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    IMMIGRATION                                                        FEBRUARY 27, 2026       |  The Indian Eye 36

                       Although the Fifth Circuit has Justified

                Detention Without Bond for Noncitizens who

                 Entered Without Inspection, Courts Outside

                the Fifth Circuit Are Not Bound and Can Use

                  Independent Judgment Under Loper Bright

            BY CYRUS D. MEHTA AND      ing for the majority, stated   influence  on  federal  courts’   text of section 236(c), includ-  automatically deferring to
                                       that “Chevron is overruled.   handling of immigration cas-  ing the text of the amend-  the BIA’s interpretation, and
            KAITLYN BOX*
                                       Courts must exercise their   es has been relatively subtle   ments made by the Laken   arguing  that  EWIs  are  eli-
                                       independent judgment in     under the Immigration and   Riley Act, purports to alter   gible for § 236(a) detention
               n its June 28, 2024 deci-  deciding whether an agency   Nationality Act (INA) but it   or undermine the provisions   and,  thus,  bond hearings.
               sion in Loper Bright En-
            Iterprises v.  Raimondo,   has acted within its statuto-  has proved a powerful tool   of section 235(b)(2)(A) of   The courts reasoned that
                                                                                                                         DHS’s new policy departs
                                       ry authority, as the APA re-
                                                                   for challenging the Board
                                                                                              the INA, 8 U.S.C. § 1225(b)
            the Supreme Court abolished   quires”, but made clear that   of  Immigration  Appeal  (2)(A), requiring that aliens   from three decades of consis-
            the  long-standing  Chevron   prior cases decided under the   (BIA)’s  reinterpretation  of   who fall within the definition   tent practice and lacks clear
            doctrine. Under this doc-  Chevron framework are  not   INA 235(b)(2)(A), 8 U.S.C.   of the statute ‘shall be de-  statutory grounding, thereby
            trine, courts were required   automatically overruled. We   1225(b)(2)(A),  and INA   tained for a proceeding un-  maintaining bond eligibility
            to defer to the government   have discussed Loper Bright   236(a), 8 U.S.C. 1226(a) to   der section 240’”.   for these individuals. See, for
            agency’s interpretation of   at length in prior blogs (here,   hold that noncitizens who   Aware that a federal   example, Barco Mercado v.
            an ambiguous statute. Chief   here, here  and here).   entered without inspection   court  would  not  give  defer-  Francis, Guerreno Orellana
            Justice John Roberts, writ-
                                           Thus far, Loper Bright’s   (EWI) are not eligible for   ence to its interpretation of   v. Moniz, and Pizarro Reys
                                                                      bond.  On September     the ambiguity posed by two   v. ICE.
                                                                      5,  2025,  the BIA held   competing  statutory  provi-  In Buenrostro-Mendez
                                                                      in Matter of Yajure     sions, INA 235(b)(2)(A) and   v. Bondi (5th Cir. 2026) the
                                                                      Hurtado, 29 I&N Dec.    INA 236(c), the BIA invoked   Fifth Circuit  agreed with
                                                                      216 (BIA 2025), that a   Loper Bright to conclude   Yajure Hurtado, holding
                                                                      noncitizen respondent   that the language under    that noncitizens who entered
                                                                      who entered the US      INA  235(b)(2)(A) is clear   without inspection are in-
                                                                      without inspection and   and explicit without regard   eligible for bond. The court
                                                                      was placed in removal   to the contradiction posed   addressed  the statutory  dis-
                                                                      proceedings is not eligi-  in neighboring INA 236(c),   crepancy by stating that “Sec-
                                                                      ble for bond under INA   stating: “the statutory text of   tion 1226(a) undeniably does
                                                                      235(b)(2)(A). This BIA   the INA is not ‘doubtful and   work independent from §
                                                                      decision was a marked   ambiguous’ but is instead   1225(b)(2)(A)  because  only
                                                                      reversal of policy, as   clear and explicit in requiring   § 1226(a) applies  to admit-
                                                                      bond had been per-      mandatory detention of all   ted aliens who overstay their
                                                                      mitted for noncitizens   aliens who are applicants for   visas, become deportable on
                                                                      who entered without     admission, without regard to   many different grounds, or
                                                                      inspection for three de-  how many years the alien has   were  admitted  erroneously
                                                                      cades, since the passage   been residing in the United   due to fraud or some oth-
                                                                      of the Immigration Act   States without lawful status.   er error… Not only does §
                                                                      of 1996. The decision   See INA § 235(b)(1), (2), 8   1226(c) sweep in deportable
                                                                      also disregarded INA    U.S.C. § 1225(b)(1), (2).”  aliens in addition to the inad-
                         m of                                         236(a), which provides     However, a string of    missible aliens covered by §
              CYRUS D. MEHTA & PARTNERS PLLC                          for the release on bond   recent district court rulings   1225(b)(2)(A)…it also elimi-
                                                                      of a noncitizen who is   have relied on Loper Bright   nates the option of parole for

                 not ineligible under the   to reject the theory that non-  those to whom it applies.” In
                                                                      categories prescribed in   citizens who entered without   a dissenting opinion, Justice

                                INA 236(c), which no-  inspection are ineligible for   Douglas found that “Com-

                                                                       tably excludes  respon-  bond as set out in Matter of   bining the ordinary meaning
                                                                      dents who have entered   Yajure Hurtado. These deci-  of ‘seeking’ with the statuto-
                                                                      without inspection. Ad-  sions invoke Loper Bright to   ry  definition  of  ‘admission,’
                                                                      dressing this discrepan-  emphasize that judges must   there is no need to resort to
                                                                      cy, the BIA stated that   independently interpret INA   strained analogies with the
              2              6th Floor

                    “nothing in the statutory   §§ 235 and 236, rather than   college admissions process

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