On Appeal from the U.S. District Court Page 2for the Eastern District of Pennsylvania No. 2:25-cv-05930 (Hon. John M. Gallagher) No. 2:26-cv-00603 (Hon. Mary Kay Costello)

Argued May 11, 2026

(Filed: August 28, 2026)

Kiley L. Kane, Esq. John F. Stanton, Esq. United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044

Charles E.T. Roberts, Esq. [ARGUED] United States Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530

Counsel for Appellants

Mana Aliabadi, Esq.

Page 3Christopher M. Casazza, Esq. Palladino Isbell & Casazza 1528 Walnut Street Suite 1701 Philadelphia, PA 19102

My Khanh Ngo, Esq. Michael K.T. Tan, Esq. [ARGUED] American Civil Liberties Union Foundation Immigrants Rights Project 425 California Street 7th Floor San Francisco, CA 94104

Farrin R. Anello, Esq. Ezra D. Rosenberg, Esq. American Civil Liberties Union of New Jersey P.O. Box 32159 Newark, NJ 07102

Vanessa Stine, Esq. American Civil Liberties Union of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102

Witold J. Walczak, Esq. American Civil Liberties Union P.O. Box 23058 Pittsburgh, PA 15222

Counsel for Appellees

Gillian Barna, Esq.

Page 4Office of Attorney General of New York 28 Liberty Street 19th Floor New York, NY 10005

Counsel for Amici California, New York, Arizona, Colorado, Connecticut, Delaware, Hawai‘i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Oregon, Rhode Island, Vermont, Virginia, and Washington

Emma C. Winger, Esq. American Immigration Council Suite 500 2001 L Street NW Pmb2026 Washington, DC 20036

Counsel for Amici American Immigration Council, American Immigration Lawyers Association

Brianne J. Gorod, Esq. Constitutional Accountability Center 1200 18th Street NW Suite 501 Washington, DC 20036

Counsel for Amicus Constitutional Accountability Center

Amit Jain, Esq. Roderick & Solange MacArthur Justice Center 501 H Street NEPage 5 Suite 275

Washington, DC 20002

Counsel for Amicus Immigration Law Scholars

Linda H. Martin, Esq. Baker Botts 30 Rockefeller Plaza 44th Floor New York, NY 10112

Counsel for Amici Former Immigration Judges and Appellate Immigration Judges

SHWARTZ, Circuit Judge.

The Government appeals the District Courts’ orders to release Gabriel Antonio Buele Morocho and Wanderson Lopes De Andrade (together, 'Petitioners') who had been held in immigration custody without a bond hearing. Because their detentions without hearings violated the Immigration and Nationality Act (“INA”) and due process, we will affirm.

Buele Morocho, a citizen of Ecuador, and Lopes De Andrade, a citizen of Brazil, entered the United States without inspection in 2001 and 2014, respectively. In late 2025 and early 2026, respectively, they were arrested by United States Immigration and Customs Enforcement and detained without bond under 8 U.S.C. § 1225(b)(2)(A).

Page 6Petitioners ’ detention under § 1225(b)(2)(A) was a shift in the Government's enforcement of the INA. Until 2025, apprehended noncitizens 1 like Petitioners — namely, those who had already entered the United States without inspection and been present for years 2 — were detained or released under 8 U.S.C. § 1226(a). Unlike § 1225(b)(2)(A), § 1226(a) permits discretionary release on bond pending removal proceedings so long as the noncitizen is not a danger or flight risk.³ See 8 U.S.C. § 1226(a)(2); 8 C.F.R. § 1236.1(c)(8). In 2025, the Government began using § 1225(b)(2)(A) to detain, without bond, noncitizens already in the United States who had entered without inspection. See Matter of Yajure Hurtado, 29 I. & N. Dec. 216, 220-28 (BIA 2025).

Page 7Like many other noncitizens now mandatorily detained under § 1225(b)(2)(A), Petitioners sought habeas relief under 28 U.S.C. § 2241, alleging their detentions violated the INA. The District Court granted both petitions, holding that § 1225(b)(2)(A) did not apply to Petitioners and their continued detentions without bond violated the INA. See Buele Morocho v. Jamison, No. 5:25-CV-05930-JMG, 2025 WL 3296300, at *3 (E.D. Pa. Nov. 26, 2025); Lopes de Andrade v. Rose, No. 26-603, 2026 WL 401189, at *4-5 (E.D. Pa. Feb. 12, 2026). The Lopes de Andrade Court further held that his detention violated the Fifth Amendment's D ue Process Clause. 2026 WL 401189, at *6. Both Petitioners were released.

The Government appeals.

To decide this case, we must interpret § 1225(b)(2)(A). “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co. , 519 U.S. 337, 340 (1997). 'The plainness or ambiguity of statutory language is determined by reference to Page 8the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341. “[W]hen the statute’s language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd —is to enforce it according to its terms.” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (citation omitted).

Section 1225(b)(2)(A) provides 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 for a [removal] proceeding under section 1 229a of this title.” 8 U.S.C. § 1225(b)(2)(A). Thus, § 1225(b)(2)(A) imposes mandatory detention if: (1) an 'examining immigration officer,' (2) determines that an “applicant for admission,” (3) is “ an alien seeking admission,” and (4) is 'not clearly and beyond a doubt entitled to be admitted.” 5 Id. The crux of the dispute before us is whether an “applicant for admission” is necessarily “seeking admission. ”

Nine of our sister courts have already considered this issue. The Courts of Appeals for the First, Second, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits determined that mandatory detention of similarly-situated petitioners under § 1225(b)(2)(A) is unlawful. Guerrero Orellana v. Moniz, 252152, 2026 WL 2352042, at *1 (1st Cir. Aug. 13, 2026);Page 9 Barbosa da Cunha v. Freden, 175 F.4th 61, 84 (2d Cir. 2026), petition for cert. filed, No. 26-104 (U.S. July 23, 2026); LopezCampos v. Raycraft, 175 F.4th 713, 722 (6th Cir. 2026), petition for cert. filed, No. 25-1415 (U.S. June 22, 2026); Cirrus Rojas v. Olson, 25-3127, ---F.4th---, 2026 WL 2198315, at *2 (7th Cir. July 30, 2026); 6 Rodriguez Vazquez v. Bostock, No. 25-6842, ---F.4th---, 2026 WL 2196424, at *3 (9th Cir. July 30, 2026); Santillan Quiroz v. Mullin, 180 F.4th 1226, 1250-51 (10th Cir. 2026); Hernandez Alvarez v. Warden, Fed. Det. Ctr. Miami, 175 F.4th 1258, 1262 (11th Cir. 2026). The Courts of Appeals for the Fifth and Eighth Circuits have held that § 1225(b)(2)(A) requires mandatory detention of individuals like Petitioners here. Buenrostro-Mendez v. Bondi, 166 F.4th 494, 503 (5th Cir. 2026), petition for cert. filed, No. 26-43 (U.S. July 2, 2026); Avila v. Bondi, 170 F.4th 1128, 1134 (8th Cir. 2026).

Congress defined “applicant for admission” in § 1225(a)(1), which provides “[a]n alien present in the United States who has not been admitted or who arrives in the United States . . . shall be deemed for purposes of this chapter an Page 10applicant for admission.” 7 A noncitizen is deemed “admitted” following “lawful entry . . . after inspection and authorization Page 11by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A) ; see also Mullin v. Al Otro Lado, 146 S. Ct. 2079, 2087 (2026) (recognizing the same definition); Guerrero Orellana, ---F.4th--, 2026 WL 2352042, at *6 (same); Barbosa da Cunha, 175 F.4th at 75 (same); Lopez-Campos, 175 F.4th at 722 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *5 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *11; Hernandez Alvarez, 175 F.4th at 1268 (same). Petitioners are “applicants for admission” under this definition because they are present in the United States without having been lawfully admitted and inspected by an immigration officer. See Barbosa da Cunha, 175 F.4th at 74 (classifying similarly situated petitioners as “applicant[s] for admission”); Guerrero Orellana, ---F.4th---, 2026 WL 2352042, at *5 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *5 (same); Santillan Quiroz, 180 F.4th at 1237 (same); Hernandez Alvarez, 175 F.4th at 1269 (same). This classification, however, covers only one part of § 1225(b)(2)(A). For the statute to apply to Petitioners, each must also be “ an alien seeking admission.” 8

Page 12Congress has not defined “seeking admission . ” As a result, we look to its ordinary meaning. See Feliciano v. Dep’t of Transp., 605 U.S. 38, 45 (2025); see also Barbosa da Cunha, 175 F.4th at 76 (relying on ordinary meaning of “seeking”) ; Guerrero Orellana, ---F.4th---, 2026 WL 2352042, at *6 (same); Lopez-Campos, 175 F.4th at 723 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *7 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *13 (same); Santillan Quiroz, 180 F.4th at 1238 (same); Hernandez Alvarez, 175 F.4th at 1266 (same). “Seeking” is defined as “ask [ing] for' or 'try [ing] to acquire or gain. ' Seek, New English Dictionary of the English Language 2266 (2d ed. 1952); accord Seek, MerriamWebster’s Collegiate Dictionary 1057 (10th ed. 1996); see also Barbosa da Cunha, 175 F.4th at 74 (relying on similar definitions); Guerrero Orellana, ---F.4th--, 2026 WL 2352042, at *6 (same); Lopez-Campos, 175 F.4th at 722-23 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *5 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *11 (same); Santillan Quiroz, 180 F.4th at 1238 (same); Hernandez Alvarez, 175 F.4th at 1267-68 (same). Congress’ s decision to use the verb in its present participle form —“seeking”— suggests it contemplated a current or ongoing action. See United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ [s] use of a verb tense is significant in construing statutes.') ; see also Barbosa da Cunha, 175 F.4th at 74 (“The term ‘seeking’ is in the present participle form, which expresses present action.”); Hernandez Alvarez, 175 F.4th at 1268 ('That the word is written as a present participle (‘seeking’) underscores that it is describing some active and temporally ongoing step or process on the part of the alien.”) ; Guerrero Orellana, ---F.4th---, 2026 WL 2352042, at *6 n.10 (same); Lopez-Campos, 175 F.4th at 723 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, atPage 13 *11 (same); Santillan Quiroz, 180 F.4th at 1238 (same); cf. United States v. Hull, 456 F.3d 133, 145 (3d Cir. 2006) (Ackerman, J., concurring) ('Congress's use of the present participle ‘committing’ connotes present, continuing action.”) . Thus, to fall within § 1225(b)(2)(A) ’s ambit, an “applicant for admission” must engage in present or ongoing action to gain “ admission, ” that is, “ lawful entry . . . into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). In other words, for § 1225(b)(2)(A) to apply, the noncitizen must do more than be an 'applicant for admission.'⁹ See Barbosa da Cunha, 175 F.4th at 78 (recognizing § 1225(b)(2)(A) applies only to those who are both “applicants for admission” and “seeking admission”) ; Lopez-Campos, 175 F.4th at 723 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *7 (same); Hernandez Alvarez, 175 F.4th at 1269 (same).

