Fourth Circuit becomes ninth appeals court to reject no-bond rule for interior immigration arrests

Society · Justice & ImmigrationSeptember 14, 2026

Nine appeals courts reject no-bond rule for interior immigration arrests

The Fourth Circuit has joined a growing majority that says longtime U.S. residents arrested by immigration officers after entering without inspection can ask an immigration judge for release while their cases proceed. Two circuits read the law the other way, making geography newly consequential.

Case focus · Lopez Garcia v. Guadian · Fourth U.S. Circuit Court of Appeals

9Federal appeals courts rejecting the government’s broad no-bond reading

2Circuits that have upheld it

Sept. 10Date of the Fourth Circuit’s published decision

A dispute over two immigration statutes has become a national question about who gets to ask for liberty while a civil removal case is still pending.

On September 10, the Fourth U.S. Circuit Court of Appeals affirmed rulings requiring the government to give two men detained in Virginia a chance to seek bond. Lopez Garcia v. Guadian does not cancel their removal cases, confer lawful status or guarantee release. It decides which detention statute governs people who entered without inspection, lived in the country for years and were later arrested in the interior.

The answer now depends partly on geography. AP reported that the Fourth Circuit became the ninth federal appeals court to reject the government’s broad mandatory-detention theory; the Fifth and Eighth Circuits have accepted it. The resulting 9-to-2 split gives the same federal statute materially different custody consequences across the country.

The case is about access to a custody hearing, not about whether the government may continue removal proceedings.

The ruling in plain English

For the petitioners before the Fourth Circuit, detention falls under 8 U.S.C. § 1226(a), the general arrest-and-detention provision for people whose removal cases are pending. That provision permits release on bond or conditional parole in eligible cases. The government argued instead for § 1225(b)(2)(A), which it reads to require detention without an immigration judge’s bond authority for people present in the country who were never formally admitted.

01

Two arrests turned a statutory debate into a liberty case

What happened

Oscar Lopez Garcia and Juan Jose Rivera had lived in the United States for years after entering without inspection. ICE detained them in October 2025 while they were living and working in the Washington, D.C., area. Removal proceedings followed, but neither received the immigration-judge bond route that people in comparable circumstances had commonly used before the 2025 policy shift.

Immigration detention is civil, and bond review is separate from the removal case. If release is legally available, an immigration judge can consider custody, risk and possible conditions. A favorable bond decision does not decide whether the person may remain in the United States.

The men filed habeas petitions in the Eastern District of Virginia and won. A three-judge Fourth Circuit panel affirmed: Judge Nicole Berner wrote the majority, joined by Judge Barbara Milano Keenan; Judge Allison Jones Rushing dissented.

Custody review can determine whether a person waits for a removal case in detention or in the community under conditions.

02

The policy changed in 2025 — and bond access changed with it

How the dispute formed

The conflict grew from a 2025 administrative shift. On July 8, ICE issued interim guidance treating people who entered without inspection as “applicants for admission” subject to mandatory detention under § 1225(b)(2)(A), even when arrested long after entry and far from the border. Previously, this group had generally been processed under § 1226(a), subject to other mandatory-detention exceptions.

July 8, 2025

ICE issues interim detention guidance

The agency adopts the broader § 1225 mandatory-detention interpretation for people who entered without inspection.

Sept. 5, 2025

The BIA decides Yajure Hurtado

The immigration appeals board says judges have no bond authority for people present without admission under its reading of § 1225(b)(2)(A).

Oct. 2025

Lopez Garcia and Rivera are detained

Their Washington-area arrests become the factual basis for the consolidated habeas litigation later decided by the Fourth Circuit.

Sept. 10, 2026

The Fourth Circuit affirms bond eligibility

The court joins the dominant appellate view and leaves the opposing Fifth- and Eighth-Circuit decisions as a clear nationwide split.

The 2025 policy shift expanded mandatory-detention treatment well beyond people stopped at or near an entry point.

