The Board of Immigration Appeals has proclaimed in Matter of Yajure Hurtado that any person who crossed the border unlawfully and is later taken into immigration detention is no longer eligible for release on bond. This decision reverses longstanding precedent. It strips immigration judges of discretion to hold bond hearings for a massive category of removal cases—affecting practitioners’ case strategy, client detention exposure, and the legal arguments available in removal proceedings.
What changed
The BIA announced that people who entered without being “admitted” are “applicants for admission,” and therefore the border detention statute (INA § 235(b)(2)) applies when they are in removal proceedings. The decision creates a sweeping rule that strips most noncitizens who entered without inspection of the right to seek bond from an immigration judge, regardless of how long they have been residing in the country or where they were arrested.
Before September 5, the official BIA position was that in typical cases of people who entered without inspection, immigration judges had power to grant release on bond under INA § 236(a) if the person had no disqualifying criminal record and the judge was satisfied they were not a danger or flight risk. The BIA reiterated this position in a precedential decision less than three months ago.
The new rule applies specifically to cases charged with entry without inspection under INA § 212(a)(6)(A)(i). Entry without inspection is by far the most common charge in ongoing immigration court cases. In fiscal year 2024 alone, it was used in over a million of the 1.76 million immigration court cases initiated that year.
Why it matters
This precedent eliminates a critical procedural safeguard. Under the prior rule, an immigration judge could order release on bond after a hearing if the noncitizen met statutory criteria. Under Yajure Hurtado, judges have no authority to hold a bond hearing at all for people detained under § 235(b)—they are statutorily barred from doing so.
The shift is consequential because the prior rule allowed someone detained years after entry to argue they were not “seeking admission” as required by INA § 235(b)(2)(A), and therefore § 236(a) was the relevant detention statute. Now the BIA has foreclosed that argument for most noncitizens.
For practitioners, this narrows your defensive tools in bond hearings. Clients in removal proceedings who entered without inspection now face potential indefinite detention without judicial discretion to grant release, even if they have U.S. citizen family members, community ties, or no criminal history. This affects both the cost and viability of prolonged removal litigation, as clients may face months of detention while appeals or merits adjudication occurs.
Way forward
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Immediately review your open cases involving entry without inspection charges. Determine whether your client was detained before or after Yajure Hurtado was issued (September 5, 2025). Cases pending on appeal may have different procedural postures.
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Challenge the statutory classification. Analyze which statute DHS is using to justify detention and whether that classification can be challenged. Under Matter of Yajure-Hurtado, people who entered without inspection and have lived in the U.S. for years can be re-labeled as “applicants for admission” when picked up by ICE. Consider whether § 235(b) was properly applied to your client’s circumstances.
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Explore federal court challenges. The legality of applying § 235(b) to long-term residents is contested. Federal habeas petitions or Administrative Procedure Act claims may be available where the BIA precedent conflicts with statutory text or constitutional protections.
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Document assets for potential future release. If your client remains detained pending appeal or merits adjudication, begin preparing financial evidence for any potential future bond hearing that may become available through federal court intervention or statutory change.
Disclaimer
Fola is a software platform, not a law firm. This article is not legal advice. Immigration law is complex and changes frequently—including through judicial review of BIA precedent. Always verify the current status of Matter of Yajure Hurtado, consult with a licensed immigration attorney in your jurisdiction, and review the primary source linked above before advising a client or filing any motion or brief.