 400–01; see also Penaranda Arevalo v. Bondi, 130 F.4th
325, 336 (2d Cir. 2025) (making a determination independent of a BIA
decision).
The most natural reading of “again seeks admission” in Section
1182(a)(9)(B)(i)(I) is the one that is consistent with Petitioner’s reading
of the plain text of Section 1225(b)(2)(A). Seeking admission means
seeking lawful entry, and there is no reason to diverge from the plain
reading that “again seeks admission” applies only to those
noncitizens who previously sought lawful entry. The government
assumes that this would be a problem only because it cherry-picks
portions of Section 1182(a)(9) and reads them in isolation. For
example, the government worries that limiting Section
1182(a)(9)(B)(i)(I) to those who actually seek lawful admission would
create inequities between them and noncitizens who evade inspection
at the border. That concern is misplaced. Any noncitizen who evades
inspection at the border, is removed, and later “seeks admission” is
covered not by Section 1182(a)(9)(B)(i)(I), but instead by the harsher
provision of Section 1182(a)(9)(A)(ii). Unlike subsection (B)(i)(I),
which imposes waiting periods of either three or ten years and
includes exceptions for, inter alia, minors, asylees, battered women,
and victims of sex trafficking, subsection (A)(ii) imposes a flat ten-
year waiting period and includes only one exception for readmission
with the Attorney General’s consent.
This interpretation also honors Congress’s use of different
terminology throughout Section 1182(a)(9). Some subsections use
“again seeks admission,” 8 U.S.C. § 1182(a)(9)(B)(i)(I), some use only
“seeks admission,” id. § 1182(a)(9)(A)(ii), and others use “enters or
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attempts to reenter,” id. § 1182(a)(9)(C)(i)(II). We presume that such
choices by Congress are meaningful. See FDA v. R.J. Reynolds Vapor
Co., 606 U.S. 226, 238–39 (2025) (“When Congress uses ‘one term in
one place, and a materially different term in another, the presumption
is that the different term denotes a different idea.’”) (quoting A.
SCALIA & B. GARNER, READING LAW 170 (2012)). If the government
were correct that every “applicant for admission” has, by operation
of law, sought admission, then there would be no need to specify
“again,” nor would there be any difference between “again seeks
admission” and “seeks admission.” In addition, if entering the
country unlawfully amounted to constructively seeking admission,
then “enters or attempts to reenter” too would cover the exact same
people as “seeks admission” and “again seeks admission.”
Finally, even if Lemus-Losa were correct, it would not support
the government’s position in this case. More specifically, even if
noncitizens like Petitioner are construed as having sought admission
at some point in the past, it does not follow that they are presently
seeking admission. That is because someone who is presently
“seeking admission” cannot “again” seek admission. Cf. Lemus-Losa,
25 I. & N. Dec. at 743 n.6; Buenrostro-Mendez, 166 F.4th at 503. Thus,
for Lemus-Losa’s interpretation of Section 1182(a)(9) to work,
noncitizens who “again seek admission” must have at some point
stopped seeking admission. But merely departing the country does
not necessarily end one’s process of “seeking admission” because, as
the BIA recognized, “many aliens . . . will be outside the United States
and seeking admission from abroad.” Lemus-Losa, 25 I. & N. Dec. at
741 (emphasis omitted). If anything, then, the use of “again” in
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Section 1182(a)(9) supports Petitioner’s view that he at least is no
longer “seeking admission,” even if the government were right that
he once was.
In any event, whatever “again” means in Section 1182(a)(9), no
reasonable interpretation of that provision supports the government’s
present understanding of Section 1225(b)(2). We need not
conclusively determine the scope of Section 1182(a)(9) to decide that
Congress did not indirectly and implicitly mandate the detention of
millions of noncitizens—a proverbial “elephant[]”—by inserting a
surreptitious “again” into an unrelated section of the INA—the
epitome of all “mouseholes.” Whitman v. Am. Trucking Ass’ns, 531
U.S. 457, 468 (2001).
E. Section 1225(b)(2)(B)(iii)
The government, relying on the Eighth Circuit’s decision in
Avila, also argues that Section 1225(b)(2)(B)(iii), which exempts
“stowaway[s]” from Section 1225(b)(2)(A), supports its
interpretation. In Avila, the majority reasoned that there would be no
reason to exclude stowaways from Section 1225(b)(2)(A) unless a
stowaway could otherwise be an “applicant for admission” who is
“seeking admission.” Avila, 170 F.4th at 1135. Any reliance on this
exemption to support the government’s position is misplaced.
First, the majority in Avila failed to consider at all that Section
1225(a)(2) states that “[i]n no case may a stowaway be considered an
applicant for admission or eligible for a hearing under section 1229a
of this title.” 8 U.S.C. § 1225(a)(2). Thus, the Avila majority started
from the premise that a stowaway could be an “applicant for
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admission” but for Section 1225(b)(2)(B)(iii), even though that
possibility is flatly foreclosed by Section 1225(a)(2).
Second, the Avila majority decided without basis that a
stowaway “unquestionably” cannot seek lawful entry to the United
States. Avila, 170 F.4th at 1135. The statute defines “stowaway” as
“any alien who obtains transportation without the consent of the
owner, charterer, master or person in command of any vessel or
aircraft through concealment aboard.” 8 U.S.C. § 1101(a)(49). The
definition thus speaks only to the noncitizen’s journey to the United
States, not to the way the noncitizen seeks entry once he arrives (such
as pursuant to a valid visa). The definition also covers a noncitizen
who completes only a portion of his journey as a stowaway but
otherwise disembarks lawfully at a port of entry. But for the exclusion
of stowaways in Section 1225(a)(2), such a noncitizen could seek
lawful entry just like anyone else presenting at the border.
