On March 25, 2026, the Eighth Circuit Court of Appeals ruled in favor of the government in Herrera Avila v. Bondi. The court held that foreign nationals present in the United States without lawful "admission" — for example, those who entered without inspection or were paroled in on humanitarian grounds — are subject to mandatory detention, with no right to bond.
Admission is a term of art. Simply crossing the border with CBP permission does not mean you were "admitted."
This is already the second circuit court to side with the government. The Fifth Circuit was the first to reach a similar conclusion.
The Eighth Circuit covers seven states: Minnesota, Iowa, Missouri, Arkansas, Nebraska, North Dakota, and South Dakota.
In Minnesota alone, more than 1,000 habeas petitions have been filed since the beginning of 2026. The vast majority of them are now likely doomed to fail.
Habeas corpus is the right of any person in the United States detained by federal authority to go to court and demand proof that their detention is lawful. Simply put — it is the right to ask the government to explain on what grounds it is holding you, and if there are none — to release you.
This right is enshrined in the U.S. Constitution and applies to everyone — citizens and foreign nationals alike.
Federal judges have fairly broad authority, and even in cases where the law plainly states that a person must be detained without bond, judges frequently ordered release — based on due process violations, creative statutory interpretation, the APA, and other legal arguments.
In the immigration context, habeas was typically filed after arrest — to prevent transfer to another jurisdiction and to obtain bond or outright release where an immigration judge had denied it.
The outcome depended on the individual judge, and over the past six months they have been wildly inconsistent. Some judges granted relief to virtually everyone. Others denied it to virtually everyone. In Minnesota and the Eighth Circuit generally, the majority of judges either set bond or ordered release. That is now going to change.
Under the traditional approach, "arriving aliens" were those physically at the border seeking entry. In such cases, INA § 1225 applied — which introduced the concept of "seeking admission" — and if the foreign national had no right to be admitted, DHS was required to detain them without bond pending resolution of their case.
Those arrested inside the country for immigration violations were generally subject to § 1226(a), which governs immigration detention broadly. How the person entered the United States — through a port of entry, over a fence, or otherwise — was irrelevant. Under that provision, the foreign national has the right to request bond from an immigration judge. Whether it would be granted was a separate question. That system had operated roughly the same way for two decades.
But in July 2025, things changed. The federal government reversed its position on bond and began reading the statute literally. According to the agency, applying § 1225 only to those physically at the border had been a mistake.
The reason is straightforward: read literally, the definition of "applicant for admission" encompasses any foreign national present in the country without lawful admission. And if that is the case — each of them is still "seeking admission" — and under § 1225(b)(2)(A), that means mandatory detention without bond. How long the person has lived in the U.S. and how they got here is irrelevant.
The result: millions of foreign nationals across the country detained by ICE lost access to bond.
It is important to note that entry by parole — including Uniting for Ukraine (U4U) or similar programs — does not constitute "admission." In practical terms, parole simply moves the border inspection window from the port of entry to the interior. The same applies to CBP One.
On the whole, ICE's interpretation is likely correct. However, because the law had never been applied this way before, many foreign nationals — and later many judges — disagreed. In the vast majority of cases, federal judges ordered immigration authorities to hold bond hearings for those arrested inside the country, even where the person had entered without admission. The reason: decades of contrary practice.
Now two federal circuits have issued binding precedent holding that the government's interpretation is correct — and that anyone present without lawful admission is an "arriving alien," regardless of how long they have been here. The result: detention without bond.
This does not apply to those who entered on a valid visa and were "inspected and admitted." They remain entitled to bond, and ICE does not contest that. The exception is where a visa was cancelled at the port of entry.
On March 25, 2026, a three-judge panel of the Eighth Circuit ruled 2-1 in favor of the government.
The case involved Joaquin Herrera Avila — a Mexican national who had lived in the United States for nearly twenty years. He was detained in August 2025 during a traffic stop in Minneapolis. An immigration judge denied bond, and Joaquin remained in detention. A federal district court later granted his habeas petition, ordering the government to hold a bond hearing. Avila was ultimately released on $7,500 bond.
The government appealed. The Eighth Circuit reversed.
In its decision, the court held that "applicant for admission" and "seeking admission" are synonymous — and that if you are present in the country without lawful admission, you are automatically "seeking admission."
The court's reasoning rests on a textual analysis of the statute and the conclusion that as long as your case is pending, you are still "seeking" entry — even if you are already inside the country and have lived here for decades.
The court also cited the Fifth Circuit's decision in Buenrostro-Mendez v. Bondi, which reached the same conclusion.
As for the argument that prior administrations had not applied the statute this broadly — the court explained: statutory authority granted by Congress does not disappear simply because it went unused, even for a very long time.
Result: habeas corpus on these grounds no longer works in the 8th Circuit.
Judge Erickson — appointed by the current president during his first term — dissented and wrote a separate opinion.
First. Hundreds of federal court orders in the seven states of the 8th Circuit — requiring the government to hold bond hearings — can now be reversed. Cases still pending, absent other grounds, will likely be lost as well. Federal judges in the 8th Circuit are bound to follow this appellate precedent.
Second. It will be even easier for the government to secure voluntary departures. The logic is simple: why sit in detention for months or years when you can leave to a third country? That is precisely what the government is counting on.
Third. ICE will likely move more aggressively to transfer detainees to circuits where this ruling applies — Texas, Louisiana, Mississippi, and now Minnesota and neighboring states.
Fourth. ICE may begin tracking down those who were already released. Doing so will not be difficult — these individuals are generally not in hiding.
This ruling is binding only in the 8th Circuit — Minnesota, Iowa, Missouri, Arkansas, Nebraska, North Dakota, and South Dakota.
In other circuits — such as the 9th — the situation is the opposite. Many circuits — the 6th, 7th, 4th, and 3rd — have not yet ruled on this issue.
Given the clear circuit split, the case may well reach the Supreme Court.
Despite the fact that this ruling has narrowed habeas to near nothing, the court did not close the door entirely.
Constitutional arguments remain available — due process and others. The nuances are significant, and most foreign nationals will not be able to make this argument successfully. But even in the Fifth Circuit, judges occasionally grant habeas petitions on these grounds. Difficult — but possible.
The argument based on unlawful prolonged detention also remains. If an immigration case drags on for years while a person sits without bond, there is an argument that such detention becomes excessive and violates due process. A number of courts have recognized that detention beyond a certain period requires at least a bond hearing. What counts as excessive depends on the circuit. Difficult — but also possible.
And of course, if ICE violated proper arrest procedures, that too can be grounds for release.
Particularly important: the prohibition on transfer to another circuit is still in effect and often makes sense when a person is being moved out of a favorable jurisdiction. The key is to act before the transfer happens.
Given the circuit split, there is a real possibility this case will reach the Supreme Court.
With the current composition of the Court, the chances of reversal are slim. ICE's interpretation is facially correct, and overturning it would essentially mean rewriting the statute — which is not the Court's role. The Supreme Court is not concerned with how fair or harsh a law is, or how many people it affects. Its only question is: what does the text say and how should it be read.
And the text is clear: "applicant for admission" means any foreign national present in the country without lawful admission. It is difficult to read it any other way.
With a six-to-three conservative majority — one that has consistently applied textualist principles — expecting the Court to suddenly read this provision in favor of foreign nationals would be naive.
If the Supreme Court takes the case and affirms the government's position, it will become the law of the entire country. Millions of foreign nationals without lawful admission — from California to New York — will lose the right to bond. The circuits that are currently holding out — the Ninth, Seventh, and Third — will be required to follow. And at that point, habeas on these grounds will no longer work anywhere.
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