03

The entire case turns on how two statutes fit together

Section 1225 vs. Section 1226

Both sides rely on the Immigration and Nationality Act. Section 1226(a) supplies general detention authority while removal is pending and, for eligible detainees, permits release on bond or conditional parole. Other provisions separately require detention for specified categories.

Section 1225 governs inspection and applicants for admission. It defines a person present without admission as an “applicant for admission,” while § 1225(b)(2)(A) mandates detention when an examining officer finds an applicant “seeking admission” is not clearly entitled to enter. The government says those provisions together cover anyone who entered without inspection.

The Fourth Circuit read “seeking admission” more narrowly. People who crossed in the past, lived for years in the interior and were later arrested are not in the inspection-stage situation described by § 1225(b)(2)(A), the majority held. For them, § 1226(a) supplies the ordinary detention authority.

Government / dissent

Start with “applicant for admission”

A person who entered without being admitted remains an applicant for admission under § 1225(a), so the mandatory language in § 1225(b)(2)(A) applies when the government places that person in proceedings.

Fourth Circuit majority

Give “seeking admission” its own meaning

The mandatory-detention clause is tied to the inspection-and-admission process; people already living in the interior for years fall under § 1226(a) unless another specific mandatory rule applies.

Federal courts are resolving the same statutory question in opposite ways, despite applying the same national immigration law.

For readers, the key distinction is simple: a right to request bond is not a right to be released. It is a right to have an authorized decision-maker consider detention individually.

analysis of the custody issue presented in the Fourth Circuit decision

04

A 9-to-2 appellate split turns federal geography into a custody rule

The national map

The Fourth Circuit also covers Maryland, West Virginia, North Carolina and South Carolina. In those states, its published ruling now controls the core statutory question for people in the petitioners’ posture, subject to other applicable detention rules.

Nationally, the picture is fractured. Nine appeals courts have rejected the broad mandatory-detention interpretation, while the Fifth and Eighth Circuits have upheld it. A long-resident person’s access to immigration-judge bond review can therefore differ by federal circuit.

Bond-eligible reading

Nine circuits have rejected the government’s categorical use of § 1225(b)(2)(A) for this group. Their decisions do not erase other mandatory-detention categories and do not promise release; they preserve access to § 1226(a) custody review for people who fit the rulings.

Mandatory reading

Fifth and Eighth Circuits have accepted the government’s statutory approach, keeping immigration judges from granting bond under the disputed framework.

The widening split increases pressure for a single national rule. AP reported that DHS remains confident in its interpretation and has sought Supreme Court review.

The split means one federal statute is producing different custody consequences in different regions.

05

What a bond hearing actually decides — and what it does not

Process, not status

Bond proceedings are separate from removal. Where bond is available, DHS generally makes the initial custody decision and a detainee may ask an immigration judge to review it, including possible conditions of release.

The Fourth Circuit did not decide that Lopez Garcia or Rivera may remain in the country, bar lawful ICE arrests or make every detainee bond-eligible. It held that these petitioners were placed in the wrong statutory detention category and could not be denied the § 1226(a) opportunity to seek release.

Step 1

Custody authority

A court determines which immigration detention statute governs the person’s circumstances.

Step 2

Individual review

If bond is legally available, an immigration judge can consider the custody request and relevant risk factors.

Step 3

Removal case continues

Release, denial of bond or conditions of release do not by themselves resolve whether the person may stay in the country.

A bond proceeding concerns custody while the immigration case moves forward; it is not the final immigration judgment.

06

The majority’s warning reached beyond grammar to American detention history

Statutory meaning and constitutional stakes

The majority grounded its holding in statutory text and structure, but also stressed what the government’s reading could authorize: mandatory detention without immigration-judge bond authority for a large group of people arrested in the interior, including longtime residents with no criminal charge.

The majority invoked the World War II incarceration of Japanese Americans as a cautionary historical example. It did not equate modern immigration custody with wartime incarceration; it used the history to warn against reading ambiguous language to authorize sweeping detention when liberty is at stake.

Behind the statutory language is a practical question about how long civil detention may continue without individualized bond review.

