Page 36 - The Indian EYE 022726
P. 36
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
www.TheIndianEYE.com
