Date: May 5, 2026

Section 1225(b)(2)(A) Mandatory Detention Is Limited to Noncitizens “Seeking Admission”; Long-Present Interior Entrants Are Detained (and Bond-Eligible) Under Section 1226(a)

I. Introduction

Cunha v. Freden (2d Cir. Apr. 28, 2026) addresses a high-stakes question of immigration detention authority: whether a noncitizen who entered the United States without inspection decades ago, lives in the interior, and is placed into removal proceedings can be subjected to mandatory detention without bond under 8 U.S.C. § 1225(b)(2)(A), or instead is detained under 8 U.S.C. § 1226(a), which permits release on bond.

The petitioner, Ricardo Aparecido Barbosa da Cunha, a Brazilian national, entered without inspection around 2004–2005, has lived in the United States for over twenty years, has an asylum application pending since 2016, holds work authorization, and has no criminal record. In September 2025, ICE arrested him in Massachusetts and initiated removal proceedings charging inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i) and § 1182(a)(7)(A)(i)(I).

The legal conflict arose from a July 2025 shift in Executive Branch position (ICE “Interim Guidance Regarding Detention Authority for Applicants for Admission”), under which the government argued that § 1225(b)(2)(A) compels detention without bond for “all inadmissible” noncitizens who were never admitted—potentially encompassing millions of interior residents—until their removal cases end. The district court granted habeas relief and ordered a bond hearing or release. After a bond hearing, an immigration judge found no danger or flight risk and released Cunha on bond. The government appealed.

II. Summary of the Opinion

The Second Circuit affirmed habeas relief, holding that detention for a noncitizen like Cunha is governed by 8 U.S.C. § 1226(a), not § 1225(b)(2)(A). The court’s central textual conclusion is that § 1225(b)(2)(A) applies only when a noncitizen is both an “applicant for admission” and is “seeking admission.” While Cunha is “deemed” an applicant for admission under § 1225(a)(1) because he was never admitted, he is not “seeking admission” in the present sense—he is not requesting lawful entry at the border after inspection; he is resisting removal and seeking relief (asylum/cancellation) from within the United States.

The panel emphasized that this reading is supported not only by text but also by statutory context and structure, statutory history and purpose, longstanding Executive practice across five presidential administrations, congressional silence despite multiple amendments, Supreme Court descriptions of the statutory scheme (notably Jennings v. Rodriguez), and (as a backstop) constitutional avoidance given the due process concerns posed by a mass mandatory-detention regime.

Judge Cabranes concurred fully, underscoring the implausibility of the government’s claim that Congress mandated the largest interior mass detention in U.S. history in 1996, yet “no one noticed” for three decades, including multiple Congresses and administrations.

III. Analysis

A. Precedents Cited

1. Statutory interpretation methodology (text first, context always)

Loper Bright Enters. v. Raimondo — The court framed interpretation as a judicial task using “traditional tools of statutory construction,” not policy preferences. This decision’s presence is important: the panel treats the detention question as primarily one of textual meaning, reinforced by context and structure, rather than deference to agency interpretation.
Puello v. Bureau of Citizenship & Immigr. Servs., Abramski v. United States, Robinson v. Shell Oil Co. — Used to anchor the interpretive approach: start with the ordinary meaning of words, but determine “plainness” by reference to the specific and broader statutory context.
United States v. Bedi, Peralta-Taveras v. Att'y Gen., Mizrahi v. Gonzales — Reiterated the “plain meaning controls” principle; canons and legislative history are secondary tools if ambiguity remains.
Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA — Provided the canon of constitutional avoidance as an available tool only when multiple plausible constructions remain.
Feliciano v. Dep't of Transp., Digit. Realty Tr., Inc. v. Somers, Dodd v. United States, Magwood v. Patterson — Reinforced two core points: statutory definitions control over ordinary meaning; courts must enforce what Congress wrote, not speculate or revise.

