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1 1 (September 17, 2026)

handle is hein.crs/govevhi0001 and id is 1 raw text is: Mandatory Detention During Removal Proceedings: Circuit Split Updated September 17, 2026 The Department of Homeland Security (DHS) may arrest and detain aliens for immigration status violations that render them removable from the United States. While the agency generally has discretion to release aliens from custody during the pendency of their removal proceedings, some categories of aliens must be detained. Under 8 U.S.C. § 1225(b)(2)(A), if an immigration officer determines that an individual is an applicant for admission who is seeking admission into the United States and is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained during removal proceedings. Federal statute expressly states that aliens who are either arriving in the United States or present in the country without lawful admission shall be treated as applicants for admission, but federal law does not define seeking admission. In 2025, it was reported that the Trump Administration issued interim guidance determining that unlawfully present aliens found in the United States-including some who may have been present in the country for several years-are subject to mandatory detention under § 1225(b)(2)(A). This interpretation, which is a change in DHS's previous position, has resulted in numerous legal challenges brought by aliens who are present in the United States without having been admitted, who have been arrested and are now detained during the pendency of their removal proceedings, and, as a result of the interim guidance, who are no longer eligible for a custody determination hearing (also known as a bond hearing) or eligible to be released from custody. These litigants argue that they are not subject to mandatory detention under § 1225(b)(2)(A) because, when arrested and detained by DHS, they were not actively seeking admission into the United States. The executive branch argues that these individuals are deemed to be 'applicant[s] for admission' under the statute and, as such, are also 'alien[s] seeking admission.' In the ensuing litigation, there has been a growing circuit split in the federal courts of appeals over whether § 1225(b)(2)(A) applies strictly to aliens actively seeking legal admission at the border or whether it also covers aliens present anywhere in the United States who have not been lawfully admitted. Statutory Background The current statutory framework governing the detention of aliens placed in removal proceedings was established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Generally, under 8 U.S.C. § 1226(a), DHS has the discretion to detain an alien pending the outcome of Congressional Research Service https://crsreports.congress.gov LSB11438 CRS Legal Sidebar Prepared for Members and Committees of Congress