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Response to the petition, dated August 21, 2026
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No. 26-104
IN THE
Supreme Court of the United States
PHILIP L. RHONEY, ACTING FIELD OFFICE DIRECTOR, BUFFALO FIELD
OFFICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
Petitioner,
–––V.–––
RICARDO APARECIDO BARBOSA DA CUNHA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
RESPONSE TO PETITION FOR A WRIT OF CERTIORARI
Judy Rabinovitz Michael K.T. Tan
Natalie Behr Counsel of Record
Priyanka Menon* My Khanh Ngo
AMERICAN CIVIL LIBERTIES UNION Cecillia D. Wang
FOUNDATION Evelyn R. Danforth-Scott
125 Broad Street, 18th Floor Oscar Sarabia Roman
New York, NY 10004 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Amy Belsher 425 California Street, Suite 700
NEW YORK CIVIL LIBERTIES UNION San Francisco, CA 94104
125 Broad Street, 19th Floor (212) 549-2500
New York, NY 10004 m.tan@aclu.org
Matt Adams Lucia Goin
Leila Kang AMERICAN CIVIL LIBERTIES UNION
Aaron Korthuis FOUNDATION
NORTHWEST IMMIGRANT RIGHTS 915 15th Street NW, Suite 600
PROJECT Washington, DC 20005
615 2nd Avenue, Suite 400
Seattle, WA 98104 Paul O’Dwyer
LAW OFFICE OF PAUL O’DWYER, P.C.
11 Broadway, Suite 715
*admitted only in Maryland New York, NY 10004
Counsel for Respondent
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QUESTION PRESENTED
Thirty years ago, Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), Pub. L. 104–208, 110 Stat.
3009-546, with distinct detention provisions for
individuals in different circumstances. One section, 8
U.S.C. § 1226(a), governs detention during removal
proceedings for noncitizens who entered the country
and allows for their release on bond or conditions. A
different detention provision, 8 U.S.C. § 1225(b)(2)(A),
imposes mandatory detention without the possibility
of bond for noncitizens who have not yet entered the
country and are “seeking admission” into the United
States.
The question presented is whether the court of
appeals correctly determined that Respondent—a
long-time resident who entered the country years ago
and was arrested inside the United States—is subject
to the detention and bond regime under § 1226(a), and
not mandatory detention under § 1225(b)(2)(A).
i
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TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
TABLE OF AUTHORITIES ...................................... iii
INTRODUCTION ....................................................... 1
STATEMENT OF THE CASE.................................... 4
I. STATUTORY BACKGROUND ........................... 4
A. The Immigration Detention Statutes ........... 4
B. Congress’s Choice in IIRIRA to Preserve
the Availability of Bond Generally for
Noncitizens in the United States .................. 7
C. IIRIRA and Mandatory Detention .............. 10
II. EXECUTIVE BRANCH INTERPRETATION
AND PRACTICE ................................................ 11
III. THE GOVERNMENT’S REVERSAL ................ 12
IV. THE PRESENT LITIGATION .......................... 13
REASONS FOR GRANTING THE PETITION ....... 17
CONCLUSION.......................................................... 20
ii
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TABLE OF AUTHORITIES
Cases Page(s)
Barbosa da Cunha v. Freden,
175 F.4th 61 (2d Cir. 2026) ................................ 16
Buenrostro-Mendez v. Bondi,
166 F.4th 494 (5th Cir. 2026) ............................ 17
Cirrus Rojas v. Olson,
No. 25-3127, --- F.4th ----, 2026 WL 2198315
(7th Cir. July 30, 2026) ...................................... 17
Demore v. Kim,
538 U.S. 510 (2003) ............................................ 10
Guerrero-Orellana v. Moniz,
No. 25-2152, --- F. 4th ----, 2026 WL 2352042
(1st Cir. Aug. 13, 2026) ...................................... 16
Hernandez Alvarez v. Warden, Fed. Det. Ctr.
