On October 1, 2026, the Supreme Court granted review in Rhoney v. Barbosa da Cunha, No. 26-104. The question presented, in the Court's official statement, is whether 8 U.S.C. § 1225(b)(2)(A) mandates the detention pending removal proceedings of noncitizens who are present in the United States without having been admitted. The petitioner is the acting director of ICE's Buffalo Field Office, and the decision under review is a Second Circuit ruling of April 28, 2026, reported at 175 F.4th 61. The government, which lost below, asked the Court to take the case.
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Two detention statutes
Section 1226(a), in 8 U.S.C. § 1226, allows ICE to detain a person during removal proceedings and lets the person ask an Immigration Judge for a bond redetermination under 8 C.F.R. § 1236.1. Section 1225(b)(2)(A) says that an applicant for admission who is not clearly and beyond a doubt entitled to be admitted shall be detained for a removal proceeding. The statute deems a person present without admission to be an applicant for admission. The dispute is over which provision governs people who entered without inspection and were later arrested in the interior, sometimes many years after arrival.
Mandatory detention of people with certain convictions under section 1226(c) is a separate issue, discussed in our guide to habeas challenges to detention.
How the issue reached the Court
In Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), the Board took the position that people present without admission are detained under section 1225(b)(2)(A), which leaves Immigration Judges without authority to set bond for them. Detained people answered with habeas petitions in federal district courts, and the courts of appeals began to rule. The Second Circuit decision in this case is now before the Supreme Court.
What it means in New York and New Jersey now
Until the Court rules, the Second Circuit decision governs federal courts in New York, while New Jersey is in the Third Circuit. People detained without a bond hearing generally challenge custody through a habeas petition in federal district court; see how a habeas petition is written. When we reviewed the docket in late October 2026, it showed a government motion for an extension of time and no argument date yet.
Practical steps
- Find out which statute ICE is relying on. Custody documents and the notice to appear often show whether the person is treated as admitted, paroled or present without admission.
- Gather proof of how the person entered. Evidence of a lawful admission or parole can change the analysis; see what "EWI" status means.
- Where a bond hearing is available, prepare evidence on danger and flight risk; the Board's recent standards are explained in our article on Matter of Morales Cuxun.
- Review how the ICE removal process works so that family members know what to expect.
- Forum matters in federal litigation; choice of forum in federal immigration cases explains why the district where a case is filed can shape the outcome.
Related Guides on This Site
See also Judges Stunning Order Sparks Outrage Over Nyc Immigration Detention. See also Abuse in ICE Detention Centers. See also Judge Lewis Kaplan Drops Bombshell Ruling Against ICE.
Disclosure: Criminal Immigration Law collaborates with the law firm that publishes Mandamus.com and N600K.com; some articles link to their guides. General information only, not legal advice.
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