BIA Ruling Now Mandates Detention for Undocumented Immigrants

In a landmark decision that could reshape America’s immigration landscape, the Board of Immigration Appeals (BIA), has ruled that immigrants in deportation proceedings who entered the United States without legal authorization—known as “entry without inspection“—are ineligible for bond hearings before an immigration judge.

This ruling, issued on September 5, 2025, reverses a long-standing interpretation of federal law that allowed many such individuals, particularly those residing in the U.S. for over two years, to seek release on bond while their cases proceeded.

The case centers on Jonathan Javier Yajure Hurtado, a Venezuelan national who crossed the Texas-Mexico border in November 2022 without inspection by border officials.

He was granted Temporary Protected Status (TPS), which expired in April 2025, leading to his prompt detention in Tacoma, Washington.

The BIA concluded that under Section 235(b) of the Immigration and Nationality Act (INA), such entrants are subject to mandatory detention throughout their removal proceedings, regardless of their length of residence or lack of criminal history.

This shift aligns with the Trump administration’s aggressive enforcement strategy, which includes a July 2025 policy change mandating detention for immigrants apprehended in the U.S. interior, even those present for decades.

The policy has triggered arrests at routine court appearances and check-ins, drawing sharp criticism for overriding prior assessments that detainees posed no flight risk or danger.

A Decades-Long Practice Overturned

For years, immigration law distinguished between recent border crossers and long-term residents.

Those living in the U.S. for more than two years could argue for bond release, citing ties to communities, families, and low risk factors.

Federal courts have repeatedly upheld this view, ruling the administration’s broader detention push violates due process and the “plain language” of statutes like the Laken Riley Act, which Trump championed to target criminal immigrants.

The BIA’s decision, however, deems all uninspected entrants as “applicants for admission,” mandating detention unless paroled—a discretionary release that ends upon issuance of a Notice to Appear.

Critics argue this could lead to indefinite detention for millions, pressuring them to self-deport despite valid claims for asylum or other relief.

Dana Leigh Marks, a former immigration judge and union head, called it “horrific” and a “cynical move” to force litigants to abandon cases while detained.

Immigrant advocates like the American Immigration Lawyers Association (AILA) warn it expands mandatory detention beyond serious criminals, straining resources and exacerbating backlogs.

Supporters, including some conservative voices, view it as essential for border security.

“This accelerates justice, clears bureaucratic gridlock, and ensures swift removal of those here illegally,” posted DOGEai on X, criticizing opposition as protecting lawbreakers.

The ruling is binding on immigration courts but not federal judiciary, setting up potential circuit court clashes and a Supreme Court showdown.

Surging Detentions and Legal Battles

The decision arrives amid record detention levels, with Immigration and Customs Enforcement (ICE) holding over 60,000 immigrants as of August 2025—surpassing funded capacity and marking a modern high.

The Trump administration aims to double beds to over 107,000 by 2026, including mega-facilities, tents, and family centers.

This includes controversial sites like Florida’s “Alligator Alcatraz,” a Everglades camp housing up to 3,000 in tents surrounded by swamps.

A federal judge ordered its partial dismantling in August 2025 for environmental violations, but an appeals court paused the shutdown, allowing operations to resume.

Detainees at Alligator Alcatraz have reported worms in food, flooding toilets, and insect infestations, prompting lawsuits over constitutional rights and access to lawyers.

Florida Gov. Ron DeSantis, a key Trump ally, has opened a second site, “Deportation Depot,” at a former prison, with plans for more.

Similar facilities are emerging in states like Louisiana (“Louisiana Lockup” at Angola Prison) and Nebraska.

Federal courts have pushed back on other Trump policies.

A Fifth Circuit panel blocked use of the 1798 Alien Enemies Act to deport alleged Venezuelan gang members, ruling it requires wartime conditions.

Judges have also halted military deployments in cities like Los Angeles, deeming them unconstitutional overreach. In New York, a judge ordered ICE to improve squalid holding cells, mandating medical care and lawyer access.

Outrage, Support, and Calls for Reform

Public response is polarized.

Advocates decry it as “imprisonment without trial” and authoritarian overreach.

“This is the inexorable result of draconian laws… our institutions are captured,” posted X user dabchick.

The ACLU hailed court blocks on related policies as victories for due process.

Enforcement proponents celebrate it as restoring order.

“Weak judges siding with sanctuary cities undermine national security,” argued DOGEai.

DHS officials defend expansions, citing state obstructions and rising threats.

Environmental and tribal groups, like the Miccosukee Tribe, emphasize broader harms from facilities like Alligator Alcatraz, which threaten endangered species and wetlands.

Taxpayer costs are mounting, with Florida estimating $15-20 million to dismantle and rebuild if appeals fail.

Yajure Hurtado can appeal to the 9th Circuit, potentially joining dozens of similar cases.

With Supreme Court precedents limiting deference to agency interpretations, the ruling’s fate is uncertain.

As detention swells—over 3,200 arrests in New York City alone since January—advocates warn of humanitarian crises, while the administration pushes for more beds and tools like a new “state sponsor of wrongful detention” designation.

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