Miami,
175 F.4th 1258 (11th Cir. 2026)......................... 17
Herrera Avila v. Bondi,
170 F.4th 1128 (8th Cir. 2026) .......................... 17
Jennings v. Rodriguez,
583 U.S. 281 (2018) .............................................. 4
Lopez-Campos v. Raycraft,
175 F.4th 713 (6th Cir. 2026) ............................ 17
Matter of Castillo-Padilla,
25 I. & N. Dec. 257 (BIA 2010) .......................... 12
Matter of D-J-,
23 I. & N. Dec. 572 (A.G. 2003) ......................... 12
Matter of Yajure Hurtado,
29 I. & N. Dec. 216 (BIA 2025) .......................... 13
iii
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Cases Page(s)
Nielsen v. Preap,
586 U.S. 392 (2019) ............................................ 10
Rodriguez Vazquez v. Bostock,
No. 25-6842, --- F.4th ----, 2026 WL 2196424
(9th Cir. July 30, 2026) ...................................... 17
Santillan Quiroz v. Mullin,
180 F.4th 1226 (10th Cir. 2026)......................... 17
Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953) ............................................ 10
Statutes & Regulations Page(s)
6 U.S.C. § 557 .............................................................. 4
8 U.S.C. § 1003(a)(1) ................................................... 4
8 C.F.R. § 1003.19(a)............................................. 5, 12
8 C.F.R. § 1003.19(h)(2) ........................................ 5, 12
8 U.S.C. § 1226(a) (1995) ............................................ 7
8 U.S.C. § 1225(a) (1995) ............................................ 7
8 U.S.C. § 1225(b) (1995) ........................................ 7, 8
8 C.F.R. § 1236.1(c)(5)............................................... 12
8 C.F.R. § 1236.1(c)(8)................................................. 5
8 C.F.R. § 1236.1(d) .............................................. 5, 12
8 U.S.C. § 1252(a)(1) (1995)................................ 7, 8, 9
8 U.S.C. § 1357(a)(2) ................................................... 4
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996,
Pub. L. 104–208, 110 Stat. 3009 et seq. ....... i, 4, 5,
7, 8, 16
iv
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Statutes & Regulations Page(s)
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, cont'd,
§ 304, 110 Stat. 3009-587 to 3009-593 ................ 8
§ 386(a), 110 Stat. 3009-653 .............................. 11
Immigration and Nationality Act,
8 U.S.C. § 1101 et seq. ...................................... 1, 2
8 U.S.C. § 1101(a)(13)(A) ............................... 8, 15
8 U.S.C. § 1182 ..................................................... 8
8 U.S.C. § 1182(a)(6)(C) ....................................... 6
8 U.S.C. § 1182(a)(7) ............................................ 6
8 U.S.C. § 1182(d)(5)(A) ....................................... 7
8 U.S.C. § 1225 ............................................... 5, 12
8 U.S.C. § 1225(a)(1) ........................................ 5, 8
8 U.S.C. § 1225(b)................................................. 6
8 U.S.C. § 1225(b)(1) .................................. 5, 6, 10
8 U.S.C. § 1225(b)(1)(A)(i) .................................... 5
8 U.S.C. § 1225(b)(1)(A)(iii).............................. 5, 6
8 U.S.C. § 1225(b)(1)(B)(ii) ................................... 5
8 U.S.C. § 1225(b)(1)(B)(iii)(IV) ........................... 5
8 U.S.C. § 1225(b)(2) ........................................ 1, 6
8 U.S.C. § 1225(b)(2)(A) ............. i, 1, 4, 6, 7, 9, 11,
13, 14, 15, 16, 18
8 U.S.C. § 1225(b)(2)(B)(ii) ................................... 6
8 U.S.C. § 1226 .............................. i, 4, 5, 9, 12, 14
8 U.S.C. § 1226(a)............ i, 1, 4, 5, 7, 9, 12, 14, 16
v
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Statutes & Regulations Page(s)
Immigration and Nationality Act, cont'd,
8 U.S.C. § 1226(c) ................3, 5, 10, 11, 15, 16, 18
8 U.S.C. § 1226(c)(1)..................................... 10, 12
8 U.S.C. § 1226(c)(1)(A)–(D)................................. 5
8 U.S.C. § 1227 ..................................................... 8
8 U.S.C. § 1229a ............................................... 6, 8
8 U.S.C. § 1229a(c)(2)(A) ...................................... 9
8 U.S.C. § 1229a(e)(2)(A) ..................................... 8
8 U.S.C. § 1229a(e)(2)(B) ..................................... 8
8 U.S.C. § 1231(a)(2) .......................................... 10
Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures,
62 Fed. Reg. 10,312 (Mar. 6, 1997) .................... 12
Laken Riley Act,
Pub. L. 119-1, 139 Stat. 3 (2025) ................... 5, 15
8 U.S.C. § 1226(c)(1)(E) ........................................ 5
Other Authorities Page(s)
Cheney, Kyle & Jessie Blaeser,
Explore the data: More than 17,600 rulings
against Trump in ICE cases, Politico
(Aug. 18, 2026)...................................................... 2
H.R. Rep. No. 104-469, pt. 1 (1996)...................... 9, 11
H.R. Rep. No. 104-828 (1996) ..................................... 9
vi
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Other Authorities Page(s)
Letter from Doris Meissner, Comm’r, Immigr. &
Naturalization Servs., to Henry J. Hyde,
Chairman, S. Comm. on the Judiciary
(Oct. 3, 1997) ...................................................... 11
Memorandum from DHS & DOJ to all ICE
Employees (July 8, 2025) ................................... 13
Wilson, Jill, et al.,
Cong. Rsch. Serv., R47848, Nonimmigrant
Overstays: Overview and Policy Issues (2023)... 13
vii
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INTRODUCTION
This case concerns the government’s recent
radical reinterpretation of the Immigration and
Nationality Act (“INA”) to require detention without
the possibility of bond of Respondent Ricardo
Aparecido Barbosa da Cunha, a long-time resident
who entered the United States without inspection
years ago and has since established a life and family
here. For nearly three decades after the enactment of
the current version of the INA, the government
interpreted 8 U.S.C. § 1226(a) to permit noncitizens
like Mr. Barbosa da Cunha to be released on bond
while their removal proceedings are pending. But in
2025, the government suddenly reversed its
interpretation, asserting that the immigration laws
require detaining such noncitizens without a bond
hearing under a different statute, 8 U.S.C.
