Third Circuit Restores Bond Hearings for Immigrants Arrested Inside the U.S.: Buele Morocho v. Warden (Aug. 28, 2026)

On Friday, August 28, 2026, the United States Court of Appeals for the Third Circuit issued a precedential decision in Buele Morocho v. Warden Philadelphia FDC, Nos. 26-1150 and 26-1454, holding that immigrants who entered without inspection years ago and were later arrested in the interior cannot be held without a bond hearing under INA section 235(b)(2)(A). Their detention is governed by INA section 236(a), which lets an immigration judge consider release on bond. The Third Circuit covers Pennsylvania, New Jersey, and Delaware, so the ruling reaches ICE detainees at Moshannon Valley, Pike County, Clinton County, Delaney Hall, and Elizabeth. As of August 2026, this post explains what the court decided, what it did not decide, and what a detained person or family member should do now.

What the Third Circuit Decided

The panel voted 2 to 1. Judge Shwartz wrote the majority opinion, joined by Judge McKee; Judge Mascott dissented. The court affirmed two Eastern District of Pennsylvania orders that had granted habeas corpus petitions and released two men held without bond.

The majority reached two independent conclusions. First, section 235(b)(2)(A), codified at 8 U.S.C. 1225(b)(2)(A), applies only to a noncitizen who is both an "applicant for admission" and an "alien seeking admission." A person who crossed the border years ago and has lived here since is an applicant for admission by statutory definition but is not presently seeking admission, so section 236(a), 8 U.S.C. 1226(a), governs and permits release on bond or conditional parole. Second, holding long-term residents with no criminal records and no individualized finding of danger or flight risk violated Fifth Amendment due process.

The court also refused to defer to the Board of Immigration Appeals. Citing Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the majority said courts must do their own statutory analysis and would not follow Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025). Judge Shwartz acknowledged that the government's view has superficial appeal but wrote that "that is not what Congress said."

Who the Two Men Are and How the Cases Got Here

Gabriel Antonio Buele Morocho, a citizen of Ecuador, entered without inspection in 2001. ICE arrested him in the fall of 2025 and held him under section 235(b)(2)(A) with no bond hearing. Judge John M. Gallagher of the Eastern District of Pennsylvania granted his habeas petition under 28 U.S.C. 2241 in late November 2025, after about 56 days in custody. Wanderson Lopes De Andrade, a citizen of Brazil, entered without inspection in 2014, was ordered removed in absentia in 2016, and later applied for asylum. ICE detained him in January 2026, and Judge Mary Kay Costello granted his petition on February 12, 2026, on statutory and due process grounds, after 24 days. The government appealed both releases, the Third Circuit heard argument on May 11, 2026, and twenty states, including New Jersey, Delaware, and New York, filed a brief supporting the men.

The Government's Argument and Why the Court Rejected It

Since 2025, DHS has argued that everyone present without admission is an "applicant for admission" under 8 U.S.C. 1225(a)(1), that every applicant is automatically "seeking admission," and that all must be detained under section 235(b)(2)(A) until removal proceedings end. The Board adopted that reading in Yajure Hurtado in September 2025, and immigration judges began declaring they had no bond jurisdiction, a shift we covered in our post on the ICE policy ending bond hearings. The Third Circuit rejected it:

• Ordinary meaning. "Seeking" is a present participle describing a current effort to gain lawful entry. Someone who entered in 2001 and has lived here since is not engaged in that effort.
• Structure. Section 235 governs the border; section 236 governs people arrested inside the country, as the Supreme Court described the scheme in Jennings v. Rodriguez, 583 U.S. 281 (2018).
• The Laken Riley Act. Congress amended section 236(c) in 2025 to mandate detention of certain unadmitted noncitizens charged with specific crimes, which would have been pointless if section 235 already covered every unadmitted person.
• Thirty years of practice. The Department of Justice said in 1997 that people present without admission remained bond-eligible, and every administration agreed until 2025.

