Should Illegal Aliens Be Held Without Bond Pending Removal Proceedings?

The topic of discussion for this Constitution Monday concerns the rights of illegal aliens in the U.S. court system. A recent court decision may clear up many questions. In their article published at The Daily Signal, Cully Stimson and John Osorio shed more light on the case. 

Earlier this week, a federal appeals court held that the Department of Homeland Security could detain an illegal alien without bond pending his removal proceedings after he was arrested in Minneapolis in 2025. In journeyman fashion, the 8^th U.S. Circuit Court of Appeals interpreted the applicable immigration laws as written and applied common sense to reach its decision.

That law, 8 U.S.C. § 1225, a nearly three-decade-old statute, requires detention without bond for “an alien who is an applicant for admission if … an alien seeking admission is not clearly and beyond a doubt entitled to be admitted.” This case could be a gamechanger in the administration’s efforts to hold illegal aliens pending their removal hearings.

Joaquin Herrera Avila is a Mexican national. He was arrested last August in Minneapolis and admitted he was in the country illegally. Avila had illegally entered the U.S. twice; once in 2006 and again in 2016. When he was caught in 2025, Avila was held without bond, and DHS initiated removal proceedings for lacking valid entry documentation.

Avila requested a bond redetermination before the immigration judge, who denied his request. Avila’s attorney then filed a habeas petition in federal district court seeking his immediate release or a bond hearing. Avila argued that since he was not “seeking admission” while in the U.S., the statute simply didn’t apply to him.

Avila’s argument goes like this: As long as an illegal alien in the U.S. just sits back and does nothing to adjust his status in the country, such as seek asylum, 8 U.S.C. § 1225(b)(2)(A) did not apply to him.

The district court ruled in favor of Avila, claiming the statute did not apply because he had lived in the country for years without “seeking admission” to the U.S. But the text of the statute itself, as the 8^th Circuit noted in its de novo review of the law, is unambiguous. You don’t have to be a lawyer to understand it.

Section 1225(a)(1) is clear as a bell: “An alien present in the United States who has not been admitted or who arrives in the United States … shall be deemed for purposes of this chapter an applicant for admission.”

So, whether you actively apply for admission while you’re illegally in the country, or pull an Avila and do nothing, you’re still considered an “applicant for admission.” No further legal reasoning is required beyond the text of the statute itself….

The dissent’s first sentence raised our eyebrows: “Except for a single DUI, for nearly 20 years, Joaquin Herrera Avila had bene living a law-abiding life in the United States.”

Law abiding? Apparently the two times Avila entered the country illegally did not count. No doubt, that’s why the majority cited 8 U.S.C. § 1325(a) at the beginning of their opinion.

That statute makes it illegal to “enter the United States at any time or place other than as designated by immigration officers” and carries a term of imprisonment of up to six months for the first offense and up to two years for subsequent offenses….

This issue has been litigated across the country in federal courts. As more circuit courts split on this issue, it’s only a matter of time before this issue finds its way to the U.S. Supreme Court.