2. Immigration detention framework and Supreme Court “map” of §§ 1225 and 1226

Jennings v. Rodriguez — The opinion’s structural keystone. The panel relied on Jennings’s description that § 1225 operates at borders/ports of entry for “aliens seeking admission,” while § 1226 governs detention of “aliens already in the country” pending removal proceedings. Even if characterized as dicta, the panel applied Second Circuit doctrine (citing United States v. Harris and Clemente v. Lee) giving Supreme Court dicta “great deference.”
Dep't of Homeland Sec. v. Thuraissigiam and Leng May Ma v. Barber — Used to illustrate the “threshold of initial entry” concept and the boundary-focused logic of § 1225 detention (including the limited “entry fiction” for persons stopped at or shortly after crossing).
Shaughnessy v. United States ex rel. Mezei and Zadvydas v. Davis — Invoked to emphasize that once a noncitizen has “passed through our gates” (even unlawfully), constitutional and legal circumstances change; interior presence cannot be perpetually treated as border-arrival.
Demore v. Kim and Nielsen v. Preap — Distinguished as dealing with mandatory detention of certain criminal noncitizens under § 1226(c) and not justifying broad mandatory detention of non-criminal interior residents without individualized assessment.
Biden v. Texas — Cited for the practical reality that DHS lacks capacity to detain everyone potentially described by expansive readings of detention statutes, supporting skepticism toward an interpretation that would effectively require detention “of everyone.”

3. Meaning of “entry,” “admission,” and “seeking admission”

United States ex rel. Claussen v. Day and United States ex rel. Volpe v. Smith — Supplied the longstanding understanding that “entry” implies a coming from outside; this undergirded the panel’s conclusion that “seeking admission” describes a present attempt to enter from outside, not someone living inland for decades.
Carr v. United States — Supported the panel’s grammatical analysis of present participles (“seeking”) and verb tense to define temporal reach: “seeking admission” is present action.
United States v. Menasche, Hechavarria v. Sessions — Canon against surplusage: the court refused to read “seeking admission” out of § 1225(b)(2)(A).

4. Competing circuit views and district-court consensus

Castañon-Nava v. U.S. Dep't of Homeland Sec. — The Seventh Circuit’s stay-stage analysis aligned with the Second Circuit: § 1225(b)(2)(A) requires both “applicant for admission” and “seeking admission.”
Buenrostro-Mendez v. Bondi (5th Cir.) and Avila v. Bondi (8th Cir.) — The Second Circuit expressly rejected these decisions’ reasoning, particularly the equation of “applicant for admission” with “seeking admission,” and their reliance on everyday meaning over statutory definition.

5. Structural canons and “elephants in mouseholes” skepticism

Whitman v. Am. Trucking Ass'ns — The court deployed the “elephants in mouseholes” principle against the idea that Congress silently mandated mass detention of millions via ambiguous phrasing in § 1225(b)(2)(A).
West Virginia v. EPA and Util. Air Regul. Grp. v. EPA — Supported the court’s skepticism of “unheralded”, sweeping regulatory power asserted late in time, especially where it would transform an entire system.
FDA v. Brown & Williamson Tobacco Corp. — Used for the need to read the statute as a coherent whole.

6. Administrative practice and congressional silence

Skidmore v. Swift & Co. (via Loper Bright) — The persuasiveness of an agency’s interpretation can depend on consistency.
FTC v. Bunte Bros. — Longstanding non-assertion of a claimed power can be “significant” evidence the power was not conferred.
CBS, Inc. v. FCC and United States v. Chestman — Congressional silence in the face of longstanding administrative construction may support that construction.
Bankamerica Corp. v. United States — Cited for the caution that agency inaction is not binding; the panel nevertheless treated decades of contrary practice as powerful contextual evidence.

7. Due process, prolonged detention, and avoidance

Velasco Lopez v. Decker and Black v. Decker — Second Circuit due process cases on immigration detention, reinforcing that prolonged detention without adequate justification raises serious concerns; used to show the constitutional gravity of the government’s construction.
Biden v. Nebraska (Barrett, J., concurring) — Quoted for the idea that courts may prefer an inferior-but-tenable reading to avoid serious constitutional questions, if ambiguity exists.
Jennings v. Rodriguez — Also used for the limitation that avoidance applies only when multiple constructions are plausible.