The Due Process Holding and the Dissent

The majority separately held that the detention violated due process. DHS v. Thuraissigiam, 591 U.S. 103 (2020), did not control, because its "entry fiction" involved a person caught within twenty-five yards of the border, not people who have lived here for decades. Under Mathews v. Eldridge, 424 U.S. 319 (1976), the court found a powerful liberty interest, a high risk of error when no neutral decision-maker assesses danger or flight risk, and a government that did not argue that bond hearings are unduly burdensome.

Judge Mascott's dissent argued that the 1996 reforms placed everyone not yet admitted into a single "applicant for admission" category, that "seeking admission" describes what applicants do rather than carving out a subset, and that the majority treats people who crossed undetected better than people who presented at a port of entry. On due process the dissent relied on Demore v. Kim, 538 U.S. 510 (2003), and would have reversed.

Is a family member being held without bond in Pennsylvania or New Jersey?

After the Third Circuit's August 28 decision, many detainees at Moshannon Valley, Pike County, Clinton County, Delaney Hall, and Elizabeth can ask for a bond hearing. Our Lehigh Valley team files bond motions and habeas petitions fast.

Talk to a Removal Defense Attorney

Or call (484) 763-4984

What the Ruling Does and Does Not Do

• It makes people bond-eligible. It does not release anyone. A person arrested in the interior after entering without inspection is now detained under section 236(a), and an immigration judge decides custody. Under Matter of Guerra, 24 I&N Dec. 37 (BIA 2006), which the majority cited, the detained person must show that he or she is neither a danger nor a flight risk, and the judge weighs residence, family ties, employment, criminal and immigration history, and the other factors listed in Guerra. Even after a judge grants bond, DHS can appeal, and under 8 CFR 1003.19(i)(2) a release order is automatically stayed if DHS files Form EOIR-43 within one business day in a case where it had refused release or set bond at $10,000 or more.
• It does not touch section 236(c). People with the convictions or charges listed in 8 U.S.C. 1226(c), including the Laken Riley Act grounds, remain subject to mandatory detention.
• It does not help people caught at the border. Someone apprehended while crossing or presenting at a port of entry remains under section 235(b). The opinion draws no bright line on how much time inside the country is enough, so recent arrivals present harder facts.
• The minimum bond is still $1,500 under INA section 236(a)(2)(A), and judges commonly set more. Bonds are posted through ICE's CeBONDS system.
• It binds only the Third Circuit. A detainee transferred to Texas or Louisiana is in the Fifth Circuit, where the opposite rule applies.

The Circuit Split and the Supreme Court

The Third Circuit is the eighth court of appeals to reject the government's reading, joining the First, Second, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits. Barbosa da Cunha v. Freden, 175 F.4th 61 (2d Cir. Apr. 28, 2026), governs New York. Two circuits disagree: the Fifth in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. Feb. 6, 2026), analyzed in our post on the Fifth Circuit's expansion of mandatory detention, and the Eighth in Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026).

A split this deep is headed to the Supreme Court, and three petitions are on file: Putra v. Lopez-Campos, No. 25-1415 (Sixth Circuit); Buenrostro-Mendez v. Blanche, No. 26-43 (Fifth Circuit), distributed for the Justices' conference of September 28, 2026; and Rhoney v. Barbosa da Cunha, No. 26-104 (Second Circuit). If the Court grants review this fall, a decision by June 2027 could confirm the Third Circuit's rule or reverse it nationwide.

The nationwide class relief in Maldonado Bautista v. DHS, described in our nationwide class certification post, remains stayed by the Ninth Circuit as of this writing (order of March 31, 2026, No. 25-7958) and helps only detainees in the Central District of California. Here, Buele Morocho controls.

What This Means in the Lehigh Valley

People arrested by ICE in Allentown, Bethlehem, Easton, and Reading are usually taken to a facility inside the Third Circuit: Moshannon Valley in Philipsburg, Pennsylvania, the Pike County Correctional Facility in Lords Valley, the Clinton County Correctional Facility in McElhattan, or, in New Jersey, Delaney Hall in Newark and the Elizabeth Contract Detention Facility. Delaware has no dedicated ICE facility, so people arrested there generally land in the same places. As of this writing, detained dockets for these facilities run through the Philadelphia and Elizabeth immigration courts, often by video, and both sit inside the Third Circuit, where Friday's precedential decision is binding.

