Immigration authorities have long invoked § 235(b) of the Immigration and Nationality Act (INA) to justify the detention of noncitizens entering the United States. The number of noncitizens detained under INA § 235(b), rather than the general detention provision, INA § 236(a), has increased exponentially in recent years. The reach of § 235(b) has extended even further under the second Trump administration, as the government seeks to subject more people to expedited removal and detention without a bond hearing.
This practice advisory is intended for legal advocates who represent clients who are, or could be, detained under INA § 235(b). It provides an overview of § 235’s inspection and detention provisions and explains how these provisions differ from detention under § 236. It then provides guidance on how to seek release before the Department of Homeland Security, Executive Office for Immigration Review, and the federal courts.
Latest Update
On September 5, 2025, the BIA issued Matter of Yajure Hurtado, a precedent decision that found that any noncitizen who is present in the United States without having been inspected and admitted is subject to detention under INA § 235(b)(2), not INA § 236(a). The decision is based on a new reading of § 235, adopted by DHS in July 2025, that has already been widely rejected by federal courts.
Yajure Hurtado strips Immigration Judges of jurisdiction over custody redeterminations for noncitizens who entered without inspection and have not subsequently obtained lawful status. As such, noncitizens who would otherwise be eligible for bond under the government’s long-standing interpretation of INA §§ 235 and 236 may consider seeking release via habeas petitions in federal district court.
Click here for a practice advisory update covering Yajure Hurtado.
The Council is tracking federal appeals court decisions on the issues raised by Yajure Hurtado, available here. The Council, along with the University of Iowa immigration law clinic, was previously tracking district court decisions disagreeing with the logic of Yajure Hurtado until December 2025 (second tab of the linked spreadsheet). Practitioners should be aware that this spreadsheet was not exhaustive.