07

The dissent and the government say the broader reading is what Congress wrote

The counterargument

Judge Rushing’s dissent starts with Congress’s definition of a person present without admission as an “applicant for admission.” From that premise, she reads the detention provision as applying even after a person has lived in the country for a long time, and rejects a time- or geography-based limitation not expressly written into the statute.

The government also has the BIA’s precedential Yajure Hurtado decision and favorable rulings from the Fifth and Eighth Circuits. The interpretation is therefore a genuine legal dispute, even though a larger number of circuits have rejected it.

For federal agencies, the legal classification affects detention beds, transfers, court schedules and the availability of individualized custody decisions.

08

Why the circuit split changes real decisions before the Supreme Court says a word

Law in practice

Because appellate precedent binds district courts within each circuit, the split already shapes habeas petitions and custody decisions. Fourth Circuit courts now have a published ruling rejecting the categorical approach for people like these petitioners; the Fifth and Eighth Circuits give the government contrary appellate authority.

Until then, implementation matters: agencies must follow controlling circuit law, immigration judges must distinguish § 1226(a) cases from other mandatory-detention categories, and district courts will keep hearing habeas challenges.

What to watch next

• Whether the Supreme Court grants review in this or a related case and selects a vehicle that cleanly presents the § 1225-versus-§ 1226 question.
• Whether DHS or the Justice Department revises nationwide detention guidance as the appellate majority grows.
• How courts handle people detained in circuits whose precedent conflicts with the circuit where they were arrested or previously lived.
• Whether later cases narrow the holdings to particular procedural postures or extend them to additional categories of interior arrests.

A widening split among federal appeals courts increases pressure for a single nationwide interpretation.

09

The broader social question is who gets individualized review when liberty is at stake

Beyond the docket

The case sits between broad federal immigration-enforcement authority and the liberty cost of civil detention before a final immigration decision. The statutory category determines whether an individual decision-maker can weigh custody or whether detention is mandatory.

The growing appellate consensus neither eliminates mandatory immigration detention nor creates a universal right to bond. It says that for this category of interior arrests, § 1225(b)(2)(A) cannot be used categorically to switch off § 1226(a) bond eligibility.

Precision matters: bond eligibility is not protection from removal, and mandatory civil detention is not a criminal conviction. The courts are deciding custody authority, not whether immigration law may be enforced.

The litigation asks whether a border-inspection detention rule follows a person indefinitely after entry or yields to the general pending-removal custody statute.

Questions readers are likely to have

Did the Fourth Circuit order all undocumented immigrants released?

No. The court held that the petitioners are governed by § 1226 and must have access to the custody process available under that provision. It did not order categorical release, end removal proceedings or invalidate other mandatory-detention statutes.

What is the difference between immigration bond and criminal bail?

Immigration bond is part of a civil custody system administered under the Immigration and Nationality Act. It determines custody while immigration proceedings continue. Criminal bail is governed by separate criminal statutes and constitutional rules.

Why can different parts of the country have different rules under the same federal statute?

When federal courts of appeals interpret a statute differently, each circuit’s precedent controls within its own region unless the Supreme Court resolves the conflict or Congress changes the law.

What would Supreme Court review decide?

The central issue would be whether people who entered without inspection and were later arrested inside the United States are detained under § 1225(b)(2)(A) without immigration-judge bond authority or under § 1226(a), which can permit individualized bond review.

For now, the federal judiciary is moving toward individualized bond access, but a national answer still depends on the Supreme Court or Congress.

Primary documents & reporting

• U.S. Court of Appeals for the Fourth Circuit — Daily Opinions, listing Lopez Garcia v. Guadian, No. 25-7044, as a published September 10, 2026 decision.
• Fourth Circuit — Published opinion in Lopez Garcia v. Guadian.
• U.S. Department of Justice, Executive Office for Immigration Review — Volume 29, including Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025).
• U.S. House Office of the Law Revision Counsel — 8 U.S.C. § 1225 and 8 U.S.C. § 1226.
• Associated Press — September 2026 report on the Fourth Circuit ruling and the nationwide circuit split.

The next chapter is no longer about whether there is a split. It is about who resolves it, and when.