Accordingly, the only coherent interpretation of Section
1225(b)(2)(B)(iii) is that it clarifies that Section 1225(b)(2)(A)’s broad
referral of noncitizens to full removal proceedings under Section
1229a does not apply to stowaways.
* * *
In sum, the plain meaning of “seeking admission” in
Section 1225(b)(2)(A)—presently pursuing lawful entry into the
United States—is not undermined by any of the other statutory
provisions to which the government retreats to find support.
Therefore, we find no basis to justify departing from the
unambiguous meaning of the text, under which Petitioner is not
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subject to mandatory detention, because he is not “seeking
admission” under Section 1225(b)(2)(A).
III. Statutory Context and Structure
Our interpretation of Sections 1225 and 1226, based on their
plain text, is reinforced by the broader context and structure of those
provisions in the overall statutory scheme. See United States v.
Epskamp, 832 F.3d 154, 162 (2d Cir. 2016); see also Gundy v. United
States, 588 U.S. 128, 141 (2019) (“It is a fundamental canon of statutory
construction that the words of a statute must be read in their context
and with a view to their place in the overall statutory scheme.”)
(internal quotation marks and citation omitted).
As an initial matter, the Supreme Court has long understood
IIRIRA exactly how Petitioner does. See Jennings v. Rodriguez, 583 U.S.
281, 287 (2018). In rejecting the Ninth Circuit’s view that the doctrine
of constitutional avoidance imposed an implicit six-month time limit
on detention under Sections 1225(b) and 1226, the Court explained
that Section 1225 operates “at the Nation’s borders and ports of entry,
where the Government must determine whether an alien seeking to
enter the country is admissible,” id. (emphasis added), and “U.S.
immigration law authorizes the Government to detain certain aliens
seeking admission into the country under §§ 1225(b)(1) and (b)(2),” id.
at 289. By contrast, the Court described Section 1226 as “authoriz[ing]
the Government to detain certain aliens already in the country pending
the outcome of removal proceedings under §§ 1226(a) and (c).” Id.
(emphasis added).
Although the government suggests that there is also language
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in Jennings that supports its reading—because the Court noted that
Section 1225(b)(2) “serves as a catchall provision that applies to all
applicants for admission not covered by § 1225(b)(1),” id. at 287—we
are unpersuaded. Indeed, the Court left no doubt as to its view
regarding the differences between Sections 1225 and 1226, which
squarely fits with Petitioner’s interpretation, because it repeated later
in the opinion that Section 1226 “applies to aliens already present in
the United States.” Id. at 303. Thus, as the Court explained, Section
1226 “creates a default rule for those aliens by permitting—but not
requiring—the Attorney General to issue warrants for their arrest and
detention pending removal proceedings” and “permits the Attorney
General to release those aliens on bond, except as provided in
subsection (c).” Id. (alteration adopted) (internal quotation marks
omitted).
To the extent that the government alternatively attempts to
downplay the language in Jennings as mere dicta, it is well settled that
“we are obligated to accord great deference to Supreme Court dicta,
absent a change in the legal landscape.” United States v. Harris, 838
F.3d 98, 107 (2d Cir. 2016) (typeface altered) (internal quotation marks
and citation omitted); see also Clemente v. Lee, 72 F.4th 466, 474 (2d Cir.
2023). The government points to no change in the legal landscape,
and thus we afford great deference to the Court’s description of the
statutory scheme in Jennings.
Even without deferring, though, the framework set forth in
Jennings makes good sense in light of Congress’ overall approach to
immigration detention. The statute creates a tiered scheme that
makes detention and removal easier for noncitizens who have weaker
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legal claims and who are either particularly dangerous or about
whom the government lacks information. Noncitizens who just
arrived without documentation or who misrepresented themselves
are subject to expedited removal and must be detained. 8 U.S.C.
§ 1225(b)(1)(A)(i). Noncitizens who snuck across the border less than
two years ago may be treated the same way, but only if so designated
by the Attorney General. Id. § 1225(b)(1)(A)(iii). Noncitizens who
present themselves to immigration officials at the border but are
likely inadmissible for reasons other than a lack of documentation or
misrepresentation must be detained, but they get full (not expedited)
removal proceedings. Id. § 1225(b)(2)(A). Finally, noncitizens who
have been in the United States for more than two years get full
removal proceedings, may be detained, and may be granted release
on bond or conditional parole, id. § 1226(a), unless they have
committed certain crimes, id. § 1226(c). Only that construction reads
the detention and removal provisions as a “symmetrical and
coherent” statutory scheme that fits “all parts into an harmonious
whole.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000) (internal quotation marks and citation omitted).
We are equally unpersuaded by the government’s contention
that its reading “brings the statute in line with the longstanding ‘entry
fiction’” repeated throughout Supreme Court precedent, suggesting
that noncitizens like Petitioner can be treated “as if stopped at the
border” because they have never lawfully entered. Appellant’s Br. at
43–44 (quoting Thuraissigiam, 591 U.S. at 139). Under the
government’s reading, Petitioner is still “seeking admission” because
he had not lawfully entered. However, that approach overreads the
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Supreme Court’s “entry fiction” precedents and disregards a century
of immigration law establishing the meaning of “entry” as the
“coming of an alien from a foreign country into the United States.”
Volpe, 289 U.S. at 425. Indeed, it has long been settled that a noncitizen
can effect an entry even by crossing the border illegally. See Yamataya
v. Fisher, 189 U.S. 86, 99–102 (1903). The pre-1996 INA sought to
“giv[e] due recognition to the[se] judicial precedents” by defining
entry as the “coming of an alien from a foreign port or place or an
outlying possession into the United States.” Landon v. Plasencia, 459
U.S. 21, 29 n.6 (1982) (quoting S. Rep. No. 1137, at 4 (1952)). While
IIRIRA replaced that statutory definition of “entry” with
“admission,” it did not redefine “entry” or give any indication that it
departed from these longstanding precedents.
