This article is informational only and does not constitute legal advice. The subject is complex, interpretations vary by court and by case, and the law may change. Do not act on the basis of this article — consult an immigration attorney.
Why has the government, since July 2025, been holding without bond noncitizens who have lived in the United States for decades?
How did the Second Circuit shut that down — and why did two other circuits reach the opposite conclusion?
Who in immigration detention will Cunha actually help, who will it not help, and who might it even hurt?
What should you do right now if you or a loved one is detained in New York, Connecticut, or Vermont?
1. Overview
2. The Two Detention Statutes: 1226 and 1225
3. The ICE Memorandum of July 8, 2025
4. The Cunha Case: Facts and Procedural History
5. The Second Circuit's Analysis
5.1. Textual Analysis: Applicant vs. Seeking
5.2. Structural and Historical Analysis
5.3. Constitutional Argument
6. The Circuit Split
6.1. Fifth Circuit: Buenrostro-Mendez
6.2. Eighth Circuit: Avila
6.3. Seventh Circuit: Castañon-Nava
7. Who Cunha Helps — and Who It Does Not
7.1. The Classic Case: Long-Resident EWI
7.2. Expired Parole: An Extension Argument
7.3. Active Parolees and the Entry Fiction
7.4. Outside the Second Circuit
8. Practical Steps
9. Supreme Court Prospects
10. Table of Cases and Authorities
On April 28, 2026, the Second Circuit issued its decision in Cunha v. Freden, becoming the first federal appeals court to squarely reject the mass mandatory-detention policy the administration rolled out in July 2025. The court held that noncitizens who entered the United States without inspection and have lived here for years cannot be held in immigration detention without an opportunity for a bond hearing. Their custody is governed by 8 U.S.C. § 1226(a), not § 1225(b)(2)(A).
The decision was unanimous. Judge Bianco wrote for the panel, joined by Judges Cabranes and Nathan. Judge Cabranes filed a separate concurrence that, if anything, dismantled the government's position even more sharply than the majority opinion. The decision creates a clean conflict with rulings from the Fifth and Eighth Circuits and almost certainly puts the issue on a path to the Supreme Court.
This article walks through the background and the statutory framework; the July 2025 ICE memorandum that triggered the litigation; the facts and reasoning in Cunha; the circuit split as it stands today; and — most importantly — who the decision actually helps, who it does not, and who it may even hurt. A full table of cases with key holdings appears at the end.
Federal immigration law has two principal detention provisions for noncitizens awaiting a removal decision: 8 U.S.C. § 1226 and 8 U.S.C. § 1225. Which one applies determines whether bond is even available.
Section 1226(a) is the general rule for noncitizens already inside the United States. Detention under this section is discretionary: ICE may take a person into custody, but an immigration judge has authority to release on bond if the person is neither a danger to the community nor a flight risk. The exception is 1226(c), which mandates detention without bond for noncitizens with certain criminal or terrorism-related grounds of removability.
Section 1225(b)(2)(A) applies to "arriving" noncitizens. There is no bond. The person stays in custody for the duration of removal proceedings, regardless of community ties or flight risk.
From the passage of IIRIRA in 1996 through mid-2025 — nearly three decades — both provisions were understood the same way: 1225 covered people arriving at ports of entry or apprehended at the border, 1226 covered everyone already in the interior. That understanding spanned five presidential administrations from Clinton through the first Trump administration and Biden, and was reflected in the Supreme Court's own description of the statutory scheme in Jennings v. Rodriguez, 583 U.S. 281 (2018). There was no real dispute about it.
On July 8, 2025, ICE issued an internal directive titled Interim Guidance Regarding Detention Authority for Applicants for Admission. The memorandum reinterpreted § 1225(b)(2)(A) and announced a new position: every noncitizen who ever entered the United States without inspection now falls within that section, regardless of how long they have lived in the country.
The reasoning rested on the term "applicant for admission" in § 1225(a)(1). By statute, any noncitizen present in the United States without admission is "deemed" an applicant for admission. That has been a legal fiction since 1996. The government's logic: if a person is deemed an applicant for admission, then § 1225(b)(2)(A) — which speaks to applicants for admission — controls. Length of residence is irrelevant.
