Bill Shipley is the attorney who holds down the fort at Shipwreckedcrew’s Port-O-Call. I recommend his site for readers looking for trustworthy legal commentary on the issues of the day.
Bill is a former Assistant United States Attorney who moved on to open his own defense practice. Beginning in the fall of 2021, Bill represented defendants charged in connection with the riot on Capitol Hill on January 6, 2021. Over the course of three years he represented approximately 90 defendants, with 12 of those chosing to take their cases to trial.
Bill has been following the issue that the Eighth Circuit decided yesterday in Avila v. Bondi. He promptly commented in “8th Circuit Joins 5th Circuit Upholding Mandatory Detention For Illegal Aliens Pending Removal — Bondi-led DOJ Prevails Again.” That’s a headline we are guaranteed not to see in the local press.
I wrote to tell Bill we had been closely following the issue and related circus in the Minnesota federal district courts. I asked if we could appropriate some of his analysis for the benefit of our readers. He promptly took the paywall on his post down and invited us to appropriate away.
Please check out Bill’s site, his post on the Avila case and others, and sign up as a free or paid subscriber. With thanks to Bill, this is his backgrounder on the Avila case (emphasis and, with one exception, links omitted — please go to his post for the full Shipley experience). Bill writes:
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This is a relatively quick-hitter on the 8th Circuit decision this morning in Avila v. Bondi, a 2-1 decision where the Appeals Court sided with the Trump Administration in an ongoing battle regarding the interplay between two immigration statutes on the issue of whether illegal aliens arrested in the interior of the country subject to mandatory detention, or are they entitled to be released on bail pending the completion of removal proceedings initiated by their arrest.
There are two statutory provisions involved, and the dispute is over which provision applies to aliens who have entered the U.S. and “settled” in a location far from a border.
Any illegal alien found inside the United States who has not been “inspected” by an immigration officer prior to entry falls within the definition of an “applicant for admission.”
Title 8 U.S.C. Section 1225(b)(2)(A) states:
… in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.
Title 8 U.S.C. Sec. 1226(a) states:
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States…. [T]he Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole;
The question is which of these two provisions appl[ies] to the alien arrested in the interior of the United States — some of whom may have been here years/decades, with have family members lawfully in the U.S., and having established ties to the community where they reside.
These statutes were amended in 1996. One reason for the amendment was to place all aliens — whether detained at the border or arrested after having crossed the border — on similar footing with regard to detention and removal.
The first statute above is “mandatory” — the alien “shall be detained.”
The second statute is “discretionary” — the Attorney General (now DHS Sec.) “may” detain or release on bond.
If the second statute applies, then the alien has a right to “notice and an opportunity to be heard” on whether he should be detained or released.
Until Trump 2.0, none of the prior five Presidential administrations had sought to apply the first statute to aliens arrested in the interior of the country.
Then again, prior to Trump 2.0, no predecessor Presidential administration had allowed 10 million or more illegal aliens to enter the country without being inspected by immigration officials.
As the Trump DHS began to aggressively arrest and detain illegal aliens in the interior of the country beginning in the summer of 2025, this issue became a subject of ongoing court battles. The problem began to dramatically escalate in federal districts where there was a “surge” of immigration enforcement by ICE — Los Angeles, Chicago, and Minnesota.
The response by immigrant rights groups and non-profit legal organizations has been to flood the federal courts in those districts with “habeas corpus” petitions demanding release from custody or a bond hearing under the provisions of the “discretionary” statute — Sec. 1226.
Their argument for non-application of the “mandatory” statute — which has been accepted by the vast majority of district judges ruling on the habeas petitions — is that the statute doesn’t apply when the alien is not “seeking admission” while living without legal status in the country.
Their reading of the “mandatory” statute is that an “applicant for admission” is not, in fact, “seeking admission” unless the alien does something specific after arriving in the interior of the U.S. that is an attempt to normalize his status. If the alien does nothing other than go about living his life, he is not “seeking admission” and the mandatory detention statute does not apply. He is entitled to go on living his life while the removal process moves forward until there is a “Final Order of Removal” and all appeal rights have been exhausted.
As just a guess, I would say that approximately 80-90% of all district court decisions on the thousands of habeas petitions have decided this dispute in favor of the petitioner, and applied the “discretionary” statute. That has led to hundreds/thousands of orders that aliens be released or provided a bond hearing where the alien could be heard with regard to a request to be released.
Until today only one Appeals Court had issued an opinion on the dispute. In early February the Fifth Circuit reversed a district judge’s release order in Buenrostro-Mendez v. Bondi. I wrote about the outcome of that case in this previous article.
Now the 8th Circuit has joined with its decision in Avila that the mandatory statute applies.
The Avila case began with the illegal alien’s arrest in Minneapolis back in September 2025. He filed a habeas petition seeking release on bond, and the petition was assigned to District Judge John Tunheim, a Clinton appointee now in his 70s who has been on the federal bench in Minnesota for 31 years.
The “Emergency” habeas petition was filed on September 23, 2025.