Although the “entry fiction” doctrine allows the government to
treat physical entrants as if still “on the threshold” if they are
“detained shortly after unlawful entry,” the reach of that doctrine is
sharply limited. Thuraissigiam, 591 U.S. at 140 (internal quotation
marks omitted). While the doctrine may extend further than the
twenty-five yards and twenty-four hours at issue in Thuraissigiam, id.
at 113, no one could seriously contend that it applies to a noncitizen
like Petitioner who has been living in the United States for decades.
Under settled Supreme Court precedent, “aliens who have once
passed through our gates, even illegally, may be expelled only after
proceedings conforming to traditional standards of fairness
encompassed in due process of law.” Shaughnessy v. United States ex
rel. Mezei, 345 U.S. 206, 212 (1953) (emphasis added). That is, “once
an alien enters the country, the legal circumstance changes, . . .
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whether their presence here is lawful, unlawful, temporary, or
permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). The
government’s reading runs afoul of these fundamental principles.
Moreover, the government’s argument turns on Section 1225
existing in a vacuum. The government argues that Section
1225(b)(2)(A) applies to Petitioner because all “applicants for
admission” necessarily fall into one of two exhaustive categories set
forth in Section 1225 that mandate detention pending removal.
According to the government, some subset falls under Section
1225(b)(1), which requires detention pending expedited removal
proceedings for noncitizens who are inadmissible on certain grounds
and “who (1) are ‘arriving in the United States,’ or (2) have ‘not been
admitted or paroled into the United States’ and have not
‘affirmatively shown . . . that [they] ha[ve] been physically present in
the United States continuously for the 2-year period immediately
prior to the date of the determination of inadmissibility.’”
Appellant’s Br. at 9 (quoting 8 U.S.C. § 1225(b)(1)(A)(i)–(iii)). 6 All
other applicants for admission, the government argues, fall into
Section 1225(b)(2)(A) as a “catchall.” The sole exception from
mandatory detention is parole, granted “only on a case-by-case basis
for urgent humanitarian reasons or significant public benefit.” 8
U.S.C. § 1182(d)(5)(A).
However, the government’s argument rests on an unjustified
6
Noncitizens in the latter category are only subject to detention and
expedited removal under Sections 1225(b)(1)(A)(i) and (iii) if so
“designated” by the Attorney General in his discretion. 8 U.S.C.
§ 1225(b)(1)(A)(iii)(I).
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assumption that every “applicant for admission” must be covered by
either Section 1225(b)(1) or Section 1226(b)(2). There is no textual
basis in Section 1225 for that assumption, and it undermines the
central role that Section 1226 plays in the statutory scheme.
For one, the government’s interpretation reduces the
applicability of Section 1226(a) to a subset of applicants for admission
(i.e., “the detention of any of the multitude of aliens who have
overstayed their visas,” Appellant’s Br. at 38) narrower than the
statutory text authorizes. Had Congress intended Section 1226(a) to
apply more narrowly, it would not have written the section to cover
“an alien” without any further qualifications. 8 U.S.C. § 1226(a).
Section 1226’s breadth is reinforced by its title, which refers broadly
to “[a]pprehension and detention of aliens”—again with no
qualifying language. Cf. Dubin v. United States, 599 U.S. 110, 120–21
(2023) (“[T]he title of a statute and the heading of a section are tools
available for the resolution of a doubt about the meaning of a
statute.”) (internal quotation marks and citation omitted); see also Pub.
L. 104-208, 110 Stat. 3009, 585 (1996) (enacting Section 1226 with its
present title).
The government’s interpretation also renders superfluous
much of Section 1226(c), including amendments to that provision in
the Laken Riley Act, which was passed by Congress in 2025. See Pub.
L. No. 119-1, 139 Stat. 3 (2025). As enacted in IIRIRA, Section 1226(c)
mandates detention without bond or parole for noncitizens who enter
the United States illegally, are released pending removal, and inter alia
are inadmissible for certain reasons, including having committed a
crime involving moral turpitude, 8 U.S.C. § 1226(c)(1)(A), or having
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engaged in terrorist activity, id. § 1226(c)(1)(D). It thereby acts as “a
limit on the authority conferred by subsection [1226](a),”
“subtract[ing] some of [the Agency’s] discretion when it comes to the
arrest and release of criminal aliens.” Nielsen v. Preap, 586 U.S. 392,
409 (2019) (emphasis omitted).
If, as the government argues, all applicants for admission are
subject to mandatory detention under Section 1225(b)(2), Section
1226(c) would apply only to two narrow subsets of noncitizens:
“admitted aliens who overstayed visas and are deportable” and then
also commit an enumerated crime, Appellant’s Br. at 19; and the rare
criminal detainee who receives humanitarian parole under Section
1182(d)(5)(A). 7 The vast majority of noncitizens covered by Section
1226(c)’s text, however, would be completely unaffected in the
government’s view, since they would already have been subject to
mandatory detention without bond under Section 1225(b). It would
be surprising if Congress wrote Section 1226(c) so broadly if it were
meant to apply to so few individuals.
