On September 5th, 2025, the Board of Immigration Appeals (BIA) held that individuals who have entered the United States without inspection are not entitled to a bond hearing before an immigration judge. This applies even to those who have lived here for many years and are pursuing lawful status in the Immigration Court, such as asylum or green card status.
For decades, established precedent drew a clear line between those who were at the border seeking admission and those who were already inside the country. Those encountered at a port of entry were subject to detention by Immigration and Customs Enforcement (ICE) under the
Immigration and Nationality Act (INA), which is not reviewable by an immigration judge. But once someone was inside of the U.S., the INA gave immigration judges discretion to decide whether detention was justified at a bond hearing.
In practice, most undocumented individuals in either group have completed their removal proceedings free from detention. ICE has usually been satisfied with regular check-ins. When ICE has chosen to detain individuals found within the U.S., the individuals petitioned for review before the immigration court, presenting evidence of good character and commitment to appearing at future hearings. They typically secured an immigration bond from the judge in these scenarios.
The Yajure Hurtado decision completely upends this system. By categorizing people who entered without inspection as if they were perpetually “arriving” or “applying for admission,” the BIA drastically expands the reach of INA. The availability of a bond hearing has always been an important safeguard for individuals facing removal proceedings. This holding has implications for millions of undocumented non-citizens who now face the risk of sudden detention with no judicial review. Many of them have been here for years, sometimes with lawful status, often raising families, working, and serving their communities.
Notably, the individual in Yajure Hurtado held lawful temporary protected status (TPS) until April of 2025, when he was detained by ICE and placed in Immigration Court proceedings. This highlights the danger for hundreds of thousands of TPS holders and parolees whose status has been terminated in 2025.
The Administration’s new legal position on these cases, argued in the immigration courts and before the BIA, reflects a broader detention and enforcement strategy. Over the past year, ICE has expanded detention facilities, increased enforcement personnel, and pressed novel legal theories to justify the detention of more people, with less oversight from the courts. ICE attorneys have also been more aggressive in appealing favorable bond determinations to the BIA.
The immigration courts and the BIA play an important role in weighing ICE’s legal arguments. But they remain part of the Department of Justice, which limits their independence from the Administration. The Administration has dismissed hundreds of immigration judges in 2025, including all ten appellate immigration judges on the BIA who were appointed under Biden. This restructuring, combined with the Attorney General’s power to certify BIA decisions to herself and select previously unpublished BIA decisions for publication, has tilted the BIA towards the priorities of the Administration.
Other BIA decisions in 2025 underscore the trend. Prior to Yajure Hurtado, the BIA had already expanded the interpretation of an “applicant for admission” or “arriving alien” to an individual caught shortly after arriving in the U.S., not at a port of entry. The Board agreed with ICE that the individual was still seeking admission, despite being found within the U.S. borders. Although ICE had released Q. Li from custody on parole, the BIA found that when ICE terminated the parole and returned her to custody, she had no recourse to challenge her detention before the Immigration Judge. This holding affects thousands of individuals who were caught and released on parole under the Biden Administration, who may now be re-detained without the ability to request bond.
The BIA has also raised the bar for those eligible for bond hearings. In June, the BIA sustained DHS’s appeal of a $15,000 grant of bond, finding no bond would be sufficient to secure the respondent’s appearance at future hearings because of his delay in notifying the court of an address change. The Attorney General hand-picked this previously unpublished case for publication.
In September, the BIA sustained DHS’s appeal of a $10,000 grant of bond from the immigration judge, and denied bond altogether, where the respondent did not submit a letter of support from a sponsor, despite DHS’s burden of demonstrating flight risk in the relevant jurisdiction. This effectively added a new factor to a list of relevant flight risk factors established by the BIA in 2006.
The BIA’s recent decisions have sanctioned mandatory detention for millions who would have otherwise qualified for bond hearings. For those who do qualify for bond hearings, the evidentiary standard for establishing likelihood to appear at future hearings has been raised. Even those entitled to a bond hearing are more likely to have their request denied, or they will remain detained as ICE pursues an appeal of their bond order to the BIA.
In tandem with this changing legal framework, the One Big Beautiful Bill has allocated billions of dollars for immigration enforcement and detention. Attorneys have reported an increase in ICE presence at Immigration Courts and USCIS offices, as well as an increase in detentions at hearings and routine check-ins. There have been reports of detention continuing even after an individual has won their right to remain in the U.S. Detention often has the effect of limiting access to counsel for preparation of the case, especially if the individual is moved to a detention facility far from their place of residence. Detention chills the pursuit of legal remedies, as each day spent defending their case means another day in custody. It is especially demoralizing for the many individuals who now find themselves detained without redress after many years of living freely in the United States, in many cases lawfully with TPS, parole, or pending asylum or green card applications.
Given the BIA’s apparent support of the Administration’s detention goals, the immigrant community now looks beyond the BIA to the courts of appeals and district courts to weigh in on these critical due process issues. A district court in Washington has already rejected the BIA’s recent ruling, declaring that the Tacoma Immigration Court’s practice of denying bond hearings for individuals who entered without inspection was in violation of the INA. The Supreme Court’s recent decision in Loper Bright has limited judicial deference to agency interpretations. Federal courts now have greater latitude to interpret immigration statutes independently, which may also lead to different legal interpretations across different districts. These will be an important space to watch as the Administration continues its war on immigration in the years ahead.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the August 19, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