§ 1225(b)(2). The government then arrested Mr.
Barbosa da Cunha—who had made himself known to
the government because he voluntarily came forward
to file an asylum application—and kept him in custody
with no opportunity for bond.
At no point has the government claimed that Mr.
Barbosa da Cunha poses a flight risk or danger. After
the district court ordered a bond hearing, an
immigration judge found that he presented neither a
danger nor a flight risk and ordered his release.
Instead, the government’s sole justification for Mr.
Barbosa da Cunha’s detention is its novel and
countertextual reading of the INA, which no
presidential administration or court adopted before
2025: that § 1225(b)(2)(A), mandates Mr. Barbosa da
Cunha’s detention even though that provision applies
1
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only to noncitizens who are “seeking admission” into
the United States.
The government’s new interpretation contradicts
the INA. Thus far, seven out of nine circuits—namely,
the First, Second, Sixth, Seventh, Ninth, Tenth and
Eleventh Circuits—and about 530 district court
judges have rejected the government’s new
interpretation. 1 Only the Fifth and Eighth Circuits
have blessed the government’s reinterpretation, over
vigorous dissents in each case.
The government asks the Court to hold its petition
in this case pending resolution of its petition in a
related case from the Sixth Circuit, see Raycraft v.
Lopez-Campos, No. 25-1415 (cert. pet. filed June 22,
2026), and then dispose of this petition accordingly.
But while there is no dispute that the statutory
question here has generated a circuit split, Lopez-
Campos is not the best vehicle to resolve that split
because the Sixth Circuit also reached—and the
government is seeking review of—an unnecessary due
process holding that the Constitution requires bond
hearings for individuals in Mr. Barbosa da Cunha’s
circumstances. There is no split on the additional
constitutional question and, equally to the point, this
1 The number of district court judges reflects reporting on
available data updated as of August 17, 2026. See Kyle Cheney
& Jessie Blaeser, Explore the data: More than 17,600 rulings
against Trump in ICE cases, Politico (Aug. 18, 2026),
https://perma.cc/36R7-RG2G (click “view live page” for all
detention cases). Prior reporting providing different figures
derives from a predecessor database that, as of this filing, is no
longer updated.
2
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Court need not ever reach that question if Respondent
here or the petitioners in Buenrostro-Mendez prevail
on the statutory question. So, instead of holding the
petition here as the government requests, the Court
should grant review only on the statutory question on
which the circuits are divided, either this case or the
pending petition out of the Fifth Circuit. See
Buenrostro-Mendez v. Blanche, No. 26-43 (cert. pet.
filed July 2, 2026).
The constitutional question presented in Lopez
Campos also substantially overlaps with
constitutional issues raised in another case currently
pending before the Court, Genalo v. Black, No. 25-886
(cert. granted June 15, 2026). Genalo concerns an as-
applied due process challenge to 8 U.S.C. § 1226(c), a
provision of the immigration laws prescribing
mandatory detention for certain noncitizens in
removal proceedings. The Court’s disposition of
Genalo is highly likely to inform the proper resolution
of the constitutional question presented in Lopez
Campos—to the extent the Court ever need reach it.
In particular, this Court should give the lower courts
the opportunity to evaluate the constitutional
question in light of Genalo.
The Court should not indulge the government’s
attempt to tack on an extraneous constitutional
question that would not be independently certworthy
and whose resolution may well turn on a different
merits case already slated for argument in October.
Rather, basic principles of judicial restraint counsel in
favor of denying the second question at this juncture.
The Court should therefore grant the petition
here. In the alternative, the Court should grant the
3
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petition in Buenrostro-Mendez and hold this petition
pending a decision on the statutory question there and
dispose of it as appropriate.
STATEMENT OF THE CASE
I. STATUTORY BACKGROUND
A. The Immigration Detention Statutes
This case concerns the relationship between two
civil immigration detention statutes that Congress
enacted simultaneously in 1996 as part of a
comprehensive overhaul of the immigration laws: 8
U.S.C. § 1226 and § 1225(b)(2)(A). See IIRIRA, Pub. L.
No. 104-208, 110 Stat. 3009 (1996).