When Congress amended Section 1226 in the Laken Riley Act,
it enumerated additional crimes requiring detention, including
“burglary, theft, larceny, shoplifting, or assault of a law enforcement
officer, . . . or any crime that results in death or serious bodily injury
to another person.” 8 U.S.C. § 1226(c)(1)(E). Again, Congress added
no language suggesting that Section 1226 was limited to noncitizens
7
The parties dispute whether Section 1226(c) restricts humanitarian parole
granted pursuant to Section 1182(d)(5)(A). We assume without deciding
that the government is correct that Section 1226(c) prohibits humanitarian
parole, not just conditional parole under Section 1226(a)(2)(B).
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who overstay visas. Moreover, it would have been odd for Congress
to address the dangers posed by “inadmissible . . . unadmitted
criminal aliens,” Appellant’s Br. at 42, by amending a narrow
provision that the government contends applies primarily to admitted
noncitizens who have subsequently become deportable. 8 See Stone v.
INS, 514 U.S. 386, 397 (1995) (“When Congress acts to amend a statute,
we presume it intends its amendment to have real and substantial
effect.”).
By nullifying nearly all applications of Sections 1226(a) and
1226(c), the government’s interpretation “violate[s] the canon against
interpreting any statutory provision in a manner that would render
another provision superfluous.” Bilski v. Kappos, 561 U.S. 593, 607–08
(2010); see also Castañon-Nava, 161 F.4th at 1061 (rejecting the
government’s construction of Section 1225(b)(2) because it would
“render superfluous another part of the same statutory scheme”)
(internal quotation marks omitted). That canon is “strongest when,”
as here, “an interpretation would render superfluous another part of
the same statutory scheme.” Marx v. Gen. Revenue Corp., 568 U.S. 371,
386 (2013); Henderson v. United States, 568 U.S. 266, 281 (2013) (Scalia,
8 Indeed, the noncitizen who murdered Laken Riley and inspired the Act—
Jose Antonio Ibarra—entered the country illegally before being paroled
pending further proceedings and had not overstayed a visa. See Debate
Concerning the Laken Riley Act, 171 Cong. Rec. S161-01, S165 (daily ed. Jan.
15, 2025) (Sen. Ricketts); see also Daniella Silva, Man Found Guilty of
Murdering Georgia Nursing Student Laken Riley and Is Sentenced to Life, NBC
NEWS (Nov. 20, 2024), https://www.nbcnews.com/news/us-news/man-
found-guilty-murder-killing-georgia-nursing-student-laken-riley-
rcna180377 [https://perma.cc/4NCL-5C8S] (last visited Apr. 27, 2026).
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J., dissenting) (“A rudimentary principle of textual interpretation—so
commonsensical that it scarcely needs citation—is that if one
interpretation of an ambiguous provision causes it to serve a purpose
consistent with the entire text, and the other interpretation renders it
pointless, the former prevails.”). And the canon applies to these
provisions even though the Laken Riley Act was enacted later in time.
See Bilski, 561 U.S. at 608.
As explained above, the more coherent explanation is that
Section 1226(a) sets forth the default rule for discretionary detention
of noncitizens, which Sections 1225(b) and 1226(c) modify for certain
subsets of high-risk noncitizens. That interpretation of the statutory
scheme honors the text of each section and fits them together into a
“symmetrical and coherent” whole. Brown & Williamson, 529 U.S. at
133 (internal quotation marks and citation omitted).
In sum, Petitioner’s interpretation of “seeking admission”
under Section 1225(b)(2)(A) is completely consistent with the
consideration of that provision in the overall structure and context of
the detention framework set forth in the statutory scheme.
IV. Statutory History and Purpose
The government roots much of its argument in “Congress’s
manifest purposes” in adopting Section 1225(b)(2)(A). Appellant’s Br.
at 21. It claims that “one of IIRIRA’s express objectives,” id. at 43, was
to prevent unlawful entrants from obtaining “equities and privileges
in immigration proceedings that [were] not available to aliens who
present[ed] themselves for inspection,” id. (quoting H.R. Rep.
No. 104-469, pt. 1, at 225 (1996) [hereinafter House Report I]).
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As a threshold matter, the government’s argument about the
legislative history is irrelevant because the plain statutory text
controls. See Mohamad v. Palestinian Auth., 566 U.S. 449, 458 (2012)
(“[R]eliance on legislative history is unnecessary in light of the
statute’s unambiguous language.”) (internal quotation marks and
citation omitted); see also Lee v. Bankers Tr. Co., 166 F.3d 540, 544 (2d
Cir. 1999) (“Legislative history and other tools of interpretation may
be relied upon only if the terms of the statute are ambiguous.”). In
any event, the government’s conclusions from the legislative history
are incorrect. Indeed, the government’s use of legislative history
illustrates the worst pitfalls of that method, derided as “looking over
a crowd and picking out your friends.” Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 568 (2005) (internal quotation marks and
citation omitted). Fittingly, the government derives its view of
“congressional purpose” from a single quote in the legislative history
and omits the first half of the quoted sentence. As a result, the
government erroneously concludes that IIRIRA sought to abolish all
distinctions between arriving and already present noncitizens. It did
not. Rather, IIRIRA had the much more modest goal of altering
“certain aspects of the [then] current ‘entry doctrine’”: namely, it
reoriented “whether or not the alien has been lawfully admitted” as
“the pivotal factor in determining an alien’s status.” House Report I,
at 225 (emphasis added). 9
9
The key to understanding this is the focus on status rather than detention.
