Two people can have similar immigration histories and face very different paths out of ICE detention because their cases arise in different federal circuits. A family in California may have a strong argument for an immigration-judge bond hearing under current Ninth Circuit precedent. A family dealing with detention in Texas faces an adverse Fifth Circuit statutory decision and must evaluate a different, more difficult litigation strategy.
The newest development is the Fourth Circuit's Lopez Garcia v. Guadian decision on September 10, 2026. It follows the Third Circuit's Buele Morocho v. Warden Philadelphia FDC decision on August 28, 2026. Both reject the categorical no-bond theory for the interior residents before those courts.
What exactly is the EWI bond dispute?
EWI means entry without inspection: entering the United States without being inspected and admitted by an immigration officer. It is not the same as entering on a visa and later overstaying. It also does not tell us, by itself, which detention statute governs a person's current custody.
The central question is whether people who crossed without inspection, then lived inside the country before their arrest, must be detained under 8 U.S.C. § 1225(b)(2)(A), also called INA § 235(b)(2)(A), or fall under the detention framework in 8 U.S.C. § 1226, also called INA § 236. Section 1226(a) generally permits an individualized bond decision. Section 1225(b)(2)(A) generally does not provide that immigration-judge bond route.
The government's position, adopted by the Board of Immigration Appeals in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), treats people who have never been admitted as applicants for admission subject to mandatory detention. The majority of the numbered circuits distinguish being legally classified as an applicant for admission from actually seeking admission when arrested. Their decisions reject treating established interior residents as though they were presenting themselves at the border.
Scope matters: This article addresses that particular statutory dispute. It does not say every person who crossed the border qualifies for bond. Recent border apprehension, expedited removal, criminal mandatory detention under § 1226(c), and detention after a final removal order require separate analysis.
Circuit-by-circuit bond-hearing chart
How to read the chart: “Yes—eligible category” means the circuit rejects the blanket § 1225(b)(2)(A) bar for the covered interior-resident category, subject to other detention rules. “No—statutory route” means the circuit accepts that bar, not that every possible constitutional challenge or release request is foreclosed. The locations below describe federal circuit geography; they are not instructions to choose a court merely by your home address.
| Circuit and locations | Current appellate position | Decision and practical limit |
|---|---|---|
| 1st Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico | Yes—eligible category | Guerrero Orellana v. Moniz, Nos. 25-2152, 26-1094 (Aug. 13, 2026). Rejects the no-bond interpretation for the covered interior residents; the particular class relief has its own definition. |
| 2nd Connecticut, New York, Vermont | Yes—eligible category | Barbosa da Cunha v. Freden, No. 25-3141 (Apr. 28, 2026). Distinguishes people apprehended at or near the border at entry from people arrested after living inside the country. |
| 3rd Delaware, New Jersey, Pennsylvania, U.S. Virgin Islands | Yes—eligible category | Buele Morocho v. Warden Philadelphia FDC, Nos. 26-1150, 26-1454 (Aug. 28, 2026). Rejects mandatory detention under § 1225(b)(2)(A) for the two long-resident petitioners. |
| 4th Maryland, North Carolina, South Carolina, Virginia, West Virginia | Yes—eligible category | Lopez Garcia v. Guadian, Nos. 25-7044, 25-7050 (Sept. 10, 2026). Affirms habeas relief and rejects the government's expanded no-bond interpretation. |
| 5th Louisiana, Mississippi, Texas | No—statutory route | Buenrostro-Mendez v. Bondi, Nos. 25-20496, 25-40701 (Feb. 6, 2026). Accepts mandatory detention under § 1225(b)(2)(A). The separate 90-day constitutional panel ruling was vacated; see below. |
| 6th Kentucky, Michigan, Ohio, Tennessee | Yes—eligible category | Lopez-Campos v. Raycraft, Nos. 25-1965, 25-1969, 25-1978, 25-1982 (May 11, 2026). Affirms relief for interior residents and rejects the categorical statutory bar. |
| 7th Illinois, Indiana, Wisconsin | Yes—eligible category | Cirrus Rojas v. Olson, No. 25-3127 (July 30, 2026). Holds that interior residents not seeking admission fall under § 1226, subject to its other requirements. |
| 8th Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota | No—statutory route | Avila v. Bondi, No. 25-3248 (Mar. 25, 2026). Agrees with the Fifth Circuit's statutory interpretation and reverses relief granted on the contrary reading. |