How quickly judges apply it is the practical question. The Board follows the law of the circuit in cases arising within it, see Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989), and immigration judges do the same. We expect Philadelphia and Elizabeth judges to begin accepting bond motions from interior arrestees who entered without inspection, and ICE attorneys to argue that the mandate has not issued or that a case is distinguishable. EOIR may issue guidance we cannot predict. The government has 45 days under Federal Rule of Appellate Procedure 40(d)(1) to seek rehearing en banc and can then seek certiorari, and a Supreme Court stay is possible. Today, though, the decision binds this circuit.

The other local reality is transfer: a person moved to Louisiana loses the benefit of this decision. If a relative was arrested, use our guide on how to look up an ICE detainee to confirm the facility, contact counsel immediately so the motion is filed while the person is still in this circuit, and check our emergency page.

How to Ask for a Bond Hearing Now

1. File a motion for custody redetermination

There is no EOIR form. Under 8 CFR 1003.19(b), the request may be made orally or in writing, and under 8 CFR 1003.19(c) it goes to the immigration court with jurisdiction over the place of detention. Counsel files a written motion citing Buele Morocho. If a judge already denied bond for lack of jurisdiction under Yajure Hurtado, a new written request should cite the decision as a material change in circumstances under 8 CFR 1003.19(e). Our earlier post on immigration bond hearings covers the hearing itself.

2. Build the Guerra record

Bring proof of address, length of residence, U.S. citizen or resident family, employment, tax filings, and any pending application for relief, plus a sponsor letter with the sponsor's status document and lease, and certified dispositions for any arrest.

3. Be ready for habeas if the judge refuses

If a judge declines to hold a hearing or rules that section 235(b)(2)(A) still controls, the remedy is a habeas petition under 28 U.S.C. 2241 in the federal district court for the place of confinement. That is how both men in this case were released, and district courts here now have binding precedent. Our removal defense practice handles both filings.

Frequently Asked Questions

Does the Third Circuit decision mean my relative will be released?

No. It means an immigration judge in Pennsylvania, New Jersey, or Delaware can hold a bond hearing for someone who entered without inspection and was arrested inside the country. The judge still decides danger and flight risk under Matter of Guerra, and no outcome can be promised.

Does the ruling apply to someone with a criminal record?

It depends on the record. The court left section 236(c) untouched, so convictions or charges listed there, including the Laken Riley Act grounds added in 2025, still trigger mandatory detention. A minor or dismissed charge does not by itself bar a bond hearing, but the judge will weigh it.

My family member was caught near the border last month. Does this help?

Probably not. The decision distinguishes people who already entered and lived here from people apprehended while seeking entry. Recent border arrests remain under section 235(b), and the opinion does not set a specific number of days or years that converts one category into the other.

Can the government undo this decision?

It can ask the full Third Circuit to rehear the case within 45 days and can seek Supreme Court review. Three petitions from other circuits on the same question are pending, and one is set for the Justices' September 28, 2026 conference. Until a higher court acts, Buele Morocho binds this circuit.

What is the minimum bond, and how is it paid?

INA section 236(a)(2)(A) sets a floor of $1,500, and judges often set more. Bonds are paid online through ICE's CeBONDS system using Form I-352, and the person paying generally must be a U.S. citizen or lawful permanent resident.

Get Help With a Bond Hearing After Buele Morocho

Friday's decision restores a tool that Pennsylvania and New Jersey families lost a year ago, but it only works if someone files the motion, builds the record, and is ready for federal court if the immigration judge hesitates. Lehigh Valley Immigration Law represents detained clients at every facility named above and in this circuit's federal courts, and we offer a free bilingual consultation. Call (484) 763-4984 or contact us online to talk with attorney Alex Short about a bond motion or a habeas petition. Every case turns on its own facts and on how the courts respond, and no outcome can be promised.