Section 1226. Section 1226 governs the
detention of individuals who have effected an entry
into the United States and are “present in the
country” pending their removal proceedings. Jennings
v. Rodriguez, 583 U.S. 281, 288 (2018). The default
rule provides that “[o]n a warrant issued by the
Attorney General, 2 an alien may be arrested and
detained pending a decision on whether the alien is to
be removed from the United States” and allows their
release on bond. 8 U.S.C. § 1226(a).3 By regulation,
noncitizens may seek a bond hearing before an
immigration judge, who makes individualized
2 Congress transferred this authority from the Attorney General
to the Secretary of Homeland Security following relocation of
immigration enforcement functions to the Department of
Homeland Security in 2002 and 2003. See 6 U.S.C. § 557; 8 U.S.C.
§ 1003(a)(1).
3 A separate provision of the Act provides for warrantless arrests
in certain circumstances. See 8 U.S.C. § 1357(a)(2).
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determinations of flight risk and danger. See 8 C.F.R.
§§ 1003.19(a), (h)(2), 1236.1(c)(8), (d).
Some noncitizens are not eligible for release under
§ 1226(a)’s default rule. See 8 U.S.C. § 1226(a)
(providing for detention and release “[e]xcept as
provided in subsection (c)”). Section 1226(c), as
enacted in IIRIRA, provides that four enumerated
categories of noncitizens “shall” be detained pending
removal proceedings and prohibits their release on
bond. These are individuals who fall under certain
criminal and national security grounds. See 8 U.S.C.
§ 1226(c)(1)(A)–(D).
In 2025, Congress passed the Laken Riley Act,
Pub. L. 119-1, 139 Stat. 3 (2025), which amended
§ 1226(c) to mandate detention for an additional
category of individuals who are inadmissible,
including for being present without admission, and
have other criminal history. See 8 U.S.C.
§ 1226(c)(1)(E).
Section 1225. In IIRIRA, Congress also
enacted § 1225, a statute governing inspection of
noncitizens and a new “expedited removal” procedure.
Section 1225(a)(1) provides that a noncitizen “present
in the United States who has not been admitted or
who arrives in the United States . . . shall be deemed”
an “applicant for admission.” Id. § 1225(a)(1).
Section 1225 also includes provisions for
detention that are entirely distinct from § 1226.
Paragraph 1225(b)(1) authorizes the mandatory
detention of noncitizens placed into expedited removal
proceedings—“arriving” noncitizens as well as certain
other applicants for admission. Id. § 1225(b)(1)(A)(i),
(b)(1)(A)(iii), (b)(1)(B)(ii) & (b)(1)(B)(iii)(IV).
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Specifically, the Executive has the option of applying
expedited removal to noncitizens present in the
country without admission who have been present for
less than two years. See id. § 1225(b)(1)(A)(iii). As the
name suggests, expedited removal proceedings are
designed to summarily remove certain noncitizens
who lack documentation or seek an immigration
benefit through fraud or misrepresentation, and who
have been present for limited time periods. See also
id. §§ 1182(a)(6)(C), 1182(a)(7) (setting forth
inadmissibility grounds that may trigger expedited
removal).
The detention provision at issue here,
§ 1225(b)(2)(A), applies to “other” applicants for
admission who are “seeking admission” to the country,
id., and are not subject to expedited removal, see id.
§ 1225(b)(2)(B)(ii) (stating that § 1225(b)(2)(A) “shall
not apply to an alien to whom paragraph [1225(b)](1)
applies”). This includes a number of categories, such
as noncitizens who present at ports of entry and are
charged with inadmissibility on criminal grounds.
Section 1225(b)(2)(A) provides that:
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 [removal] proceeding under
section 1229a of this title.
Noncitizens subject to detention under § 1225(b)—
either (b)(1) or (b)(2)—have no access to bond. Instead,
the only option for release is through a discretionary
grant of parole by the Department of Homeland
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Security (“DHS”), the jailing authority. See 8 U.S.C.
§ 1182(d)(5)(A) (authorizing DHS to parole the
noncitizen “for urgent humanitarian reasons or
significant public benefit”).
B. Congress’s Choice in IIRIRA to Preserve
the Availability of Bond Generally for
Noncitizens in the United States
In IIRIRA’s detention statutes, Congress largely
preserved the preexisting detention scheme:
Noncitizens arrested inside the country, including
those who had entered without admission, remained
eligible for release on bond under § 1226(a). Those
apprehended at the border continued to be detained
without possibility of bond under § 1225(b)(2)(A).
Congress maintained this detention scheme,
treating those present in the United States differently
from those apprehended near the border, even as
IIRIRA made changes to the removal process. Before
IIRIRA, the immigration statute tracked a bifurcated
system for removing noncitizens: “Deportation”
applied to everyone placed in proceedings within the
United States—both those who had entered lawfully
but were subject to removal (e.g., due to criminal
convictions) and those who had entered the United
States without inspection and were later
apprehended. See 8 U.S.C. § 1252(a)(1) (1995).
