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IMMIGRATION                                                      SEPTEMBER 26, 2025        |  The Indian Eye 34




            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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