A unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit became the first federal appellate court to reject the Trump administration’s expanded mandatory detention policy in the April 28, 2026 decision Barbosa da Cunha v. Lyons. The panel concluded that the administration’s interpretation “is not what the law says” and warned that adopting the government’s position would create “the broadest mass-detention-without-bond mandate in our Nation’s history for millions of noncitizens.” The ruling directly conflicts with earlier appellate decisions and sets the stage for likely Supreme Court review.
What changed
In mid-2025, the Trump administration suddenly adopted a new interpretation of the immigration laws and declared that anyone who entered without inspection must be detained without access to bond. The Second Circuit held that noncitizens who entered without inspection but were not apprehended at the border are detained under INA § 236(a) rather than § 235(b)(2)(A), and are therefore entitled to bond hearings before an immigration judge.
The panel, led by Circuit Judge Joseph F. Bianco — a President Trump appointee, rejected DHS’s legal reinterpretation of 8 U.S.C. § 1225(b)(2)(A). “Today, although we part ways with two other circuits that have addressed this question, we join the overwhelming majority of federal judges across the Nation to consider it and conclude that the government’s novel interpretation of the immigration statute defies their plain text,” Judge Bianco wrote for the panel.
Why it matters
The decision creates a circuit split that virtually guarantees Supreme Court review. The decision directly conflicts with the Fifth Circuit’s February 2026 ruling and the Eighth Circuit’s March 2026 ruling, both of which upheld the administration’s policy in 2-1 decisions. The Eleventh Circuit joined the Second in rejecting the policy on May 6, and the Sixth Circuit followed on May 11, bringing the total to three circuits against the administration’s position and two in favor.
For practitioners in the 2nd Circuit’s jurisdiction (New York, Connecticut, Vermont), the Barbosa da Cunha holding is binding precedent: detainees arrested in the interior—not at the border—are entitled to bond hearings before an immigration judge, regardless of whether they entered without inspection. That is creating a crushing workload for the federal courts, with more than 30,000 lawsuits filed by people detained without bond as the Trump administration pursues mass deportations. Habeas petitions are the current vehicle for challenging detention nationwide.
The case itself demonstrates the real-world impact: Ricardo Barbosa da Cunha, who has been living in the United States for over 20 years, has a family, owns a home and a business, and has had an application for legal status pending since 2016, was detained under the government’s new no-bond policy in September 2025. A district court judge found this unlawful and ordered a bond hearing; an immigration judge then found that he was not a flight risk or a danger to the community and ordered his release.
Way forward
- If your client is detained without a bond hearing in the 2nd Circuit, file a federal habeas petition immediately citing Barbosa da Cunha v. Lyons, 2d Cir. (Apr. 28, 2026). The decision is binding precedent for courts in New York, Connecticut, and Vermont.
- Outside the 2nd Circuit, monitor your circuit’s stance: the 3d, 6th, and 11th Circuits have now rejected the policy; the 5th and 8th uphold it; the 7th remains split. Habeas petitions remain viable in all circuits pending Supreme Court resolution.
- Prepare for appellate review: DHS has signaled it will seek Supreme Court certiorari. Decisions in the coming weeks from other circuits may influence whether SCOTUS grants review and the timing.
- Document everything in your detention client files: entry date, date of arrest, location of apprehension (border vs. interior), current INA basis for detention claimed by DHS. The distinction between § 235(b)(2)(A) (border/immediate apprehension) and § 236(a) (interior, post-apprehension) is now case-dispositive in the 2nd Circuit and persuasive nationwide.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. Fola is a software company, not a law firm. Immigration law is complex, policy changes frequently, and court decisions are subject to appeal and reversal. Always verify the current status of Barbosa da Cunha and any subsequent appellate decisions against the primary source linked above. Consult a licensed immigration attorney licensed in your jurisdiction before taking any action on behalf of a detained client. The Supreme Court’s ultimate ruling on this issue could change the analysis fundamentally.