Tag Archive for: Loper Bright Enterprises v. Raimondo

Cyrus Mehta & Kaitlyn Box*

Beyond Loper Bright: Rodriguez v. Ortega and the Fifth Amendment Limit on Mandatory Immigration Detention

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By Cyrus D. Mehta and Kaitlyn Box*

In its June 28, 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court abolished the long-standing Chevron doctrine. Under this doctrine, courts were required to defer to the government agency’s interpretation of an ambiguous statute. Chief Justice John Roberts, writing for the majority, stated that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires”, but made clear that prior cases decided under the Chevron framework are not automatically overruled. We have discussed Loper Bright at length in prior blogs (here, here, here  and here). 

Loper Bright has proved a powerful tool for challenging the Board of Immigration Appeal (BIA)’s reinterpretation of INA 235(2)(A) and INA 236 to hold that noncitizens who entered without inspection (EWI) are not eligible for bond. On September 5, 2025, the BIA held in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), that a noncitizen respondent who entered the US without inspection and was placed in removal proceedings is not eligible for bond under INA 235(b)(2)(A). This BIA decision was a marked reversal of policy, as bond had been permitted for noncitizens who entered without inspection for three decades, since the passage of the Immigration Act of 1996. The decision also disregarded INA 236(a), which provides for the release on bond of a noncitizen who is not ineligible under the categories prescribed in INA 236(c), which notably excludes respondents who have entered without inspection. Addressing this discrepancy, the BIA stated that “nothing in the statutory text of section 236(c), including the text of the amendments made by the Laken Riley Act, purports to alter or undermine the provisions of section 235(b)(2)(A) of the INA, 8 U.S.C. § 1225(b)(2)(A), requiring that aliens who fall within the definition of the statute ‘shall be detained for a proceeding under section 240’”. 

Aware that a federal court would not give deference to its interpretation of the ambiguity posed by two competing statutory provisions, INA 235(b)(2)(A) and INA 236(c), the BIA invoked Loper Bright to conclude that the language under INA 235(b)(1)(2) is clear and explicit without regard to the contradiction posed in neighboring INA 236(c), stating: “the statutory text of the INA is not ‘doubtful and ambiguous’ but is instead clear and explicit in requiring mandatory detention of all aliens who are applicants for admission, without regard to how many years the alien has been residing in the United States without lawful status. See INA § 235(b)(1), (2), 8 U.S.C. § 1225(b)(1), (2).”

In a previous blog, we discussed Buenrostro-Mendez v. Bondi (5th Cir. 2026) the Fifth Circuit agreed with Yajure Hurtado, holding that noncitizens who entered without inspection are ineligible for bond. The court addressed the statutory discrepancy by stating that “Section 1226(a) undeniably does work independent from § 1225(b)(2)(A) because only § 1226(a) applies to admitted aliens who overstay their visas, become deportable on many different grounds, or were admitted erroneously due to fraud or some other error… Not only does § 1226(c) sweep in deportable aliens in addition to the inadmissible aliens covered by § 1225(b)(2)(A)…it also eliminates the option of parole for those to whom it applies.” In a dissenting opinion, Justice Douglas found that “Combining the ordinary meaning of ‘seeking’ with the statutory definition of ‘admission,’ there is no need to resort to strained analogies with the college admissions process to determine the meaning of key statutory terms governing detention.”