One aim of IIRIRA was to eliminate the dual track for removal that had
previously placed some noncitizens into exclusion proceedings and others
into deportation proceedings. That regime granted substantial legal
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The statutory lineage of Section 1226(a) further reinforces this
reading. The same House Judiciary Committee Report on which the
government relies explains that Section 1226(a) “restates the [then]
current provisions in [Section 1252(a)(1)] regarding the authority of
the Attorney General to arrest, detain, and release on bond an alien
who is not lawfully in the United States.” House Report I, at 229; see
also H.R. Rep. No. 104-828, at 210 (1996) (Conf. Rep.) (same). The old
Section 1252(a)(1) authorized bond for “any alien” pending
deportation, not exclusion, proceedings—that is, noncitizens like
Petitioner whom the government wants to exclude from bond under
Section 1226(a). 8 U.S.C. § 1252(a)(1) (1995). The report gave no
indication that bond eligibility under Section 1226(a) was intended to
be narrower than under the old Section 1252(a)(1), despite explicitly
noting that certain judicial review provisions in the old Section
1252(a)(1) were “not retained.” House Report I, at 229. The only
relevant change that IIRIRA made to the old Section 1252(a)(1) was
replacing “[p]ending a determination of deportability” with
“pending a decision on whether the alien is to be removed”—a shift
privileges and rights only to noncitizens in deportation proceedings,
including rights to notice and direct appeal. See Landon, 459 U.S. at 25–27.
Those were the “equities and privileges” that IIRIRA aimed to standardize.
Appellant’s Br. at 43. As we have explained, IIRIRA’s consolidation of
deportation and exclusion proceedings into the singular removal
proceeding did not eliminate all distinctions between deportable (admitted)
and inadmissible (unadmitted) noncitizens. See Blake, 489 F.3d at 96 n.6.
There are no clues in the House Report, or anywhere else in the legislative
record, that Congress understood the detention regime as one of the
“certain aspects” of the prior system it sought to change.
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that broadened, rather than narrowed, the section’s scope. Compare 8
U.S.C. § 1252(a)(1) (1995), with id. § 1226(a) (2026).
The administrability safeguards that Congress wrote into
IIRIRA provide further evidence that Section 1225 was not meant to
have a broader scope than Section 1226. See Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 483 (1999) (interpreting IIRIRA by
reference to its transitional provisions). The enacting Congress
estimated the number of criminal noncitizens then covered by Section
1226(c)’s detention mandate was in the range of 100,000 to 200,000.
See House Report I, at 118–20. To account for the government’s then-
limited detention capacity, IIRIRA included a safety-valve provision,
allowing the Attorney General to delay enforcement of Section
1226(c) for up to two years upon notifying Congress “that there is
insufficient detention space and . . . personnel available to carry out
section [1226(c)].” Pub. L. No. 104–208, § 303(b)(2), 110 Stat. 3009,
586–87 (1996). Following passage of IIRIRA, the Attorney General
immediately triggered the safety valve and delayed implementation.
See Margaret H. Taylor, The 1996 Immigration Act: Detention and Related
Issues, 74 INTERPRETER RELEASES 209, 216–17 (1997).
By contrast, Congress apparently made no effort to estimate the
number of individuals covered by Section 1225(b)(2)(A)’s detention
mandate, nor included any similar safety-valve provision applying to
that section of IIRIRA. The government offers no explanation for why
the same Congress that was so concerned with the detention of
100,000 people under Section 1226(c) would have turned a blind eye
to the consequences of mandating detention for all applicants for
admission under Section 1225—an estimated two million people at
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the time. See Oral Argument at 11:15–24 (acknowledging that the
number was “likely” “at least millions” in the late 1990s and that the
number “has obviously increased” over time). Moreover, it is even
harder to explain why the government, if tasked with detaining the
huge number of noncitizens covered by Section 1225, would have
neglected for almost thirty years to increase its detention capacity
enough to actually implement that mandate. Even without the
government’s suggested expansion of Section 1225(b)(2)(A), “DHS
has never had sufficient detention capacity to maintain in custody
every single person described in” that section. Biden, 597 U.S. at 792
(internal quotation marks and citation omitted).
Finally, the government’s interpretation undermines the very
purpose that it purports to advance—treating similarly situated
noncitizens alike. If the government is correct about Section
1225(b)(2)(A), then an unlawfully present noncitizen who entered
illegally must be detained, but an unlawfully present noncitizen who
overstayed a once-valid visa need not be, even if both noncitizens are
identical in all other respects. Thus, even if both noncitizens had lived
in the country for many years and were enmeshed in their
communities, only the unlawful entrant would need to be detained,
even though both noncitizens violated our immigration laws. At
bottom, an illegal entrant and a visa overstayer who have both lived
in the country for many years are much more similar to each other
than to an unknown noncitizen who has just arrived at the border for
inspection and admission. The government’s interpretation therefore
results in a much more problematic form of unequal treatment than
Petitioner’s does.
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Overall, IIRIRA retained much of the preexisting law’s
differential treatment of noncitizens at the border and in the country’s
interior. For instance, IIRIRA retained the distinction between
deportability and inadmissibility grounds for removal. Blake, 489
F.3d at 96 n.6. While there is overlap between them, they are not
coterminous. For instance, while noncitizens who have engaged in
terrorist activity are both deportable and inadmissible, see 8 U.S.C.
§§ 1182(a)(3)(B), 1227(a)(4)(B), a noncitizen who commits domestic
violence or stalking offenses is only deportable, not inadmissible, see
id. § 1227(a)(2)(E). As was true before IIRIRA, certain features of
inadmissibility (as opposed to deportability) apply specifically to
arriving (rather than already present) noncitizens. See, e.g., id.
§ 1225(b)(1)(A)(i) (providing for expedited removal of “arriving”
noncitizens deemed inadmissible under Sections 1182(a)(6)(C) and
1182(a)(7)). IIRIRA’s nuanced retention of some but not other
distinctions between deportable and excludable noncitizens reflects
the well-established principle that “[l]aws are the product of
compromise, and no law pursues its purposes at all costs.” Luna Perez
v. Sturgis Pub. Schs., 598 U.S. 142, 150 (2023) (alterations adopted)
(internal quotation marks and citation omitted).