B. Legal Reasoning

1. The core textual holding: “applicant for admission” is broader than (and can diverge from) “seeking admission”

The court’s central move is to treat § 1225(b)(2)(A) as containing two operative conditions: (i) the person is “an applicant for admission,” and (ii) the person is “seeking admission.” The government’s position effectively collapses the second requirement into the first.

The panel rejected that collapse for three reasons:

Statutory definition controls: “Applicant for admission” is a term of art defined in § 1225(a)(1) and uses a “deeming” legal fiction to cover noncitizens physically present without admission. Because Congress “deemed” such persons applicants, the term cannot be assumed to carry its ordinary meaning (“someone who applies”). By contrast, “seeking” is not similarly redefined; it retains ordinary and grammatical meaning as present pursuit.
Grammar and temporality: “Seeking admission” is a present participle, indicating ongoing action, and thus naturally refers to persons at the border/threshold (or shortly after crossing) pursuing lawful entry after inspection—not to a person long present in the interior. Carr v. United States supported using verb tense to determine temporal reach.
Surplusage avoidance: If everyone “deemed” an applicant for admission is automatically “seeking admission,” the phrase “seeking admission” does no work in § 1225(b)(2)(A). The panel refused to treat it as mere surplusage (Menasche, Hechavarria).

2. Section 1226(a) is the default interior detention statute for removal proceedings

The court read § 1226(a) as broadly covering “an alien” arrested on warrant “pending a decision” on removal, encompassing both inadmissible and deportable noncitizens in removal proceedings. The government’s attempt to limit § 1226(a) to visa overstays was rejected as inconsistent with the statute’s inclusive language and IIRIRA’s removal framework (removal proceedings decide “inadmissibility or deportability” under § 1229a).

3. Structural coherence: preserving distinct roles for §§ 1225(b), 1226(a), and 1226(c)

The panel stressed that the government’s reading would dramatically shrink § 1226(a) and render large parts of § 1226(c) functionally redundant, conflicting with the structure described in Jennings v. Rodriguez. It also invoked the 2025 Laken Riley Act amendment expanding § 1226(c) mandatory detention for specified crimes as evidence Congress continues to treat § 1226(c)—not § 1225(b)(2)—as the locus for mandatory detention based on risk-enhancing factors (notably criminal conduct). The court saw the government’s construction as violating the anti-superfluity canon (citing, among others, Bilski v. Kappos, Marx v. Gen. Revenue Corp.).

4. Rebutting the government’s “other provisions” arguments

The court methodically rejected attempts to use other INA provisions to equate applicants for admission with seekers of admission:

§ 1225(a)(3) (“applicants for admission or otherwise seeking admission...”) does not compel a subset/superset reading; “or otherwise” can be disjunctive, and Supreme Court treatment of “or otherwise” in other contexts (e.g., Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc.) undermines the government’s inference.
§ 1225(a)(4) (withdrawal of “application for admission”) supports the opposite point: it uses a present participle (“applying”) consistent with current border processing, not long-present interior residents.
§ 1225(a)(5) (oath about “purposes and intentions...in seeking admission”) logically applies where such inquiry makes sense (border/inspection contexts), not to a decades-long resident.
§ 1182(a)(9)(B)(i)(I) (“again seeks admission”) cannot bear the weight of creating a constructive, perpetual “seeking admission” status; the court cautioned against inferring massive detention consequences from textual quirks and cited Whitman v. Am. Trucking Ass'ns.
§ 1225(b)(2)(B)(iii) (stowaway exclusion) did not support the government’s position, particularly in light of § 1225(a)(2), which says stowaways may not be considered applicants for admission.

5. Executive practice and congressional silence as reinforcing context

Even while insisting text controlled, the panel treated decades of contrary practice as a powerful confirmation. The opinion highlighted a 1997 DOJ regulatory statement: “Despite being applicants for admission, aliens who are present without having been admitted or paroled ... will be eligible for bond and bond redetermination.” The court viewed the 2025 policy shift as “newfound,” not a return to an obvious statutory command.

Congressional silence—especially amid repeated amendments to immigration laws—was treated as meaningful. The court also saw the absence of any IIRIRA-style safety valve for a purported mass mandatory detention mandate as strong evidence Congress never intended § 1225(b)(2)(A) to apply that broadly.

