- The Supreme Court agreed to review whether detention requires a bond hearing for people arrested years after unlawful entry.
- The case concerns INA Section two thirty-five and whether it requires detention without a bond hearing.
- Six federal appeals courts reject the government’s interpretation, while two circuits accept it.
The Supreme Court agreed to review whether immigration officials can hold some people without bond after arresting them inside the United States years after unlawful entry. The Court granted review on October 1, 2026.
The case, Rhoney, Acting Director v. Barbosa da Cunha, No. 26-104, concerns whether INA § 235(b)(2)(A) requires detention through removal proceedings without a bond hearing. The Court has not issued a decision.
The dispute grew out of the arrest of Ricardo Aparecido Barbosa da Cunha, a Brazilian national who entered the country unlawfully around 2004. He had lived in the United States for more than two decades before federal immigration officers arrested him.
The government says the detention statute covers people who entered without inspection and were never formally admitted, even if they have spent years in the country. Barbosa da Cunha argues that a different provision governs people arrested long after entry.
The provision at issue describes an “applicant for admission” who is not clearly entitled to admission and says that person “shall be detained” for removal proceedings. The government reads that language to allow detention without an immigration judge weighing bond.
The Second Circuit rejected the government’s reading
Barbosa da Cunha relies on INA § 236(a), codified at 8 U.S.C. § 1226(a). That law generally allows an immigration judge to consider release on bond or conditional parole.
In April 2026, the U.S. Court of Appeals for the Second Circuit ruled against the administration’s interpretation. Its jurisdiction covers Connecticut, New York, and Vermont. The ruling is binding there, but not nationwide.
Judge Joseph Bianco wrote that the statute does not cover people “who were not apprehended while entering the country or shortly thereafter.” Under the ruling, someone arrested inside the country years after unlawful entry generally falls under § 1226(a), where an individualized bond decision may be available.
That decision adds to a split among federal appellate courts.
Six circuits reject the policy while two have accepted it
| Position | Federal appeals courts |
|---|---|
| Rejected the administration’s broad interpretation | Second, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits |
| Accepted the government’s position | Fifth and Eighth Circuits |
District courts have also issued conflicting rulings, leaving detention outcomes dependent in part on where a person is arrested or held. The Supreme Court’s eventual ruling will resolve the statutory question nationwide.
The dispute is about access to a bond hearing, not an automatic right to release. It also does not establish whether every person without lawful status is removable. Those questions remain separate from the custody classification at issue here.
A July 2025 policy changed the custody question
In July 2025, the administration adopted an ICE interpretation treating people who entered without inspection as applicants for admission, regardless of how long they had lived in the country or whether officers arrested them in the interior.
Before that shift, people arrested inside the United States generally could ask an immigration judge for a bond hearing, unless another mandatory-detention rule applied. Certain criminal convictions and other statutory grounds could still bar release.
The new approach asks first whether a person falls under § 1225(b)(2)(A). If so, the government says detention is mandatory, rather than subject to an initial bond assessment. The ACLU says the policy could expose millions of immigrants to detention without bond hearings. The administration’s position is that federal immigration law requires detention for people in the covered category.
An arrest in Massachusetts led to the challenge
ICE arrested Barbosa da Cunha during a traffic stop in Norwood, Massachusetts, in September 2025. The Department of Homeland Security placed him in removal proceedings and classified him for mandatory detention under § 1225(b)(2)(A).
His immigration judge refused to hold a bond hearing, finding that the statute required detention without bond. The ACLU, the New York Civil Liberties Union, and the Law Office of Paul Dwyer PC helped litigate the challenge in federal court.
Accounts of his circumstances describe him as having no criminal record. They also say he received employment authorization in 2016, bought a home, and ran a small business. Those details do not resolve the legal question before the Supreme Court.
A bond hearing would not guarantee release
If the justices side with Barbosa da Cunha, people in similar circumstances could seek custody review under § 1226(a). An immigration judge could still deny bond after considering flight risk, danger, statutory restrictions, or other custody factors.
A decision for the government could permit mandatory detention without a bond hearing for a broader group: people who entered without inspection, were never formally admitted or paroled, lived in the country for years, and were later arrested inside it. The issue would remain detention procedure, not the outcome of a person’s removal case.
The case does not necessarily decide whether Barbosa da Cunha or others qualify for asylum, cancellation of removal, adjustment of status, or another form of relief. Nor does it resolve the constitutionality of every type of immigration detention or the separate rules for certain criminal convictions under INA § 236(c), 8 U.S.C. § 1226(c).
Until the Court rules, the circuit and detention location may affect which interpretation applies. A person’s custody classification, procedural history, and any separate detention bar can also shape whether a bond hearing is available. This article provides general information and is not legal advice. Consult a qualified immigration attorney about your specific case.