Nonetheless, most district courts outside the Fifth Circuit have not been persuaded and continue to rule in favor of releasing the citizen using their own independent interpretation of the INA under Loper Bright. District court cases that have cited Buenrostro to date have primarily done so to point out that the Fifth Circuit’s holding is an outlier and nonbinding. See, for example,  Aroca v. Mason, Pascual Jose-de-Jose v. Noem,  Carlos Roldan Chang v. Noem. In a New Jersey district court case, Judge Padin wrote in her opinion that the court was “unpersuaded” by the Fifth Circuit’s decision in Buenrostro, reasoning that “the majority’s interpretation risks rendering substantial portions of the statutory scheme superfluous and internally inconsistent”. The Seventh Circuit preliminarily concluded that the U.S. Department of Homeland Security was not likely to prevail on its argument that “§ 1225(b)(2)(A) covers any noncitizen who is unlawfully already in the United States as well as those who present themselves at its borders,” Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 (7th Cir. 2025). The Second Circuit has now reached the same conclusion in Cunha v. Freden, holding that § 1226(a), not § 1225(b)(2)(A), governs the detention of a noncitizen who entered without inspection years earlier and was later arrested in the interior. The Eleventh Circuit likewise rejected the government’s broad reading of § 1225(b)(2)(A) in Alvarez v. Warden, Federal Detention Center Miami, concluding that interior EWI respondents are generally eligible for bond under § 1226(a). These circuit decisions confirm that Buenrostro-Mendez is not the consensus view, but part of a widening circuit split over whether long-resident noncitizens arrested inside the United States can be subjected to mandatory no-bond detention merely because they entered without inspection.   Only a handful of district courts have adopted the reasoning laid out by the Fifth Circuit in Buenrostro. See e.g.  D.M.R.D. v. Andrews and Zhuang v. Bondi.  Even the Fifth Circuit’s decision in Buenrostro-Mendez also does not preclude release based on constitutional grounds. In Buenrostro-Mendez, the Fifth Circuit did not consider whether a noncitizen detained under 8 U.S.C. § 1225 may be constitutionally entitled to a bond hearing at the outset of proceedings, or even to release on constitutional grounds. It also leaves intact habeas corpus as a key mechanism for challenging unlawful prolonged detention.

On July 2, 2026, in Sosnava Rodriguez v. Ortega, No. 26-50183 (5th Cir. 2026), a Fifth Circuit panel held that the government may not detain noncitizens under § 1225(b)(2)(A) for more than ninety days without providing them a bond hearing. The case involved three long-term U.S. residents who were detained under 8 U.S.C. § 1225(b)(2)(A) while their removal proceedings remained pending. Although the court accepted, consistent with Buenrostro-Mendez, that § 1225(b)(2)(A) mandates detention for noncitizens who entered without inspection and confers no statutory right to a bond hearing, Rodriguez did not concern Loper Bright or the degree of deference owed to an agency’s statutory interpretation. Rather, the decision turned on a distinct constitutional question: whether continued detention authorized by statute becomes unconstitutional when it deprives a person of liberty without adequate process. The Fifth Circuit framed the issue under the Due Process Clause of the Fifth Amendment, which protects “persons” physically present in the United States, including noncitizens who have lived here for many years. Relying on the Supreme Court’s due process decisions in Zadvydas v. Davis, 533 U.S. 678 (2001), Demore v. Kim, 538 U.S. 510 (2003), and Carlson v. Landon, 342 U.S. 524 (1952), the court reasoned that Congress may authorize categorical detention of certain noncitizens, but only within constitutional limits. Those limits become especially important when detention is prolonged, individualized review is unavailable, and the government has not shown that the person is dangerous or likely to flee. The Fifth Circuit therefore concluded that the Constitution does not permit indefinite or extended detention based on unlawful-entry status alone and that these petitioners could not be detained for more than ninety days without a bond hearing.

This is why Rodriguez should not be understood as another post-Loper Bright statutory-interpretation case. Loper Bright requires courts to exercise independent judgment in construing statutes, but Rodriguez shows that constitutional due process imposes an independent limit even where the government prevails on the statutory question. Indeed, because the holding rested on the Fifth Amendment rather than on statutory ambiguity or agency deference, Rodriguez did not even need to cite Loper Bright. The government cannot avoid the Fifth Amendment merely by arguing that § 1225(b)(2)(A) mandates detention. If detention becomes prolonged and the detainee has no meaningful opportunity to contest dangerousness or flight risk, due process may require an individualized bond hearing. Rodriguez is therefore significant for habeas challenges because it allows petitioners to argue that, even if Buenrostro-Mendez controls the statutory issue within the Fifth Circuit, continued detention without a bond hearing may still violate the Fifth Amendment.

