On Oct. 1, the Supreme Court granted the government’s request for a review of a Second Circuit Court decision holding that the mandatory detention provision in federal law does not apply to aliens who have been living illegally in the U.S. long-term.

The alien involved in this case is Ricardo Aparecido Barbosa da Cunha, a Brazilian citizen who entered the U.S. 20 years ago without being lawfully admitted and has lived here ever since. U.S. law provides that “if the 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” pending removal proceedings.

But how can he be treated as an applicant for admission if he has been here for 20 years? The section of U.S. Code headlined “Aliens treated as applicants for admission” specifies that “An alien present in the United States who has not been admitted … shall be deemed for purposes of this chapter an applicant for admission.”

“Admission” is defined in federal law as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”However, according to the Second Circuit, Barbosa da Cunha is not “an applicant for admission” because he is not actually “seeking admission.”Therefore, the court says, his detention is governed instead by another provision of U.S. law permitting discretionary release on bond or on conditional parole. And nothing in the language limits this privilege to previously admitted aliens.

The Second Circuit also relies on the fact that previous administrations have applied this section of federal law to aliens in Barbosa da Cunha’s situation for 30 years.

That may be true, but circumstances have changed. Those administrations did not have to deal with as many undocumented immigrants as the current Trump administration does, or with an immigration court backlog of more than 3 million cases.

The Second Circuit acknowledges that its view of these provisions has been rejected by some of the other circuit courts. But, it states, the “overwhelming majority of federal judges” have held that the government’s interpretation “defies their plain text.”The government’s position was adopted in September 2025 by the Board of Immigration Appeals, “the highest administrative body for interpreting and applying immigration laws,” in Matter of Yajure Hurtado. Detention is intended in part to ensure that immigrants in removal proceedings will appear for their hearings.

The practical importance of ensuring that they appear is illustrated by the fact that, as of July 24 of this year, about 279,000 of the 477,000 removal orders issued for fiscal 2026 were rendered in absentia — far more than 50 percent of all orders.

The provisions that the government is relying on were added to the Immigration and Nationality Act in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act. Before the latter was enacted, the law provided that all aliens arriving at a port of entry who were not “clearly and beyond a doubt entitled” to enter were subject to exclusion proceedings and mandatory detention, although the attorney general could grant parole. Aliens apprehended after making a successful illegal entry were subject to deportation proceedings. Aliens in deportation proceedings can apply for release from detention.

According to a February decision by the Fifth Circuit Court of Appeals, the Illegal Immigration Reform and Immigrant Responsibility Act aimed to reduce this incongruity by also turning aliens who entered the country without inspection into applicants for admission.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.