Notes on the New ICE Detention Memo I Haven’t Seen

On July 15, the Washington Post reported that acting ICE Director Todd Lyons issued a memo “declar[ing] that immigrants who arrived in the United States illegally are no longer eligible for a bond hearing as they fight deportation proceedings in court”. The Post didn’t link to the memo (which apparently has not been publicly released), but here is what I believe underpins that “no release” mandate. Long story short: application of the detention mandates in the INA has finally caught up to the letter of the law.

The Statutory Detention Mandates for Alien “Applicants for Admission”

Under section 235(a)(1) of the Immigration and Nationality Act (INA), any 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. . . )” is deemed an “applicant for admission”.

Section 235(a)(3) of the INA, in turn, provides that, “All aliens . . . who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.”

The takeaway from those two provisions is that the INA considers every alien who comes to the United States – even those who enter illegally – to be seeking lawful admission (even if they have actively evaded immigration officers and continue to do so) until they are either lawfully admitted or removed.

Congress is clear in two separate provisions of section 235(b)(1) of the INA that arriving aliens subject to expedited removal must be detained until they are either admitted or removed.

Separately, section 235(b)(2)(A) of the INA requires DHS to detain applicants for admission who are not subject to expedited removal but instead placed into removal proceedings before an immigration judge pending a final determination on whether they should be admitted or removed.

Parole

Given those two detention mandates, as I explained back in October 2021, the only way DHS can release an applicant for admission is “parole” under section 212(d)(5)(A) of the INA. As my colleague, George Fishman, and I have explained, however, parole is an extremely limited authority, and deliberately so.

Applicants for admission who are paroled into the United States aren’t “admitted”; they are simply allowed to enter the country, usually free from constraint. And DHS is only allowed to parole applicants seeking admission in two situations: for “urgent humanitarian reasons” or significant public benefit”.

When the former INS promulgated the first parole regulation in July 1982, the statutory language was slightly different, allowing that authority to be utilized “for emergent interests or reasons deemed strictly in the public interest”.

Nonetheless, the regulatory notice explained that “emergent reasons” in that context equated with “immediate medical attention”, and “reasons deemed strictly in the public interest” referred to “aliens being brought into the United States for prosecution”, or some similarly dire need.

As Fishman explained (at great length), when Congress changed those terms to “urgent humanitarian reasons or significant public benefit” in 1996, it meant to limit the government’s ability to parole aliens – not expand it.

Despite that, the Biden administration argued that paroling applicants for admission in lieu of detention to preserve alien detention space (that it then consistently failed to fully utilize) provided a “significant public benefit”, and on that logic ushered more than 2.8 million inadmissible aliens into the country using DHS’s “limited” parole authority.

Congress ultimately struck back, passing the Laken Riley Act in January 2025, which (among other things) empowered state attorneys general to challenge unlawful DHS parole releases.

Finally, it should be noted that immigration judges have no authority to release applicants for admission on bond, as that power is reserved exclusively to the secretary of DHS.

Jennings v. Rodriguez and Its Progeny

In its 2018 opinion in Jennings v. Rodriguez, the Supreme Court reversed a lower court ruling and made clear that the mandatory detention provisions for alien applicants for admission in section 235(b) meant what they said, concluding: “Read most naturally, [sections 235(b)(1) and (b)(2) of the INA] mandate detention of applicants for admission until certain proceedings have concluded.”

Thereafter, in April 2019, then-Attorney General William Barr issued a precedent decision in Matter of M-S-, reversing a prior decision by the Board of Immigration Appeals (“BIA”, the appellate tribunal in removal proceedings) and holding that applicants for admission previously subject to expedited removal and awaiting removal proceedings are not eligible for bond.

Most recently, in its May 2025 decision in Matter of Q. Li, the BIA held that an applicant for admission apprehended shortly after crossing the border illegally who was paroled and subsequently re-detained by DHS under the authority in section 235(b) of the INA cannot seek bond from an immigration judge under section 236(a) of the INA.

The June 21 OLC Opinion

What those three decisions make clear is that alien applicants for admission stopped at the ports or apprehended immediately after an illegal entry are subject to mandatory detention under section 235(b) of the INA, and cannot be released by an immigration judge on bond.

What the Lyons memo (that again I’ve never seen) appears to argue is that any alien who entered illegally and who consequently is deemed an “applicant for admission” under section 235(a)(1) of the INA is subject to mandatory detention under section 235(b) of the INA, regardless of where ICE finds that alien in the United States or how long that alien has been here illegally.

Critics contend this takes the section 235(b) detention mandate too far, but Lyons will likely find support for his decision in an opinion issued on June 21 by DOJ’s Office of Legal Counsel (OLC).

In discussing that opinion, I referred to OLC as “DOJ’s wonky law crew”, but it’s likely more apt (and respectful) to call them the attorney general’s nonpartisan law firm. Its opinions don’t necessarily carry precedential authority in federal courts, but district court judges ignore them at their own peril.

The opinion had to do with whether “eluding inspection”, a federal crime under section 275(a)(2) of the INA, is a “continuing offense”, such that it can be prosecuted in the federal district where an illegal entrant is ultimately found, as opposed to sending the case to the district with jurisdiction over the place the alien crossed illegally into the United States.

Here’s the language of that provision:

Any alien who . . . (2) eludes examination or inspection by immigration officers . . . shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

In that context, “eluding examination” means bypassing the inspection section 235(a)(3) of the INA mandates for alien applicants for admission and coming unlawfully into the United States.

OLC found that “the duty for” applicants for admission “to submit to inspection” under section 235 “is continuing”, and that an inspection to determine whether an applicant for admission is admissible must eventually occur “regardless of where the alien is found or where the immigration officer conducts the inspection”.

Thus, OLC determined:

It would make no sense to impose a criminal sanction on an alien who “eludes” that necessary inspection at a port of entry while sparing another alien, whom immigration officials are just as responsible for inspecting, of that same sanction merely because he “eludes” his inspection somewhere else.

Consequently, that opinion concludes, a prosecution for eluding inspection under section 275(a)(2) of the INA is an offense that continues until DHS catches up to the alien, wherever that occurs, and the case can be prosecuted in that location.

By extension, the section 235(b) detention mandate that the Supreme Court, attorney general, and BIA all found bars immigration judges from granting bond to alien applicants for admission encountered at the borders and the ports must also bar releases of applicants for admission who eluded inspection and made their way into the United States, after DHS locates and detains them.

Time to Enforce the INA

Simply because alien applicants for admission who came illegally have been released on bond in the past doesn’t mean they should not now be detained, as section 235(b) of the INA clearly requires. It’s taken nearly three decades, but it appears the application of the INA has caught up with the letter of the law.