Matter of Yajure Hurtado | The Insightful Immigration Blog

By Cyrus D. Mehta and Kaitlyn Box*

On February 26, 2026, in Matter of Fortjoe, the BIA held that “’admission’ in section 237(a)(1)(H) of the INA, 8 U.S.C. § 1227(a)(1)(H), refers only to an alien’s lawful entry into the United States after inspection and authorization by an immigration officer. Mr. Fortjoe was a citizen of Ghana who was admitted to the United States as a nonimmigrant in 1995, and later entered into a fraudulent marriage with a U.S. citizen. In a 2007 visa interview, he failed to disclose that he had fathered two children by another woman during his marriage to the U.S. citizen spouse. In 2012 he applied for naturalization and disclosed the two children born outside of his marriage. USCIS denied his naturalization application and DHS initiated removal proceedings pursuant to INA 237(a)(1)(A), which renders a noncitizen “who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time” removable. Mr. Fortjoe sought a waiver of inadmissibility pursuant to INA 237(a)(1)(H), which is available to noncitizens who are in removal proceedings, are the spouse, parent, or child of a U.S. citizen or LPR, and are admissible to the U.S. aside from the fraud or misrepresentation, but the Immigration Judge denied the waiver on discretionary grounds.

In 2015, in Matter of Agour, the BIA had previously held that “adjustment of status constitutes an ‘admission’ for purposes of determining an alien’s eligibility to apply for a waiver” under INA 237(a)(1)(H). In Matter of Fortjoe, the BIA overruled Matter of Agour. The BIA reasoned that “the plain and natural meaning of the language of section 237(a)(1)(H) limits the waiver to fraud or misrepresentation at the time of an alien’s lawful entry into the United States after inspection and authorization by an immigration officer.” The BIA also examined the statutory history of this provision, finding that Congress’ “change in language from ‘entry’ to ‘admission’ appears to have been merely a conforming amendment, rather than one intended to have a substantive effect”, and that Congress did not make a corresponding change to INA 237(a)(1)(A), which renders noncitizens who were inadmissible “at the time of entry or adjustment of status” removable.

In overruling Matter of Agour, the BIA relied on Loper Bright v. Raimondo, analyzed in prior blogs, in which the Supreme Court abolished the long-standing Chevron doctrine, under which, courts were required to defer to the government agency’s interpretation of an ambiguous statute. Loper Bright, according to the BIA, holds that “reexamination of a precedent’s reasoning may be warranted, notwithstanding the doctrine of stare decisis”. The BIA’s decision in Fortjoe illustrates that Loper Bright, which may serve as a tool for challenging Trump administration immigration policies, can also be relied upon by the agency to overturn its own precedent that is favorable to noncitizens. However, the BIA’s decision is itself an agency interpretation that is subject to being overturned under Loper Bright, as was recently illustrated when a federal court in California overruled the BIA’s decision in Matter of Yajure Hurtado, which had held that a noncitizen who entered the US without inspection is not eligible for bond under INA 235(b)(2)(A). It may not be appropriate for the BIA to rely on Loper Bright, only a federal court ought to be able to rely on Loper Bright and not pay deference to a BIA decision.

If the BIA decision in Matter of Agour does not get reversed in the Sixth Circuit Court of Appeals, it would greatly limit relief under INA 237(a)(1)(H) to those who are inspected and admitted as lawful permanent residents after obtaining an immigrant visa at a US consulate. It would not apply to people who applied for adjustment of status and committed fraud or misrepresentation during the process. People applying for naturalization should also be aware that if it is found that they were not appropriately adjusted to lawful permanent resident status in the US as a result of fraud or misrepresentation during adjustment of status, would not be able to avail of the waiver under INA 237(a)(1)(H) if they are denied naturalization and placed in removal proceedings. Our prior blog contemplated scenarios in which an applicant can be denied naturalization, which could also include cases of innocent misrepresentation while adjusting status in the US. An example could include one who was mistakenly granted adjustment of status by the government in a preference category where the priority date may not have been current.

The BIA made clear that its ruling in Matter of Fortjoe will apply prospectively and not retroactively. Thus, people who have received waivers prior to this decision based on fraud or misrepresentation will not be adversely impacted by this decision.

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

By Cyrus D. Mehta and Kaitlyn Box*

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) despite allowing bond since the passage of the Immigration Act of 1996. Mr. Yajure Hurtado entered the United States without inspection in November 2022. He was later granted Temporary Protected Status, but that designation expired on April 2, 2025, and he was thereafter apprehended and placed in removal proceedings. He requested bond, but the Immigration Judge indicated that he did not have the jurisdiction to set bond given the circumstances of Mr. Yajure Hurtado’s case and, in the alternative, that bond would be denied because Mr. Yajure Hurtado posed a flight risk.

The BIA affirmed that an IJ does not have the jurisdiction to grant the bond request because any noncitizens present in the US without inspection are applicants for admission pursuant to INA 235(b)(2)(A) and subject to mandatory detention.

After almost three decades, the BIA finds now finds that the language in INA 235(b)(2)(A) is clear, but completely 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 do not make reference to respondents who have entered without inspection. The BIA addressed this discrepancy but stating 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’”.

This re-interpretation of the applicable statutory provisions by the BIA will result in the detention of respondents even if they have been in the United States for many years and have a meritorious application for relief. The BIA knows that a federal court will not give deference to its interpretation of the ambiguity posed by two competing statutory provisions, INA 235(b)(2)(A) and INA 236(c), and so preemptively invoked Loper Bright v. Raimondo, 603 US 369 (2024) 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). In Loper Bright v. Raimondo, which was discussed at length in a prior blog, the Supreme Court abolished the long-standing Chevron doctrine, under which, courts were required to defer to the government agency’s interpretation of an ambiguous statute.

The BIA in Yajure Hurtado invoked Loper Bright, 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). The Supreme Court in Loper Bright did not hold that the long-standing practice of the government can somehow change, or even eviscerate, explicit statutory text that is contrary to that practice.” But the maze of statutory provisions, which include INA 235(b)(1)(2)(A) and INA 236(c) and 30 plus years of allowing bond, do not clearly and explicitly authorize mandatory detention for noncitizens who entered without inspection.

AILA Executive Director Ben Johnson aptly remarked, “Stripping immigration judges of their authority to conduct bond hearings or redetermine custody for potentially millions is a disastrous plan. Without justification, individuals who have patiently awaited their fair day in court will now be indiscriminately detained. This effectively eradicates the possibility of bond for many, regardless of their long-standing residence, employment, or contributions to our society. Detaining vast numbers without judicial review, often in inhumane conditions, will inflict irreparable harm.” This concern is further exacerbated by the recent Supreme Court decision in Noem v. Perdomo, which permits ICE to detain and remove individuals based on racial profiling. Those who entered without inspection face detention without bond until removal, even if their detention is solely due to the color of their skin.

It is hoped that a federal court through a habeas corpus petition quickly reverses the BIA under Loper Bright, the very precedent that the BIA has clutched onto like a drowning person grasping for straws!

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