The practical effect was a sweeping change in custody policy. Noncitizens who had lived in the United States for ten, twenty, even thirty years — homeowners, business owners, parents of U.S. citizens, with no criminal history — were suddenly to be detained for the entire duration of their removal cases. By the government's own estimate, the policy reached millions of people.
Mass arrests followed across the country, not just at the border but in Houston, Chicago, Boston, New York, Los Angeles, and elsewhere. Immigration judges began denying bond on the basis of the new reading. At the federal district court level, more than 370 judges nationwide — roughly ninety percent of those to consider the question — rejected the government's position. At the appellate level, the picture has been mixed.
Ricardo Aparecido Barbosa da Cunha is a Brazilian national who entered the United States without inspection in 2004 or 2005 and has lived here ever since. Over twenty years he built an ordinary American life in Massachusetts: he married, raised two U.S.-citizen children, bought a home, ran a small construction business, and paid his taxes. He has never been arrested for or charged with a crime.
In 2016, Cunha applied for asylum and was granted work authorization. The application has been pending for nearly a decade, with no decision.
On September 26, 2025 — three months after the ICE memorandum issued — Cunha was arrested on his drive to work in Norwood, Massachusetts. Notably, the administrative warrant cited Section 1226: the very provision that authorizes release on bond. He was nevertheless taken into custody and transferred to Buffalo, New York.
When Cunha requested a bond hearing, the immigration judge denied it. The judge's reasoning was straightforward: under the new ICE memorandum, § 1225(b)(2)(A) now governed, and that section forecloses bond.
Cunha then filed a habeas petition in the United States District Court for the Western District of New York. Judge Meredith Vacca agreed with him: 1225 did not apply, 1226 did, and Cunha was entitled to a bond hearing. At the hearing that followed, the immigration judge released Cunha on bond — finding, unsurprisingly, that he posed no danger and no flight risk. He went home.
The government appealed to the Second Circuit, pressing the same argument as in the memorandum: § 1225(b)(2)(A) applies to all applicants for admission, Cunha is one, and therefore he must remain detained throughout proceedings.
On April 28, 2026, the Second Circuit affirmed. Cunha falls outside 1225; 1226(a) governs; bond is available.
The decision rests on three independent lines of reasoning: a textual analysis of the statute, a structural and historical analysis of how the relevant provisions fit together in the broader scheme, and — as an alternative ground — the doctrine of constitutional avoidance.
The decision turns on a careful distinction between two phrases that look similar but, on the court's reading, mean different things: applicant for admission and seeking admission.
"Applicant for admission" is defined in the statute itself. Under § 1225(a)(1), any noncitizen present in the United States without having been admitted is "deemed" an applicant for admission. This is a legal fiction: the person did not actually apply for anything, but the statute treats them as though they did. Cunha is unquestionably an applicant for admission. Nobody disputes that.
"Seeking admission," by contrast, is not statutorily defined. The court therefore reads it in its ordinary sense. To "seek" something is to actively pursue it, ask for it, attempt to obtain it. Crucially, the statute uses the present participle — "seeking" — which carries a present-tense meaning. The provision applies to a noncitizen who is seeking admission now.
To trigger mandatory detention under § 1225(b)(2)(A), both conditions must be satisfied. The person must be an applicant for admission and currently seeking admission. Cunha satisfies the first but not the second. Yes, he is deemed an applicant for admission by operation of law. But he is not seeking admission right now. He has lived in the country for twenty years; he is not at the door asking to be let in. What he is seeking from the government today is not admission — it is asylum and cancellation of removal, two forms of relief from removal. Those are not requests for admission, and the court treats them as a different category entirely.
Because the second condition is not met, § 1225(b)(2)(A) does not reach Cunha. His custody is governed by § 1226(a), and bond is available.
The court squarely rejected the government's central textual argument — that "applicant for admission" and "seeking admission" mean the same thing. If they did, one of them would be surplusage. When Congress uses two different terms in the same sentence, the presumption is that they carry different meanings. That is a basic canon of statutory construction.
