Original Date Announced

Acting Immigration and Customs Enforcement (ICE) Director Todd Lyons issued interim guidance to all ICE employees explaining that the Department of Homeland Security (DHS) "has revisited its legal position on detention and release authorities" and had concluded "that section 235 of the Immigration and Nationality Act (INA), rather than section 236, is the applicable immigration detention authority for all applicants for admission."

As a result and "[e]ffective immediately, it is the position of DHS that such aliens are subject to detention . . . and may not be released from ICE custody except by INA § 212(d)(5) parole . . . These aliens are also ineligible for a custody redetermination hearing ('bond hearing') before an immigration judge."

According to the memo, DHS is not taking the position that prior releases of applicants for admission now believed to be subject to mandatory detention under INA § 235(b)(2) should be deemed releases on parole under INA § 212(d)(5).

The ICE policy is similar to a position previously taken by several Immigration Judges at the Tacoma Immigration Court that was challenged in litigation. Rodriguez Vazquez v. Bostock, No. 3:25-cv-05240 (W.D. Wash.). The district court in that case granted a preliminary injunction and ordered relief as to the named plaintiff only.

**Link to case here. Our litigation entries generally report only the initial complaint and any major substantive filings or decisions. For additional information, CourtListener provides access to PACER and all available pleadings. Other sites that track litigation in more detail or organize cases by topic include Civil Rights Clearinghouse, Justice Action Center, National Immigration Litigation Alliance, and Just Security**

Trump 2.0 [ID #1855]

Subsequent Trump and Court Action

2025.07.28 Bautista v. Noem - Class Action Complaint and Amended Habeas Petition

Immigrants' rights advocates filed a class action lawsuit challenging ICE's new policy of treating all noncitizens who entered the country without inspection and were not apprehended upon arrival as applicants for admission who are ineligible for bond. Plaintiffs also challenge the EOIR practice at the Adelanto Immigration Court of similarly determining that such noncitizens are ineligible for bond hearings. Plaintiffs allege that ICE and EOIR's practices of denying bond and bond hearings to those who entered without inspection and were not apprehended upon arrival violates 8 U.S.C. § 1226(a) and its implementing regulations, is contrary to law and arbitrary and capricious under the Administrative Procedure Act (APA), required notice-and-comment under the APA, and violates the plaintiffs' due process rights by not considering them for bond. Bautista v. Noem, No. 5:25-cv-01873 (C.D. Cal.).

**Link to case here. See litigation note above**

Subsequent Trump and Court Action

2025.07.28 Bautista v. Noem - Order Granting Petitioners' TRO

The District Court for the Central District of California granted petitioners' motion for a temporary restraining order (TRO). The Court found that "Respondents fail to articulate any valid justification, legal or otherwise, for the application of § 1225 to Petitioners as 'applicants for admission,'" thus raising serious questions about the legality of DHS's interpretation of the INA justifying a TRO. The Court enjoined the federal respondents from continuing to detain Petitioners unless it provides them with a bond hearing under 8 U.S.C. § 1226(a) within 7 days of its order, and enjoins the federal respondents "from transferring, relocating, or removing Petitioners" from the district during the litigation. Bautista v. Noem, No. 5:25-cv-01873 (C.D. Cal.).

**Link to case here. See litigation note above**

Subsequent Trump and Court Action

2025.08.13 Opinion and Order - Lopez Benitez v. Francis

District Court Judge Dale Ho ordered the release of Carlos Javier Lopez Benitez, a man who was detained at his immigration hearing. The court first held that Mr. Lopez Benitez was detained pursuant to DHS's discretionary authority under 8 USC § 1226(a). Specifically, it found that DHS consistently treated Mr. Lopez Benitez as subject to detention on a discretionary basis under § 1226(a), and that a proper understanding of the relevant statute “compels the conclusion that § 1225’s provision for mandatory detention of noncitizens ‘seeking admission’ does not apply to someone like Mr. Lopez Benitez, who has been residing in the United States for more than two years.” It then held that his discretionary detention violates due process. Lopez Benitez v. Francis, No. 1:25-cv-05937 (S.D.N.Y.).

**Link to case here. See litigation note above**