From now on, any foreign national detained at the border without a warrant, whether at a port of entry or between ports of entry, and subsequently placed in deportation proceedings, will not be entitled to bail, according to a ruling by the Board of Immigration Appeals (BIA) on Thursday (May 15).
The six-page ruling explains that aliens detained under Section 235(b) of the Immigration and Nationality Act (INA) “may not be released on bail under Section 236(a) of the INA” and must remain in the United States in detention.
Section 235(b) of the INA authorises the Department of Homeland Security (DHS) to immediately deport certain aliens it has determined to be ineligible after apprehending them at the border.
For its part, Section 212(d) of the INA contains a provision that allows DHS to grant parole to certain foreign nationals so that they can enter the country temporarily, even if they do not meet the usual admission requirements.
The DHS reiterates that this permit or parole “is used in specific cases” and should not be considered “admission” to the United States.
What the ruling is about
“The BIA ruling states that if an immigrant is apprehended at the border (under Section 235(b)(1)) and placed in expedited removal proceedings, they are no longer eligible for a bond hearing.
“If they crossed the border and were apprehended beyond a port of entry (under Section 235(b)(2), they will remain in detention until they are expeditiously deported,” explains Alex Gálvez, an immigration attorney practicing in Los Angeles, California.
When asked what will happen to those foreigners who were detained at the border, especially during the previous administration, and then released on bail and granted parole, Gálvez said that “they will lose protection the moment they are served with a Notice to Appear (NTA).”
“People who show up at immigration offices for their appointments or follow-up interviews may be issued an NTA by DHS and detained without bail,” he warned.
“Basically, the ruling indicates that, in some ways, DHS will now be able to detain more people and quickly place them in deportation proceedings,” said Jaime Barrón, an immigration attorney practicing in Dallas, Texas. “It’s concerning,” he said.
Is there hope for those detained?
For his part, José Guerrero, who practices in Miami, Florida, said that “if an immigrant who had been released at the border is detained, he or she will unfortunately be detained and will no longer be able to leave or be entitled to bail under Section 236(d)(5) of the INA.”
When asked about the situation of thousands of foreigners who have been detained at the border and later released on parole over the past four years, the attorneys agreed that the BIA ruling gives the government the authority to cancel their bonds, detain them again, and place them in expedited removal proceedings.
Between January 2021 and January 2025, the Biden administration detained thousands of immigrants at the southern border with Mexico. Many of them, who expressed credible fear to avoid deportation to their home countries or to Mexico, were released on bond so they could adjust their immigration status under any available legal program, including asylum.
However, many have not taken steps to legalise their stays and are free on bail with periodic appearances before immigration authorities or are awaiting the resolution of their asylum cases in immigration courts.
The arguments of the ruling
The BIA ruling was in response to a lawsuit filed in 2024 following an immigration judge’s ruling on December 30 of that year, which denied a request to reconsider the arrest of a Chinese immigrant.
The immigration judge concluded that he “lacks jurisdiction to consider Respondent’s request for bail, as she is being detained pursuant to Section 235(b)(2)(A) of the Immigration and Nationality Act (INA), 8 USC § 1225(b)(2)(A) (2018).”
The immigrant appealed the ruling, arguing that the judge had erred in concluding that the detainee had been detained at the border, when the arrest occurred several miles inland.
The woman was arrested without a warrant and taken to a processing center. The following day, DHS paroled her into the United States pursuant to Section 212(d)(5)(A) of the INA, on the condition that she report periodically to a local DHS office.
Shortly thereafter, Interpol informed DHS that a Red Notice had been issued requesting the immigrant’s arrest, “as she was wanted in Spain for falsifying travel documents and human trafficking.”
When the defendant appeared at a local DHS office for a scheduled appointment, DHS agents detained her and issued her a summons to appear for removal and a notice of custody determination.
The conclusion of the ruling
The BIA stated that, after reviewing the case and following the attorney general’s reasoning, it concluded:
“We conclude that the respondent, an applicant for admission who was arrested without a warrant upon arriving in the United States and subsequently placed in removal proceedings, is being detained pursuant to Section 235(b)(2)(A) of the Immigration and Nationality Act (INA), 8 U.S.C., § 1225(b)(2)(A), pending the conclusion of removal proceedings.”
The ruling adds that “therefore, she is not eligible for bond, and the respondent’s appeal of the immigration judge’s bond decision will be dismissed.”
The court further stated that “a newly arrived alien may be released pursuant to the Secretary of Homeland Security’s immigration parole authority under section 212(d)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(5)(A) (2018).”
The ruling adds that, under the law, “an immigration judge may not redetermine the conditions of custody” for “newly arrived aliens in removal proceedings, including aliens who were paroled after arrival pursuant to section 212(d)(5) of the Act.”
Immigrants on parole or bail “should seek legal counsel to review their cases,” Guerrero recommended. “This ruling places thousands of immigrants in a complex situation,” he said.