6. Constitutional avoidance as a backstop

Assuming arguendo ambiguity, the court held the government’s interpretation would raise severe Fifth Amendment due process concerns by mandating detention without bond for large numbers of non-dangerous, non-flight-risk interior residents for potentially lengthy periods. It distinguished Demore v. Kim as focused on a narrow criminal class and short typical durations, and it relied on Second Circuit due process concerns reflected in Velasco Lopez v. Decker and Black v. Decker. The court also noted practical duration concerns in Cunha’s case (a hearing reportedly scheduled far in the future), amplifying the constitutional stakes.

C. Impact

1. Immediate doctrinal rule in the Second Circuit

Cunha establishes that § 1225(b)(2)(A) mandatory detention does not govern long-present interior noncitizens who entered without inspection and are later arrested far from the border; their detention falls under § 1226(a), making them eligible for bond hearings (absent § 1226(c) mandatory-detention triggers).

2. Institutional consequences

ICE detention strategy constrained: The decision directly undercuts the 2025 ICE interim guidance within the Second Circuit, requiring bond eligibility determinations under § 1226(a) for the covered population.
Litigation and forum effects: The court acknowledged a circuit split with Buenrostro-Mendez v. Bondi (5th Cir.) and Avila v. Bondi (8th Cir.), likely increasing Supreme Court review pressure and strategic habeas filings.
Bond-hearing practice and standards: While Cunha is primarily about statutory authority, its constitutional discussion reinforces the need for individualized justification for prolonged detention and will likely be cited alongside Velasco Lopez and Black in future detention-duration challenges.

3. Interpretive significance beyond immigration detention

The opinion is also a notable post-Loper Bright Enters. v. Raimondo example of rigorous text-and-structure statutory analysis combined with skepticism toward sudden agency claims of expansive power after decades of non-assertion—framed through “elephants in mouseholes” reasoning and longstanding-practice considerations.

IV. Complex Concepts Simplified

“Applicant for admission”: A statutory label in 8 U.S.C. § 1225(a)(1). Congress “deems” certain noncitizens to be applicants even if they never filed anything—e.g., someone physically present who was never “admitted.”
“Admission”: Defined in 8 U.S.C. § 1101(a)(13)(A) as lawful entry “after inspection and authorization.” It is a legal term tied to border processing and official permission, not mere physical presence.
“Seeking admission”: Not specially defined, so it bears its ordinary and grammatical meaning: a present attempt to obtain admission (lawful entry after inspection). The Second Circuit held a decades-long interior resident is not “seeking admission” in this sense.
Section 1225 vs. Section 1226: § 1225 is principally a border/inspection statute (detaining certain people at the threshold while admissibility is decided). § 1226 is the interior detention statute for people already in the United States pending removal proceedings, allowing bond under § 1226(a) unless § 1226(c) mandates detention for specified criminal/terrorism-related categories.
“Entry fiction”: A doctrine allowing some people stopped at the border or immediately after crossing to be treated as if not yet “entered” for certain legal purposes. The court emphasized it is limited and cannot plausibly apply to someone living in the country for decades.
Constitutional avoidance: If a statute is genuinely ambiguous, courts prefer a plausible reading that avoids serious constitutional problems. Here, it served as an alternative basis for rejecting an interpretation that would mandate mass detention without bond.

V. Conclusion

Cunha v. Freden crystallizes a key detention rule: although § 1225(a)(1) “deems” certain interior noncitizens “applicants for admission,” § 1225(b)(2)(A) mandatory detention applies only to those presently “seeking admission,” i.e., pursuing lawful entry after inspection at the threshold. Long-present interior residents arrested years after unlawful entry fall under § 1226(a) and are bond-eligible (absent criminal mandatory detention under § 1226(c)).

The decision is consequential not merely for its immediate effect on bond hearings, but for its broader interpretive stance: it rejects a late, sweeping agency re-reading that would transform detention policy nationwide, and it insists that Congress would speak clearly if it intended an unprecedented regime of mass mandatory detention without bond.