The court reinforced its textual analysis with a structural reading of the statute as a whole. If the government's view were correct — if every applicant for admission triggers mandatory detention under 1225 — then § 1226 would be reduced to a residual provision covering only a narrow slice of cases. That cannot be reconciled with the canon against surplusage.
The historical record cuts the same way. When Congress enacted IIRIRA in 1996, it built a safety valve into § 1226(c): a two-year delay in implementing mandatory criminal detention, on the ground that detention space was insufficient for the estimated 100,000 to 200,000 noncitizens covered. If § 1225(b)(2)(A) had been understood to require detention of millions of people, the absence of any analogous safety valve for 1225 would be inexplicable. The far more natural inference is that Congress never thought 1225 would sweep in millions in the first place.
The court also leaned on the Supreme Court's framing in Jennings v. Rodriguez, which described § 1225 as governing noncitizens "seeking admission into the country" and § 1226 as governing "aliens already present in the United States." That language was not a holding, but the Second Circuit gave it the weight Supreme Court dicta typically receive.
The court resolved the case on statutory grounds. But it went out of its way to note that, even if the statute were ambiguous, it would reach the same result on constitutional avoidance. That alternative holding is dicta, but it is delivered plainly.
The court invoked Zadvydas v. Davis, 533 U.S. 678 (2001), which holds that civil immigration detention must be "non-punitive in purpose and effect." Detaining millions of long-resident noncitizens — none of them shown to be dangerous or to pose flight risks — for the indefinite duration of removal proceedings raises serious due process concerns. The court also pointed to its own decision in Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020), which holds that prolonged detention demands ever stronger justifications from the government.
The constitutional alternative matters in practical terms. If the Supreme Court were eventually to reverse Cunha on the textual question, the due process line would still be available — at least as a foothold for further litigation.
However persuasive the Second Circuit's analysis, it is not unanimous among the circuits. The picture today is a clean split: two circuits with the noncitizen, two with the government, and the rest yet to weigh in at the appellate level.
The Fifth Circuit — Texas, Louisiana, Mississippi — sided with the government in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026). The reasoning is direct: "applicant for admission" and "seeking admission" are essentially the same thing. When you apply for something, you are necessarily seeking it. Anyone who is deemed an applicant for admission is therefore also seeking admission, and length of residence is irrelevant.
Read on its face, this is the more orthodox textualist move — though it does erase the distinction the Second Circuit insists Congress drew.
The Eighth Circuit — Minnesota, Iowa, Missouri, the Dakotas, Nebraska, Arkansas — reached the same result in Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026). In that court's view, a person who once entered illegally is, in legal terms, still "seeking admission" even years later.
In our view, the Eighth Circuit's textual analysis in Avila is the strongest articulation of the government's position currently in the books. If the Supreme Court grants certiorari, that is the line of reasoning we would expect to feature most prominently.
The Seventh Circuit — Illinois, Indiana, Wisconsin — has signaled the same direction as the Second, but only in the posture of a stay motion: Castañon-Nava v. U.S. Department of Homeland Security, 161 F.4th 1048 (7th Cir. 2025). The Second Circuit cited Castañon-Nava in Cunha as a circuit moving in the same direction. If the Seventh Circuit ultimately reaches a final merits ruling on the same side, the appellate score becomes three to two.
This is the practical question that matters most. Cunha is not a blanket victory for everyone in detention. The decision is narrow on its own terms, and understanding exactly who it covers — and who it does not — is essential before deciding whether to invoke it.
The cleanest beneficiary of Cunha is a noncitizen who entered the United States without inspection (EWI), was not apprehended at or near the border, and has lived in the country for several years. Cunha himself is the textbook example: twenty years in residence, EWI, arrested deep in the interior on his way to work.
For noncitizens fitting that pattern who are detained in New York, Connecticut, or Vermont — within the Second Circuit's geographic reach — Cunha operates as binding precedent. The immigration court must afford a bond hearing. The government cannot fall back on § 1225(b)(2)(A) as a basis for denying it.
