On March 25, 2026, the United States Court of Appeals for the Eighth Circuit issued its decision in Herrera Avila v. Bondi, No. 25-3248 (8th Cir. Mar. 25, 2026), a ruling that significantly expands the federal government’s authority to detain undocumented immigrants without bond.
In mid-2025, DHS began implementing a “new interpretation” of INA § 235(b) that treated large numbers of long-present noncitizens apprehended in the interior as “applicants for admission” subject to mandatory detention without bond.
Over the last year, immigration detention litigation has shifted from a niche procedural dispute to a central battleground in removal defense. The flashpoint is DHS’s effort to reclassify broad categories of detained noncitizens.
This article addresses a detention posture in which a noncitizen is processed as an applicant for admission, is inspected and released into the United States on parole under Immigration and Nationality Act (“INA”) § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A), and is later arrested by ICE in the interior—often many months after release—then placed (or returned) into detention while removal proceedings remain pending.
When an immigration case reaches a final order of removal, the legal theory of detention changes—often abruptly. The government is no longer detaining someone “pending a decision on whether the alien is to be removed.”
A recurring detention fact pattern has become increasingly common: a noncitizen presents for inspection, is admitted only for limited processing purposes or is deemed an applicant for admission, and is released into the United States on immigration parole under INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). Months later—often after compliance with reporting requirements—ICE arrests the person in the interior and returns them to custody.