In sum, neither the government’s reliance on legislative history
nor Congress’s overall purpose in enacting IIRIRA can rescue the
newfound interpretation of Section 1225(b)(2)(A), which casts aside
the plain text and the context, structure, and history that supports our
reading of that provision.
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V. Prior Executive Practice and Congressional Silence
Even assuming arguendo that ambiguity existed in Section
1225(b)(2) with respect to its application to Petitioner and such
ambiguity could support the government’s position, the fact that the
Executive Branch has for nearly three decades acted inconsistently
with the newfound interpretation strongly counsels against adopting
it.
It is well-settled that we may consider the “consistency” of an
agency’s interpretation of a statute in deciding how persuasive it is.
See Loper Bright Enters., 603 U.S. at 388 (quoting Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944)). In particular, the Supreme Court has
explained:
Authority actually granted by Congress of course cannot
evaporate through lack of administrative exercise. But
just as established practice may shed light on the extent
of power conveyed by general statutory language, so the
want of assertion of power by those who presumably
would be alert to exercise it, is equally significant in
determining whether such power was actually
conferred.
FTC v. Bunte Bros., 312 U.S. 349, 352 (1941). Accordingly, “[w]hen an
agency claims to discover in a long-extant statute an unheralded
power to regulate a significant portion of the American economy, we
typically greet its announcement with a measure of skepticism.” Util.
Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (internal quotation
marks and citation omitted).
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Here, although the parties quarrel over whether regulations
issued in 1997 when IIRIRA was enacted support their respective
interpretations of Section 1225(b)(2), see 8 C.F.R. §§ 1003.19(a) & (h)(2),
1236.1(d), there can be no debate that the Department of Justice’s
contemporaneous understanding of the statute was the same as
Petitioner’s. See Detention and Removal of Aliens, 62 Fed. Reg. 10312,
10323 (Mar. 6, 1997) (“Despite being applicants for admission, aliens
who are present without having been admitted or paroled . . . will be
eligible for bond and bond redetermination.”). The government
argues that this regulation shows that the Department of Justice in
1997 thought that noncitizens like Petitioner were “applicants for
admission.” Appellant’s Reply Br. at 21–22; see also Buenrostro-
Mendez, 166 F.4th at 506–07. But again, this makes the mistake of
ignoring the phrase “seeking admission.” Of course the interim
regulation acknowledges that “aliens who are present without having
been admitted or paroled” are “applicants for admission,” because
that is what Section 1225(a)(1) deems them to be. But the regulation
clarifies that such noncitizens are still eligible for bond because they
are not also “seeking admission.” It is therefore consistent with
Petitioner’s interpretation of the statute, not the government’s.
In any event, the government concedes that, for five
Presidential administrations over nearly three decades, it did
consistently release detainees on bond whom the government now
argues are covered by Section 1225(b)(2)(A). Even in President
Trump’s first term (and the first few months of his second), the
Agency adhered to the decades-old understanding on the relative
scopes of Sections 1225 and 1226. Under these circumstances, “[t]he
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fact that no President has ever found such power [in the statute] is
strong evidence that it does not exist.” Learning Res., Inc. v. Trump,
146 S. Ct. 628, 643 (2026); see also id. at 641 (plurality opinion)
(explaining that the “breadth of authority” the government claims,
coupled with its “lack of historical precedent,” “is a telling indication”
that the claimed power “extend[s] beyond the President’s legitimate
reach”) (internal quotation marks and citation omitted). 10
Congressional silence, too, is instructive. Despite enacting
numerous amendments to IIRIRA over the years, Congress never
inserted any language correcting the Executive’s supposed
misinterpretation of Section 1225 or consistent application of Section
1226. As noted supra, even when it enacted the Laken Riley Act in
January 2025, Congress mandated detention only for a narrow subset
10
The government suggests that this reliance on Executive Branch inaction
also “falls short” because, inter alia, “the Executive has not wholly failed to
exercise the power it now claims” and “every prior administration
interpreted and applied § 1225(b)(2)(A) to mandate detention of some
aliens—just a subset of those subject to § 1225(b)(2)(A).” Appellant’s Reply
Br. at 22 (alterations adopted) (emphasis in original) (internal quotation
marks and citation omitted). That argument, however, misses the mark.
Even when an agency has historically exercised some power pursuant a
statute, its longstanding lack of any prior assertion of the expanded power
that it now seeks to employ under that same statute can still be “significant
in determining whether such power was actually conferred.” Bunte Bros.,
312 U.S. at 352; see id. at 351–52 (holding that, even though the Federal Trade
Commission exercised authority under a statute against business practices
employed in interstate commerce, it was significant “[t]hat for a quarter
century the Commission has made no such claim” of similar power with
respect to intrastate transactions).
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of criminal noncitizens, effectively blessing the practice of releasing
non-criminal noncitizens, like Petitioner, on bond. As with agency
practice, “Congress’ failure to repeal or revise the statute in the face
of such administrative interpretation is persuasive evidence that that
interpretation is the one intended by Congress.” CBS, Inc. v. FCC, 453
U.S. 367, 385 (1981) (alterations adopted) (internal quotation marks
and citation omitted); see also United States v. Chestman, 947 F.2d 551,
560 (2d Cir. 1991) (en banc) (“Congressional silence in the face of
administrative construction of a statute lends support to the validity
of that interpretation.”).
