Illegal-enterers, past and present, “shall be detained” 5th and 8th Circuits rule.

Has ICE been illegally “kidnapping” and “disappearing” people in violation of the rule of law by detaining people without judicial involvement who entered the U.S. illegally?

During the January ICE enforcement surge, ICE was heavily criticized for arresting people illegally present in the U.S. and detaining them without bail pending removal (deportation). We were told ICE was “kidnapping” and “disappearing” these people, through “illegal” actions that had to be stopped to uphold the rule of law. But what if arresting people who entered the U.S. illegally and holding them without bail pending removal, without the intervention of any court other than immigration court, is exactly what the immigration law enacted by Congress calls for?

According to recent rulings from the Fifth and Eighth Circuit Courts of Appeals, this is exactly what the law calls for.

During the January enforcement surge, it was common for attorneys to bring habeas corpus petitions in federal courts seeking the release from custody of clients illegally present in the U.S. who were arrested by ICE for removal.

A habeas petition is a means to bring a detained person’s case before a court to argue that the person is held illegally and must be released. As discussed below, the lawyers bringing these habeas petitions argued that the statutory section under which their clients were detained, 8 U.S.C. §1225, did not apply. Instead, they argued, another section of the immigration code, 8 U.S.C. §1226, applied, and that section entitled their clients to release pending further proceedings.

The U.S. District Court in Maine, and U.S. District Courts across the country, have released many people on bond under the purported authority of section §1226. But §1226 does not apply to people who are subject to detention under §1225 because they entered the U.S. illegally. If these people were in fact held legally under §1225, their detention was lawful. In that case, there are no grounds for habeas relief, and the U.S. District Courts have no lawful authority to grant habeas relief and release them on bail.

In places outside the Fifth and Eighth Circuits, habeas petitions are still being filed and granted for detained people who entered the U.S. illegally. It takes time for these issues to find their way to and through the appellate courts. Until each circuit court of appeals makes a ruling that binds the trial courts in its own circuit, or the Supreme Court weighs in, U.S. District Court judges remain free to interpret the immigration statutes the way the U.S. District Courts that were recently reversed by the Fifth and Eighth Circuit Courts of Appeals interpreted them.

Both the Fifth Circuit case of Buenrostro-Mendez and the Eight Circuit case of Herrera Avila involved people who entered the U.S. illegally years before they were arrested by ICE. All were detained under the authority of §1225, in accord with a July 2025 ruling of the Bureau of Immigration Appeals that everyone who entered the U.S. without inspection and admission is subject to detention pending removal. Immigration judges ruled that all three people involved in these cases were to be detained. All three filed habeas petitions in U.S. District Courts that resulted in their release. The Government appealed the release orders.

In the underlying habeas actions, the petitioners argued that §1225 did not apply to them because, while they were concededly “applicants for admission” by statutory definition, they were not actively “seeking admission” when they were arrested. Section 1225 provides that detention is required for 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.” (emphasis added).

This, the petitioners argued, means that detention is only required if the person not only entered the U.S. without inspection and authorization but was also somehow still “seeking admission” at the time of arrest. Since the petitioners were making no efforts to be legally admitted to the U.S. when they were arrested, they were entitled to release. In other words, the petitioners argued, only those illegal-enterers who are actively “seeking admission” at the time of arrest -- by pursuing an asylum claim, for instance -- are subject to mandatory detention.

On February 6, the Fifth Circuit Court of Appeals ruled, in Buenrostro-Mendez v. Bondi, that under §1225, an alien who unlawfully enters the U.S. without an immigration officer’s inspection and authorization is by statutory definition an “applicant for admission,” which makes the person also an “alien seeking admission.” As to the post-arrest detention of an “applicant for admission…seeking admission,” §1225 states:

“[I]n 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.”

Since an “applicant for admission” is an alien “seeking admission,” the Fifth Circuit ruled, a person who has entered the U.S. illegally is subject to detention pending removal. There is no requirement that the person must also have been doing something to seek legal admission at the time of arrest.

