BIA stripped immigration judges of bond authority, mandating detention without hearings in Matter of Yajure Hurtado

On September 5, 2025, the Board of Immigration Appeals — the appellate body within the Department of Justice's Executive Office for Immigration Review — issued a precedential decision in Matter of Yajure Hurtado, 29 I&N Dec. 216. The Board held that noncitizens who entered the United States without inspection and are later placed in removal proceedings are "applicants for admission" under Section 235(b)(2) of the Immigration and Nationality Act, and are therefore subject to mandatory detention. Under the Board's reading, an immigration judge has no authority to conduct a bond hearing for such a person, regardless of how long they have lived in the country.

The decision reversed decades of practice under which longtime residents placed in removal proceedings could ask an immigration judge to release them on bond while their cases were adjudicated. Following the ruling, the Department of Homeland Security and Immigration and Customs Enforcement began applying it to detain thousands of people — including individuals who had resided in the United States for years — without any individualized hearing on whether their continued detention was justified.

Because a precedential BIA decision binds immigration judges nationwide, the ruling functioned as a categorical policy change removing a longstanding procedural safeguard. The elimination of bond hearings concentrates custody decisions in the enforcement agencies pursuing removal and denies detained noncitizens the opportunity to be heard before a neutral adjudicator, raising core due-process concerns that federal courts have since divided over.

Updates

2026-02-06 — Fifth Circuit endorsed mandatory detention without bond eligibility [5, 6]

The U.S. Court of Appeals for the Fifth Circuit reversed two Southern District of Texas rulings and held that noncitizens present in the United States without having been admitted are "applicants for admission" subject to mandatory detention without bond eligibility, regardless of how long they have resided in the country, remanding for further proceedings. The ruling, in Buenrostro-Mendez v. Bondi, was the first circuit court decision to endorse the Matter of Yajure Hurtado reading, extending it to two Mexican nationals who had lived in Louisiana, Mississippi, and Texas since 2009 and 2001 respectively.

2026-03-25 — Eighth Circuit became the second circuit to endorse the policy [7, 8]

In a 2-1 decision in Herrera Avila v. Bondi, the U.S. Court of Appeals for the Eighth Circuit ruled that DHS may continue detaining immigrants without bond hearings, reversing a Minnesota district court order and explicitly aligning with the Fifth Circuit's February ruling. Joaquin Herrera Avila, a Mexican national arrested in Minneapolis in August 2025, had been granted a bond hearing by the district court before the reversal. Judge Ralph R. Erickson dissented, warning the decision subjects "millions" of noncitizens to mandatory detention under a novel statutory interpretation unused by courts or five prior presidential administrations.

2026-06-15 — Supreme Court granted certiorari in a related prolonged-detention case [4]

The Supreme Court agreed to hear Genalo v. Black, No. 25-886, taking up whether prolonged immigration detention without a bond hearing violates due process and, if so, which party bears the burden of justifying continued detention — questions closely tied to the categorical-detention reading advanced in Matter of Yajure Hurtado.

2026-07-03 — Fifth Circuit required bond hearings after prolonged detention [3]

In a 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit held that noncitizens detained under the mandatory-detention provision are entitled to an individualized bond hearing after prolonged detention, setting a constitutional floor of roughly 90 days and rejecting the government's argument that such individuals may be held indefinitely without any custody review.

2026-07-30 — Ninth Circuit rejected mandatory detention, deepening circuit split [9, 10, 11, 12]

In a 2-1 decision written by Judge Daniel Bress, a Trump appointee, the U.S. Court of Appeals for the Ninth Circuit held that the government cannot mandatorily detain, without bond hearings, noncitizens apprehended in the interior of the country under the Matter of Yajure Hurtado reading of the Immigration and Nationality Act, finding the policy breaks with roughly 30 years of practice across five administrations. The ruling, covering Nevada, California, Arizona, and Washington, deepened the existing circuit split with the Fifth and Eighth Circuits' earlier rulings and increased the likelihood of Supreme Court review.

2026-08-28 — Third Circuit became the eighth appeals court to reject the policy [13, 14]

In a 2-1 decision in Buele Morocho v. Warden Philadelphia FDC, the U.S. Court of Appeals for the Third Circuit held that mandatorily detaining noncitizens who entered without inspection, with no bond hearing regardless of how long they had lived in the country, violates federal immigration law and the Fifth Amendment. Circuit Judge Patty Shwartz wrote for the majority that longtime residents "are entitled to due process rights beyond those provided to noncitizens at the border," and that a neutral decisionmaker, not a blanket detention practice, should assess case by case whether continued custody is warranted. The ruling takes immediate effect in Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands and was reported as the eighth consecutive federal appellate loss for the policy, further deepening the circuit split with the Fifth and Eighth Circuits.