However, on July 10, a majority of the Fifth Circuit voted to rehear Rodriguez en banc, which had the effect of vacating the panel decision. That development should not be overstated. The panel opinion was vacated not because the Fifth Circuit rejected its reasoning, but because the full court agreed to reconsider the case. The en banc court could still affirm the panel’s due process holding, which would make Rodriguez even more powerful as binding Fifth Circuit precedent. Even in its vacated posture, however, the panel decision remains useful. Fifth Circuit precedent confirms that a vacated panel decision may still be cited for its persuasive reasoning. See Cheejati v. Blinken, 106 F.4th 388, 395 (5th Cir. 2024) (explaining that although a prior panel decision had been vacated, the court still found its reasoning persuasive); Munn v. City of Ocean Springs, 763 F.3d 437, 441 (5th Cir. 2014) (treating a vacated decision as persuasive). Thus, while Rodriguez is no longer binding panel precedent pending en banc review, it can still be cited as persuasive authority in challenges to detention beyond ninety days, and it may yet become more authoritative if the full Fifth Circuit affirms the panel’s constitutional analysis.

The en banc court may ultimately adopt Judge Wilson’s dissent in Rodriguez v. Ortega, which concluded that due process does not require a bond hearing for noncitizens detained under § 1225(b)(2)(A). In our view, however, the panel majority’s opinion is better reasoned. It more faithfully reconciles the government’s authority to detain with the Fifth Amendment’s protection against prolonged detention without individualized review, and it is more consistent with the Supreme Court’s guidance in Zadvydas, Demore, and Carlson. The en banc court should therefore reaffirm the panel’s approach rather than adopt the dissent’s narrower view of due process.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Is Secretary Rubio’s Bare Bone’s Letter Deserving of Deference in Khalil’s Deportation Case?

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By Cyrus D. Mehta and Kaitlyn Box*

On April 11, 2025, Immigration Judge Jamee Comans in Louisiana ruled that Mahmoud Khalil, a Columbia University graduate and pro-Palestine activist, can be deported. Judge Comans stated that “the department has met its burden to establish removability by clear and convincing evidence”, referring to Rubio’s letter. She also declined to address Khalil’s constitutional claims, stating that the immigration court “is without jurisdiction to entertain challenges to the validity of this law under the Constitution”. Khalil can now appeal his case to the Board of Immigration Appeals, and ultimately to a court of appeals.

Our previous blog addressed Khalil’s case and considered how much deference should be afforded to the Secretary of State’s determination in the post-Chevron era. The immigration enforcement against Khalil is based INA 237(a)(4)(C)(i), which provides for the deportation of a noncitizen if the Secretary of State has determined that their presence or activities would have adverse policy consequences. Pursuant to 212(a)(3)(C)(iii), the government bears the burden of proving “by clear, unequivocal, and convincing evidence that the Secretary of State has made a facially reasonable and bona fide determination that an alien’s presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States” in order to establish that a noncitizen is deportable under this provision. 

A two-page memorandum from Secretary of State Marco Rubio outlining that Khalil’s presence in the U.S. would have seriously adverse consequences on U.S. foreign policy has now been made publicly available. The analysis provided in Rubio’s memorandum is thin, and stately merely that the determination is based on Khalil’s participation in “antisemitic protests and disruptive activities” and “citations for unlawful activity during these protests” which “undermine U.S. policy to combat anti-Semitism around the world and in the United States, in addition to efforts to protect Jewish students from harassment and violence in the United States”. The determination references five attached exhibits, which do not appear to have been made available to the public. It does not appear that Secretary Rubio’s determination has been provided to the chairmen of the Judiciary and Foreign Affairs Committees of the House and to the Judiciary and Foreign Relations Committee of the Senate as required by INA 212(a)(3)(C)(iv) as yet.

