Since September 2025, immigration judges have treated many long-term residents who entered without inspection as ineligible for bond. The federal challenges run through habeas corpus, and the reasons are instructive.
When a person in immigration detention wants a bond hearing that the immigration court says it cannot hold, two federal remedies look available: a writ of habeas corpus challenging the legality of detention, and a writ of mandamus compelling an official to hold the hearing. Litigation since 2025 has run almost entirely through habeas. This article explains why, building on the general comparison in Mandamus vs. Habeas Corpus.
The detention question
The Immigration and Nationality Act has two main detention provisions for people in removal proceedings. 8 U.S.C. § 1226(a) allows detention pending a decision on removal and permits release on bond, with a hearing before an immigration judge. 8 U.S.C. § 1225(b)(2)(A) requires detention of an "applicant for admission" who is "seeking admission" and is not clearly entitled to be admitted. In Jennings v. Rodriguez, 583 U.S. 281 (2018), the Supreme Court read § 1225(b) to mandate detention without an implied right to periodic bond hearings.
In 2025 the government took the position that people who entered without inspection, including long-term residents arrested in the interior, are applicants for admission subject to § 1225(b)(2)(A). On September 5, 2025, the Board of Immigration Appeals adopted that view in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), holding that immigration judges lack authority to hold bond hearings for such detainees.
The federal response
A large volume of habeas petitions followed. According to the Congressional Research Service, most district courts rejected the government's reading, and the courts of appeals divided, some holding that § 1225(b)(2)(A) does not reach long-term residents arrested in the interior and others upholding the Board's interpretation. The Catholic Legal Immigration Network tracks the split circuit by circuit and reports that the en banc Fifth Circuit was scheduled to hear argument on September 24, 2026, in a case concerning constitutional limits on such detention. The question is a candidate for Supreme Court review.
Why habeas and not mandamus
- The core of habeas. A claim that detention is unlawful, or that a detainee is entitled to a hearing that could lead to release, goes to the legality of custody. That is the core of 28 U.S.C. § 2241. In Trump v. J.G.G. (2025), the Supreme Court required challenges of that character to be brought in habeas in the district of confinement.
- An adequate alternative remedy. Mandamus requires that no other adequate remedy exist. Where habeas is available, it is that remedy; see the No Other Adequate Remedy Requirement.
- No clear duty. Under the Board's precedent, an immigration judge has no authority to hold the hearing. A writ commanding the judge to do so would require the court first to decide the statutory question, which is what habeas litigates directly.
- Venue and custodian. Habeas is filed in the district of confinement against the immediate custodian. That rule shapes where these cases are heard and explains the volume in districts with large detention facilities.
Where mandamus can still matter
Mandamus remains relevant to the immigration courts for other kinds of delay, such as an undecided motion or an unscheduled hearing in a non-detained case, where no habeas remedy exists; see EOIR Mandamus. For detention, the litigation map runs through habeas. The government has also invoked the INA's jurisdiction-channeling provisions in these cases; in Jennings, a plurality concluded that § 1252(b)(9) did not bar the detention claims presented there. For the criminal analogue, in which a statute also supplies the route for review, see Bail Orders and Why 18 U.S.C. § 3145 Comes First.
Key points
- Matter of Yajure Hurtado (BIA Sept. 5, 2025) held that immigration judges lack authority to hold bond hearings for many who entered without inspection.
- Most district courts rejected that reading; the courts of appeals divided, according to CRS and CLINIC.
- Challenges to the legality of detention belong in habeas under 28 U.S.C. § 2241, in the district of confinement.
- Habeas is an adequate remedy that displaces mandamus, and no clear duty to hold the hearing exists under the Board's precedent.
- Mandamus remains relevant to non-detention delays in the immigration courts.
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