Holding otherwise would render the phrase “seeking admission” surplusage. “It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so Page 14construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citation omitted). If an “applicant for admission” were necessarily “seeking admission, ” then it would be unnecessary for § 1225(b)(2)(A) to specify that the noncitizen is 'seeking admission.'¹⁰ Its True, “ if forced to choose between an interpretation that entails some redundancy and one that contradicts what words usually mean, we would choose the former. ' Mullin v. Al Otro Lado, 146 S. Ct. 2079, 2094 (2026). We are not presented with such a situation here, however, because our interpretation of “seeking admission” is in accord with its ordinary meaning.

Page 15presence shows that it has independent meaning.¹¹ See United States v. Yung , 37 F.4th 70, 79 (3d Cir. 2022) (' Normally, where Congress uses different words, we read those words to have different meanings.” (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012)); see also Lopez-Campos, 175 F.4th at 723Page 16 (“Congress’ s decision to employ the phrase ‘ seeking admission ’ implies a meaning distinct from the defined phrase 'applicant for admission.'' ); Guerrero Orellana, ---F.4th---, 2026 WL 2352042, at *10 (same); Barbosa da Cunha, 175 F.4th at 75 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *10 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *13; Santillan Quiroz, 180 F.4th at 1240-41 (same); Hernandez Alvarez, 175 F.4th at 1269 (same).¹² By including this language, Congress specified w hat an “applicant for admission' must do to be subject to § 1225(b)(2)(A), namely engage in an ongoing affirmative act to 'seek[] admission” to the United States . 13 Because Petitioners are not Page 18taking such action, 14 they are not within the scope of § 1225(b)(2)(A).¹⁵ See Lopez-Campos, 175 F.4th at 732

As a preliminary matter, the Government’s interpretation of § 1225(a)(3) does not negate the plain meaning of § 1225(b)(2)(A), which, as we have explained, establishes that “applicant for admission” and “seeking admission' have independent meanings. See Hernandez Alvarez, 175 F.4th at 1273 (“ The most the inspection provision of § 1225(a)(3) can offer is further illumination of the relationship between ‘ applicant for admission ’ and ‘ seeking admission. ’ By insisting that we must effectively read ‘ seeking admission ’ out of § 1225(b)(2)(A) on account of language found in a different provision, the Government offers a reading that fails to produce a ‘ harmonious whole. ’” (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959))).

Even then, “ o r otherwise” has two meanings. “Otherwise” as a standalone term can mean “in a different way or manner. ” Otherwise, MerriamWebster’s Collegiate Dictionary 823-24 (10th ed. 1994) . “Or otherwise” can also be “used to refer to something that is different from something already mentioned.” Or Otherwise, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/or%20otherwise (last visited Mar. 30, 2026); see also Barbosa da Cunha, 175 F.4th at 78 (“Although Page 20Lopez Benitez v. Francis, 795 F. Supp. 3d 475, 489 (S.D.N.Y. 2025); Barbosa da Cunha, 175 F.4th at 76 (“ If someone sneaks into Yankee Stadium [a baseball stadium] at the start of the game with no ticket for admission (and no intention of ever paying) and he is later found by security in a seat in the seventh inning, no one would consider that fan to be ‘ seeking admission ’ to the game. ”) ; see also Al Otro Lado, 146 S. Ct. at 2090 (relying on “[e]veryday examples” to determine ordinary meaning of term). Because Petitioners here have engaged in no affirmative act to “seek[] admission” to the United States , § 1225(b)(2)(A) does not apply.

The Court of Appeals for the Fifth Circuit suggests that the above analogies over-complicate the issue — they contend that '[j]ust as an applicant to a college seeks admission, an applicant for admission to the United States is 'seeking admission’ to the same, regardless whether the person activelyPage 21 (“Because no Petitioner is alleged to be seeking admission or lawful entry into the United States, § 1225(b)(2)(A)’s mandatory detention scheme does not apply to them.'); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *14 (“[W]e do not think an alien present in the interior of the United

We recognize the Government's view has superficial appeal, namely, that i t seems natural that an 'applicant for admission” is indeed “seeking admission , ” but that is not what Congress said.

Page 22States remains in the perpetual state of seeking admission (that is, seeking entry) . . . .”); Guerrero Orellana, ---F.4th---, 2026 WL 2352042, at *6 (same); Barbosa da Cunha, 175 F.4th at 78 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *7 (same); Santillan Quiroz, 180 F.4th at 1238 (same); Hernandez Alvarez, 175 F.4th at 1269 (same).¹⁶

The statute contains another indication that “applicant for admission” and “seeking admission” are separate elements. Congress used the word “an” in the phrase “an alien seeking admission.' Using the indefinite article 'an' rather than a definite article, such as “the,” which would refer back to the initially-described individual, further shows that “an applicant for admission' and 'an alien seeking admission' refer to different things. See U.S. Sugar Corp. v. EPA, 113 F.4th 984, 993 (D.C. Cir. 2024) (“Congress’s choice between a definite Page 23and indefinite article matters when determining statutory meaning.” (citing Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 817 (2024))); see also Hernandez Alvarez, 175 F.4th at 1271 (“The second condition also lacks any definite article, such as ‘the,’ ‘this,’ or ‘such,’ which would indicate that the 'alien seeking admission' is necessarily the same alien who is an ‘applicant for admission.’” (emphasis omitted)). Accordingly, the indefinite article “an” reveals that the 'applicant for admission' and the non -citizen 'seeking admission” refer to different things.

The INA’s broader statutory scheme also supports the conclusion that § 1225(b) governs noncitizens arriving to the United States whereas § 1226 governs those already within our borders.

The type of noncitizen covered by each statute is reflected in their titles, headings, and general subject matter. 17Page 24 Section 1 225 is entitled “Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing, ” and accordingly uses terms focusing on individuals at the border. See 8 U.S.C. § 1225(b)(1) (“Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled.') . Moreover, § 1225(b)(2) mentions categories of people typically understood to “arrive” at a border, such as 'crewm [e] n' and 'stowaways . ” § 1225(b)(2)(B); see also Hernandez Alvarez, 175 F.4th at 1278 ('[Section] 1225 seems to us to have been designed by Congress to govern arriving [noncitizens]. It lays out the procedures . . . for officers to inspect arriving vessels and people, couching its scope in the language of ‘arriving aliens,’ ‘alien[s] seeking admission,’ and [ noncitizen s] seeking ‘transit through the United States.’”) ; Santillan Quiroz, 180 F.4th at 1239-40 (same).¹⁸ Section 1226, on the other hand, is entitled “Apprehension and detention of aliens,” and does not mention noncitizens arriving in the United States.⁸ U.S.C. § 1226; see also Hernandez Alvarez, 175 F.4th at 1278 (“[ Section] 1226 set[s] out a general rule of detention for [noncitizens] . . . who are suspected of being unlawfully in the interior . . . . ”) ; Barbosa da Cunha, 175 F.4th at 73 (same).¹⁹ The Supreme Page 25Court recognized this distinction in describing § 1225(b) as “authoriz[ing ] the Government to detain certain aliens seeking admission into the country,” and § 1 226 as “authoriz[ing] the Government to detain certain aliens already in the country pending the outcome of removal proceedings.” 20 Jennings v.

Page 26Rodriguez, 583 U.S. 281, 289 (2018) (plurality).²¹

For this additional reason, requiring mandatory detention for those arriving in the United States under § 1225(b)(2)(A) but permitting discretionary release for those already within our borders under § 1226(a) is wholly consistent with the statutory framework.²² Barbosa da Cunha, 175 F.4th Page 27at 85 ('[T]he framework set forth in Jennings makes good sense in light of Congress’ s overall approach to immigration detention.”) ; Hernandez Alvarez, 175 F.4th at 1279 (“The Government ’ s interpretation cannot readily be reconciled with Jennings .”) ; Guerrero Orellana, ---F.4th---, 2026 WL 2352042, at *14 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *12; Santillan Quiroz, 180 F.4th at 1237 (same).

