Straining at a Gnat, Swallowing a Camel: the Distortion of Immigration Law and Mandatory Detention

The Scenario

Imagine living in your Texas neighborhood for over twenty years. You have a steady job, pay taxes, and your children were born and raised in the United States.  One morning, federal agents arrive, place you in handcuffs, and take you to a detention facility. No hearing occurs. 

The Reality

This is not hypothetical. It is the reality facing Victor Buenrostro-Mendez, who entered the United States in 2009, and Jose Padron Covarrubias, who arrived in 2001. Both men were detained in 2025—more than fifteen years after they had built their lives in the United States.  A federal district court judge concluded that they were entitled to bond hearings. After individualized determinations that they posed neither a danger nor a flight risk, both men were released and returned home. But the government appealed, arguing they had no right to a bond hearing. 

The Legal Response

In July 2025, the Department of Homeland Security (DHS) issued an Interim Guidance which reversed decades of practice, declaring that all noncitizens who had ever entered without inspection were subject to mandatory detention—no matter how long ago they entered the United States or how deep their roots were in this Country. Two months later, the Board of Immigration Appeals in Matter of Yajure Hurtado, stripped immigration judges of authority to grant bond to this entire category of people who entered illegally and were not seeking admission to the United States.  The impact was immediate: parole releases plummeted by more than 98 percent, even as detention costs reached roughly $180 per person per day. Habeas corpus petitions surged:  approximately 8,000 petitions were filed in 2025 compared to 222 in 2024 – a thirtyfold increase. 

On February 6, 2026, the Fifth Circuit endorsed this sweeping change in Buenrostro-Mendez v. Bondi, holding that any noncitizen who entered without formal admission is legally treated as an "applicant for admission" and subject to mandatory detention without bond. On March 25, 2026, the Eighth Circuit reached the same conclusion in Herrera Avila v. Bondi, ruling 2-1 that Joaquin Herrera Avila—a man who had lived and worked in Minnesota for nearly twenty years—was not entitled to a bond hearing. Writing in dissent, Judge Ralph Erickson—a Trump appointee—argued that the mandatory detention statute applies only when immigration authorities take someone into custody immediately after their release from criminal custody, not years later after they have returned to their communities. He cautioned that the majority’s interpretation “upends the longstanding practice of five presidential administrations” and warned it would subject millions of long-term residents to mandatory detention without any opportunity to seek release on bond.

What Makes Sense

At first glance, the framework may seem counterintuitive. How can someone who appears at the border seeking asdmission be detained without any opportunity for release via a bond hearing, while someone who entered unlawfully without seeking admission years ago would have traditionally received a bond hearing? 

The answer is not about rewarding unlawful entry, but about recognizing different legal contexts. The border statute, 8 U.S.C. Section 1225, sometimes called the “inspection and expedition removal” provision of the Immigration and Nationality Act (INA) governs the threshold decision whether to admit someone—a setting where Congress authorized brief, mandatory detention. But once a person is living inside the United States—with families, jobs, and deep community ties—the government is no longer deciding whether to let them enter. It is exercising coercive power to detain them. At that point, the question is no longer about admission, but about liberty—and loss of liberty requires a meaningful opportunity to be heard.

Consequences

In June 2025, enforcement operations in Southern California led to the arrest of over 2,000 individuals per day,  including long-term residents, many denied any opportunity to seek bond. Civil rights organizations challenged this policy and in December 2025, Judge Sunshine Sykes of the Federal District Court for the Central District of California vacated the policy nationwide, holding that individuals living in the interior must be given the opportunity to request bond—a conclusion supported by nineteen states and the District of Columbia. When the government continued to deny hearings, the Court issued an enforcement order emphasizing that both statutory law and the Constitution require meaningful review before prolonged detention. That ruling is now on appeal; its reach temporarily limited to California.

