Immigrant Bond Rights Restored by Federal Court in 2025

In the most recent case, Matter of Yajure-Hurtado, 29 I&N Dec. 216 (BIA 2025), the BIA held that under INA § 235(b)(2)(A), IJs lack authority to hear bond requests or grant bond to noncitizens who are present in the United States without inspection and admission. The respondent, Mr. Yajure-Hurtado, is a Venezuelan national who entered the United States without inspection in November 2022. He was granted Temporary Protected Status (TPS) in 2024, which expired in April 2025. Department of Homeland Security (DHS) officials apprehended him shortly after his TPS expired and issued him a Notice to Appear (NTA) charging him under INA § 212(a)(6)(A)(i) for being present in the United States without admission. Mr. Yajure-Hurtado requested a bond hearing, and the IJ determined the court lacked jurisdiction over his custody redetermination proceedings. Mr. Yajure-Hurtado then filed an appeal of the IJ’s bond decision to the BIA.

 

 The BIA affirmed the IJ’s decision and held that an IJ lacks the authority to consider a bond request made by a noncitizen who entered the United States without inspection and admission, regardless of the length of time they have been present in the United States. The BIA reasoned that INA § 235 governs the inspection, detention, and removal of noncitizens who have not been admitted and are therefore “applicants for admission.” Under this provision, such noncitizens are subject to being placed into expedited removal proceedings and mandatorily detained for the duration of those proceedings. The BIA explained that INA § 235(a)(1)(A) provides two categories of applicants for admission: (1) arriving noncitizens inadmissible under INA §§ 212(a)(6)(C) (fraud and material misrepresentation) or 212(a)(7) (lack of valid entry documentation); and (2) noncitizens present in the United States without admission who are inadmissible under those sections and who have not been physically present in the United States continuously for at least two years prior to their apprehension. The BIA then stated that INA § 235(b)(2)(A) provides a third category of applicants for admission who are not subject to expedited removal but must still be mandatorily detained during the pendency of their INA § 240 removal proceedings. They referred to this section as a “catch-all provision” that includes any individual apprehended inside the United States who has not been inspected and admitted and whom an immigration officer has determined is “not clearly and beyond a doubt entitled to be admitted.”

The BIA then held, contrary to decades of BIA precedent and DHS enforcement practices, that any individual present in the United States without having been inspected and admitted who is arrested with or without a warrant in the interior is subject to detention under INA § 235(b)(2) and not INA § 236(a). The BIA rejected the argument that interpreting § 235(b)(2) to apply to noncitizens who entered without inspection renders much of § 236(c) superfluous, including recent amendments in the Laken Riley Act (LRA). It explained that nothing in the text of § 236(c) — whether in its original form or as amended by the LRA — alters or undermines the provisions of INA § 235(b)(2)(A).

 

The BIA further asserted that noncitizens may be subject to mandatory detention under both § 236(c) and § 235(b)(2)(A) at the same time. In support, it quoted Barton v. Barr, 590 U.S. 222, 239 (2020), noting that “redundancies are common in statutory drafting — sometimes in a congressional effort to be doubly sure, sometimes because of congressional inadvertence or lack of foresight, or sometimes simply because of the shortcomings of human communication.” It also asserted that legislative history supports its interpretation of § 235(b)(2)(A) because the Illegal Immigration Reform and Immigration Responsibility Act substituted the term “admission” for “entry” to remedy the “unintended and undesirable consequence” of creating a statutory scheme where noncitizens who entered without inspection are eligible for bond, but those who entered through a port of entry are not. 

 

The BIA also attempted to account for the inconsistencies in its recent custody and bond decisions. For example, in Matter of Akhmedov, 29 I&N Dec. 166 (BIA 2025), discussed below, Mr. Akhemdov entered without inspection just like Mr. Yajure-Hurtado, but the BIA stated that Mr. Akhemdov’s custody determination was governed by INA § 236(a), not § 235(b)(2). The BIA tried to explain this disparity by stating that the IJ’s authority to grant bond was not an issue presented to them on appeal. The BIA also claimed that Matter of Q. Li, 29 I&N Dec. 66 (BIA 2025), in which it held that noncitizens detained without a warrant while arriving in the United States are held pursuant to INA § 235(b), did not imply that all noncitizens detained inside the United States with a warrant are held pursuant to INA § 236(a).

 

In sum, the decision in Matter of Yajure-Hurtado strips IJs of jurisdiction over bond proceedings for individuals who entered without inspection and admission at any point in the past and have not since been admitted into lawful status in the United States. As such, these individuals are not bond eligible and must consider filing habeas petitions in federal court to seek release from custody.