| 9th Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana Islands | Yes—eligible category | Rodriguez Vazquez v. Bostock, No. 25-6842 (July 30, 2026). Rejects § 1225(b)(2)(A) detention for the covered interior population. Winning the right to a hearing does not decide dangerousness or flight risk. |
| 10th Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming | Yes—eligible category | Santillan Quiroz v. Mullin, No. 26-6019 (June 30, 2026). Reverses the denial of habeas relief under the government's broad statutory reading. |
| 11th Alabama, Florida, Georgia | Yes—eligible category | Hernandez Alvarez v. Warden, Federal Detention Center Miami, Nos. 25-14065, 25-14075 (May 6, 2026). Applies § 1226 to the interior residents at issue rather than the blanket § 1225(b)(2)(A) policy. |
| D.C. Circuit District of Columbia | Not classified in this split | No directly controlling D.C. Circuit merits ruling on this same interior-EWI bond question was identified for this update. Its separate expedited-removal litigation does not establish a yes-or-no answer here. |
The Federal Circuit is a separate, specialized appellate court, not another geographic immigration-bond circuit. Do not confuse federal circuits with state courts that also use the word “circuit.”
Ninth and Third Circuits: yes to a hearing route, not automatic release
For a covered person detained in California or Washington, Rodriguez Vazquez provides an appellate basis to contest the claim that EWI alone makes immigration-judge bond categorically unavailable. The same basic statutory distinction now appears in the Third Circuit's Buele Morocho decision for cases arising in Pennsylvania, New Jersey, Delaware, and the Virgin Islands.
A lawyer still must determine whether the person fits the decision. Someone arrested years after entry is not necessarily in the same legal category as someone apprehended while crossing. A criminal ground may independently trigger mandatory detention. A final removal order may change the governing detention authority. A prior bond denial on flight-risk grounds is different from an immigration judge refusing jurisdiction.
The Ninth Circuit case itself illustrates the difference between process and outcome: Rodriguez Vazquez received a bond hearing but was denied bond. A favorable appellate ruling opens the legal argument; evidence and the applicable custody standard still matter.
Fifth and Eighth Circuits: what “no bond” actually means
In the Fifth Circuit, Buenrostro-Mendez remains an obstacle to the argument that an established interior EWI resident necessarily belongs in § 1226(a) instead of § 1225(b)(2)(A). The Eighth Circuit adopted the adverse statutory approach in Avila. A motion that would rely on favorable Ninth Circuit precedent cannot simply assume that precedent controls a detention case in Texas or Minnesota.
That does not justify telling every family that nothing can be done. Counsel must examine the actual custody record, whether the government has identified the right statutory category, any individualized constitutional claim, the duration and circumstances of detention, and any available request for discretionary parole. A habeas petition under 28 U.S.C. § 2241 is not the same thing as a routine immigration-court bond motion, and parole is not immigration-judge bond.
These developments make the distinction between a statutory eligibility argument and an individual constitutional challenge particularly important. The chart answers the former. It does not predetermine the latter or guarantee that a federal judge will order release.
Which circuit governs if ICE transfers someone?
The family's home address is not enough to identify the right court. For a traditional challenge to present physical detention, the starting point is generally the federal district where the person is confined and the immediate custodian. Immigration-court venue, remote hearings, and transfer timing can create additional questions. A petition for review of a removal order is a different proceeding from a district-court habeas challenge to custody.
Illustrative case vignette—not a reported client result: A family lives in California, but ICE moves the detained parent to Texas before a habeas petition is filed. The family should not assume the Ninth Circuit controls merely because everyone lived in California. Counsel needs the current facility, transfer chronology, existing court orders, and filing history before choosing the respondent, venue, and governing legal arguments.
Do not try to select a favorable circuit by filing in a district with no proper connection to the detention. If a transfer is imminent, obtain case-specific advice promptly about proper filing and any supportable emergency relief. A move after filing does not always destroy a court's existing jurisdiction, but the consequences require a facts-and-timing analysis.
