A Board of Immigration Appeals decision from September 5 has reinterpreted the Immigration and Nationality Act in a way that reverses 30 years of precedent, making noncitizens who lived in the United States and were apprehended by ICE subject to mandatory detention with no opportunity for bond while removal proceedings are pending. One detainee is now challenging this ruling in federal court.
What changed
An immigrant from El Salvador housed at the Moshannon Valley Processing Center in Clearfield County is seeking a bond hearing to allow him to be freed until his removal proceedings conclude in immigration court. His attorney filed a petition in U.S. District Court in Johnstown seeking judicial intervention, but Immigration and Customs Enforcement is opposing the request and contending that the immigrant is subject to mandatory detention.
The detainee requested a temporary restraining order to prevent ICE from removing him to another facility or the United States until his removal case is decided.
The legal argument centers on a September 5 Board of Immigration Appeals decision that reinterpreted the INA, reversing 30 years of precedent under which noncitizens with U.S. residence who were apprehended by ICE could seek bond hearings. The detainee’s petition argues that this new interpretation violates “the plain language of the Immigration and Nationality Act and its implementing regulations”.
Why it matters
If the BIA’s reinterpretation stands, the impact on removal defense is substantial. Individuals who previously had a statutory right to bond while removal proceedings were pending would now be subject to mandatory detention for the entire duration of their immigration court proceedings. This shifts the burden: instead of ICE proving that a noncitizen is a flight risk or danger to public safety, the noncitizen loses the opportunity to argue for release at all.
For practitioners representing detained clients with U.S. residence, the shift from discretionary to mandatory detention also eliminates a key strategic tool. You can no longer counsel a client that a bond hearing is available as a matter of right; instead, you must now either challenge the BIA precedent (as this detainee is doing in district court) or pivot to removal defense merits.
The case will likely turn on statutory interpretation—whether the INA’s language actually requires mandatory detention or whether the BIA overreached. This is precisely the type of precedent question that federal courts review with heightened scrutiny.
Way forward
- Review your open removal cases: If you have detained clients with U.S. residence, re-examine their bond eligibility under this new BIA standard. Do not assume the old bond-hearing pathway is still available.
- Follow this litigation: The federal court decision in Johnstown may be the first appellate ruling to address whether the BIA’s reinterpretation is valid. Monitor the U.S. District Court for the Western District of Pennsylvania for any orders or decisions in this matter.
- Document the precedent shift: Flag the September 5 BIA decision for your case files and cite it when advising clients on mandatory detention implications. If you believe the decision is wrongly decided, consider whether any of your clients have standing to challenge it in federal court.
- Coordinate with local ICE field office: If your client is detained at Moshannon Valley or another facility, inquire whether ICE is applying the new mandatory detention standard and ask for explicit confirmation in writing.
Disclaimer
This article is published by Fola Form, a software company, not a law firm, and does not constitute legal advice. Always consult a licensed immigration attorney before relying on any of this information for case strategy or client counseling. Immigration policy and BIA precedent can change without notice; verify all citations against the primary source linked above and the most recent Board of Immigration Appeals decisions before filing or advising.