Things get harder for noncitizens whose parole has long since expired and who later end up in custody. Functionally they look a lot like Cunha — physically present in the country for years, no longer "arriving." But formally, they are caught by Matter of Q. Li, 29 I&N Dec. 166 (BIA 2025), which holds that parolees whose parole has been terminated revert to § 1225(b)(2)(A) custody.
An extension of Cunha's logic is nevertheless workable, particularly where the parole expired long ago and the person has built a life in the country — a job, a family, a home. The argument runs roughly like this: after years of physical residence and integration into the community, the person is no longer "seeking admission" in any present-tense sense, just as Cunha was not. Yes, they came through a port of entry once; but their position today is functionally indistinguishable from a long-resident EWI's.
This is a contested argument, and it requires careful, precedent-aware advocacy. We have prevailed on similar arguments in analogous cases. Outcomes are not guaranteed, but the path is real.
For noncitizens with active parole — including those who entered through CBP One, the CHNV programs, or other humanitarian parole mechanisms — Cunha probably does not help. And, perhaps more importantly, it may affirmatively hurt.
The reason is the long-standing entry fiction. A parolee was admitted physically but not legally; their parole is permission to be in the country pending a decision on admission, not admission itself. As a matter of law, the parolee remains "stopped at the boundary line" even if, in physical fact, they have been living in Chicago for years. The doctrine traces back to Leng May Ma v. Barber, 357 U.S. 185 (1958).
Cunha itself reinforces the entry fiction. The opinion expressly states that § 1225(b)(2)(A) "applies to those noncitizens who present themselves at a port of entry for admission, or who cross the physical border into the United States but are apprehended at the threshold of initial entry," and cites Leng May Ma approvingly. So the parolee carve-out is not our prediction — it is a plain qualification by the Cunha court itself.
For CBP One parolees in particular, Cunha draws a line that runs against them. Cunha is the prototypical EWI: someone who slipped past the border and never asked to be let in. The CBP One entrant did exactly the opposite — walked up to a port of entry and asked to be admitted. That is precisely the conduct § 1225(b)(2)(A) was written to address. By distinguishing Cunha so clearly from the parolee category, the decision actually arms the government with a sharper basis for keeping such individuals detained.
Also still in play is Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), which held that even a TPS grant does not pull a former EWI out of § 1225. Cunha effectively displaces Yajure Hurtado within the Second Circuit as applied to EWIs, but the BIA decision retains force as to parolees.
Cunha has no binding force outside the Second Circuit. Immigration judges and federal district courts in the Fifth and Eighth Circuits must follow Buenrostro-Mendez and Avila — both of which favor the government.
In circuits that have not yet ruled at the appellate level — the First, Third, Fourth, Sixth, Ninth, Tenth, and Eleventh — Cunha is not binding but can be cited as persuasive authority. Outcomes in district courts in those circuits have been mixed, and Cunha may move the needle. But there are no guarantees, and the analysis is necessarily more uncertain.
If you or a family member is detained in the Second Circuit and the facts resemble Cunha, time matters. There are two reasons. First, the government can move a detainee to a different circuit, where a different rule applies, and Cunha will then be of no help. Second, the Supreme Court is likely to take the issue, and there is a real possibility Cunha will be reversed. The window may close at any time.
The first move is a written motion for a bond hearing in immigration court, supported by the full evidentiary file: length of residence, family ties, employment, property, lack of criminal history, and a direct citation to Cunha. The decision is binding on every immigration judge sitting in the Second Circuit. In the early weeks and months after publication, some immigration judges may still attempt to deny bond on procedural grounds or by trying to distinguish the facts. Be prepared for that.
If the facts diverge from Cunha — for example, the detainee entered on parole that has since expired, or has been in the country only a short time — the motion still has a place, but it needs to be framed as an extension argument. That is hard to do well without experienced counsel. The lawyer must distinguish the case from adverse precedents like Q. Li and Yajure Hurtado, and use Cunha's reasoning persuasively without overclaiming what it actually held.
If the immigration judge denies bond, the next step is a habeas petition in federal district court at the place of detention. That is the procedural route Cunha himself took. There is no formal filing deadline, but earlier is always better. Every day in detention is a day of liberty lost.