Contrary to the Government’s view, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ('IIRIRA') retained two tracks for detention even though it overhauled the procedures for removing noncitizens from the United States. Before IIRIRA, noncitizens arriving in the United States were subject to “exclusion” and those already in the country were subject to “deportation”— the former were held in mandatory detention while the latter were afforded bond.⁸ U.S.C. §§ 1225, 1252 (1995); see also Landon v. Plasencia, 459 U.S. 21, 25 (1982) (“The deportation hearing is the usual means of proceeding against an alien already physically in the United States, and the exclusion hearing is the usual means of proceeding against an alien outside the United States seeking admi ssion.”) . Under this regime, those who entered the United States surreptitiously were given more rights during deportation proceedings. For example, noncitizens subject to exclusion were not entitled to advance notice of the charges and bore the burden of proof, whereas noncitizens in deportation proceedings did not bear the burden Page 28of proof and received notice of the charges as well as direct appellate review. See Landon, 459 U.S. at 25-27; OrtegaLopez v. Barr, 978 F.3d 680, 682 (9th Cir. 2020) (acknowledging that before IIRIRA, “[t] he [G]overnment had the burden of proof at a deportation hearing, while the [noncitizen] had the burden of proof at an exclusion hearing ”) ; see also Barbosa da Cunha, 175 F.4th at 89 n.9 (observing immigration laws formerly “ granted substantial legal privileges and rights only to noncitizens in deportation proceedings, including rights to notice and direct appeal') ; Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *13 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *4 (same); Hernandez Alvarez, 175 F.4th at 1282 (same).

To eliminate the more favorable treatment afforded to those in deportation proceedings, Congress passed IIRIRA, which, among other things, required that 'applicant[s] for admission”— both those arriving to the country and those already within our borders — receive the same procedural and substantive rights in administrative proceedings.²³ See Martinez v. Att’y Gen. , 693 F.3d 408, 413 n.5 (3d Cir. 2012); 8 U.S.C. § 1229a(c)(2)(A); 8 C.F.R. § 1240.8; see also Barbosa da Cunha, 175 F.4th at 89 n.9 (“One aim of IIRIRA was to eliminate the dual track for removal that had previously placed some noncitizens into exclusion proceedings and others into deportation proceedings.”); Lopez-Campos, 175 F.4th at 731 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *4 (same); Hernandez Alvarez, 175 F.4th at 1282 (same). Although IIRIRA equalized some aspects of removal Page 29proceedings for arriving noncitizens and those already present in the country, nothing in the Act suggests that Congress sought to eliminate the distinction between mandatory and discretionary detentions.²⁴ See Hernandez Alvarez, 175 F.4th First, resorting to legislative history is unnecessary here given the statute’s plain text. See Mohamad v. Palestinian Auth., 566 U.S. 449, 458 (2012) ( “ [R]eliance on legislative history is unnecessary in light of the statute ’ s unambiguous language.” (citation omitted)); In re Phila. Newspapers, LLC, 599 F.3d 298, 304 (3d Cir. 2010), as amended (May 7, 2010) ('Where the statutory language is unambiguous, the court should not consider statutory purpose or legislative history.”) ; see also Barbosa da Cunha, 175 F.4th at 88 (“[T] he [G]overnment ’ s argument about the legislative history is irrelevant because the plain statutory text controls. ”).

Second, even if we considered legislative history, the language the Government relies upon merely provides that IIRIRA was “intended to replace certain aspects” of the thenexisting regime that afforded those who entered without inspection “equities and privileges in immigration proceedings” unavailable to others. House Report at 225. This refers to the procedural and substantive changes to, among Page 31at 1283 (“ [T]he record is replete with evidence that Congress intended for § 1225 to continue governing procedures for arriving aliens, laying out how aliens arriving in or traveling through the country are inspected, detained, and removed on an expedited basis. ”); Barbosa da Cunha, 175 F.4th at 89 (“[T]he [G]overnment erroneously concludes that IIRIRA sought to abolish all distinctions between arriving and already present noncitizens. It did not.”); Santillan Quiroz, 180 F.4th Page 32at 1248 (“While the Government’ s account is plausible, and many may agree with it as a matter of policy, it finds little purchase as an interpretive aid.”) ; Guerrero Orellana, ---F.4th--, 2026 WL 2352042, at *16 (same); Lopez-Campos, 175 F.4th at 731 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *13 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *22-24 (same). Although our holding affords bond to those who entered our borders without authorization while mandating detention for noncitizens who present themselves, Congress established this distinction in IIRIRA, and if it meant to change it or influence the Government's interpretation of the statute in the years since its passage, 25 it Page 33would have done so. See Zemel v. Rusk, 381 U.S. 1, 11 (1965) (“Under some circumstances, Congress[ ’ s] failure to repeal or revise in the face of such administrative interpretation has been held to constitute persuasive evidence that that interpretation is the one intended by Congress.”) ; see also Hernandez Alvarez, 175 F.4th at 1284 (“Where Congress revisits a law but leaves a ‘longstanding administrative construction . . . untouched,’ the lack of corrective action suggests Congress agreed with the construction in place.” (alteration in original) (quoting Saxbe v. Bustos, 419 U.S. 65, 74 (1974))); Guerrero Orellana, --F.4th---, 2026 WL 2352042, at *17 (same); Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *26 (same). It did not. 26Page 34 T he Government's interpretation of the relationship Page 35between §§ 1225(b)(2)(A) and 1226 is incorrect for two additional reasons. First, the Government’s view significantly limits § 1226(a) ’s scope such that almost all noncitizens present without authorization would no longer be entitled to bond. By the Government’s telling, § 1226 “is the exclusive source of detention authority for the substantial category of aliens who . . . were admitted but are now deportable.' Appellants ’ Br. at 48. In other words, the Government contends that § 1226(a) is meant for the detention of noncitizens in the United States who were previously admitted, such as those who overstayed their visas. The statute’s text is not so narrow as to only apply to those noncitizens. See Hernandez Alvarez, 175 F.4th at 1278 (“While the Government claims that § 1226(a) applies only to aliens who were first admitted, nothing in the provision itself supports this reading.”); Barbosa da Cunha, 175 F.4th at 73 (“[T]he government’s position is untenable based on the plain text of the statute, which obviously does not limit its application to that narrower category of noncitizens.”) ; Guerrero Orellana, --F.4th---, 2026 WL 2352042, at *5 (same) (observing the Government offers “ no direct authority for this assertion ”).

Second, it renders unnecessary recent amendments to § 1226. In early 2025, Congress passed the Laken Riley Act, which expanded § 1226 to require mandatory detention of “inadmissible” noncitizens involved in certain criminal conduct in the United States. See Pub. L. No. 119-1, 139 Stat. 3 (2025) (codified at § 1226(c)(1)(E)). “Congress is presumed to enact legislation with knowledge of the law and a newlyenacted statute is presumed to be harmonious with existing law and judicial concepts[,]” Mack v. Yost, 63 F.4th 211, 222 (3d Cir. 2023) (citation omitted), so if Congress intended for all noncitizens present without authorization to be detained underPage 36 § 1225, it would not have added mandatory detention for only certain criminal noncitizens within our borders.²⁷ See Hernandez Alvarez, 175 F.4th at 1279 ('[W]hy would the Laken Riley Act target unadmitted aliens who were otherwise already included within the ambit of § 1225(b)(2)(A) by later adding a new and separate provision?”) ; Guerrero Orellana, --F.4th---, 2026 WL 2352042, at *14 (same); Barbosa da Cunha, 175 F.4th at 87-88 (same); Rodriguez Vazquez, --F.4th---, 2026 WL 2196424, at *20 (same); Santillan Quiroz, 180 F.4th at 1247 (same); see also Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *15 (“Congressional failure to intervene and correct the Executive ’ s prior interpretation — despite passing the Laken Riley Act last year —‘is persuasive evidence that the interpretation is the one intended.’” (citation Page 37omitted)).²⁸ Put plainly, the Government’s reading results in 'a serious statutory redundancy . ” Hernandez Alvarez, 175 F.4th at 1280. If one were to read § 1225(b)(2)(A) as mandating detention of unadmitted noncitizens within our borders, then § 1226(c) would be almost wholly unnecessary. See Rodriguez Vazquez, ---F.4th---, 2026 WL 2196424, at *20 (“[T]he redundancy in § 1226(c) introduced by the government's interpretation creates an additional cloud over the government ’s account of the statutory text.”); Barbosa da Cunha, 175 F.4th at 87-88 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *12 (same); Santillan Quiroz, 180 F.4th at 1247 (same). By amending § 1226(c), Congress reiterated that bond is unavailable to some unadmitted noncitizens within the country. At the same time, § 1225(b)(2)(A) continues to mandate detention for noncitizens at the border. See Hernandez Alvarez, 175 F.4th at 1280-81. Because § 1225(b)(2)(A) does not apply to Petitioners as they were not detained at the border, their detentions were unlawful under that provision of the INA.

Page 38We also conclude that Petitioner's detention without bond hearings violates the Due Process Clause.

The Supreme Court has recognized the Fifth Amendment's 'Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to [the due process of law].”); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“[Noncitize ns] who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.'); see also Barbosa da Cunha, 175 F.4th at 94 (“Petitioner is protected by the Fifth Amendment’s Due Process Clause . . . .”); Santillan Quiroz, 180 F.4th at 1250 (“[T]he Supreme Court has never said that due process protections fall away completely in the immigration context. Quite the opposite.'); Lopez-Campos, 175 F.4th at 732 (same); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *16 (same).

