The Supreme Court said on Thursday that it will decide whether the government may hold immigrants arrested inside the United States, sometimes for months or years, without a hearing at which an immigration judge could release them on bond. The case is Rhoney v. Barbosa da Cunha, No. 26-104, and it reached the Court with a detail that says a lot about how the justices chose it. The administration had asked them to pass.
The order list released Thursday morning came out of the justices' September 28 conference, the first regularly scheduled conference since the summer recess. It granted review in the detention case and in two others, a religious land use dispute from Kentucky and a military divorce benefits question. What the Court did not do is what makes the grant worth reading closely. The Solicitor General's petition did not argue that the Court should take this case. It asked the Court to hold the petition while it resolved a different one, Raycraft v. Lopez-Campos, No. 25-1415, which the government described as a better vehicle. On Thursday the justices took the question, and they took it in the case the government had set aside.
The case the government asked the Court to skip
The two cases come from the same conflict and turn on the same statute, but they ask different things of the Court. In Lopez-Campos, the Sixth Circuit case the administration preferred, the challengers pressed a statutory argument and a due process argument, and the government told the justices that deciding both at once would give the lower courts more clarity. In the case the Court accepted, the Second Circuit decided the statute and reached the Constitution only through the doctrine of constitutional avoidance, which is a way of reading a statute to dodge a constitutional problem rather than a ruling on whether the problem exists. The panel expressly declined to hold that detention without a bond hearing violates due process. A ruling that agreed with it would decide who is entitled to a hearing without saying anything about the constitutional floor beneath the practice.
The respondent is Ricardo Aparecido Barbosa da Cunha, a citizen of Brazil who entered the country without inspection around 2004 or 2005, according to the government's own account of the record. He applied for asylum in 2016 and held work authorization. ICE officers encountered him at a traffic stop in Norwood, Massachusetts, in September 2025 and took him into custody. He has never been charged with or convicted of a crime, the filings say, and he filed a habeas petition the day he was detained. A district court granted it on November 25, 2025. The immigration judge who then held a bond hearing found no flight risk and no danger to the community, and he was released on bond on October 29, 2025. The Second Circuit affirmed on April 28, 2026, and the government petitioned on July 23.
Two statutes, and the phrase that separates them
The dispute is about which of two sections of the immigration code applies when the government arrests someone who has been living in the country without admission. One section, 8 U.S.C. 1225, is titled Inspection and governs applicants for admission. Its first subsection deems any alien present in the United States who has not been admitted an applicant for admission. Its second provides that when an 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 removal proceeding.
The other section, 8 U.S.C. 1226, governs arrest and detention more generally. Subsection (a) says the government may keep an arrested alien in custody or release the person on bond or conditional parole. Subsection (c) carves out mandatory detention for certain criminal categories, a list Congress expanded last year in the Laken Riley Act. Everyone agrees that a noncitizen with no criminal history who is stopped at a port of entry falls under the first section and is detained. The fight is over everyone else.
Both sides read the same sentence and reach opposite conclusions about the word seeking. The government argues that because the statute deems anyone present without admission an applicant for admission, the person is seeking admission by operation of law, and the detention mandate follows. The Second Circuit held that seeking admission describes conduct, the act of requesting lawful entry after inspection, and that someone who entered years ago and was never inspected is not doing it. The panel said the government's reading would leave the phrase with nothing to do, because the same section already says applicant for admission.
One page of guidance from July 2025
The policy is younger than the statute by nearly three decades. In July 2025, ICE issued interim guidance taking the position that noncitizens already living in the country are applicants for admission subject to mandatory detention, and that the only people eligible for a bond hearing are those who were admitted and are chargeable with deportability. Release remained possible only through parole granted case by case for urgent humanitarian reasons or significant public benefit. The Board of Immigration Appeals adopted the same reading in a published decision.
Before that guidance, the government had gone the other way for a long time. When the current detention framework was written into interim regulations in 1997, the preamble announced that aliens present without having been admitted would be eligible for bond and bond redetermination. The government's petition acknowledges that the preamble did not explain why the new mandatory detention provision did not reach those aliens, and that the same rulebook elsewhere said it did. The Second Circuit leaned on the practice rather than the preamble's reasoning, writing that its reading reflects Executive Branch conduct over thirty years and across five presidential administrations.
What the Second Circuit counted
The Second Circuit's opinion is the fullest statement of the argument against the policy, and it is not modest about the arithmetic. The panel wrote that its holding was consistent with the decisions of over 370 district judges across the Nation who, as of mid-February 2026, had rejected the government's position, which it described as over ninety percent of the district judges to have ruled. Judge Joseph Bianco, writing for the panel, said a contrary ruling would endorse "the broadest mass-detention-without-bond mandate in our Nation's history."