One jurisdictional note worth flagging. If a detainee is arrested in one state and transferred to another, counsel may have a choice about where to file the habeas petition. In Cunha's case, he was arrested in Massachusetts and transferred to Buffalo, New York. Counsel litigated in New York — and that turned out to be the right call, since New York sits within the Second Circuit. A skilled lawyer will think carefully about which forum offers the most favorable law.
The circuit split is now clean, and a clean split nearly always brings the Supreme Court in. This is a question of months, not years. What the Court will do is harder to predict.
The current Court is 6-3 conservative, and in recent immigration cases it has tended to side with the government. We think the Eighth Circuit's textual analysis in Avila is, frankly, the stronger of the two appellate readings on the merits, and there is a real chance the Supreme Court takes that line as its starting point. If so, Cunha would no longer control even in the Second Circuit.
That said, the constitutional avoidance ground in Cunha — and the Zadvydas line behind it — is not nothing. Even if the Court rejects the textual reading, it could still narrow § 1225(b)(2)(A)'s reach on due process grounds. That would be a smaller win for noncitizens, but not a total loss.
Until the Court rules, Cunha remains good law in the Second Circuit. It also has the potential to influence circuits that have not yet weighed in: the First, Third, Fourth, Sixth, Ninth, Tenth, and Eleventh. The Seventh Circuit is already moving in the same direction through Castañon-Nava. The more appellate courts that align with the Second Circuit, the harder it becomes for the Supreme Court — and for the government — to dismiss the position as an outlier.
The bottom line is the same as on every other point in this article. If you have a Cunha case, do not wait. The window is open today. Nobody can promise it stays open tomorrow.
Cunha v. Freden, No. 25-3141-pr (2d Cir. 2026) — Long-resident EWIs do not fall under § 1225(b)(2)(A); their custody is governed by § 1226(a) and they are entitled to a bond hearing. Decision rests on the distinction between "applicant for admission" and "seeking admission."
Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026) — Sides with the government. Treats every applicant for admission as falling under § 1225(b)(2)(A) with no bond available.
Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026) — Sides with the government on textual grounds parallel to Buenrostro-Mendez. The strongest appellate articulation of the government's position currently in the books.
Castañon-Nava v. U.S. Department of Homeland Security, 161 F.4th 1048 (7th Cir. 2025) — Stay-motion ruling that signals alignment with the Second Circuit. No final merits decision yet.
Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020) — Prolonged immigration detention requires increasingly weighty justification. Cited in Cunha as part of the constitutional argument.
Jennings v. Rodriguez, 583 U.S. 281 (2018) — Describes the statutory framework: § 1225 governs those seeking admission, § 1226 governs those already present. Cited in Cunha as supporting dicta.
Zadvydas v. Davis, 533 U.S. 678 (2001) — Civil immigration detention must be non-punitive. The constitutional foundation for Cunha's alternative ground.
Demore v. Kim, 538 U.S. 510 (2003) — Mandatory detention under § 1226(c) is constitutional because it applies to a narrow class of criminal noncitizens and is typically brief. Cunha distinguishes Demore on these grounds.
DHS v. Thuraissigiam, 591 U.S. 103 (2020) — A noncitizen apprehended 25 yards from the border was treated as still at the threshold of entry. Confirms the entry fiction as applied to those caught at or near the border.
Leng May Ma v. Barber, 357 U.S. 185 (1958) — Parolees are treated as "stopped at the boundary line" notwithstanding physical presence in the country. The foundational entry fiction case for parolees, and the basis for the parolee carve-out Cunha itself preserves.
Matter of Q. Li, 29 I&N Dec. 166 (BIA 2025) — Parolees whose parole has been terminated revert to § 1225(b)(2)(A) custody. After Cunha, this precedent retains force as to parolees but not as to EWIs.
Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025) — Immigration judges lack authority to consider bond requests from noncitizens present without admission, even those holding TPS. Effectively displaced within the Second Circuit by Cunha as to EWIs; remains operative as to parolees.
Matter of Lemus-Losa, 25 I&N Dec. 734 (BIA 2012) — Articulates the "artificial" nature of the term "applicant for admission." Cited in Cunha to support the distinction between applicant for admission and seeking admission.
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