This conclusion aligns with the Seventh Circuit’s reasoning in Castanon Nava v. DHS, which rejected the government’s expansive view of mandatory detention.  The Court found based on the text and structure of §1225, the plaintiffs had the better argument that mandatory detention authority does not extend to noncitizens already living in the country's interior.  This conclusion directly conflicts with the Fifth and Eighth Circuits' readings of the same statute.

Judicial Reasoning

This growing conflict is heading toward the Supreme Court. Two dissents capture what is at risk. In Buenrostro-Mendez, Judge Dana Douglas noted that “straining at a gnat, the majority swallows a camel” warning that under the majority's reasoning, "the border is now everywhere." In Herrera Avila, Judge Erickson observed that for nearly three decades individuals like Avila would have been entitled to a bond hearing, and that the court was stripping that protection from millions of long-term residents. If that interpretation prevails, the entire interior of the United States becomes the border where long-term residents can be detained without ever appearing before a judge.

The Fifth and Eighth Circuits now stand aligned, deepening a divide with the Seventh Circuit — and potentially the Ninth, where the question remains pending — making Supreme Court review inevitable.

When that moment comes, the Supreme Court should affirm a straightforward principle: individuals living within the United States are entitled to individualized bond hearings before being subjected to prolonged detention for the following reasons:

(1) The INA Says So – Clearly 

The Immigration and Nationality Act (INA) makes a clear distinction between two situations: one provision governs individuals seeking entry at the border and authorizes mandatory detention; another governs individuals already present in the United States, permitting release on bond after an individualized hearing. By applying the border rule to people living in the interior, the government collapses these frameworks into one. This is not interpretation—it is revision. 

(2) You Cannot Be “Seeking Admission” If You Are Already Here 

Section 1225’s mandatory detention applies to people “seeking admission” – that is, people actively trying to enter the country. The phrase cannot reasonably apply to someone who crossed the border decades ago and built a life here. Treating them as perpetually at the border stretches the law beyond recognition.

(3) The Constitution Demands It 

Even if the statutory question were close, the Constitution provides a clear safeguard. The Fifth Amendment guarantees that no person may be deprived of liberty without due process. Courts have long recognized that prolonged civil detention requires meaningful procedural protections, including the opportunity to appear before a neutral decision-maker. In Zadvydas v. Davis (2001), the Supreme Court confirmed that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. This traces back even further: in Yick Wo v. Hopkins (1886), the Supreme Court established that constitutional protections are "universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." 

(4) Bond Hearings Are Not “Get Out of Jail Free” Cards 

Critics of bond eligibility often imply that granting someone a hearing means releasing dangerous people onto the streets.  That’s not how it works.  A bond hearing simply means that a neutral immigration judge –not ICE – makes an individualized decision. If someone poses a genuine danger or flight risk, an immigration judge can order continued detention. 

(5) Most People Show Up 

The government's claim that noncitizens granted a bond hearing will fail to appear is frequently overstated, relying on a subset of completed cases rather than overall rates. More complete data tells a different story: approximately 83 percent of noncitizens appear for their hearings; among those with legal representation, the rate rises to around 96 percent. People with families, jobs, and community ties have strong incentives to comply—and most do.

We Conclude

Thie issue is not about whether the government can enforce immigration law. It can. The question is whether that authority includes the power to imprison people indefinitely, without judicial oversight, based solely on the means of how they entered the country years ago. The answer should be no.

Victor Buenrostro-Mendez, Jose Padron Covarrubias, and Joaquin Herrera Avila all asked for something modest: the chance to stand before a neutral judge and argue for their release. That opportunity reflects a basic commitment of our legal system—that liberty cannot be taken without due process. If the government's position prevails, that commitment is at risk. The Supreme Court should reject that vision and reaffirm that due process applies within our borders—because a government that can detain people indefinitely without a hearing is one that has lost sight of the rule of law and the principles it is meant to uphold. 

The Barbara McDowell Social Justice Center