The Government relies on Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020) to argue that Petitioners are only entitled to due process as afforded by statute. Their reliance on Thuraissigiam is misplaced as that case concerned the 'entry fiction' doctrine as applied to a noncitizen apprehended within twenty-five yards of the border, i.e. “at the threshold of initial entry.” Id. at 107. The Court determined that the noncitizen should be treated as if he never Page 39entered the country such that he 'cannot claim any greater rights under the Due Process Clause” than those provided by statute. Id. However, the Court also recognized that other noncitizens “who have established connections in this country have due process rights in deportation proceedings.' Id. Because Petitioners here have lived in the United States for decades, they have 'established connections' in the country and are entitled to due process rights beyond those provided to noncitizens at the border. See Barbosa da Cunha, 175 F.4th at 86 (“While the [entry fiction] doctrine may extend further than the twenty-five yards and twenty-four hours at issue in [Thuraissigiam], no one could seriously contend that it applies to a noncitizen like Petitioner who has been living in the United States for decades.” (citation omitted)); Rodriguez v. Ortega, 180 F.4th 702, 709 (5th Cir. 2026), reh ’ g en banc granted, opinion vacated, 26-50183, 2026 WL 2014647 (5th Cir. July 10, 2026). (“The Government is trying to equa te that to the entry of hundreds of miles and years of residence. Such supposed equivalence is far more than a convenient legal fiction. It is a complete fantasy.”) ; Lopez-Campos, 175 F.4th at 73334 (“ Thuraissigiam merely reinforces our longstanding understanding that noncitizens ‘on the threshold of initial entry stand[ ] on a different footing’ than those who have ‘passed through our gates.’ It does not control where, like in the instant case, noncitizens have resided within the United States for year s.” (alteration in original) (citation omitted)); Cirrus Rojas, ---F.4th---, 2026 WL 2198315, at *16 n.7 (same).

Thus, we must determine whether detention without bond of noncitizens who have lived in the United States for extended periods of time with no criminal records violates due process. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (“Once it is determined that due process applies, the question Page 40remains what process is due.'). To assess Petitioners' due process claim, we consider: (1) “the private interest that will be affected by the official action,” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail .” Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Rodriguez, 180 F.4th at 725 (applying Mathews to assess “‘the process that is constitutionally due’ before aliens may be deprived of their liberty interests' (citation omitted)). As explained herein, these factors show that Petitioners have been deprived of due process.

First, mandatory detention implicates Petitioners’ “constitutionally protected interest in avoiding physical restraint.' Kansas v. Hendricks, 521 U.S. 346, 356 (1997); Zadvydas , 533 U.S. at 690 ('Freedom from imprisonmentfrom government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that [the Due Process] Clause protects.'); Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (recognizing 'the interest in being free from physical detention by one's own government' as 'th e most elemental of liberty interests”); see also Rodriguez, 180 F.4th at 725 (acknowledging similarly situated petitioners had 'a cognizable interest in being free from unjustified physical restraint”).

Second, the absence of an opportunity for a neutral decisionmaker to assess whether Petitioners are dangerous, see United States v. Salerno, 481 U.S. 739, 748 (1987) ('[W]e have found no absolute constitutional barrier to detention of Page 41potentially dangerous resident [noncitizens] pending deportation proceedings.”), or flight risks, see Bell v. Wolfish, 441 U.S. 520, 534 (1979) (acknowledging that pre-trial detainees may be held to ensure they appear for trial), presents a high risk of erroneously depriving Petitioners of their liberty interest. See Rodriguez, 180 F.4th at 720 n.8 (“Dangerousness and flight risk have long been viewed as justifications for detention in immigration proceedings.” (citing Leng May Ma v. Barber, 357 U.S. 185, 190 (1958) (“Physical detention of aliens . . . is generally employed only as to security risks or those likely to abscond.”))).²⁹

Page 42Third, the Government’s legitimate interest in preventing the release of dangerous noncitizens and those who might fail to appear at future hearings, Zadvydas, 533 U.S. at 690, does not outweigh the other two factors here, particularly when these non-criminal individuals were detained absent evidence that either is dangerous or a flight risk, and the Government has not argued that bond hearings are unduly burdensome. See Rodriguez, 180 F.4th at 725 ('[A]s long -time residents of this country with children who are citizens, there is no evidence that [petitioners] are a flight risk . . . . They have no criminal background or history of violence and appear to have each peaceably lived in this country, obedient to its laws, for over a decade.”).

Thus, the Mathews factors weigh in Petitioners’ favor, and their detentions without bond hearings violated their procedural due process rights. 30

For the foregoing reasons, we will affirm.

Page 43MASCOTT, Circuit Judge , dissenting.

The majority opinion holds that although aliens approaching the United States at an authorized border entry point may be held without bond, aliens slipping undetected past the border may not. I respectfully dissent.

Under the terms of the Immigration and Nationality Act (INA) and its 1996 amendments (IIRIRA), 1 all aliens “seeking admission' as applicants for U nited States admission are subject to mandatory detention without bond while their lawful presence claims are adjudicated.² According to the majority, people approaching the border at an authorized location are 'seeking admission' because of their open and intentional request for entry and lawful admission.³ But, on its account, aliens who crossed the border undetected by authorities until years later are not 'seeking admission' within the statute's terms despite their desire to remain in the United States.⁴ Under the majority’s view, such individuals were not actively trying to gain legal status here at the time of their detention.⁵ Rather, they were content to stay here illegally until they were discovered. Therefore, those individuals are not technically 'seeking' admission and fall outside the INA's mandatory detention provisions for admission applicants under the majority’s seman tic view.⁶

The majority’s interpretation is inconsistent with both the text and structure of IIRIRA and with any ordinary, or Page 44commonsense, understanding of the phrase “seeking admission.” 7 It also would subject individuals who lawfully ask permission to enter the country to much tougher rules than people who submit formal requests to stay only once detained or inspected by immigration officials.⁸

This is not the system Congress enacted in its 1996 reforms to the immigration system.⁹ The District Court s’Page 45 decisions releasing Petitioners should be reversed. Congress broadly defined the class of “applicants for admission” in 1996 and generally required detention without bond while aliens' claims to entry are being evaluated.¹⁰ That detention scheme, including P etitioners' detention here, is consistent with the constitutional due process principles articulated by the Supreme Court.¹¹ I would reverse both orders and remand.

As the majority opinion details, both Petitioners initially crossed the United States border well more than a decade ago.¹² They entered without stopping at an authorized entry point and requesting inspection.¹³ Petitioner Gabriel Antonio Buele Morocho was detained in fall 2025 by Immigration and Customs Enforcement officers who charged him with civil Page 46inadmissibility for presence without admission under 8 U.S.C. § 1182(a)(6)(A)(i).¹⁴ Petitioner Wanderson Lopes de Andrade entered without inspection in 2014 and has lived in the United States since that time.¹⁵ He was ordered removed in absentia in 2016 and briefly detained in 2019 before his release during the pandemic on an order of supervision.¹⁶ Subsequently, he applied for asylum, an application that remains pending.¹⁷

Both men challenged the Government’s statutory authority for their detention without bond under § 1225(b)(2). Mr. Buele Morocho was detained for 56 days.¹⁸ Mr. Lopes de Andrade was detained for 24 days.¹⁹ Mr. Lopes de Andrade also contended that his detention violated constitutional due process because it lacked a hearing on the questions of whether he posed a flight risk or danger to the community 20 — even though the Supreme Court previously held that individualized bond determinations were not constitutionally required for a class of aliens mandatorily detained under a separate provision of the INA.²¹

Both Petitioners contend that the Government was required to detain them instead under § 1226(a), a provision applicable generally to 'aliens' that permits the Attorney General to release aliens from detention on bond during their inadmissibility or deportation hearings.²² But in 1996, Congress enacted significant reforms to the immigration laws in IIRIRA, eliminating the INA's procedural distinctions based on whether an alien had crossed the border and instead Page 47distinguishing between deportability for previously admitted aliens and removal pre-admission. Previously, aliens who approached the border at an authorized entry point were subject to detention without bond, and aliens who entered unauthorized and were later detained were afforded bond proceedings.²³ The 1996 amendments eliminated those distinctions, placing all aliens who have not yet been admitted under the category of 'applicants for admission.'²⁴ And 8 U.S.C. § 1225(b)(2)(A) r equires the detention of “applicants for admission” without bond under § 1229a.²⁵

The District Courts agreed with Mr. Buele Morocho and Mr. Lopes de Andrade that they should have been detained under § 1226(a) rather than § 1225(b)(2)(A).²⁶ The courts released both Petitioners into the interior of the United States with no legal determination on their entitlement to remain in the United States.²⁷ Those decisions were wrong. I would reverse.

Under well-trodden principles of statutory interpretation, the Government correctly concluded that P etitioners are aliens “seeking admission” to the United States, and therefore § 1225(b)(2)(A) authorizes their mandatory Page 48detention for the duration of the Government ’s consideration of their claims of entitlement to remain in the United States.²⁸ In 1996, Congress and the President enacted reforms to the INA, bringing parity to detention treatment for all aliens who had not yet acquired lawful status in the United States and, consequently, are “ applicants[s] for admission ' to the country. Petitioners fall squarely within that group, under the text and structure of the INA and the 1996 amendments to it in IIRIRA.

But under IIRIRA, there is more than one scheme for evaluating an alien's lawful entitlement to presence in the United States. Separate provisions govern specific forms of relief, like grants of asylum or the withholding of removal.²⁹ But the two primary procedural schemes for evaluating a general right to be admitted or remain are in (1) § 1225(b)(2) working in tandem with § 1229a removal proceedings and (2) § 1226(a). 30

The parties agree that § 1225(b)(2)(A) applies to standard applicants for admission who approach the border at an authorized entry point.³¹ A second detention scheme in § 1226(a) applies to aliens who have been lawfully present in the United States but now face potential deportation for one Page 49reason or another.³² Petitioners and the Government disagree about whether § 1226(a) 's general reference to “aliens” means the Government must apply § 1226 to Petitioners or whether Petitioners who have not yet been admitted to the country but entered years ago are more appropriately subject to § 1225(b)(2)(A).