“Exclusion” proceedings applied to people encountered
at the border during the inspection process, but who
had not yet “enter[ed]” the country. See id. §§ 1225(a)–
(b) (1995), 1226(a) (1995). For people in deportation
proceedings, the statute authorized but did not
require arrest and detention “[p]ending a
7
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determination of deportability” and permitted release
on bond. Id. § 1252(a)(1) (1995). But for noncitizens
apprehended at the border and placed in exclusion
proceedings, the statute mandated detention without
bond. Id. § 1225(b) (1995).
IIRIRA changed the removal process in some
important ways:
x IIRIRA eliminated the bifurcated system of
deportation and exclusion, combining them
into a single “removal” procedure that applies
to everyone, whether they have previously
entered the United States or were stopped at
the border. See IIRIRA § 304, 110 Stat. at
3009-587–93; see also 8 U.S.C. § 1229a.
x IIRIRA also made grounds of removal depend
not on physical entry into the United States,
but instead on “admission,” defined as a
“lawful entry” after inspection by an
immigration officer. 8 U.S.C. § 1101(a)(13)(A).
Now, a noncitizen who has been “admitted” to
the country is “deportable,” see id.
§ 1229a(e)(2)(B), whereas someone who
entered the country without inspection and
has not been admitted or paroled is
“inadmissible,” see id. § 1229a(e)(2)(A). See
also id. §§ 1182, 1227.
x IIRIRA also “deemed” certain categories of
noncitizens “applicant[s] for admission,”
including noncitizens who are “present in the
United States [without having] been
admitted” as well as noncitizens who “arrive[]
in the United States” either at or outside a
“designated port of arrival.” Id. § 1225(a)(1).
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This put noncitizens who entered without
inspection on the same footing in removal
proceedings as other “applicants for
admission,” confirming that they are both
subject to inadmissibility and thus bear the
burden of showing that they are “entitled to
be admitted and [are] not inadmissible.” Id.
§ 1229a(c)(2)(A).
Even as Congress made these changes, it retained
the core of the pre-IIRIRA detention scheme. Congress
made § 1226—the new detention statute governing
individuals apprehended inside the country—
applicable to both inadmissible and deportable
noncitizens, rather than just deportable noncitizens.
Compare 8 U.S.C. § 1226(a) (authorizing detention
and bond “pending a decision on whether the alien is
to be removed,” (emphasis added)), with id.
§ 1252(a)(1) (1995) (authorizing detention and bond
“[p]ending a determination of deportability”). In this
way, the new § 1226 “restate[d]” the provisions in the
INA that previously authorized “release on bond” for
individuals who entered without inspection. H.R. Rep.
No. 104-828, at 210 (1996) (Conf. Rep.); see also H.R.
Rep. No. 104-469, pt. 1, at 229 (1996) (same). And in
§ 1225(b)(2)(A), Congress retained the prior rule of
detaining, without possibility of bond, individuals who
are “seeking admission” at the border and are
determined to be inadmissible. 8 U.S.C.
§ 1225(b)(2)(A).
Congress enacted these detention provisions
against the backdrop of the long-established
constitutional distinction between noncitizens who
have entered the United States (even if without
authorization), and noncitizens stopped at the border
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seeking to enter. See, e.g., Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“[A]liens
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.”).
C. IIRIRA and Mandatory Detention
IIRIRA also subjected certain groups of
noncitizens inside the country to mandatory
detention, without a hearing to assess flight risk and
danger. But Congress did so surgically, requiring the
Executive to use limited detention resources on
targeted classes of noncitizens, including recent
entrants who are subject to the new expedited removal
proceedings, 8 U.S.C. § 1225(b)(1), and certain
noncitizens with final orders of removal awaiting
deportation, 8 U.S.C. § 1231(a)(2).
Most importantly, Congress enacted § 1226(c) as
a “special rule for aliens who have committed certain
dangerous crimes and those who have connections to
terrorism.” Nielsen v. Preap, 586 U.S. 392, 396 (2019).
The provision required detention pending removal
proceedings of “a limited class” of noncitizens, Demore
v. Kim, 538 U.S. 510, 518 (2003), whom Congress
found to pose a “heightened risk” of flight or danger.
Preap, 586 U.S. at 398; see also Demore, 538 U.S. at
513, 518–21 (discussing Congress’s findings of bail
risk). These include both inadmissible and deportable
noncitizens. 8 U.S.C. § 1226(c)(1).
To account for § 1226(c)’s anticipated new
demands on detention capacity, Congress enacted a
safety-valve provision, which allowed the Attorney
General to delay implementing new § 1226(c) for up to
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two years while the Executive Branch added more
detention beds. See H.R. Rep. No. 104-469, pt. 1, at
120, 123, 207; IIRIRA § 386(a), 110 Stat. at 3009-653.
Congress estimated that § 1226(c)’s new detention
mandate would require the detention of 45,000
noncitizens subject to removal on criminal grounds
each year. See H.R. Rep. No. 104-469, pt. 1, at 118,
120, 123. The Executive Branch promptly invoked the
safety-valve provision, citing lack of detention
resources. 4 Congress also directed the agency to add
500 beds to the existing 8,500-bed system. IIRIRA
§ 386(a), 110 Stat. at 3009-653.