Of course, as the government argues, courts can reject a
longstanding agency interpretation. See Bankamerica Corp. v. United
States, 462 U.S. 122, 131 (1983) (“[T]he mere failure of administrative
agencies to act is in no sense a binding administrative interpretation
that the Government lacks the authority to act.”) (internal quotation
marks and citation omitted). But a longstanding, incorrect
interpretation by an agency is more easily explained when the effect
of that interpretation was to aggrandize an agency’s power. See, e.g.,
Pereira v. Sessions, 585 U.S. 198, 202 (2018) (holding that DHS’s notices
to appear were inadequate). We recognize that agencies have strong
incentives to maximize their own power and discretion. See Nat’l
Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin.,
595 U.S. 109, 119 (2022). Accordingly, where an agency has long failed
to reach for a power and only later changes its mind, we may consider
that as persuasive evidence that the power was never conferred in the
first place. See id.
To be sure, we also agree with the government, and the Fifth
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Circuit, that “[y]ears of consistent practice cannot vindicate an
interpretation that is inconsistent with a statute’s plain text.”
Appellant’s Reply Br. at 22 (quoting Buenrostro-Mendez, 166 F.4th at
506). However, even if we are incorrect in our view that the
unambiguous language of the statute unquestionably favors
Petitioner’s interpretation, it is hard to fathom how the plain text
could be read to somehow unambiguously favor the government—
especially where over 370 different judges across the Nation have
rejected the government’s plain text argument—such that we could
not consider the long-standing agency practice that contradicts the
government’s position.
Moreover, “[i]n extraordinary cases[,] there may be reason to
hesitate before accepting a reading of a statute that would, under
more ordinary circumstances, be upheld.” West Virginia v. EPA, 597
U.S. 697, 723–24 (2022) (alteration adopted) (internal quotation marks
and citation omitted). Rather than credulously accepting that
Congress meant to entirely overhaul the pre-IIRIRA detention regime
through “ambiguous statutory text,” “we typically greet assertions of
extravagant statutory power . . . with skepticism.” Id. (internal
quotation marks and citation omitted). The government’s
interpretation of Section 1225(b)(2)(A) would send a seismic shock
through our immigration detention system and society, straining our
already overcrowded detention infrastructure, incarcerating millions,
separating families, and disrupting communities. If Congress meant
to achieve such a radical break from the past, it would not have done
so in such an indirect and ambiguous way. As noted supra, Congress
does not “hide elephants in mouseholes.” Whitman, 531 U.S. at 468.
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Given the enormous consequences of its interpretation and the “vast”
breadth of our nation’s immigration laws, the government here
“seeks to cram a veritable legislative zoo” into an exceptionally small
mousehole. Patel v. Garland, 596 U.S. 328, 365 (2022) (Gorsuch, J.,
dissenting); see also Learning Res., 146 S. Ct. at 642 (“It stands to reason
that had Congress intended to convey [this] distinct and
extraordinary power . . . it would have done so expressly.”); see also
id. at 639 (plurality opinion) (emphasizing that “a practical
understanding of legislative intent suggest[s] Congress would have
not delegated highly consequential power through ambiguous
language”) (internal quotation marks and citation omitted).
VI. Constitutional Avoidance
Finally, even if there were ambiguity in the statutory text, we
would reject the government’s interpretation because of the grave
constitutional concerns it raises.
“Under the constitutional-avoidance canon, when statutory
language is susceptible of multiple interpretations, a court may shun
an interpretation that raises serious constitutional doubts and instead
may adopt an alternative that avoids those problems.” Jennings, 583
U.S. at 286. Importantly, “[t]he canon of constitutional avoidance
comes into play only when, after the application of ordinary textual
analysis, the statute is found to be susceptible of more than one
construction,” and, otherwise, it “simply has no application.” Id. at
296 (internal quotation marks and citations omitted). As we have
extensively discussed, Petitioner’s reading of “alien seeking
admission” is the proper construction of Section 1225(b)(2)(A)’s plain
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text and, thus, we need not rely here upon the doctrine of
constitutional avoidance.
However, again assuming arguendo that the statutory language
is ambiguous and the government’s interpretation is a plausible one,
it sounds constitutional alarms that would warrant its rejection. See
Biden v. Nebraska, 600 U.S. 477, 509 (2023) (Barrett, J., concurring) (“[I]f
the better reading leads to a disfavored result (like provoking a
serious constitutional question), the court will adopt an inferior-but-
tenable reading to avoid it.”). Petitioner is protected by the Fifth
Amendment’s Due Process Clause, requiring any civil detention to be
“nonpunitive in purpose and effect.” Zadvydas, 533 U.S. at 690; see
also Velasco Lopez v. Decker, 978 F.3d 842, 850 (2d Cir. 2020) (“[T]he Due
Process Clause covers noncitizens, whether their presence here is
lawful, unlawful, temporary, or permanent.”). While noncitizens can
be detained temporarily to “give[] immigration officials time to
determine an alien’s status without running the risk of the alien’s
either absconding or engaging in criminal activity,” Jennings, 583 U.S.
at 286, that is not what is going on here, where detention is mandatory
regardless of these risks. We discern no basis for subjecting all
noncitizens in Petitioner’s shoes to categorical detention without
bond. As the government conceded at oral argument, Petitioner, like
many unlawfully present noncitizens, presents no risk of flight nor
any danger to the community. Indeed, when ordered by the district
court to provide Petitioner with a bond hearing, the Agency agreed
that he presented no such risks and released him.