Following the Fifth Circuit’s ruling, on March 24, the Eighth Circuit Court of Appeals reached the same conclusion in Herrera Avila v. Bondi. The upshot is that people who have entered the U.S. illegally are subject to detention -- “shall be detained”— unless an arresting immigration officer determines that the person is “clearly and beyond a doubt entitled to be admitted” to the U.S. The courts, other than the immigration courts, are to have no say in the matter.

The Fifth and Eighth Circuit Courts of Appeals pointed out that the immigration statutes had, prior to 1996, perversely (my word, not theirs) treated those who had managed to sneak into the U.S. at some point before being arrested more favorably than those caught while trying to sneak in. Prior to 1996, those who were caught in the act were subject to detention pending removal while those who managed to hang out for a while before being detected were entitled to release pending removal.

In 1996, Congress amended the immigration statutes with the idea of fixing the disparity. At that point, Congress enacted the §1225 provision that defines both those caught in the act of illegal entry and those who have already pulled it off as “applicants for admission,” calling for both to be detained pending removal proceedings.

In Buenrostro-Mendez, the Court pointed out that retaining a distinction in §1225 between the treatment of those who succeeded in sneaking in and those caught in the attempt would have been:

“especially odd where the Department of Justice Inspector General found in 1997 that ‘when aliens are released from custody, nearly 90 percent abscond and are not removed from the United States.’ 62 Fed. Reg. at 10323. That situation exists today on a much larger scale.”

But while it’s interesting to examine the perverse effects that the petitioners’ arguments would carry if written into law, the decisions in Buenrostro-Mendez and Herrera Avila were not reached on that basis. Instead, the decisions were reached by interpreting the plain language used by Congress.

The Fifth Circuit has jurisdiction over federal cases originating in Texas, Mississippi, and Louisiana. The Eighth Circuit’s jurisdiction covers cases from Arkansas, Iowa, Missouri, Minnesota, Nebraska, North Dakota, and South Dakota. These are the first U.S. Circuit Courts of Appeals to rule directly on the issue. The Seventh Circuit, covering Illinois, Indiana, and Wisconsin, has not ruled on the issue but has expressed a contrary view.

Shifting tactics in the ongoing effort to ensure that people in the U.S. illegally get to stay here.

Now that two Circuit Courts of Appeals have come down on the side of the U.S. Government’s interpretation of §1225, that leaves eleven remaining circuits that have not decided the issue. More than likely a split will develop that the U.S. Supreme Court will ultimately resolve.

But the Fifth and Eighth Circuit decisions make it tougher to maintain that ICE has been acting “illegally,” trashing the Rule of Law™ here, “kidnapping” and “disappearing” people who entered the U.S. illegally by arresting and detaining them without judicial involvement during removal proceedings.

Maybe that’s why the political forces most opposed to removing illegally-present people from the U.S. are now focused on holding the country hostage, shutting down the government, in whole or in parts, as a means of de-funding ICE, focusing less now on hysterical accusations of “kidnapping” and destruction of the Rule of Law™. It isn’t quite as easy to convincingly declare something “illegal” after federal appeals courts have declared it the law.

If the Fifth and Eighth Circuits are right, habeas actions on behalf of detained illegal enterers are not a matter of due process. They are a matter of an undue process, adding an undue layer to an already massive burden of removing multiple millions of illegally-present people from the U.S. The high percentage of the illegally-present who abscond when released, requiring additional efforts to locate them once again, adds yet another layer. But adding layers of burden to enforcement efforts is the entire point.

Obstructing enforcement, impeding enforcement, bogging it down, de-funding it – the bottom line is to do everything, to use every expedient tactic to make sure the people who are here illegally get to stay here. When one tactic falters, it’s on to the next.

Illegal immigration at the southern border has been essentially shut down. It turns out, despite the previous administration’s insistence: (1) the border wasn’t secure and (2) no new legislation was required to secure it.

Now the same people who insisted that the border was secure, but if we wanted to stop the millions who were crashing it illegally that would require new legislation, are focused on making sure the illegals who are already here get to stay, by hook or by crook.

Rule of law, indeed.