On October 21 Judge Tunheim held that the mandatory detention statute did not apply, and that the alien was entitled to release or a bond hearing under the discretionary statute within 10 days. He also issued an injunction preventing the petitioner from being removed from the District of Minnesota until a bond hearing could be held. If the result of the bond hearing was that the petitioner remain detained, ICE could remove him from the District of Minnesota only afte first obtaining permission from Judge Tunheim to do so.
The Trump DOJ filed a Notice of Appeal on November 7. On November 10 the 8th Cir. issued its initial briefing schedule that had the Government brief due on Dec. 30, and the petitioner’s brief due approximately 30 days after that.
There has been some commentary online about DOJ asking for and receiving an “expedited” schedule expecting the conservative 8th Cir. to be more friendly to its position. The Court did grant the motion, but only moved up the briefing schedule by 15 days.
Without diving too far into the wee[d]s — even though the decision is relatively short — here are some highlights from the 8th Circuit’s opinion:
The district court concluded that this [mandatory detention] provision did not apply to Avila because he “ha[d] lived in the country for years without seeking any lawful immigration status, such as naturalization, asylum, [or] refugee designation,” and thus he was not “seeking admission” under the statute….
Unlike “applicant for admission,” the phrase “seeking admission” is not defined in the statute. … [T]he central inquiry is whether an alien who is an “applicant for admission” is also “seeking admission….” If the phrases are equivalent, then, generally, any “alien present in the United States who has not been admitted” “shall be detained.” On the other hand, if the phrases are not equivalent, then an alien is only subject to detention … if he or she is present in the country without being admitted and also engages in a separate act of “seeking admission,” whatever that may be.
…. [W]e agree with the Fifth Circuit that the ordinary meanings of the phrases “applicant for admission” and “seeking admission” are the same…. “‘[A]pply’ means ‘[t]o take a formal request,’” while “‘seek’ means ‘to request, ask for.’” (quoting Webster’s New World College Dictionary (4th ed. 1999)). Thus, “[w]hen a person applies for something, they are necessarily seeking it.”
The logic here is that an illegal alien is not allowed to enter the country, actively seek to remain hidden from authorities, and at the same time maintain a legal premise that arriving and staying were not part of any interest in “seeking admission.” Such a construction would functionally erase the border.
… while an alien remains an “applicant for admission” so long as he is “present in the United States [and] has not been admitted,” … he is also “presently seeking admission” during this time, regardless of whether he takes “any further affirmative steps to gain admittance,” Buenrostro-Mendez,…
The statutory purpose of § 1225 also supports the Government’s interpretation of the text. As other courts have observed, Congress enacted § 1225(a)(1) to “ensure[] that all immigrants who have not been lawfully admitted, regardless of their physical presence in the country, are placed on equal footing in removal proceedings.”
Here, Avila “has lived in the country for years without seeking any lawful immigration status, such as naturalization, asylum, [or] refugee designation.” But under Avila’s interpretation of the statute, he would be entitled to receive a bond hearing, even though aliens who “seek[] admission” by actively engaging with the legal process would not be. Because this outcome is incongruous and contradicts the statute’s goal of placing all aliens “on equal footing,” it cuts against Avila’s reading of the statute.
… [E]ven if previous administrations did not exercise their full authority under § 1225, the “[a]uthority granted by Congress . . . cannot evaporate through lack of administrative exercise,” as “the mere failure of [an] administrative agenc[y] to act is in no sense ‘a binding administrative interpretation’ that the Government lacks the authority to act.” … see also Buenrostro-Mendez “[The fact] that prior Administrations decided to use less than their full enforcement authority under § 1225(b)(2)(A) does not mean they lacked the authority to do more.” … [Nothing in] the Government’s history of enforcing § 1225 confines the Government’s authority to detain aliens under § 1225(b)(2)(A) to the border.
This decision is now binding on all district judges in Minnesota, which until just recently had become “Ground Zero” for the dispute over these habeas petitions. That is where District Judge were threatening to find DOJ attorneys in contempt for failures by ICE to comply with release orders issued by the Judges.
It also binds the other District Courts in the 8th Circuit — Arkansas, Iowa, Missouri, Nebraska, North and South Dakota.
As noted above, as was true in the Buenrostro case in the 5th Circuit, the Avila case does not address the “alternate” grounds relied upon by many of the district judges now in the aftermath of Buenrostro — the claim that the Due Process clause of the Fifth Amendment prohibits mandatory detention of illegal aliens arrested in the U.S., and a hearing with regard to bond is constitutionally protected for all “persons” — aliens or otherwise.
With two Appeals Court decisions now contrary to hundreds of lower court outcomes in Circuits other than the 5th and 8th, it is possible that the Supreme Court MIGHT take up this issue and address the application of these two statutes.
However, I suspect it is more likely that the Court will wait until there is a decision that joins both issues — the dispute involving the statutes and the constitutional due process issue. I haven’t studied the appellate filings to see how far this issue has progressed in other Circuits, but I’m confident there are probably cases in the pipeline in all the other circuits. The issue is a simple one involving statutory interpretation and a decision from the Supreme Court would put this dispute to rest and create uniform application of the statutes as they currently exist — AND address the due process claim as well.
This could be another late acceptance of cert by the Court — like it has done on the [Temporary Protected Status] issue — that can be resolved at the very end of its current term in June or early July.