What families should gather before requesting a bond review
Our attorneys can assess the custody pathway more efficiently when the initial file separates legal eligibility from release evidence. A screenshot saying “no bond” does not explain whether ICE invoked a mandatory-detention statute, the judge found a flight risk, or a different order controls.
- Confirm current custody. Record the A-number, facility, arrest date, any transfers, and the location at the time of each court filing.
- Collect the charging and custody papers. Include the Notice to Appear, any custody determination, bond decision, and prior immigration orders.
- Document the entry history accurately. Separate EWI, admission on a visa, parole, prior removal, reentry, and later applications. Do not guess when records are incomplete.
- Identify the precise detention statute. Ask whether ICE relies on § 1225(b)(1), § 1225(b)(2), § 1226(a), § 1226(c), or § 1231.
- Obtain the actual criminal dispositions. Arrest summaries and family descriptions may not establish whether a mandatory-detention category applies.
- Prepare release evidence. A stable address, dependable sponsor, court-attendance history, family responsibilities, and relevant medical records may matter to the custody determination.
- Check the current orders before filing. The published opinion, any stay, en banc order, class definition, and individual case order must be read together.
A favorable circuit decision is not a reason to wait passively for ICE to arrange a hearing. Counsel may need to request bond, contest a jurisdictional refusal, or seek federal-court relief. The appropriate sequence depends on the record and governing law; there is no single filing that fits every detained person.
What could change next?
As of this update, the Supreme Court's public dockets in Buenrostro-Mendez (No. 26-43), Rhoney v. Barbosa da Cunha (No. 26-104), and Putra v. Lopez-Campos (No. 25-1415) show distribution for the September 28, 2026 conference. That is consideration of requests for Supreme Court review—not a grant of review, a hearing date on the merits, or a decision resolving the split.
Rehearing requests, mandates, and stays must also be distinguished. Filing a rehearing or certiorari petition does not by itself erase a published holding; a vacatur or applicable stay can materially change what relief is available. This chart reports the merits positions identified on September 11. It is not certification that every individual injunction or class remedy is immediately enforceable without further docket review.
For related questions, see our guides to bond hearings versus habeas corpus, ICE transfers, and the vacated Fifth Circuit panel ruling.
Find the right custody strategy for your family
Modern Law Group can review the detention papers, governing circuit, and available bond or habeas arguments. Bring the custody decision and current facility information—not just the date of entry.
Schedule a ConsultationFrequently Asked Questions
Which circuits currently reject the blanket no-bond policy for interior EWI residents?
As of September 11, 2026, the First, Second, Third, Fourth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have rejected that statutory interpretation for the covered interior-resident category. Other detention grounds can still prevent bond eligibility.
Do the Fifth and Eighth Circuits prohibit every possible release?
No. Their adverse statutory decisions make the ordinary bond-hearing argument more difficult for this category. Individual constitutional challenges, disputes about the applicable detention statute, and discretionary parole requests require separate analysis and do not guarantee release.
Does living in the Ninth Circuit mean ICE must release me?
No. A right to seek an individualized hearing is not a favorable bond decision. The governing detention category, dangerousness, flight risk, and applicable court orders still matter.
Is the Fifth Circuit's 90-day bond-hearing rule still binding?
No. The July 2, 2026 panel opinion in Sosnava Rodriguez v. Ortega was vacated on July 10 for en banc rehearing. The underlying district-court judgments were stayed on July 21. Do not treat the vacated opinion as a current entitlement to a hearing after 90 days.
Does this chart apply to someone arrested at the border?
Not automatically. It concerns the dispute over established interior residents who entered without inspection. Border apprehension, expedited removal, criminal mandatory detention, and post-final-order detention may be governed by different rules.
Can my family file in the circuit where we live?
Not merely because the family lives there. A traditional physical-custody habeas case generally starts with the district of confinement and the immediate custodian. Transfers, existing filings, and immigration-court venue must be evaluated separately.
Has the Supreme Court resolved the split?
Not in the dockets reviewed for this September 11 update. The petitions in Nos. 26-43, 26-104, and 25-1415 were distributed for the September 28, 2026 conference. Distribution is not a grant of review or a decision on the merits.