By contrast, Congress did not indicate that
§ 1225(b)(2)(A)’s detention mandate warranted any
implementation delay or increase in detention
capacity, as it did for § 1226(c). This was so even
though the legislature knew that the population of
noncitizens in the United States who entered without
inspection was about two million in 1996. See H.R.
Rep. No. 104-469, pt. 1, at 111 (estimating that
individuals who entered without inspection comprised
about half of the four million “illegal alien[s]” then
living in country).
II. EXECUTIVE BRANCH INTERPRETATION
AND PRACTICE
For nearly thirty years after IIRIRA’s enactment,
the Executive Branch interpreted the detention
statutes consistent with the framework Congress
enacted. Contemporaneously with IIRIRA’s
enactment, the Executive Branch issued regulations
4 Letter from Doris Meissner, Comm’r, Immigr. & Naturalization
Servs., to Henry J. Hyde, Chairman, S. Comm. on the Judiciary
(Oct. 3, 1997), https://perma.cc/HFF9-MY3N.
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in March 1997 confirming that noncitizens who were
arrested after entering the country without inspection
and placed in removal proceedings are eligible for
release on bond under § 1226(a). See Inspection and
Expedited Removal of Aliens; Detention and Removal
of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 Fed. Reg. 10,312, 10,323 (Mar. 6,
1997); see also 8 C.F.R. §§ 1003.19(a) & (h)(2),
1236.1(d).
The Attorney General and Board of Immigration
Appeals (“BIA”) likewise interpreted § 1226 to apply
to those who entered without inspection in numerous
precedential decisions. See, e.g., Matter of D-J-, 23 I.
& N. Dec. 572, 579 (A.G. 2003) (Attorney General
“exercising [his] authority under section [1226]” to
grant or deny release on bond to noncitizen who had
evaded inspection); Matter of Castillo-Padilla, 25 I. &
N. Dec. 257, 262 (BIA 2010) (observing that noncitizen
who was present without admission or parole was
released under § 1226). In contrast, “arriving
aliens”—those stopped at the border—and noncitizens
subject to § 1226(c)(1) could not seek bond. 62 Fed.
Reg. at 10,323, 10,361; see also 8 C.F.R.
§§ 1236.1(c)(5), 1003.19(h)(2).
III. THE GOVERNMENT’S REVERSAL
In the summer of 2025, the government adopted a
novel interpretation of the detention statutes. DHS, in
coordination with the Department of Justice (“DOJ”),
“determined” in an unpublished guidance document,
without reasoning or explanation, “that section [1225]
of the [INA], rather than section [1226], is the
applicable immigration detention authority for all
applicants for admission,” including anyone who
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entered without inspection. 5 DHS instructed its
officers to subject any noncitizen present in the United
States without being admitted or paroled to
mandatory detention under § 1225(b)(2)(A),
explaining that these “applicants for admission”
would now be “treated in the same manner that
‘arriving aliens’ have historically been treated.” 6
Three months later, the BIA adopted DHS’s new
interpretation in a published decision, Matter of
Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025).
As a result, the government is attempting to apply
§ 1225(b)(2)(A) and deny bond hearings not only at the
border, but also to noncitizens who entered without
admission apprehended anywhere within the United
States, regardless of how long they have lived here.
Millions of noncitizens could be affected by the
government’s new interpretation. 7
IV. THE PRESENT LITIGATION
Mr. Barbosa da Cunha is a Brazilian national who
entered the United States without inspection in 2004
or 2005 and has lived here ever since. Pet. App. 7a. He
owns a home in Massachusetts where he lives with his
wife and two U.S.-citizen children and owns and
operates a small construction business. Id. He applied
for asylum in 2016 and has been granted legal
5 Memorandum from DHS & DOJ to all ICE Employees (July 8,
2025), https://perma.cc/SNA2-XNSZ.
6 Id.
7 Jill Wilson, et al., Cong. Rsch. Serv., R47848, Nonimmigrant
Overstays: Overview and Policy Issues, at 1 n.6 (2023) (estimating
that about six million noncitizens in United States entered
without admission).
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authorization to work while that application is
pending (which is still the case today). Id. He has
never been arrested for or charged with a crime. Id.
On September 26, 2025, immigration officers
arrested Mr. Barbosa da Cunha while he was driving
to work in Norwood, Massachusetts. Pet. App. 7a. The
administrative warrant authorizing his arrest cited
§ 1226 as the statutory basis for his detention. Id.
DHS then initiated removal proceedings, charging
him as inadmissible because he was present without
admission or parole and lacked valid immigration
documents. Pet. App. 8a.