Those numbers measure district court rulings, which bind no one and which the government has appealed in volume. The government's answer is that the volume is the problem. In its filings it argues that the split has produced "an unworkable patchwork of inconsistent immigration enforcement," in which the same person is detained in one circuit and released in another, and that the courts have been flooded with habeas petitions that pull prosecutors away from criminal cases. A SCOTUSblog report citing a Politico analysis put the number of district rulings against the guidelines at more than 9,300.
The panel also had a constitutional reason to doubt the policy that the Supreme Court may not need to reach. Applying the detention mandate to people like Barbosa da Cunha, it wrote, raised a grave constitutional concern, and the panel read the statute to avoid it. That move is a canon of construction, not a holding. The Sixth, Tenth, and Eleventh Circuits have also held that the mandatory provision does not apply. The Fifth Circuit went further on the due process side in a panel decision holding that the government may detain people under the provision for ninety days but no longer without a bond hearing, then ordered rehearing en banc and vacated that decision, so even the circuit that agrees with the government on the statute has not settled what the Constitution requires of it.
The two circuits that read it the other way
The Fifth and Eighth Circuits have held that the mandatory provision covers people present without admission, in Buenrostro-Mendez v. Bondi and Avila v. Bondi. The government's textual argument rests on the 1996 law that rewrote this area. Before it, the consequences of an immigration arrest turned on physical entry, which meant that people who crossed without inspection and stayed got procedures that people stopped at a port of entry did not. Congress replaced entry with admission, defined as lawful entry after inspection and authorization, and the government argues the swap was meant to make the manner of entry irrelevant to which detention provision applies.
The counterargument is that the 1996 law rearranged the words without moving this line, and that the government's reading gives the phrase seeking admission no work to do. Neither position is frivolous, and the answer will govern the detention of everyone arrested in the interior of the country who has no criminal history. The administration's own numbers give the scale: ICE detained more than 46,000 people in July, according to CBS News, up from 43,000 in June.
The American Civil Liberties Union, which represents Barbosa da Cunha along with the Northwest Immigrant Rights Project, said the courts have resoundingly rejected the government's reading. "Try as it might, the government cannot twist the law," said Michael K.T. Tan, deputy director of the ACLU's Immigrants' Rights Project. The government's position is that the law says what it says, and that the courts below substituted their own view of sound policy for the text Congress wrote.
What the ruling will and will not settle
The Court is expected to hear argument early next year and decide by the end of the term in June. If the government prevails, the policy stands as written and the bond hearings that immigration judges have been granting to people without criminal records end in the circuits that had required them. If Barbosa da Cunha prevails, the policy falls, the Fifth and Eighth Circuit decisions are reversed, and the thirty-year practice is restored, while the constitutional question that the district courts have been deciding in the thousands stays open, because the Court will not have answered it.
That is the trade the justices made when they chose this case over the one the government preferred. The administration wanted one ruling that resolved the statute and the Constitution together. The Court took a case that presents the statute cleanly and leaves the harder question for another petition, on another day, from another detainee. Two more cases on the same question are already pending at the Court, one from the Fifth Circuit and one from the Sixth, so the option to take the due process question later is not hypothetical.
One date remains on the near calendar. The September 28 conference produced Thursday's grants, and the Court has said that additional orders from the same conference will arrive Monday, October 5, at 9:30 in the morning, minutes before the justices take the bench for the first arguments of the new term. Whatever Monday brings, the term opens with a detention case on the docket that asks a narrow question with a wide reach, and with the argument over how far the government may go held in reserve.
Primary sources
- Supreme Court of the United States, Order List, October 1, 2026, granting certiorari in No. 26-104 and in the two companion grants.
- Supreme Court of the United States, docket for No. 26-104, Rhoney v. Barbosa da Cunha, for the lower court history, briefing dates, distribution, and counsel of record.
- Office of the Solicitor General, petition for a writ of certiorari, with the Second Circuit's opinion in Barbosa da Cunha v. Freden, No. 25-3141 (Apr. 28, 2026), reproduced as Appendix A, for the question presented, the statutory background, the July 2025 interim guidance, the request to hold the petition for Raycraft v. Lopez-Campos, No. 25-1415, and the panel's holding, its count of district court rulings, its constitutional avoidance discussion, and Judge Cabranes's concurrence.
- Cornell Legal Information Institute, 8 U.S.C. 1225 and 8 U.S.C. 1226, for the text of the inspection, detention, and bond provisions.
- Federal Register, Inspection and Expedited Removal of Aliens, 62 FR 10312 (Mar. 6, 1997), for the interim rule preamble on bond eligibility for aliens present without admission.
- GovInfo, Laken Riley Act, Pub. L. No. 119-1, for the amendment adding 8 U.S.C. 1226(c)(1)(E).
- SCOTUSblog, Court agrees to hear arguments in important immigration case, religious zoning dispute, for the conference that produced the orders, the administration's preferred vehicle, and the Politico count of district rulings.
- CBS News, Supreme Court to hear dispute over Trump's mandatory detention policy, for the July and June detention figures and the statement of Michael K.T. Tan of the ACLU's Immigrants' Rights Project.