Section 1226(a) is preferable, in P etitioners' view, because it permits the Attorney General to release aliens on bond during the proceedings adjudicating their entitlement to remain in the country. 33 Section 1225(b)(2)(A), on the other hand, mandates detention without bond. Petitioners contend the Executive Branch lacked authority to hold them under § 1225(b)(2)(A) and should have continued applying § 1226(a) to aliens detained in the country’s interior instead— even where those aliens had never acquired lawful admission status or lawful status of any kind. But they misperceive the statutory scheme. Section 1226(a) references 'alien[s]' in general, potentially extending to Petitioners here. But § 1225(b)(2)(A) is more specific — it mandates detention under § 1229a for all 'applicant[s] for admission' where an examining officer determines the alien “seeking admission” is “not clearly and beyond a doubt entitled to be admitted.” 34

The answer to Petitioner s’ dispute with the Government over their detention pursuant to § 1225(b)(2)(A) is readily apparent within the text of IIRIRA. In full, § 1225(b)(2)(A) provides: Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if

Page 50the 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 for a proceeding under section 1229a of this title. 35

Petitioners contend that the Government may not hold them under § 1225(b)(2)(A) because they are not 'seeking admission” under the statute.³⁶ Their aim is different, they say, from those who presented themselves at the border and followed the statutory procedures for admission. They did not want lawful admission then, and they claim they do not want it now. So on their hyper-technical reading of the statute, they cannot be 'seeking admission , ' and the Government cannot apply to them the ordinary requirements that everyone forthrightly requesting admission at the border must follow.³⁷ In their view, after P etitioners’ many years of not following the rules, they 're entitled to a bond hearing, so they can seek release from detention while their claims are adjudicated 38 — even though similarly situated people, who instead first head to the United States border to ask for entry, are mandatorily detained while the Government sorts through their entry claims.³⁹

35 Id.

Page 51Grounded in the text and structure of the applicable statutory scheme, the Government correctly interprets IIRIRA to mandate P etitioners’ evaluation under § 1225.⁴⁰ This puts Petitioners at parity with other applicants for admission — the subset of those who, in contrast to Petitioners, properly presented themselves at the border before entry. More importantly, the Government’s interpretation is correct under the law and those mandated statutory procedures accord with Supreme Court precedent on the constitutional strictures of due process as further detailed below.

Under the statute’s terms and the text of § 1225(b)(2)(A)’s mandatory detention instruction, the question turns on whether Petitioners fall within the class of “applicants for admission” covered by the text of that provision. The majority and Petitioners claim the otherwise broad provision is narrowed by the subsequent phrase “an alien seeking admission,' creating essentially a subset of the applicant class to whom § 1225(b)(2)(A) exclusively applies. 41 This reading is inconsistent with IIRIRA’s terms, the statutory structure, the relevant enactment history, and the use of the terms 'seeking' and variants of 'apply' and 'applicant' elsewhere in the statutory scheme, as well as § 1225's own internal instructions for how its provisions are to be read and applied.

Under IIRIRA, Congress broadly defined the category of 'applicant for admission' at issue in this case. In a 'deem[ing]' clause, Congress designated across the board several broad categories of aliens as such 'applicants.' In particular, § 1225(a)(1) pro vides: 'An alien present in the United States [(i)] who has not been admitted or [(ii)] who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.” 42

Page 52This provision plainly includes aliens not yet admitted 43 — i.e., those not yet granted legal status in the United States — as well as those who are just arriving. All aliens in those groups are “deemed” applica nts for admission. And that 'deeming' clause expressly has broad effectthe status of “applicant[] for admission” carries with the arriving or not -yetadmitted aliens all the way through 'this chapter.'⁴⁴ The chapter containing the deeming clause is Chapter 12 of Title 8 of the U.S. Code; it spans § 1101 through § 1537 of the INA, and includes provisions addressing admission qualifications, change of status, inspection, exclusion, removal, nationality and loss of nationality, numerous procedural requirements, and many others.⁴⁵

Petitioners concede they are applicants under this deeming clause. 46 It would be nearly impossible for them to do otherwise. They do not claim to have ever been lawfully admitted to the United States. Just like the aliens desiring admission in the United States who present themselves transparently at the border, P etitioners are 'present in the United States, ” they 'ha[ve] not been admitted' previously, and therefore the statute 'deem[s]' them 'applicant[s] for admission' for purposes of all of Chapter 12, whatever that entails.⁴⁷

Page 53The disagreement is principally over the next step. Section 1225(a)(1) was enacted as part of the 1996 IIRIRA reforms. It was the tip of the spear for changing the bifurcation of the immigration scheme from entry versus exclusion to admission versus deportability. Prior to 1996, immigration status and relevant procedures attached significant distinctions to whether an alien had crossed the border and entered the country or whether the alien stood outside the country and was subject to exclusion. 48 Now, under current law, status turns on inadmissibility versus deportability. Inadmissibility, as § 1225(a)(1) defines its mirror image, “applicant for admission,” is for aliens who have not yet acquired legal status. Deportability is applicable to individuals who had acquired legal status but might no longer have entitlement to remain lawfully present.⁴⁹

Rather than distinguishing among classes of aliens and the procedures applicable to them based on geographic location and where the alien stands in relation to the border, like the majority and P etitioners' test, the 1996 statutory reforms shifted to evaluation of whether an alien had previously acquired lawful presence or admission status.⁵⁰ As the Supreme Court noted in Department of Homeland SecurityPage 54 (DHS) v. Thuraissigiam , under the statutory scheme even an “alien who tries to enter the country illegally” is nonetheless “treated as an ‘applicant for admission.’” 51 Congress did not want there to be a “perverse incentive to enter at an unlawful rather than a lawful location.” 52

In addition to this enactment backdrop, at least three features of the text of this “deem[ing]” language are particularly pertinent to further unpack the question here. First, “deemed” is a legal command essentially creating a legal status of 'applicant for admission' that applies to a broad class. Congress did not direct courts to ask, on a case-by-case basis, whether an alien colloquially has put forward an application for admission. It assigned a legal status to all present in the United States who had not yet acquired legal admission and directed that “applicant for admission” assignment hold “for purposes of this chapter,” Chapter 12.⁵³ The provision creates a status; it does not invite an inquiry into one.⁵⁴ And Congress’s broad assignment of the designation throughout the entirety of Chapter 12 extends to § 1225(b)(2) governing adjudication of P etitioners’ claims.⁵⁵

Second, the deeming clause contains no temporal limitation. The phrase 'present in the United States' is unqualified. It is unbounded by length of presence, proximity to the border, or active steps to obtain status. An alien who Page 55entered without inspection in 2001 is, consequently, as a matter of statutory definition, no less an applicant for admission today than an alien who entered last week. Third, § 1225(a)(1) broadly extends its definition, throughout Chapter 12 of the INA spanning from 8 U.S.C. § 1101 through § 1537 and of course including within it § 1225(b)(2)(A). The Court must give the term “applicant for admission” the same meaning in (b)(2)(A) that the statute supplies in (a)(1), throughout all of § 1101 through § 1537, spanning the entirety of Chapter 12. Section 1225(a)(1) supplies an explicit definition of “applicant for admission,” and that definition governs wherever the defined term appears in the Chapter. 56

The majority’s analysis acknowledges (a)(1) but gives the first prong surprisingly little work to do in the detention provision that immediately follows.⁵⁷ On its reading, the universe of aliens “present in the United States who ha[ve] not been admitted' are deemed applicants for admission by Congress's express command in (a)(1).⁵⁸ Yet that broad categorical depth carries no weight and is of no consequence. Under P etitioners' and the majority 's interpretation, one's status as “applicant for admission” does not even carry over to subsequent subsections within 8 U.S.C. § 1225, the section creating the category. Although Congress deems a broad group legally to be “applicant[s] for admission” in § 1225(a)(1) for purposes of the whole chapter, by the next subsection, § 1225(b), the majority’s read is that the statute’s reference to the class “applicant for admission” sets aside no independently significant group.⁵⁹ For instance, § 1225(b)(2), in the majority’s view, applies only to those actively pursuing formal requests for legal admission, not to the class of “applicant[s]” designated earlier at the start of the statutory section in § 1225(a)(1) — even though § 1225(b)(2) begins by referring to that admission 'applicant' group.⁶⁰ Under that reading, the Page 56first prong of (a)(1) becomes a label without consequence inside the very statute it introduces. That is difficult to reconcile with the breadth of the text Congress chose, and it is in tension with the Supreme Court’s instruction that a deeming clause mu st have a “point.” 61

Further, under the majority's reading, the § 1225(b) reference to “applicant[s] for admission” ultimately is surplusage.⁶² They read the statute to require only a separate group, those actively 'seeking admission,' to be placed in mandatory detention. But then the § 1225(b)(2)(A) reference to the § 1225(a)(1) applicant class is meaningless and unnecessary. The only aliens seeking admission would be those who “ha[ve] not yet been admitted.” So why reference the §1225(a)(1) applicant class at all, if “seeking admission” simply designates an entirely different group or even subset of (a)(1)? Section 1225(b)(2)(A) could merely have begun , “[I]f 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 for a proceeding under section 1229a of this title.” There are no terms in § 1225(b)(2)(A) that require anything of “applicants for admission” separate from the group of aliens “seeking admission.” Moreover, the subsection ends with a reference to 'the alien' using a definite article , with two provisions containing the term “alien” preceding it—“a n alien who is an applicant for admission' and 'an alien seeking admission.' The singular definite reference to “the alien” in the final clause suggests the earlier two “alien” groups are one and the same for purposes of § 1225(b)(2)(A).

Further , directly contrary to the majority's suggestion that the group “seeking admission” is significantly narrow than the “applicant” group, those “seeking admission” in Chapter 12 include . . . None of those groups are 'applicant[s] for Page 57admission . This suggests those “seeking admission” throughout the INA may actually be a larger group than the “applicant[s]”— flipping the majority view of 1225(b)(2)(A) on its head.

