Bond hearings after interior ICE arrests: circuit split

Status: In litigation — Rhoney v. Barbosa da Cunha; Cunha v. Freden; Buenrostro-Mendez v. Bondi; Herrera Avila v. Bondi; Hernandez Alvarez v. Warden; Santillan Quiroz v. Mullin; Rodriguez Vazquez v. Bostock (U.S. No. 26-104; 2d Cir. No. 25-3141; 5th Cir. No. 25-20496; 8th Cir. No. 25-3248; 9th Cir. No. 25-6842; 10th Cir. No. 26-6019; 11th Cir. No. 25-14065)

Federal appeals courts are divided over whether immigrants who entered the United States without inspection and were later arrested in the interior may be detained without a bond hearing while their removal cases proceed. Starting in 2025 the government read 8 U.S.C. § 1225(b)(2)(A) to require their mandatory detention, reversing the prior practice of treating such people under § 1226(a), where an immigration judge can set bond. As of September 1, 2026, five circuits side with the immigrants (a bond hearing is available) — the 2nd Circuit (Cunha v. Freden, Apr. 28, 2026), the 11th Circuit (Hernandez Alvarez v. Warden, May 6, 2026), the 6th Circuit (Lopez-Campos v. Raycraft, May 11, 2026), the 10th Circuit (Santillan Quiroz v. Mullin, Jun. 30, 2026) and the 9th Circuit (Rodriguez Vazquez v. Bostock, Jul. 30, 2026) — while two circuits side with the government (mandatory detention, no bond hearing): the 5th Circuit (Buenrostro-Mendez v. Bondi, Feb. 6, 2026) and the 8th Circuit (Herrera Avila v. Bondi, Mar. 25, 2026), where rehearing was denied on June 17, 2026 and the mandate issued June 25, 2026. The 7th Circuit issued a splintered decision that failed to command a majority on this issue, although the plaintiffs prevailed on the bottom-line result (Castañon-Nava v. DHS). The 11th Circuit ruling is not final: that court withheld its mandate on May 13, 2026, and the government's petition for rehearing en banc, filed June 22, 2026, was still pending on the docket as of its August 28, 2026 update. The split is now before the U.S. Supreme Court as a petition, not a grant: the government asked the Court on July 23, 2026 to review the 2nd Circuit ruling (Rhoney v. Barbosa da Cunha, No. 26-104) and the respondent's response was filed August 21, 2026. The Court has not granted certiorari — a petition is not a grant — and filing one changes none of the detention rules in effect in any circuit.

Next step: Three things to watch. First, what the Supreme Court does with the government's certiorari petition in Rhoney v. Barbosa da Cunha, No. 26-104 (from 2d Cir. No. 25-3141): the petition was filed July 23, 2026 and the respondent's response was filed August 21, 2026, so the case can now be distributed for a conference. Certiorari has not been granted — a petition is not a grant — and while it is pending each circuit's own rule keeps applying. Second, October 13, 2026, when the Court hears oral argument in Genalo v. Black, No. 25-886. That case is about prolonged mandatory detention under § 1226(c), a different question, so it will not by itself resolve this § 1225(b)(2)(A) split. Third, the 11th Circuit's ruling on the government's pending rehearing petition: if that court grants rehearing en banc, its May 6, 2026 decision would be reconsidered and the count above would change. Not every circuit has ruled, and a decision from one that has not would deepen or narrow the split. Until it is resolved, whether a bond hearing is available depends on the circuit where the person is detained.

Last editorial review: 2026-09-01 — status can change with a single court ruling. Official source.

What’s happening

Federal appeals courts are divided over whether immigrants who entered the United States without inspection and were later arrested in the interior may be detained without a bond hearing while their removal cases proceed. Starting in 2025 the government read 8 U.S.C. § 1225(b)(2)(A) to require their mandatory detention, reversing the prior practice of treating such people under § 1226(a), where an immigration judge can set bond. As of September 1, 2026, five circuits side with the immigrants (a bond hearing is available) — the 2nd Circuit (Cunha v. Freden, Apr. 28, 2026), the 11th Circuit (Hernandez Alvarez v. Warden, May 6, 2026), the 6th Circuit (Lopez-Campos v. Raycraft, May 11, 2026), the 10th Circuit (Santillan Quiroz v. Mullin, Jun. 30, 2026) and the 9th Circuit (Rodriguez Vazquez v. Bostock, Jul. 30, 2026) — while two circuits side with the government (mandatory detention, no bond hearing): the 5th Circuit (Buenrostro-Mendez v. Bondi, Feb. 6, 2026) and the 8th Circuit (Herrera Avila v. Bondi, Mar. 25, 2026), where rehearing was denied on June 17, 2026 and the mandate issued June 25, 2026. The 7th Circuit issued a splintered decision that failed to command a majority on this issue, although the plaintiffs prevailed on the bottom-line result (Castañon-Nava v. DHS). The 11th Circuit ruling is not final: that court withheld its mandate on May 13, 2026, and the government’s petition for rehearing en banc, filed June 22, 2026, was still pending on the docket as of its August 28, 2026 update. The split is now before the U.S. Supreme Court as a petition, not a grant: the government asked the Court on July 23, 2026 to review the 2nd Circuit ruling (Rhoney v. Barbosa da Cunha, No. 26-104) and the respondent’s response was filed August 21, 2026. The Court has not granted certiorari — a petition is not a grant — and filing one changes none of the detention rules in effect in any circuit.

