On September 5, 2025, the Board of Immigration Appeals (BIA) made a decision that will have ripple effects and change everything for years to come when concerning bond hearings and removal proceedings at the Executive Office of Immigration Review (EOIR).
In Matter of Jonathan Javier Yajure Hurtado, Mr. Hurtado appealed the Immigration Judge’s April 18, 2025 decision, which denied his request to have his custody status reconsidered under immigration law. The main question in the case is whether the Immigration and Nationality Act (INA) requires everyone seeking admission to the United States – including people like Mr. Hurtado who entered the country without inspection and have lived here for many years without legal status – to be held in mandatory detention throughout their immigration proceedings. If so, it would mean that Immigration Judges have no authority to consider bond requests for individuals in this situation.
In a major and unexpected move, the BIA has issued a decision that shifts the long-standing practices of the immigration system. Mr. Hurtado entered the U.S. in 2022, and was granted Temporary Protected Status in 2024, but the status expired on April 2, 2025, following a notice issued by the Trump Administration to the Department of Homeland Security. Mr. Hurtado was then served with a Notice to Appear charging him as an individual who entered the country without being admitted or paroled. The judge ruled that he lacked the authority to set bond in this case, and Mr. Hurtado appealed.
At the heart of the case is the question of whether an Immigration Judge has any authority to decide whether they can consider a request for bond. An Immigration Judge’s authority comes from the INA and any regulations issued by the Attorney General.
The Board of Immigration Appeals agreed with the Immigration Judge’s conclusion that he lacked any authority to rule on the bond request. They found that individuals who are in the country without being admitted are legally considered “applicants for admission” under the INA section 235. Mr. Hurtado pushed back on this interpretation saying that he had been in the United States for nearly three years, so he should not be considered “seeking admission” under that section of the law. The BIA agreed that this makes the case complicated.
What is his legal status, given that he is not admitted to the United States but has not sought admission, despite being here for three years? The BIA explains that he was never formally admitted to the United States, but he also hadn’t recently arrived in the country either, so where does this leave him? The BIA pointed to the legislative history of the section, saying that Congress added the term of “applicant for admission” in 1996 when it passed the Illegal Immigration Reform and Immigrant Responsibility Act. Before 1996, the law only required inspection of individuals when they were physically arriving at a port of entry.
Under its novel interpretation, the BIA held that anyone who enters the U.S. without being inspected or admitted—regardless of how long they’ve been in the country—is legally considered an “applicant for admission.” As a result, individuals in this category are subject to mandatory detention under sections 235(b)(1) and (2) of the INA. The BIA also clarified that Immigration Judges do not have the authority to conduct bond hearings for arriving aliens or applicants for admission.
How does this change the immigration landscape? For one, the Board has ruled that it does not matter how long a foreign national is here without inspection. This still does not constitute an “admission” into the United States. Admission is also not being placed into removal proceedings after being arrested because of a warrant. In essence, the ruling states that detention is mandatory for anyone in removal proceedings who entered the United States “without inspection”.
This ruling also overturns a previous Department of Justice policy where anyone suspected of entering the United States illegally, but who could prove they have been living in the country for two years, was entitled to request an Immigration Judge to release them on bond. This could make life much harder for thousands of additional people while being held in detention, waiting for their cases to be heard.
The good news is that the BIA ruling is not binding on the judicial branch, though the Supreme Court has been siding with the President’s agenda as of late. One former immigration judge, Dana Leigh Marks, said that it seems intended to encourage those in removal proceedings to give up their fight, even if they may have a strong case to stay in the United States. She is quoted as saying “It’s a total cynical move to try to force people to litigate their cases while they’re detained.” In the meantime, the administration will use this rule as a basis to increase pre-removal detention, and force more people to give up their rights and leave the United States.