The specific uses of the “applicant” phrase throughout Chapter 12 underscore its breadth and demonstrate that the term includes aliens like Petitioners who are not actively, formally applying for admission.⁶³ There are nine instances of the term “applicant for admission” in Chapter 12, and they are highly informative. 64 Four usages are in § 1225(a). 65 Other than § 1225(a)(1) that establishes the category, § 1225(a)(2) removes stowaways entirely from the eligible class of aliens who can be 'applicant[s] for admission,' underscoring the INA’s general disfavoring of deceit and rule -breaking in the admission process. 66 Section 1225(a)(2) is one of a number of penal provisions for individuals who circumvent the admission and immigration system. 67 This statutory system disfavoring those who break the rules, declining to give them new process Page 58and benefits, is highly unlikely to contain the discrimination in favor of illegal entrants that the majority opinion and Petitioners would have us read into the statute.

Section 1225(a)(5) is more directly informative. There, the provision applies to “[a]n applicant for admission . ' It then uses a definite article, “the , ” to refer ence that initial subject. Section 1225(a)(5) provides that the “applicant” may have to state under oath information regarding the “intentions of the applicant in seeking admission .” 68 Here, with an even tighter nexus than in § 1225(b)(2)(A), Congress used the phrase 'seeking admission' simply to describe the state of an applicant.⁶⁹ It creates no new subset. An applicant for admission is the applicant seeking admission. Applicants “seek[]” admission, and they might need to provide relevant information under oath. Aliens “seeking admission” are not a separate subset standing apart from a broader applicant class.

Other informative instances of the term in Chapter 12 include § 1105(b)(1). There, Congress addresses national crime files. The section provides instructions for “determining whether or not a visa applicant or applicant for admission” has a criminal history index — suggesting that the two classes and possible statuses of individuals desiring U.S. presence are visa applicants or admission applicants. 70 There is no third class of individuals in the crime index who still want to remain in the United States but somehow do not “seek[]” admission simply because they tried to circumvent formal application procedures.

Then in § 1182(d)(5)(A) dealing with the allocation of parole, Congress's language is directly inconsistent with P etitioners' assertion that aliens not actively applying for Page 59admission are outside the class 'seeking admission.'⁷¹ The Attorney General has power to temporarily parole “any alien applying for admission.” 72 But even after parole ends, the alien is to be treated just like “any other applicant for admission to the United States.” 73 This suggests there is a particular way to “deal[]” with such applicants. Individuals remain such applicants whether they are active or inactive in “applying,” just like aliens who had been granted parole whose status has since ended.⁷⁴

The dual, just-two-class division of immigration statuses also is evident from § 1229a(c)(2) where Congress established relevant burdens of proof.⁷⁵ Again using a definite article, “the,” Congress provided two choices—if “the alien” is 'an applicant for admission,' the alien has the burden to establish he is 'clearly and beyond doubt entitled to be admitted.” 76 Otherwise, he must show “by clear and convincing evidence ” that “the alien is lawfully present in the United States pursuant to a prior admission.” 77 There is no third way. Aliens are either in the “applicant” class with the attendant burden of proof or they have a prior admission. This burden structure also matches up with § 1225(b)(2)(A) itself, which uses the “clearly and beyond a doubt” standard to refer to 'an alien seeking admission.'⁷⁸ There are two burden standards in § 1229a removal proceedings —those for “aliens seeking admission' (i.e., all applicant s) or those who have “prior admission[s].” 79

There is no INA category permitting aliens, before they have established any legal entitlement to any form of U.S. presence, to remain in the country and roam free. Section 1225 addresses release prior to admission, and it is very specific and Page 60particular about the circumstances in which this is permitted.⁸⁰ Under § 1225(b)(2)(C), where an applicant for admission “arriv[es] on land” from “a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a [§ 1229a] proceeding.” 81 Even here, the release is not into the United States. Rather, the alien is sent back across the border to the country out of which he is trying to pass to remain there while waiting for his determination.

It defies commonsense and logic to conclude that within this finely grained, reticulated statutory scheme, Congress sub silentio , authorized all applicants not actively and formally requesting admission prior to detention to be released on bond right into the United States interior. What would be the point, then, of the § 1225(b)(2)(C) particularized treatment for contiguous territories? If aliens can be released into the United States on bond while waiting for their admissibility determination, there is no need to return aliens to a contiguous territory for them to remain outside detention.

Moving on to the operative provision underlying this case, § 1225(b)(2)(A)’s structure further informs the singular nature of the “applicant for admission” class. Congress may modify a word within one statutory provision, but doing so simply specifies an application of that term; it does not change Page 61its meaning.⁸² Contrary to the majority opinion's implicit qualifying additions to the § 1225(b)(2)(A) description of applicants, the group 'seeking admission' is the same group as the “admission” applicants described in the very same provision. There are not two distinct admission groups.

Reading § 1225(b)(2)(A) as a complete whole, the phrase addressing admission with the modification of “seeking” refers to the group of admission applicants who are the provision’s primary subject. The provision addresses the “case of an alien who is an applicant for admission '; where “the examining immigration officer determines that an alien seeking admission ” is not entitled to be admitted, the alien shall be detained under § 1229a. 83 Further, the provision’s use of a definite article, “the , ” suggests the alien referenced throughout the statute is one and the same.⁸⁴ After referring to “an alien who is an applicant for admission' and ' an alien seeking admission,” the statute commands “ the alien shall be detained.” 85

The majority opinion’s read ing of § 1225(b)(2)(A) also is inconsistent with the ordinary meaning of the term “seeking admission” and the structure of how the phrase 'seeking admission” fits within the § 1225(b)(2)(A) detention Page 62instructions.⁸⁶ The majority opinion and Petitioners contend that the present participle 'seeking' in the § 1225(b)(2)(A) provision limits its reach to only those aliens who are actively, formally 'seeking' a determination of admission. 87 Those efforts must be ongoing, in P etitioners’ view, for the mandatory-detention-without-bond provision to apply. The majority opinion compares this use of the term “seeking” to one 'seeking' admission in a movie theater, meaning one must be actively requesting entry. 88

This limitation is in tension with the structure and mechanics of the statutory provision. For example, immediately following the § 1225(b)(2)(A) reference to express textual limitations in subparagraphs (B) and (C), § 1225(b)(2)(A) identifies its objects -'an alien who is an applicant for admission.” Further, the meat of the provision begins with, “in the case of” such aliens (i.e., “in the case of an alien who is an applicant for admission') , conveying the circumstances in which the statute applies. The whole point of the provision is to tell the reader what process to apply to those aliens who are applicants.⁸⁹

The provision, further, does not condition § 1229a detention on an alien-byalien inquiry into each alien’s intentions. The deeming clause of (a)(1) assigns the status of “applicant” by operation of statute whether or not the alien at the precise moment of detention is taking affirmative, formal steps to lawfully enter or lawfully acquire U.S. presence. 90 So long as an alien is in the United States without admission, he isPage 63 “seeking” that status. He must be. There is no other, third category other than applicants subject to the procedural requirements for (i) aliens who have not yet achieved lawful presence and (ii) aliens who were admitted in the past. Where an alien desires presence in the United States, he is “seeking” admission under the ordinary, common-sense meaning of the term. Neither the statutory structure nor its text nor general principles of language require an alien to take a step not specified in the statute to remain in a state of 'seeking' admission while he is in the hunt for U.S. presence.

The provision then goes on to describe the case in which the applicants must be detained under § 1229a —when “the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted.” 91 The limiting descriptor there is “ clearly and beyond a doubt.” But the reference to “examining immigration officer” assumes there will be such an officer anytime there is an applicant —§ 1225(b)(2)(A) refers to “the” officer, not “if an . . . officer determines.'⁹² Further, when discussing the relevant process, the statutory provision references some form of the term 'admit' three timeswithout any indication the admission relates to distinct groups or subsets.⁹³ The statutory provision also gives no particular definition or description to the term 'alien' that would subject the provision's three references to “alien” identify distinct groups.⁹⁴

D ictionary definitions of the terms 'applying' and “seeking , ” further, show the terms have a permissibly broad application and meaning, ranging beyond a one-time, active request. For example, the American Heritage Dictionary defines “seek” as “[t]o endeavor to obtain or reach” such as 'seek[ing] a college education'an action or state of mind that could extend throughout a child’s entire gra de-school and Page 64secondary education.⁹⁵ Other definitions of the term in that dictionary include “[t]o go to or toward”— again, movement and action that can extend over a period of time. MerriamWebster similarly defines “seek” and “seeking” broadly, as “to resort to: go to” or “to go in search of”— the kinds of phrases that in no way connote one limited particular point in time but rather appear to describe a process or state of being. 96 Webster Collegiate also defines the term as “to try to acquire or gain” or 'to ask for: request,' which is closer to P etitioners’ view but ultimately could be satisfied here by P etitioners' present, ongoing desire to remain here in the United States. 97 The 1989 version of the Oxford English Dictionary 's definition of “admission” is likewise telling -defining the term as '[t]he action of admitting to some position, standing, or privileges, distinguished from . . . the literal action of letting in to a place.” 98 This definition is consistent with the conception of an application for admission or a 'seeking' of admission as embodying a state of being rather than a formal, affirmative time-limited act of formally requesting permission.