Mr. Barbosa da Cunha requested a bond hearing,
but an immigration judge denied that request under
the government’s new mandatory-detention policy,
declaring that § 1225(b)(2)(A), rather than § 1226(a),
governed his detention. Id. He then filed a petition for
a writ of habeas corpus, arguing that his mandatory
detention violated § 1226(a) and its associated
regulations, and due process. Id. Mr. Barbosa da
Cunha initially filed the petition in the District of
Massachusetts, but the parties agreed to transfer it to
the Western District of New York after the
government transferred him to an ICE detention
facility in Buffalo, New York. Pet. App. 8a n.2. At no
point did the government argue that his detention was
necessary to ensure his appearance or protect the
community from harm.
The district court granted the petition for a writ of
habeas corpus, agreeing that § 1226(a) governed Mr.
Barbosa da Cunha’s detention and ordered the
government to either provide a bond hearing or
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release him. Pet. App. 2a, 8a. Because the district
court granted relief on statutory grounds, it declined
to resolve his alternative due process claim. Pet. App.
84a. Following the district court decision, an
immigration judge held a bond hearing and
determined that Mr. Barbosa da Cunha presented
neither a danger to persons or property nor a flight
risk. Pet. App. 2a, 8a. He was released on bond. Id.
The government appealed the order granting Mr.
Barbosa da Cunha habeas relief. Pet. App. 2a. The
Second Circuit unanimously affirmed the habeas
grant on statutory grounds. Pet. App. 7a. The court
held, based on the statutes’ plain text, that Congress
limited § 1225(b)(2)(A) to only those “applicants for
admission” who are also “seeking admission.” Pet.
App. 15a–17a. Mr. Barbosa da Cunha was not,
however, “seeking admission” within the INA’s
definition of “admission,” at the time of his arrest
because, as a long-time resident of the country, he was
not seeking lawful entry into the United States.
Pet. App. 15a–24a (citing 8 U.S.C. § 1101(a)(13)(A)).
The court also found that its reading of the plain
text was “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.” Pet. App. 10a. In particular, the court
found that the government’s reading of § 1225(b)(2)(A)
to mandate detention for every unadmitted noncitizen
would render superfluous much of § 1226(c)’s carefully
drawn mandatory-detention scheme, including the
2025 Laken Riley Act. Pet. App. 41a–44a.
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The court also noted that, while Congress in 1996
recognized that mandatory detention under § 1226(c)
would strain the government’s limited detention
capacity and therefore delayed the provision’s
implementation in IIRIRA, Pet. App. 47a–48a, it
created no comparable safety-valve for
§ 1225(b)(2)(A)—even though the government’s
interpretation would have subjected roughly two
million noncitizens to mandatory detention at that
time. Pet. App. 48a. The court found it implausible
that Congress would have silently imposed a vastly
larger detention mandate on the Executive without
any acknowledgment in IIRIRA. Id.
Finally, the court relied on the government’s
nearly three-decade practice of consistently affording
bond to noncitizens like Respondent. Pet. App. 50a–
55a. The court of appeals further explained that, even
if the statutory text were ambiguous, constitutional
avoidance would independently favor Respondent’s
reading—but also made clear that “this case can be
resolved based on the text of Sections 1225(b)(2)(A)
and 1226(a) alone.” Pet. App. 55a–59a.
Judge Cabranes joined the court of appeals’
opinion “wholeheartedly and without reservation,”
and wrote a separate concurrence to elaborate on
several additional points. Pet. App. 61a–68a.
The Second Circuit is now among seven courts of
appeals that have agreed with Respondent that
noncitizens arrested inside the country are generally
subject to § 1226(a), not § 1225(b)(2)(A). See Guerrero-
Orellana v. Moniz, No. 25-2152, --- F.4th ----, 2026 WL
2352042 (1st Cir. Aug. 13, 2026); Barbosa da Cunha
v. Freden, 175 F.4th 61 (2d Cir. 2026); Lopez-Campos
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v. Raycraft, 175 F.4th 713 (6th Cir. 2026); Cirrus
Rojas v. Olson, No. 25-3127, --- F.4th ----, 2026 WL
2198315 (7th Cir. July 30, 2026); Rodriguez Vazquez
v. Bostock, No. 25-6842, --- F.4th ----, 2026 WL
2196424 (9th Cir. July 30, 2026); Santillan Quiroz v.
Mullin, 180 F.4th 1226 (10th Cir. 2026); Hernandez
Alvarez v. Warden, Fed. Det. Ctr. Miami, 175 F.4th
1258 (11th Cir. 2026). In contrast, only two courts of
appeals agree with the government’s new
interpretation of the statutes. Buenrostro-Mendez v.
Bondi, 166 F.4th 494 (5th Cir. 2026); Herrera Avila v.
Bondi, 170 F.4th 1128 (8th Cir. 2026).
As noted, the noncitizens in Buenrostro-Mendez
have petitioned for certiorari seeking review of the
same statutory question presented in this petition.
Buenrostro-Mendez v. Blanche, No. 26-43 (cert. pet.
filed July 2, 2026).
