Key Points

  • The Second Circuit denied en banc rehearing in an 11-2 vote, leaving intact a panel ruling that Section 1225(b)(2)(A)'s mandatory detention provision does not apply to noncitizens who have been present in the U.S. for years after entering without inspection.
  • The court held that such individuals are detained under Section 1226, which entitles them to bond hearings, rather than Section 1225, which mandates detention without bond for those 'seeking admission.'
  • The decision deepens a circuit split: the Second Circuit stands against the Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, First, and Third Circuits, which have sided with the government's interpretation.
  • Judge Schwartz's concurrence indicates Supreme Court review is 'inevitable' and explains this is why he voted against rehearing despite agreeing with the dissent's statutory analysis.
  • The Attorney General retains authority to revoke bond and redetain aliens under Section 1226(b), and could amend regulations to limit bond hearings.

The Second Circuit on Friday declined to rehear a challenge to its April ruling that the federal government cannot subject long-term residents who entered the country illegally to mandatory detention without bond, deepening a circuit split that appears headed for Supreme Court review.

In an order joined by all thirteen active judges, the court denied the government's petition for en banc rehearing in Barbosa da Cunha v. Freden, leaving intact a panel decision that held 8 U.S.C. Section 1225(b)(2)(A)—which mandates detention of aliens "seeking admission"—does not apply to noncitizens who have lived inside the United States for years after entering without inspection.

The case involved Ricardo Aparecido Barbosa Da Cunha, a Brazilian national who entered the country unlawfully more than two decades ago. When immigration officials detained him and placed him in removal proceedings, an immigration judge denied his request for a bond hearing, ruling he was subject to mandatory detention. The Western District of New York granted his habeas petition and ordered a bond hearing within ten days.

The government, represented by a team led by Assistant Attorney General Brett A. Shumate of the Civil Division, argued that under the Immigration and Nationality Act's "deeming" provision, any noncitizen present in the country without having been admitted must be treated as an "applicant for admission" and therefore as "seeking admission" for purposes of mandatory detention.

A three-judge panel rejected that reading in April, and six judges—Circuit Judges Joseph F. Bianco and Alison J. Nathan, joined by Eunice C. Lee, Beth Robinson, Myrna Perez, and Sarah A. L. Merriam—wrote separately to defend the panel's statutory analysis. They quoted from the panel's concurrence by Judge Jose A. Cabranes, who called the government's position a "fanciful contention" that "Congress clearly required the Executive to detain millions of people like Petitioner—parents of American children, owners of American businesses, members of American communities—but that some thirty years passed before anyone noticed."

The panel held that Section 1225(b)(2)(A) "applies only to a noncitizen who is both an 'applicant for admission' and 'seeking admission,'" and that Barbosa da Cunha, who had resided in the country for over twenty years, was not "seeking admission" because he was not "seeking to come inside [the country] from outside." The court characterized the government's attempt "to muddy these textually clear waters" as one that "defies the statute's context, structure, history, and purpose."

The panel also addressed the government's reliance on Matter of Lemus-Losa, a 2012 Board of Immigration Appeals decision holding that unadmitted aliens are constructively "seeking admission" by virtue of their unlawful presence. The court concluded that "even if Lemus-Losa were correct, it would not support the government's position in this case."

Circuit Judge Steven J. Menashi dissented, joined in part by Circuit Judge Michael H. Park. Menashi accused the panel of violating the "true rule" of statutory interpretation that Justice Antonin Scalia articulated: "When a statute includes an explicit definition, we must follow that definition, even if it varies from that term's ordinary meaning." He argued the deeming provision requires courts to treat unadmitted aliens as applicants for admission "for purposes of this chapter"—meaning the entire INA—and therefore as seeking admission wherever that phrase appears.

Menashi catalogued a widening circuit split, noting that since the panel's April decision, the Sixth, Tenth, Eleventh, Ninth, Seventh, First, and Third Circuits have all sided with the government's interpretation, joining the Fifth and Eighth Circuits. "The panel expressly rejected the holdings of the Fifth and Eighth Circuits with respect to the same issue," Menashi wrote.

Circuit Judge Matthew A. Schwartz, joined by Circuit Judge Richard J. Sullivan, wrote separately to explain why he voted against rehearing despite agreeing with the dissent's statutory analysis. Schwartz invoked the Second Circuit's tradition of reserving en banc review for cases unlikely to reach the Supreme Court, writing that the issue "has been thoroughly ventilated—both in our Circuit and in circuits across the country" and that Supreme Court resolution "is inevitable."

Schwartz also noted that the government retained options to mitigate the ruling's effect. The Attorney General could "at any time" revoke any bond granted to Barbosa da Cunha and redetain him, and Congress has made such decisions unreviewable by any court. More broadly, Schwartz observed that the Attorney General could rescind or amend regulations providing aliens detained under Section 1226(a) with bond hearings, since the statute grants only discretionary authority to release rather than requiring it.

Michael K.T. Tan of the American Civil Liberties Union Foundation argued for Barbosa da Cunha, with support from the New York Civil Liberties Union and Paul O'Dwyer of the Law Office of Paul O'Dwyer. Amicus briefs were filed by the American Immigration Council, the American Immigration Lawyers Association, and Immigration Law Scholars.

Cabranes, a senior judge who could not vote on the en banc petition, filed a statement expressing "solidarity" with the Bianco and Nathan concurrence.

Attorneys on the case included Michael K.T. Tan of the American Civil Liberties Union Foundation for Barbosa da Cunha and Tiberius T. Davis of the U.S. Department of Justice for the government.

The case now returns to the district court, where the government must provide Barbosa da Cunha a bond hearing. The government may seek Supreme Court review.