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IMMIGRATION SEPTEMBER 19, 2025 | The Indian Eye 40

BIA Grasps for Loper Bright Like a

Drowning Person Grasps for Straws

BY CYRUS D. MEHTA AND ter apprehended and placed but completely disregarded that the language under without inspection.
in removal proceedings. He INA 236(a), which provides INA 235(b)(1)(2) is clear AILA Executive Di-
KAITLYN BOX*
requested bond, but the Im- for the release on bond of a and explicit without regard rector Ben Johnson aptly
migration Judge indicated noncitizen who is not ineligi- to the contradiction posed remarked, “Stripping im-
n September 5, 2025, that he did not have the juris- ble under the categories pre- in neighboring INA 236(c). migration judges of their
the BIA held in Mat- diction to set bond given the scribed in INA 236(c), which In Loper Bright v. Raimon- authority to conduct bond
Oter of Yajure Hurta- circumstances of Mr. Yajure do not make reference to re- do, which was discussed at hearings or redetermine cus-
do, 29 I&N Dec. 216 (BIA Hurtado’s case and, in the al- spondents who have entered length in a prior blog, the tody for potentially millions
2025), that a noncitizen re- ternative, that bond would be without inspection. The BIA Supreme Court abolished is a disastrous plan. Without
spondent who entered the denied because Mr. Yajure addressed this discrepancy the long-standing Chevron justification, individuals who
US without inspection and Hurtado posed a flight risk. but stating that “nothing in doctrine, under which, courts have patiently awaited their
was placed in removal pro- The BIA affirmed that the statutory text of section were required to defer to the fair day in court will now be
ceedings is not eligible for an IJ does not have the ju- 236(c), including the text of government agency’s inter- indiscriminately detained.
bond under INA 235(b)(2) risdiction to grant the bond the amendments made by the pretation of an ambiguous This effectively eradicates
(A) despite allowing bond request because any nonciti- Laken Riley Act, purports statute. the possibility of bond for
since the passage of the Im- zens present in the US with- to alter or undermine the The BIA in Yajure Hur- many, regardless of their
migration Act of 1996. Mr. out inspection are applicants provisions of section 235(b) tado invoked Loper Bright, long-standing residence, em-
Yajure Hurtado entered the for admission pursuant to (2)(A) of the INA, 8 U.S.C. stating: “the statutory text of ployment, or contributions to
United States without inspec- INA 235(b)(2)(A) and sub- § 1225(b)(2)(A), requiring the INA is not ‘doubtful and our society. Detaining vast
tion in November 2022. He ject to mandatory detention. that aliens who fall within the ambiguous’ but is instead numbers without judicial re-
was later granted Temporary After almost three de- definition of the statute ‘shall clear and explicit in requir- view, often in inhumane con-
Protected Status, but that cades, the BIA finds now be detained for a proceeding ing mandatory detention of ditions, will inflict irreparable
designation expired on April finds that the language in under section 240’”. all aliens who are applicants harm.” This concern is fur-
2, 2025, and he was thereaf- INA 235(b)(2)(A) is clear, This re-interpretation of for admission, without re- ther exacerbated by the re-
the applicable statutory gard to how many years the cent Supreme Court decision
provisions by the BIA alien has been residing in the in Noem v. Perdomo, which
will result in the deten- United States without law- permits ICE to detain and
tion of respondents even ful status. See INA § 235(b) remove individuals based on
if they have been in the (1), (2), 8 U.S.C. § 1225(b) racial profiling. Those who
United States for many (1), (2). The Supreme Court entered without inspection
years and have a meri- in Loper Bright did not hold face detention without bond
torious application for that the long-standing prac- until removal, even if their
relief. The BIA knows tice of the government can detention is solely due to the
that a federal court will somehow change, or even color of their skin.
not give deference to eviscerate, explicit statutory It is hoped that a federal
its interpretation of the text that is contrary to that court through a habeas cor-
ambiguity posed by two practice.” But the maze of pus petition quickly reverses
competing statutory statutory provisions, which the BIA under Loper Bright,
provisions, INA 235(b) include INA 235(b)(1)(2)(A) the very precedent that the
(2)(A) and INA 236(c), and INA 236(c) and 30 plus BIA has clutched onto like
and so preemptively years of allowing bond, do a drowning person grasping
invoked Loper Bright not clearly and explicitly au- for straws!
v. Raimondo, 603 US thorize mandatory detention *Kaitlyn Box is a Partner at Cyrus D.
369 (2024) to conclude for noncitizens who entered Mehta & Partners PLLC.

___________________________________________________________________________________________________________________________________
m of Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of
Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation
CYRUS D. MEHTA & PARTNERS PLLC Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immigration
matters to the Departmental Disciplinary Committee, Appellate Division, First Department, New York; member
of the ABA Commission on Immigration; board member of Volunteers for Legal Services and board member of

New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immi-

  gration Council and former chair of the Committee on Immigration and Nationality Law of the New York City
   
­ Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics,
€
‚   and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration
and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of
immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing
pro bono representation in the immigration field. He has also received two AILA Presidential Commendations in
2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who
2 6th Floor Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in

    immigration law, among other rankings.

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