As discussed at length in our previous blog, the 2024 Supreme Court decision Loper Bright Enterprises v. Raimondo, which abolished Chevron deference, could provide a means of challenging the level of deference given to the Secretary’s determination.  Although a 1999 Board of Immigration Appeals (BIA) case, Matter of Ruiz-Massieu, held that a determination letter from the Secretary of State “conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination” is sufficient to satisfy INA 212(a)(3)(C)(iii),  this case was decided pre-Loper Bright. Secretary Rubio’s letter provided no thorough discussion of Khalil’s allegedly threatening or antisemitic activities. The letter of Secretary Christopher Warren in the Ruiz-Massieu case  was far more detailed that Rubio’s bare boned letter.  As such, it is hoped that a court of appeals will not give deference to the determination as proof that Khalil’s presence in the US is contrary to US foreign policy interests.

In a future case, an IJ ought not rubber stamp such a bare bones letter as it does not meet the facially reasonable and bona fide determination that the person’s presence or activities in the United States would have potentially serious adverse foreign policy. If an IJ is not courageous enough to do this, and the Board of Immigration Appeals rubber stamps the IJ,  the courts of appeals would certainly have the authority under Loper Bright to cast aside deference after being presented with such a meagre letter from the Secretary of State. This is in addition to also arguing that INA 237(a)(4)(C)(i) violates a person’s First Amendment rights, is void for vagueness and represents an impermissible delegation of legislative power to the executive

 *Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Board of Immigration Appeals in Matter of Aguilar Hernandez Provides Glimpse of How Statutes and Regulations Will Be Interpreted Without Deference to Government

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By Cyrus D. Mehta and Kaitlyn Box*

On January 31, 2024, the Board of Immigration Appeals (BIA) issued a decision in Matter of Aguilar Hernandez.

Mr. Aguilar Hernandez, a noncitizen from Mexico, had been served a Notice to Appear (NTA) in 2019 that did not list the date and time of his individual hearing. He objected that this NTA was defective at both his individual hearing and moved to terminate the removal proceedings against him, but the Immigration Judge denied his motion. In October 2022, Mr. Aguilar Hernandez again moved to terminate the removal proceedings due to the defective NTA. The Department of Homeland Security objected, arguing that the IJ had the discretion to allow it to cure the defective NTA rather than terminating removal proceedings. DHS filed a Form I-261 containing the date and time of the next hearing, and also listing the date and time of the original hearing, and served this form on Mr. Aguilar Hernandez. Over Mr. Aguilar Hernandez’s objections, the IJ denied his motion to terminate once again, without issuing a decision concerning DHS’ submission of the Form I-261. Mr. Aguilar Hernandez then appealed to the BIA.

The BIA held that “DHS cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez.” In Niz-Chavez v. Garland, 593 U.S. 155, 160-62 (2021), the Supreme Court held that DHS cannot cure a defective NTA by issuing a hearing notice that contains the date and time of the initial hearing in removal proceedings. The BIA also cited to Pereira v. Sessions, 138 S. Ct. 2015 (2018), in which the Supreme Court held that the “stop-time rule” at INA 240A(d)(1) is not triggered by an NTA that does not contain the time and place of a hearing in removal proceedings. The BIA reasoned that “The plain text of 8 C.F.R. § 1003.30 does not support DHS’ argument, because it does not allow amendment of the date and time on the notice to appear by using a Form I-261. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (requiring agencies to follow the plain language of a regulation).” The BIA noted that the Supreme Court had held that INA 239(a)(1) requires one “single document” in Niz-Chavez, and rejected the idea that DHS could provide adequate notice by issuing multiple successive documents containing the relevant information. See Niz-Chavez, 593 U.S. at 160-61.