Who it affects

Immigrants who entered the U.S. without inspection, have been living here, and are arrested in the interior (not at or near the border) and placed in removal proceedings — and their ability to ask an immigration judge for release on bond while their case is pending. Whether a bond hearing is available now depends on the circuit where the person is detained: the courts of appeals have held one is available in the 2nd Circuit (Connecticut, New York, Vermont), the 6th (Kentucky, Michigan, Ohio, Tennessee), the 9th (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington), the 10th (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming) and the 11th (Alabama, Florida, Georgia), but not in the 5th Circuit (Louisiana, Mississippi, Texas) or the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota); the 7th Circuit’s decision was splintered and failed to command a majority on this issue, though the plaintiffs won the bottom-line result there. The 11th Circuit ruling is not final: that court withheld its mandate on May 13, 2026, and the government’s petition for rehearing en banc, filed June 22, 2026, was still pending on the docket as of its August 28, 2026 update. This does not change mandatory detention for people caught at or near the border, or mandatory detention under § 1226(c) for certain criminal or terrorism-related grounds.

How it got here

  1. Feb 6, 2026 5th Circuit (Buenrostro-Mendez v. Bondi, No. 25-20496) holds that immigrants who entered without inspection and are arrested in the interior fall under § 1225(b)(2)(A) mandatory detention — no bond hearing — within Texas, Louisiana, and Mississippi.
  2. Mar 25, 2026 8th Circuit (Herrera Avila v. Bondi, No. 25-3248) agrees with the 5th Circuit: mandatory detention under § 1225(b)(2)(A), no bond hearing, across its seven states.
  3. Apr 28, 2026 2nd Circuit (Cunha v. Freden, No. 25-3141) rejects the government's reading and holds that § 1226(a) governs — a bond hearing is available — creating a circuit split.
  4. May 6, 2026 11th Circuit (Hernandez Alvarez v. Warden, No. 25-14065) joins the 2nd Circuit: § 1225(b)(2)(A) does not apply to these interior arrests, so a bond hearing is available in Alabama, Florida, and Georgia.
  5. May 11, 2026 6th Circuit (Lopez-Campos v. Raycraft) joins the 2nd and 11th Circuits, holding a bond hearing is available — a third circuit rejecting the government’s reading of § 1225(b)(2)(A).
  6. May 13, 2026 The 11th Circuit withholds issuance of the mandate in Hernandez Alvarez: "A judge of this Court withholds issuance of the mandate in this appeal."
  7. Jun 17, 2026 8th Circuit denies rehearing in Herrera Avila (No. 25-3248): "The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied." The mandatory-detention rule stands in that circuit's seven states.
  8. Jun 22, 2026 The government files a petition for rehearing en banc (with panel rehearing) in the 11th Circuit (Nos. 25-14065, 25-14075). It is still pending as of that docket's August 28, 2026 update.
  9. Jun 25, 2026 The 8th Circuit's mandate issues in Herrera Avila, "[i]n accordance with the opinion and judgment of March 25, 2026", making that decision final in the circuit.
  10. Jun 26, 2026 The government files the Supreme Court's June 23, 2026 slip opinion in Blanche v. Lau as supplemental authority in support of rehearing in the 11th Circuit.
  11. Jun 30, 2026 10th Circuit (Santillan Quiroz v. Mullin, No. 26-6019) sides with the immigrants: "We hold that noncitizens who entered the United States and were thereafter detained in the interior of the country are usually subject to § 1226(a) (and thus eligible for bond), not § 1225(b)(2)(A)."
  12. Jul 23, 2026 The government files a petition for a writ of certiorari at the U.S. Supreme Court seeking review of the 2nd Circuit decision — Rhoney v. Barbosa da Cunha, No. 26-104. Filing a petition is not a grant of review and changes no detention rule.
  13. Jul 30, 2026 9th Circuit (Rodriguez Vazquez v. Bostock, No. 25-6842) joins the circuits siding with the immigrants: "we conclude that aliens present without admission who are apprehended in the interior of the United States are subject to the detention regime of § 1226, not § 1225(b)(2)(A)."
  14. Aug 21, 2026 The respondent's response to the certiorari petition is filed in No. 26-104. As of September 1, 2026 the Supreme Court has neither granted nor denied review, and the docket shows no conference date.

What to watch next

Three things to watch. First, what the Supreme Court does with the government’s certiorari petition in Rhoney v. Barbosa da Cunha, No. 26-104 (from 2d Cir. No. 25-3141): the petition was filed July 23, 2026 and the respondent’s response was filed August 21, 2026, so the case can now be distributed for a conference. Certiorari has not been granted — a petition is not a grant — and while it is pending each circuit’s own rule keeps applying. Second, October 13, 2026, when the Court hears oral argument in Genalo v. Black, No. 25-886. That case is about prolonged mandatory detention under § 1226(c), a different question, so it will not by itself resolve this § 1225(b)(2)(A) split. Third, the 11th Circuit’s ruling on the government’s pending rehearing petition: if that court grants rehearing en banc, its May 6, 2026 decision would be reconsidered and the count above would change. Not every circuit has ruled, and a decision from one that has not would deepen or narrow the split. Until it is resolved, whether a bond hearing is available depends on the circuit where the person is detained.

Official sources

This page is general information about ongoing litigation, not legal advice. A case’s status can change with a single ruling, and outcomes can turn on facts specific to each person. For advice on a specific situation, consult a licensed immigration attorney or a DOJ-accredited representative.