The majority opinion and Petitioners also contend that the phrase 'or otherwise' in § 1225(a)(3) of the statute supports their view and keeps Petitioners outside of the § 1225(b)(2)(A) mandate. 99 This position, too, stands the statute on its head and is unnatural. Under § 1225(a)(3), “[a]ll aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.” 100 They say “or otherwise” sets aside a Page 65subcategory here of “applicants for admission” and shows that not all applicants “seek[]” admission. But the opposite is true -the 'otherwise' class is broader here. First, the initial reference of “[a]ll aliens . . . who are applicants for admission” is comprehensive. Second, just a straightforward cross-reference to other provisions within Chapter 12 of the INA, such as provisions covering nonimmigrant visas, provides information about the larger group of “applicants for admission” who “otherwise” “ seek[] admission.” For example, § 1187(h)(3)(E) gives instructions for collecting information from such nonimmigrant applicants who desire visas for temporary presence rather than long-term status.¹⁰¹

More, it is a familiar principle of statutory interpretation that the phrase “or otherwise” typically stands for the first in a list. 102 It signifies the following phrase such as 'seeking admission” is a catchall— making the reference broader, not narrower, than the group of “applicant[s] for admission.” 103

Further, under §§ 1225(a)(1) and 1225(a)(3), aliens who enter lawfully enter at a 'port of entry.' Aliens who are “caught trying to enter at some other spot” also are “treated the same way” and fall under the same definition of applicant for Page 66admission.¹⁰⁴ Aliens who sneak past are not formally seeking lawful entry — whether they are caught within a few minutes of passing the border or a few years. If one needs to be actively affirmatively seeking legal status to be under the terms of aliens who are “applic ants for admission . . . seeking admission' in § 1225(b)(2)(A), then illegal border crossers caught within miles and minutes of the border would not qualify either. Yet the Supreme Court has already referred to such individuals as admission applicants.¹⁰⁵

In addition to the interpretive information evident from the provisions directly addressing the § 1225 detention mandate, the surrounding statutory structure supports the Government's use of § 1225(b)(2) detention authority for Petitioners. 106 Statutory definitions within 8 U.S.C. § 1101 governing the INA and the structure of textual exemptions from the § 1225(b)(2)(A) detention mandate indicate that “applicants for admission” include more than those formally pursuing an admission application process at the time they are detained.

Section 1101 of the INA provides textual definitions for dozens of terms throughout the statute. A number of those definitions are informative here and arguably dispositive. Notably, the term 'seeking' is not one of those that is defined. 107

Take, for example, 8 U.S.C. § 1101(a)(13)(C), which treats a lawful permanent resident (LPR) returning from abroad as 'seeking an admission into the United States' in six enumerated circumstances: abandonment or relinquishment of lawful permanent resident status; continuous absence exceeding 180 days; engagement in illegal activity after departure; departure during pending removal proceedings;Page 67 commission of an offense identified in § 1182(a)(2); or an attempt to enter at a place other than a designated port of entry.¹⁰⁸ Under § 1101(a)(13)(C), LPRs in those sets of circumstances can be regarded as “seeking an admission.” Yet a number of those six conditions are passive and do not suggest the alien is actively engaged in a formal admission application process, as the ma jority’s position requires for the “seeking” of admission. Rather, LPRs who essentially lost legal status by engaging in crime out of the country or by attempting unlawful departure or by having an extended absence are eligible to be considered 'seeking admission.' 109 This section shows that “seeking” admission is not necessarily tied to actively pursuing an ongoing formal admission application process. Instead, it is more about one’s legal status and whether one needs to acquire admission, or entitlement to lawful status, in the United States.

The § 1101(a)(13)(C) population is significant for the present case because these aliens were lawfully admitted. They do not fit § 1225(a)(1)’s deeming clause, which captures the never-admitted. Yet Congress nonetheless treats them as “ seeking an admission ” and subjects them to § 1225 inspection.

That treatment cannot be reconciled with the majority’s reading of 'seeking admission.' If the phrase requires present, active conduct directed at lawful entry, then a lawful permanent resident returning home after a 181-day absence is not actively 'seeking.' He is returning to a residence he lawfully holds. Congress treats him as seeking admission anyway. The phrase functions as a statutorily assigned posture, not as a description of present-tense activity.

In even more tension with the majority opinion, exclusion of aliens detained in the interior would orphan the § 1101(a)(13)(C) population from § 1225 entirely. Returning LPRs were admitted; they are therefore not “deemed Page 68applicants” under (a)(1). 110 On the majority’s view, they also would not be “seeking admission,” so it is unclear what vehicle or admission status they would use to retain or regain LPR status or admission to the country. This reading inverts the statutory architecture.

Section 1101(a)(13)(A) reinforces the result. Although the Act provides no definition for the term 'seeking' or to 'seek,' it defines 'admission' and 'admitted.' The Act's definition and color on these terms essentially broadens their application rather than narrowing the § 1225(a)(1) category of “applicant for admission.”

The Act defines 'admission' and 'admitted' with respect to an alien simply as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.'¹¹¹ W hen it describes 'applicant for admission,” the Act not only clarifies that the phrase refers to application for general admission to the United States — not “application for the issuance of an immigrant or nonimmigrant visa.” 112 The Act also instructs that “ any alien present in the United States who has not been admitted” should be deemed an 'applicant for admission.'¹¹³ This is without respect to when an individual initially arrived in the United States, or whether he arrived at a designated port for lawful processing.¹¹⁴ The statutory deeming provision explicitly makes clear, by its terms, that arriving aliens are only one subcategory of those that are to be deemed “applicants.” 115

The exemptions within §1225(b) confirm this meaning. The textual structure of the detention mandate itself, within

110 Id. § 1225(a)(1) (“deem[ing]” as “applicants for admission”

only those who have not previously “been admitted”).

Page 69§ 1225(b)(2), shows its reach beyond just applicants formally seeking lawful approval prior to detention. The § 1225(b)(1) expedited removal program applicable to aliens in the United States for less than two years likewise confirms that § 1225(b)(2)(A) authority extends beyond aliens formally requesting lawful presence.

Further, the § 1225(b)(1) expedited removal authority provides another clear, high-profile example of an Executive Branch policy determination not to use the full range of its removal or detention authority for decades after a statute's enactment. Similar to the nonapplication of § 1225(b)(2)(A) detention-without-bond authority from 1996 through 2026, the Attorney General, until 2019, chose to apply expedited removal only to a subset of aliens present for less than two years and found close to the border.¹¹⁶ For example, when exercising expedited removal authority in 2004, the Executive Branch applied those procedures only to aliens detained within 100 miles of the border who had been continuously present in the United States for less than 14 days.¹¹⁷ DHS explained that it was 'not logistically possible' at the time 'for DHS to initiate removal proceedings against all' of the 'nearly 1 million aliens who [were] apprehended each year in close proximity to the borders after illegal entry.” 118 So as a practical matter, DHS announced it would focus even its new exercise of authority on a subset of aliens such as third-country nationals and Canadian and Mexican nationals with criminal histories.¹¹⁹

Executive use of the full scope of expedited removal authority was nonetheless judicially upheld when DHS announced in 2019 that aliens within the statutory reach of expedited removal authority would be potentially subject to those procedures moving forward.¹²⁰ This announcement was Page 70issued nearly twenty years after the Executive Branch first concluded it had the statutory authority to take this step.¹²¹ Within the same 1997 announcement implementing the 1996 IIRIRA enactment that provided a fulsome interpretation of expedited removal authority, the Executive Branch interpreted all aliens present without admission to be “applicants for admission” despite choosing to voluntarily give them eligibility for bond hearings. 122 Immigration authorities also provided by regulation in 1997 that aliens within the twoyear expedited removal timeframe “shall be detained” under § 1225(b)(2)(A) if the Executive Branch desired to pursue inadmissibility charges against them other than those provided for within the expedited removal framework.¹²³ Executive Branch authorities have repeatedly noted the difficulty of providing process to the sheer number of aliens arriving at the border, which has driven a number of its decisions about how fulsomely to use the discretion Congress has provided in removal authority under immigration statutes. 124

Page 71The trajectory of the use of expedited removal authority is not dissimilar from the Executive Branch’s 2020 determination to apply, for the first time, Title 42 authority to aliens arriving at the border during the COVID-19 pandemic. At that time, the Administration expelled aliens arriving at and even crossing over the border without either expedited removal or § 1229a hearings. To do so, the Executive Branch applied public health provisions first enacted in 1944 that had previously remained little-used.¹²⁵ Courts upheld the use of this authority under two separate presidential administrations extending from 2020 all the way through May 2023. Its previous disuse did not prevent judicial affirmance of Executive Branch implementation of the statutory authority when needed as a policy matter. And in any event, the Supreme Court has observed previously that sometimes the scope of authority permitted within statutory terms differs from, or is broader than, longstanding agency practice.¹²⁶

Beyond this history of Executive Branch practice, the structure and exceptions within § 1225(b)(2)(A) themselves show the designation “applicant for admission” is not coextensive with just the collection of aliens formally requesting a lawful determination. And the systemic exception from the standard §§ 1225(b)(2)(A) and 1229a admission determinations and detention scheme contained within § 1225(b)(1), colloquially designated 'expedited removal,' structurally and textually also confirms this reading.