The Sixth Circuit is the only court of appeals to
decide the due process issue to date. The government
has filed another petition seeking review of that
court’s decision, which raises the same statutory
question presented here and the constitutional due
process question. Raycraft v. Lopez-Campos, No. 25-
1415 (cert. pet. filed June 22, 2026).
REASONS FOR GRANTING THE PETITION
The government asks this Court to hold this case
for Raycraft v. Lopez-Campos. Cert. Pet. 11–13. But
the Court should instead grant review here or,
alternatively, in the pending petition in Buenrostro-
Mendez v. Blanche, No. 26-43 (cert. pet. filed July 2,
2026). For the same reasons discussed in the petition
in Buenrostro-Mendez, either this case or Buenrostro-
Mendez presents the best vehicle for resolving the
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statutory question presented because both squarely
present the issue and do not raise a separate
constitutional issue that may never need to be decided
by this Court. Lopez-Campos, by contrast, adds a
separate due process question that involves no circuit
split, and that this Court need not reach if Respondent
prevails on his statutory arguments.
1. The parties agree that the statutory question
of which detention statute governs noncitizens like
Respondent warrants this Court’s review. The
statutory question has produced a 7-2 circuit split and
is exceptionally important and ready for review.
Supra at 16–17.
2. The separate due process question presented
in Lopez-Campos, however, is not independently
certworthy. Unlike the statutory issue, the due
process question has produced no circuit split, and no
circuit other than the Sixth Circuit has held that
applying § 1225(b)(2)(A) to noncitizens like
Respondent violates due process. Furthermore, if
Respondent here or the petitioners in Buenrostro-
Mendez prevail on the statute, there will be no need to
decide the due process question at all.
The constitutional question in Lopez-Campos is
also unsuitable for review because it substantially
overlaps with the due process question already before
the Court in Genalo v. Black, No. 25-886 (cert. granted
June 15, 2026). Genalo concerns an as-applied due
process challenge to mandatory detention under
another provision of the INA, § 1226(c). The Court’s
decision there likely will inform any constitutional
question that remains if the government ultimately
prevails on the statutory issue here. For instance, in
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both Genalo and Lopez-Campos, the government
argues that noncitizens detained pending their
removal proceedings “have no cognizable procedural-
due-process right to a bond hearing”; that mandatory
detention under the relevant statute does not
implicate a fundamental liberty interest and satisfies
rational-basis review; and thus, that no individualized
bond hearings are constitutionally required. Compare
Cert. Pet., Lopez-Campos, No. 25-1415, at 26–28, with
Cert. Pet., Genalo, No. 25-886, at 23–26. The Court’s
resolution of these arguments in Genalo will almost
certainly affect the analysis of the due process
question in Lopez-Campos.
There is no need to grant certiorari prematurely
when the Court’s disposition of Genalo likely will
shape its disposition of the constitutional issues
presented in Lopez Campos.
3. Contrary to the government’s contention,
Lopez-Campos is not the superior vehicle. The
government argues that the Court should address the
statutory and due process issues because they are
“inextricably linked,” Cert. Pet. 12–13, but that is
wrong. Because the Second Circuit and the district
court disposed of the case on statutory grounds alone,
it did not reach Respondent’s due process claim.
Although the court did address constitutional
avoidance as an additional reason to rule for
Respondent—assuming arguendo statutory
ambiguity, see Pet. App. 55a—it made crystal clear
that its primary holding was that the plain text,
structure, history, and purpose of the statutes
compelled Respondents’ interpretation, making its
discussion of constitutional avoidance unnecessary.
See Pet. App. 59a–60a.
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CONCLUSION
For these reasons, the Court should grant this
petition or, in the alternative, hold it pending this
Court’s disposition of the petitions in Buenrostro-
Mendez and Genalo and dispose of it as appropriate.
Respectfully Submitted,
Judy Rabinovitz Michael K.T. Tan
Natalie Behr Counsel of Record
Priyanka Menon* My Khanh Ngo
AMERICAN CIVIL LIBERTIES Cecillia D. Wang
UNION FOUNDATION Evelyn R. Danforth-Scott
125 Broad Street Oscar Sarabia Roman
18th Floor AMERICAN CIVIL LIBERTIES
New York, NY 10004 UNION FOUNDATION
Amy Belsher 425 California Street
Suite 700
NEW YORK CIVIL LIBERTIES
San Francisco, CA 94104
UNION
(212) 549-2500
125 Broad Street
m.tan@aclu.org
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New York, NY 10004 Lucia Goin
Matt Adams AMERICAN CIVIL LIBERTIES
Leila Kang UNION FOUNDATION
915 15th Street NW
Aaron Korthuis
Suite 600
NORTHWEST IMMIGRANT
Washington, DC 20005
RIGHTS PROJECT
615 2nd Avenue Paul O’Dwyer
Suite 400 LAW OFFICE OF PAUL
Seattle, WA 98104 O’DWYER, P.C.
11 Broadway, Suite 715
*admitted only in Maryland New York, NY 10004
Counsel for Respondent
Dated: August 21, 2026
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