The Hearing Was Never in the Statute

On Thursday the Supreme Court agreed to decide whether the government must hold, without bond, immigrants who live in the United States after entering without inspection. The case is Rhoney v. Barbosa da Cunha, No. 26-104, and the question the Court accepted is a single statutory one: “Whether 8 U.S.C. 1225(b)(2)(A) mandates the detention pending removal proceedings of aliens who, like respondent, are present in the United States without having been admitted.”

It is the government’s petition, but not the case the government wanted heard. SCOTUSblog reported in August that the Solicitor General asked the justices to hold this petition while they decided a Sixth Circuit case, Putra v. Lopez-Campos, and on Thursday that the government had described Putra as the better case in which to decide the question. The Court granted Rhoney instead. The dockets of Putra and of a detainees’ petition from the Fifth Circuit, Buenrostro-Mendez v. Blanche, show no action yet; SCOTUSblog expects more orders from the same conference on Monday morning.

The man and the policy

Ricardo Aparecido Barbosa da Cunha is from Brazil and entered the United States without inspection in 2004 or 2005, according to the Second Circuit’s opinion. He applied for asylum in 2016 and was given a work permit while the application was pending. He lives in Massachusetts with his wife and two children, who are American citizens, owns his home and runs a small construction business. He has never been convicted of a crime. In September 2025 immigration officers arrested him on his way to work, and the government asserted that he had to be held without bond while his removal case was pending. It concedes, the court noted, that he is neither a danger nor a flight risk.

For nearly thirty years someone in his position would have been held under section 1226(a) of the immigration law, which says the Attorney General “may continue to detain” an arrested noncitizen or “may release” him on “bond of at least $1,500” or conditional parole. In July 2025 Immigration and Customs Enforcement issued interim guidance applying a different section to people like him. Section 1225(b)(2)(A) says that “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained.” Section 1225(a)(1) says that a noncitizen “present in the United States who has not been admitted” is “deemed” an applicant for admission. On the government’s reading, the two sentences together cover everyone present in the country without having been admitted, however long ago they arrived.

The appeals courts have split. A Second Circuit panel of Judges José Cabranes, Joseph Bianco and Alison Nathan rejected the government’s reading unanimously in April, warning that it “would send a seismic shock through our immigration detention system and society.” By the count of the judges who later defended the panel, eight other circuits have reached the same result, among them the First, Third, Sixth, Seventh, Ninth, Tenth and Eleventh. The Fifth and Eighth have sided with the government.

Six days before the grant

On 25 September the full Second Circuit declined to rehear the case, and the order came with four separate writings. Six judges concurred to defend the panel. Judge Steven Menashi, joined in part by Judge Michael Park, dissented: the deeming provision, he wrote, means a person who entered unlawfully is legally “seeking admission”, however artificial that sounds. He added a second objection the government had not made, that a detainee who asks for a bond hearing rather than release is not seeking habeas corpus at all. The concurring judges replied that the government had never made that argument, and that Barbosa da Cunha had in fact asked to be released.

The fourth writing is the one to keep. Judge Matthew Schwartz, joined by Judge Richard Sullivan, said he agreed with the dissent but voted against rehearing because the Supreme Court would have to settle the split anyway. Then he set out what the government could do in the meantime, even if section 1226 applies.

What the statute says, and what the regulation says

Section 1226(a) gives the Attorney General discretion to detain or to release. It does not mention a hearing. Section 1226(b) lets him revoke a bond or parole “at any time” and rearrest the person. Section 1226(e) says his “discretionary judgment regarding the application of this section shall not be subject to review” and that no court may set aside his decisions on detention, bond or parole. The bond hearing before an immigration judge, the thing Barbosa da Cunha and thousands of others have gone to court to get, comes from regulations: 8 C.F.R. 236.1(d), which authorises an immigration judge to “detain the alien in custody, release the alien, and determine the amount of bond,” and 8 C.F.R. 1003.19, which sets out how a detainee asks for one.

“There is no statutory requirement for the United States to offer an alien the opportunity for bond or parole,” Schwartz wrote. A detainee under section 1226(a) can ask for a hearing “only because of the regulatory framework the Attorney General has adopted,” and “the Attorney General could rescind or amend those regulations.” He also noted that the Attorney General can refer an individual case to himself for decision.

That is one judge’s reading, offered in a concurrence. The panel’s opinion marks where it would meet resistance: even if the government’s interpretation were plausible, the panel wrote, it would reject it to avoid “the serious constitutional questions attendant to what would be the broadest mass-detention-without-bond mandate in our Nation’s history.” Questions of that kind would presumably return if the regulations were withdrawn. They are not in the question the Supreme Court took. The detainees’ lawyers at the American Civil Liberties Union asked the Court, in a letter of 25 September, to grant only the statutory issue if it took up a further government petition that raises the constitutional one.

So the case set for argument early next year will decide which section governs. If the government wins, detention without bond becomes mandatory, by statute, for everyone in that group, a number the Second Circuit put in the millions. If Barbosa da Cunha wins, they are back under a section that leaves release to the Attorney General’s discretion, and the hearing at which that discretion is exercised rests on rules the Attorney General writes.

Sources

The question presented, the dockets of Nos. 26-104, 25-1415, 26-43 and 26-379, and the ACLU’s letter of 25 September were read on the Supreme Court’s website. The facts of Barbosa da Cunha’s case, the date of ICE’s guidance and the panel’s reasoning are from the Second Circuit’s opinion of 28 April 2026; the separate writings and the circuit count are from its order of 25 September denying rehearing en banc. Sections 1225 and 1226 of Title 8 and the two regulations are quoted from the Legal Information Institute at Cornell. The government’s request to hold the case for Putra and its preference for Putra are as SCOTUSblog reported them on 5 August and 1 October; the government’s petitions, filed on paper, were not available to read. That thousands of detainees have sued rests on Politico’s count, cited by SCOTUSblog, of more than 9,300 district-court rulings against the policy.