Earlier this week, a federal appeals court held that the Department of Homeland Security (DHS) could detain an illegal alien without bond pending his removal proceedings after he was arrested in Minneapolis in 2025. In journeyman fashion, the Eighth Circuit Court of Appeals interpreted the applicable immigration laws as written and applied common sense to reach its decision.
That law, 8 U.S.C. § 1225, a nearly three-decade-old statute, requires detention without bond for “an alien who is an applicant for admission if … an alien seeking admission is not clearly and beyond a doubt entitled to be admitted.” This case could be a game-changer in the administration’s efforts to hold illegal aliens pending their removal hearings.
Joaquin Herrera Avila is a Mexican national. He was arrested last Aug. in Minneapolis and admitted he was in the country illegally. Avila had illegally entered the U.S. twice; once in 2006 and again in 2016. When he was caught in 2025, Avila was held without bond, and DHS initiated removal proceedings for lacking valid entry documentation.
Avila requested a bond redetermination before the immigration judge, who denied his request. Avila’s attorney then filed a habeas petition in federal district court seeking his immediate release or a bond hearing. Avila argued that since he was not “seeking admission” while in the U.S., the statute simply didn’t apply to him.
Avila’s argument goes like this: as long as an illegal alien in the U.S. just sits back and does nothing to adjust his status in the country, such as seek asylum, 8 U.S.C. § 1225(b)(2)(A) did not apply to him.
The district court ruled in favor of Avila, claiming the statute did not apply because he had lived in the country for years without “seeking admission” to the U.S.
But the text of the statute itself, as the Eighth Circuit noted in its de novo review of the law, is unambiguous. You don’t have to be a lawyer to understand it.
Section 1225(a)(1) is clear as a bell: “An 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 applicant for admission.”
So, whether you actively apply for admission while you’re illegally in the country, or pull an Avila and do nothing, you’re still considered an “applicant for admission.” No further legal reasoning is required beyond the text of the statute itself.
Avila’s argument hinged on the concept that “seeking” requires an affirmative act occurring in the present tense. It was a creative argument but failed the sniff test with the appeals court.
Citing the Fifth Circuit case of Buenrostro-Mendez v. Bondi, the Eighth Circuit noted that adopting this logic leads to strange conclusions, among them that an applicant who has already submitted an application is no longer seeking admission.
The Fifth Circuit concluded that “an applicant for admission to the United States is ‘seeking admission’ to the same, regardless of whether the person actively engages in further affirmative acts to gain admission.”
Under Avila’s reading, an alien who enters the country unlawfully and evades detection for years would be entitled to a bond hearing, whereas an alien who lawfully presents himself at a port of entry and seeks admission would not be entitled to a bond hearing.
Avila also argued that the Laken Riley Act, found at 8 U.S.C. § 1226, added an exception to the bond eligibility for people like him, but allows for detention without bond for aliens who commit certain offenses, including burglary, larceny, and theft. A plain reading of § 1225(b)(2)(A), Avila argued, would render the Act superfluous. The Eighth Circuit was unconvinced, for two reasons.
First, the reach of the Laken Riley Act is not wholly analogous. It applies not only to unadmitted aliens but also to those who were previously admitted and later lost their legal status, including immigrants who overstayed their visas.
Second, the Laken Riley Act eliminates the possibility of parole entirely for the aliens it covers. Its passage is best understood as a congressional effort to be “doubly sure” to deny parole to criminal offenders, not as evidence that § 1225 was ever limited to the border.
Finally, Avila argued that the majority’s decision ran counter to legislative history. But legislative history does not carry the same authority as the law itself. The Supreme Court has said as much repeatedly, and the Eighth Circuit was right to decline the invitation to cloud a clear statutory text with speculation about what Congress might have intended.
The dissent’s first sentence raised our eyebrows: “Except for a single DUI, for nearly 20 years, Joaquin Herrera Avila had been living a law-abiding life in the United States.”
Law abiding? Apparently the two times Avila entered the country illegally did not count. No doubt, that’s why the majority cited 8 U.S.C. § 1325(a) at the beginning of their opinion.
That statute makes it illegal to “enter the United States at any time or place other than as designated by immigration officers” and carries a term of imprisonment of up to six months for the first offense and up to two years for subsequent offenses.
One of the stronger points made by the dissent is this: five previous presidential administrations (including the first Trump administration) had applied the statute only to nationals arriving at the border, rendering the majority’s reading a “novel interpretation.” That novel interpretation likely stems from a memo issued on July 8, 2025, by the acting director of U.S. Immigration and Customs Enforcement explaining that the agency had “revisited its legal position” by determining that the mandatory detention provisions of section 1225—not the discretionary detention provisions of section 1226—is the new policy of the administration.
Quoting from the 2001 Supreme Court decision in Zadyvdas v. Davis, the dissent wrote: “the distinction between an alien who has effected an entry into the U.S. and one who has never entered runs throughout immigration law [because] once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the U.S., including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”
This issue has been litigated across the country in federal courts. As more circuit courts split on this issue, it’s only a matter of time before this issue finds its way to the U.S. Supreme Court.
