Clearinghouse Covers Circuit Split on Mandatory Detention Without Bond for Noncitizens Inside the Country

In recent months, several federal courts of appeal have addressed whether noncitizens present in the interior of the United States, often for many years and with established lives and livelihoods, are subject to the mandatory detention (without bond) provision of 8 U.S.C. § 1225(b)(2)(A), or the discretionary detention scheme of 8 U.S.C. § 1226, which requires a determination that detention pending removal proceedings is appropriate and permits release on bond or conditional parole.

Presently, there is a circuit split on the issue. The U.S. Courts of Appeals for the Second, Sixth, and Eleventh Circuits have held that § 1225(b)(2)(A)'s mandatory detention scheme does not apply to noncitizens inside the country that have not attempted lawful entry and are actively avoiding being inspected for lawful entry, and are therefore not "seeking admission" within the meaning of the statute. These courts have cited the logistical hurdles that the government's broad interpretation of that statute would create, as well as the government's 29-year history of interpreting the provision more narrowly.  

As the U.S. Court of Appeals for the Sixth Circuit recently explained, in Lopez-Campos v. Raycraft:

Petitioners are more than just names on a pleading.  Petitioners have lived in the United States for years or decades.  Some . . . own property or work for locally owned businesses.  Others . . . have worked with law enforcement to facilitate criminal prosecutions.  All appear to contribute to their neighborhoods and local communities.  Many are the primary breadwinners or essential caregivers for their families, which include their children who were born here and are citizens of the United States.   Though the government has now released Petitioners from detention, our understanding of § 1225(b)(2)(A)’s scope ensures that noncitizens like Petitioners should have a forum to explain that their backgrounds and connections to their communities justify release on bond while they undergo their removal proceedings.  To hold otherwise would subject long-term lawabiding residents in the United States, such as Petitioners, to the hardship of mandatory detention without due process. 

The U.S. Courts of Appeal for the Fifth and Eighth Circuits have instead adopted the Trump Administration's proposed interpretation of the statute, holding, instead, that individuals who enter the country illegally are "seeking admission" as long as they remain without lawful status, triggering mandatory detention under § 1225(b)(2)(A). 

See all of the cases in the Clearinghouse collection with federal appellate court decisions on this topic here.