Section 1225(b)(2)(A) provides that it “shall not apply to any alien to whom paragraph (1) applies.' 127 Section 1225(b)(1) in turn includes within it provisions authorizing immediate removal of pre-admission aliens continuously Page 72present in the United States for under two years.¹²⁸ The Supreme Court in Thuraissigiam found application of expedited removal to be consistent with due process, concluding that with aliens who have just crossed the border into the United States any liberty interests that have attached are satisfied by the statutory procedures Congress has chosen to give them. 129

But beyond this history, the terms of § 1225(b)(1) indicate that the touchstone for defining “applicant for admission” in § 1225(b)(2)(A) is not “arriving” at the border. All aliens arriving at the border and crossing unlawfully, for up to two years, are detainable and immediately removable under § 1225(b)(1) if the Attorney General chooses to use that authority. These aliens clearly include within their group many who were not formally, lawfully requesting or proactively “seeking” legal permission to remain in the United States. Yet they are subject to § 1225(b)(1) and would be subject to § 1225(b)(2)(A) but for its terms excepting § 1225(b)(1) from its reach. 130

This alternative to detention within the United States while section § 1229a removal proceedings are ongoing is highly informative for two reasons. First, it again demonstrates that Congress was giving highly specific and detailed instructions parsed out by subgroups within § 1225(b)(2), making far-fetched the idea that Congress would carve out Page 73some undefined group of non“seeking” applicants in contrast to the ordinary meaning of “to seek.” It strains credulity to posit that Congress would exempt crewman, stowaways, aliens eligible for expedited removal, and aliens arriving (i) by land (ii) from contiguous territories but not spell out a fifth legal category of those not actively “seeking” admission. Moreover, as the Supreme Court has noted, “ [a]n exception to a ‘ general statement of policy ’ is ‘ usually read narrowly in order to preserve the primary operation of the provision. ’” 131 “Unless commanded by the text,” interpretation of exceptions and their application 'ought not operate to the farthest reach of their linguistic possibilities if that result would contravene the statutory design.” 132

Even more fundamentally, § 1225(b)(2)(A) exempts from its mandatory detention-sans-bond requirement any of those aliens arriving on land from foreign contiguous territories whether or not they arrive at designated arrival ports. 133 There is no requirement, or hint here, that these individuals must actively seek admission. Indeed, the exem ption’s applicability to individuals crossing at an unauthorized point suggests the opposite. As the provision addressing arrival from contiguous territory does not specify applicability to just those coming to an authorized entry point, it apparently applies textually even to aliens who made no attempt to lawfully acquire admission. This undermines the notion that such aliens already are exempt from the terms of § 1225(b)(2)(A) through its inherent scope. 134

The remaining § 1225(b)(2) subsections underscore this textual and structural point. 135 For example, § 1225(b)(2)(A)Page 74 begins by providing that its detention instructions are subject to the limits in (B) and (C). Those subsections place aliens such as crewmen and stowaways outside the reach of the § 1225(b)(2)(A) detention terms. But aliens such as stowaways did not present themselves at the border. They, similar to aliens walking across the border undetected and staying undetected in the country’s interior for years, are not actively applying for admission. The fact that Congress did the work, in the statutory text, to expressly set aside stowaways and crewmen suggests that otherwise those aliens would have fallen within the § 1225(b)(2)(B) scope. This undermines P etitioners’ contention that § 1225(b)(2)(B) with its reference to 'seeking admission' means to apply only to individuals actively engaged in an ongoing formal application process. If that were so, stowaways would already be outside the contours of § 1225(b)(2)(A) and Congress would not have created a statutory subsection to exempt them.

Petitioners contend, further, that even if the INA authorized P etitioners’ detention without bond during adjudication of their admission, that detention violates the Constitution's Fifth Amendment Due Process Clause.¹³⁶ It does not, under the Supreme Court’s precedent interpreting and applying those constitutional protections.

Under current Supreme Court doctrine, there are two distinct categories of constitutional due process protections —Page 75 procedural and substantive. Procedural due process doctrine entitles individuals to notice and some kind of hearing prior to governmental deprivation of the individual's life, liberty, or property interest.¹³⁷ Substantive due process under the Supreme Court's jurisprudence, on the other hand, provides some type of substantive protection from a governmental restraint. 138 To identify which substantive rights fall within this range of protections, the Court looks for a history and tradition establishing the right.¹³⁹

138 See Washington v. Glucksberg , 521 U.S. 702, 720 – 21

(1997) (observing that the Court's 'established method of

substantive-due- process s

'fundamental rights analysis” and liberties include which are, identifying objectively,

‘deeply rooted in this Nation’s history and tradition’” (quoting

Moore v. East Cleveland , 431 U.S. 494Page 76, 503 (1977) (plurality Here, the District Court found that Mr. Lopes de Andrade's detention violated what it characterized as his procedural due process rights.¹⁴⁰ Mr. Lopes de Andrade contends that before the Government had the power to detain him without bond, he had a right to a bond hearing to determine whether he was a flight risk or posed a danger to the community.¹⁴¹ But because factors like flight risk or community danger bear no relationship to the statutory entitlement to remain in the country that Petitioners claim, the request for a hearing on those factors ultimately sounds more in substantive than procedural rights.¹⁴² opinion))).

Petitioners' claim is not that the Government must provide more safeguards, a more involved hearing, or lengthier notice to more accurately adjudicate whether Petitioners may remain in the country . 143 Petitioners were eligible for some proceedings, in any event — just ineligible for release on bond. 144 And multiple Supreme Court cases have indicated support for detention pending an adjudication of the alien's Page 77legal entitlement to remain in the United States.¹⁴⁵ Consequently, Petitioners ’ contention essentially distills to the argument that the Government may not, as a substantive matter, detain pre-admission aliens with no demonstrated flight risk or community danger. 146 But that is not the system Congress created. 147 And Petitioners make no attempt to show a history or tradition of a constitutional right to release into the United States on bond during adjudication of an alien’s claims to legal presence in the United States. 148 The history of claims before the Supreme Court actually shows the opposite. 149

Ultimately, whether procedural or substantive due process is at stake here, Mr. Lopes de Andrade has not Page 78established that his detention during removal proceedings violates either. Procedural due process protections apply to ensure that one receives a fair, accurate adjudication of their ultimate legal interests — here, whether they may remain in the United States.¹⁵⁰ Those protections do not constitutionally guarantee Petitioners the right to adjudicate unrelated questions -ones Congress didn't deem relevantsuch as flight and security risk. All that matters is the Petitioners fall within the class of people that Congress has decided should be mandatorily detained. 151 Any argument that Congress's determination was constitutionally infirm rings more in substantive due process.

Indeed, under both § 1225(b)(2)(A) and § 1229a, immigration detention does not turn on a demonstrated absence of flight risk or dangerousness. The statute commands detention if the alien is an “applicant for admission” and the examining officer “determines that the alien is not clearly and beyond a doubt entitled to be admitted.” 152 The escape valve is discretionary parole under § 1182(d)(5)(A), which is administered case-bycase only “for urgent humanitarian reasons or significant public benefit.'¹⁵³ A bond hearing focused on flight risk and dangerousness would generate irrelevant facts, not material to individual determinations under Page 79the § 1225(b)(2)(A) and § 1229a detention scheme — a scheme designed to keep aliens who have never received any adjudication of lawful U.S. presence from release into the country without demonstrated legal entitlement.¹⁵⁴

B

More substantively, in Demore v. Kim — a case involving criminal alien detention under § 1226(c) — the Supreme Court previously suggested that Fifth Amendment due process principles extend to aliens in deportation proceedings. 155 But “[d]etention during removal proceedings is a constitutionally permissible part of that process.” 156 And here, Petitioners arguably have less of a significant protected interest than the aliens in Demore because they have never received any determination of lawful presence. 157

The Supreme Court has repeatedly indicated there is no general right to freedom from detention during removal proceedings. 158 And on the merits of the ultimate question of lawful status, the Supreme Court “has long held that an alien Page 80seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” 159

Detention pending removal generally serves the purpose of preventing “aliens from fleeing prior to or during their removal proceedings' and increases the likelihood of successful removal.¹⁶⁰ When crafting procedures adjudicating the status of “deportable aliens, the Due Process Clause does not require [Congress] to employ the least burdensome means to accomplish its goal.” 161 Under the “longstanding view” of the Supreme Court, 'the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.' 162 The Supreme Court has underscored in recent cases involving admission and removal authority that “the Constitution gives ‘the political department of the government’ plenary authority to decide which aliens to admit.” 163 “[C]oncomitant” with that authority is “the power to set the procedures to be followed in determining whether an alien should be admitted.” 164

Page 81Hoping to sidestep this principle from Demore , Petitioners attempt to rely on Zadvydas v. Davis , 533 U.S. 678 (2001), where the Supreme Court addressed the distinct question of whether aliens not removable to an appropriate country may be indefinitely detained while remaining within the United States. 165 Although the Court interpreted the relevant statute to authorize less-than-boundless detention time to avoid potential due process tension, the Court specifically identified a detention time period of six months as permissible after an alien was deemed inadmissible or removable. 166

The Zadvydas Court essentially proffered a presumption that detention of a removable alien was constitutional for at least six months. But, crucially, the Court was considering the issue in the context of a post-removal determination where there were concerns whether the alien could ever be removed to any country from detention. Those facts do not exist here. This is not a case where “ there is no significant likelihood of removal in the reasonably foreseeable future.” 167 By comparison, both Petitioners in this case were detained for fewer than 90 days before the District Courts ordered their release. 168 And the Government simply contends it has power to follow a mandatory detention statute for “the limited period necessary for [P etitioners’] removal proceedings,' a duration upheld as constitutional in the criminal-alien context in Demore . 169

In the alternative, twenty States and the District of Columbia, as amici curiae, contend that Supreme Court precedent establishes a general rule that the Due Process Clause categorically forbids civil detention absent an Page 82individualized determination that a detainee poses a danger to the community or a risk of flight.¹⁷⁰ But that argument drawn from the Court's line of cases on civil commitment and criminal pretrial detention 171 is inapposite to this detention context involving aliens.

As the Supreme Court has observed, Congress and the President routinely establish immigration procedures for processing removal and detention that are not analogous to procedures in the civil domestic context for United States citizens. 172 The plenary authority of the political branches to set policy governing admission and removal of aliens is a longstanding feature of our constitutional system and the separation of powers.¹⁷³ The power to protect sovereignty via the removal authority rests in the political departments that necessarily, then, have some control over its contours and the Page 83procedures by which removal is carried out.¹⁷⁴ According to repeated pronouncements by the Supreme Court, federal legislative power is at its crest when regulating admission of aliens, a policy matter critical to national interests and protection of inherent national sovereignty.¹⁷⁵

For the foregoing reasons, I respectfully dissent. The District Courts should not have prematurely released Petitioners under the terms of IIRIRA, Supreme Court precedent, and the constitutional due process principles established by the Supreme Court. I would reverse the orders of the District Courts and remand for further proceedings consistent with this dissent.