Matter of Aguilar Hernandez is a victory for noncitizens seeking to terminate removal proceedings on the basis of a defective NTA, but it is interesting for another reason, as well – it represents one of the rare instances in which the BIA has cited Kisor v. Wilkie. As prior blogs have noted (here, here, and here) Kisor v. Wilkie laid out a three-step test for how it would view an agency’s interpretation of its own  genuinely ambiguous regulation.. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.” In Kisor, the Supreme Court narrowed the previous standard set forth in Auer v. Robbins, which held that courts would give deference to an agency’s interpretation of its own ambiguous regulation.  In Aguilar Hernandez it does not appear that the BIA thought that 8 C.F.R. § 1003.30 was ambiguous, and so it did not even need to defer to the government’s interpretation of this regulation even under the narrower standard as set forth in Kisor v. Wilkie. The plain language of 8 C.F.R. § 1003.30 did not support an expansive reading that would allow the government to cure a defective NTA by amending it through the submission of an I-261. An I-261 under 8 C.F.R. § 1003.30 only allows the government to add or substitute charges in an NTA or to add or substitute factual allegations.

The requirement that the government interprets the plain meaning of the regulation is part of a trend. The “Auer deference” standard as modified by Kisor v. Wilkie is quite similar to “Chevron deference”, which holds that courts will give deference to a federal agency’s interpretation of an ambiguous federal statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). However, when a statute is not ambiguous, the court does not need to even rely on Chevron deference and can side step the analysis all together.  While requiring an agency to adhere to the plain meaning of a statute or regulation helped the respondent in Aguilar Hernandez, it may not always come to the aid of plaintiffs. For instance,  the DC Circuit Court of Appeals in Wang v. Blinken  held that it was clear that INA 203(d) required the counting of both the principal and derivative beneficiaries in the employment-based fifth preference. Indeed, the Court in Wang v. Blinken also rejected the government’s argument that it was entitled to Chevron deference in interpreting INA 203(d) by counting derivatives as INA 203(d) was not ambiguous in the first place.

Two upcoming Supreme Court cases –  Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo –  may narrow Chevron or even eviscerate it altogether. If the Supreme Court’s holdings in Relentless and Loper Bright deprive agencies of the ability to interpret ambiguous statutes without explicit Congressional authorization, it may result in both good and bad outcomes in the immigration context. According to the Think Immigration Blog: “For example, in removal cases, Chevron deference hurts those seeking review of immigration judge or Board of Immigration Appeals decisions. It can also hurt employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker.   However, Chevron deference can help when the immigration agency seeks to give employment authorization benefits, such as with the Deferred Action for Childhood Arrivals program or with F-1 optional practical training.”

At present, courts also rely on the “major questions” doctrine in West Virginia v. EPA, 142 S. Ct. 2587 (2022) to side step Chevron deference even if a statute is ambiguous. Here the Supreme Court held that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”.  Such extraordinary cases where the “major questions” doctrine is invoked have vast economic and political significance. The dissent in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”), for example, argued that the issue of whether DHS’ 2016 OPT Rule exceeds its statutory authority was a “major question”. Similarly, in a footnote, the court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement the DACA program. The standard articulated in West Virginia v. EPA requires agencies to assert clear Congressional authorization when implementing a new policy of major significance, while Chevron imposes an almost opposite standard by saying that if the court cannot identify clear congressional authority disapproving what the agency proposes to do, the court should uphold the agency action if it is reasonable.  The Supreme Court’s decisions in Relentless and Loper Bright could help to resolve this discrepancy. If Chevron deference is eliminated, courts need not even need to go into the “major questions” doctrine.

Matter of Aguilar Hernandez gives us a taste of how courts will interpret INA provisions and regulations in a post Chevron world although it remains to be seen whether the end result will always be beneficial.

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.