The government’s interpretation would also likely subject
Petitioner to unconstitutionally prolonged detention. Before he was
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arrested, Petitioner’s asylum application was pending for nearly a
decade, and it still has not been resolved. And while the government
represents that removal is “practically attainable” for Petitioner,
Appellant’s Reply Br. at 32, proceedings have already lasted more
than six months since his arrest with no clear end in sight. In fact, his
next hearing is scheduled for June 28, 2027. See EOIR Automated Case
Info., EXEC. OFF. FOR IMMIGR. REV., https://acis.eoir.justice.gov/en
(search by 209 454 653, Brazil, or access an archived version at
https://perma.cc/257V-4KT2) (last visited Apr. 27, 2026). Detaining
Petitioner without a bond hearing until then would “raise[] serious
due process concerns” under our precedents. Black, 103 F.4th at 150;
see Velasco Lopez, 978 F.3d at 855 (holding that continued detention of
a noncitizen under Section 1226(a) for fifteen months pending
removal violated due process).
These concerns are compounded by the fact that noncitizens
have no right to counsel and are therefore often unrepresented in
removal proceedings. See 8 U.S.C. § 1229a(b)(4)(A). Unlike criminals
detained for punitive purposes, noncitizens like Petitioner thus lack
the ability to reliably challenge their detention or the conditions in
which they are being held.
The government cites Demore v. Kim, 538 U.S. 510 (2003), to
argue that Zadvydas, Velasco Lopez, and Black do not apply because
detention under Section 1225(b)(2)(A) is not “indefinite.” Appellant’s
Reply Br. at 31–32 (emphasis omitted). But that assertion does not
dispose of the constitutional concerns for two reasons. First, even if
detention never becomes prolonged, the government’s interpretation
would require a legitimate rationale, which the government has not
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attempted to articulate with respect to noncitizens like Petitioner.
Whatever the duration of detention, it must still “serve its purported
immigration purpose,” Demore, 538 U.S. at 527, which must
“outweigh[] the individual’s constitutionally protected interest in
avoiding physical restraint,” Zadvydas, 533 U.S. at 690 (internal
quotation marks and citation omitted). In Demore, that justification
was satisfied because Section 1226(c) applies only to “criminal aliens.”
538 U.S. at 517–23 (discussing at length Congress’s specific concerns
with removing criminals). In Zadvydas, it was not, because the statute
at issue “applie[d] not only to terrorists and criminals, but also to
ordinary visa violators.” 533 U.S. at 697. Here, like in Zadvydas,
mandatory detention of noncitizens like Petitioner (who cannot be
said, as a categorical matter, to pose a danger to the community or
risk of flight) for a substantial period of time would raise serious
constitutional questions, especially because the government has
failed to explain how it would bear a “reasonable relation” to any
legitimate, non-punitive purpose. Id. at 690 (internal quotation marks
and citation omitted). That conclusion is bolstered by our decision in
Velasco Lopez. The core of our decision was that detention without
justification serves “no public interest” that could outweigh the
substantial harm it causes to detainees and the community. Velasco
Lopez, 978 F.3d at 855. We explicitly declined to “establish a bright-
line rule for when due process entitles an individual” to a bond
hearing, instead holding that “the longer detention continues, the
greater the need for the Government to justify its continuation.” Id.
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at 855 & n.13. 11
Second, the Court in Demore assumed that detention would be
relatively brief because of the criminal context. It focused on the
narrow scope of Section 1226(c) and emphasized that “the detention
at stake . . . lasts roughly a month and a half in the vast majority of
cases . . . and about five months in the minority of cases in which the
alien chooses to appeal.” Demore, 538 U.S. at 530. The Court
explained that proceedings against “criminal aliens” are typically
completed so swiftly because they are prioritized by the Agency over
the mine run of removal cases. Id. at 530 n.13. If the government is
right that Section 1225(b)(2)(A) mandates detention of millions of
non-criminal noncitizens, there is no reason to think that removal can
be completed so swiftly for all or even most of those detained. 12
It is not hyperbolic to project that the government’s
interpretation would result in Petitioner, and many similarly situated
noncitizens, being detained longer than permissible under Zadvydas
and its progeny. Thus, although this case can be resolved based on
11
The detainee in Velasco Lopez had received an initial bond determination,
as Section 1226(a) requires. 978 F.3d at 846–47.
12 Indeed, the average wait time today for an initial decision in removal
proceedings is more than two years. See Immigration Court Legal
Representation Dashboard, VERA INST., https://www.vera.org/ending-mass-
incarceration/reducing-incarceration/detention-of-immigrants/advancing-
universal-representation-initiative/immigration-court-legal-representation
-dashboard [https://perma.cc/H56B-TV2P] (last visited Apr. 27, 2026). If the
government were forced to detain all unlawfully present noncitizens until
removal, it could not even complete removal of Section 1226(c) detainees as
quickly as the Court assumed in Demore.
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the text of Sections 1225(b)(2)(A) and 1226(a) alone, the serious
constitutional concerns raised by the government’s interpretation
would alternatively warrant its rejection based on the constitutional-
avoidance canon.
CONCLUSION
Petitioner entered the United States unlawfully in 2004 or 2005
and has resided here ever since. He is therefore deemed to be an
“applicant for admission” by Section 1225(a), but he is not “seeking
admission” because he is not requesting lawful entry into the United
States after inspection and authorization. The government’s attempt
to muddy these textually clear waters defies the statute’s context,
structure, history, and purpose; contradicts the Supreme Court’s dicta
in Jennings and longstanding Executive Branch practice; and its
interpretation of the statute raises serious constitutional questions
that should be avoided even if the statutory language were
ambiguous. “If judges could add to, remodel, update, or detract from
old statutory terms inspired only by extratextual sources and our own
imaginations, we would risk amending statutes outside the legislative
process reserved for the people’s representatives.” Bostock v. Clayton
Cnty., 590 U.S. 644, 654–55 (2020). We will not do so here.
Accordingly, we conclude that Petitioner’s detention is
governed by Section 1226(a), not Section 1225(b)(2)(A), and we
AFFIRM the district court’s grant of the writ of habeas corpus.
61