Does an Immigration Judge have the authority to conduct a bond hearing or grant bond to an unadmitted alien?

In the Matter of Jonathan Javier Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025) 

Facts: Jonathan Javier Yajure Hurtado, the Respondent, a native and citizen of Venezuela, crossed the U.S. border without inspection near El Paso, Texas, in November 2022. He was granted Temporary Protected Status (“TPS”) in 2024. The TPS expired April 2, 2025. The Respondent was apprehended on April 8, 2025. DHS issued a Notice to Appear charging inadmissibility under INA § 212(a)(6)(A)(i) for presence without admission or parole.

Respondent sought a bond hearing; Immigration Judge (IJ) denied on April 18, 2025, ruling there is no jurisdiction under INA § 235(b)(2)(A) due to mandatory detention. Respondent was also denied bond due to flight risk.

Respondent appealed. The Board of Immigration Appeals (“BIA”), the highest administrative body for interpreting and applying U.S. immigration laws within the Executive Office for Immigration Review (EOIR), under the U.S. Department of Justice, requested a supplemental briefing on IJ’s authority to conduct bond hearings for unadmitted aliens present in the U.S.

Issue: Does an Immigration Judge have the authority to conduct a bond hearing or grant bond to an alien present in the United States without admission or inspection, even if the alien has been residing in the country for over two years, under INA § 235(b)(2)(A)?

The Statutes:

INA § 212(a)(6)(A)(i) (8 U.S.C. § 1182(a)(6)(A)(i)) states as follows:

 “An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.”

INA § 235(a)(1) (8 U.S.C. § 1225(a)(1)) states as follows:

“An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.”

INA § 235(b)(2)(A) (8 U.S.C. § 1225(b)(2)(A)) states as follows:

“Subject to subparagraphs (B) and (C), 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 240.”

Decision: The BIA ruled that Immigration Judges lack authority to hear bond requests or grant bond to aliens present without admission. Such individuals are “applicants for admission” under INA § 235(a)(1) and subject to mandatory detention during removal proceedings under INA § 235(b)(2)(A). Therefore, the appeal was dismissed.

INA § 235(b)(2)(A) is a catchall provision mandating detention for all applicants for admission not “clearly and beyond a doubt entitled to be admitted” (Jennings v. Rodriguez, 583 U.S. 281 (2018)). The word “shall” in § 235(b)(2)(A) imposes a mandatory detention requirement with no exception for length of residence.  INA § 236 (discretionary detention) does not override § 235’s mandatory detention for unadmitted aliens.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 had replaced “entry” doctrine with “admission” to eliminate advantage for those entering without inspection. Congress intended that aliens entering surreptitiously should not gain procedural benefits (like bond hearings) over those presenting at ports of entry. The longstanding agency practice of granting bond hearings does not override clear statutory text.  Rewarding evasion (by granting bond after 2+ years) would undermine congressional intent. Unadmitted aliens remain “applicants for admission” until lawfully admitted. There is no admission by passage of time or arrest.

Public link to decision: https://www.justice.gov/eoir/board-immigration-appeals-decisions