During the first half of May, the Eleventh Circuit decided one administrative law case of note. In Alvarez v. Warden, a divided panel affirmed the grant of habeas relief to two unlawfully present aliens challenging their detention without bond. In an opinion written by Judge Marcus and joined by Judge Rosenbaum, the court held that 8 U.S.C. § 1225(b)(2)(A) does not require the petitioners to be detained without bond pending removal proceedings. Judge Lagoa dissented.

The combined opinions total 110 pages, so this post will summarize only some of the key points. Among other things, the majority and dissent debated ordinary meaning versus specialized meaning; statutory structure; statutory history and longstanding interpretations; and the major questions doctrine. As discussed at the end of this post, further review of this issue seems highly likely at the Eleventh Circuit or the Supreme Court (or both).

Background

The petitioners in this case were detained without bond pending removal proceedings. They were detained in the interior of the country, not at the border. Both entered the country without inspection, but neither one had filed an application to change his legal status.

8 U.S.C. § 1225(b)(2)(A) provides, with certain exceptions not relevant here, that “in the case of an alien who is an applicant for admission, 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” for a removal hearing. Before the Trump administration, immigrants detained in the interior of the country generally could seek release on bond pending a removal hearing. The Trump administration has now interpreted Section 1225(b)(2)(A) to require detention without bond. 

The Majority Opinion

The majority distinguished “an alien who is an applicant for admission” (which petitioners are) from “an alien seeking admission” (which it concluded petitioners are not). Congress deemed “[a]n alien present in the United States who has not been admitted or who arrives in the United States” to be “an applicant for admission,” regardless of whether the alien has applied for anything. But Congress did not define “an alien seeking admission,” and that phrase’s ordinary meaning requires some action to pursue lawful status. Because the petitioners “were not applying for entry in any literal sense when they were detained following a traffic stop, nor were they taking any cognizable step to obtain the rights and privileges of lawful entry,” the majority held that Section 1225(b)(2)(A) does not require detention without bond.

The majority also relied on statutory structure. It catalogued Section 1225’s references to arriving aliens at the border. It then contrasted Section 1225 with Section 1226, which explicitly provides for detaining aliens in the interior of the country.

The majority further relied on statutory history and longstanding practice. It observed that Congress has used similar language since 1893 to govern the detention of arriving immigrants at the border, not immigrants who have already arrived. It also observed that from the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996 until the second Trump administration, the government did not interpret Section 1225(b)(2)(A) to require detention of individuals detained in the interior of the country. The majority did not explain precisely what weight this practice deserved.

Finally, the majority invoked several major questions cases in support of “statutory modesty,” even as it declined to invoke the major questions doctrine. In response to the dissent’s argument that the major questions doctrine does not apply, the majority fell back on “principles of skepticism that . . . were adopted by the Supreme Court before the major questions doctrine took on its present form.” 

The Dissent

Judge Lagoa dissented. She read “applicant for admission” and “seeking admission” as a pair. In her view, when Congress deemed petitioners to be “applicant[s] for admission,” it also deemed them to be “seeking admission.” Judge Lagoa parried the charge that her interpretation rendered one phrase superfluous by treating the two phrases as a “doublet.” As she explained, a doublet reiterates Congress’s intended meaning by using a technical term (“applicant for admission”) and an ordinary phrase (“seeking admission”).

Judge Lagoa also relied on Section 1225(a)(3), which requires “[a]ll aliens . . . who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States” to be inspected. As she explained, quoting the en banc decision in Villarreal v. R.J. Reynolds Tobacco Co., “or otherwise” “operates as a catchall: the specific items that precede it are meant to be subsumed by what comes after.” Applying that logic, an “applicant for admission” is a person “seeking admission.”

Judge Lagoa rejected the majority’s distinction between Section 1225 and Section 1226. She observed that even if Section 1225 reaches aliens in the interior, Section 1226 still does independent work. It governs the detention of aliens who have been admitted but now face removal. And Section 1226(c) prescribes a stricter regime for paroling detained aliens.

Judge Lagoa further invoked other executive interpretations and statutory history. For nearly thirty years, the government has interpreted Section 1182(d)(5)(A)’s reference to “applying for admission” as including individuals who are unlawfully present, regardless of any pending applications for change in legal status. In 2019, Congress appeared to “reaffirm[]” that interpretation. Pub. L. No. 116-92, § 1758, 133 Stat. 1860–61 (2019). And with respect to statutory history, IIRIRA abolished the longstanding distinction between arriving and present aliens by replacing the term “seeking entry” with “seeking admission.”

Finally, Judge Lagoa charged the majority with misapplying the major questions doctrine. She argued that the doctrine does not apply in this case. And she explained that, even without the label “major questions doctrine,” the majority’s “skepticism” improperly tilted the scales against the government. 

Further Review

The Eleventh Circuit has already withheld the issuance of its mandate, which indicates that at least one judge is considering rehearing en banc. The panel decision deepens a circuit split and is, at the very least, in significant tension with the en banc decision in Villarreal. Both of those factors weigh in favor of rehearing en banc. And if the full court does rehear the case, it often divides 7 to 5 in statutory interpretation cases, with Judge Lagoa in the majority and Judge Rosenbaum in dissent. (Judge Marcus has assumed senior status, although he would be eligible to participate in this case.)

Either way, the issue appears bound for the Supreme Court. The Eleventh Circuit joined the Second Circuit, and the Sixth Circuit has since agreed (over Judge Murphy’s dissent). The Fifth and Eighth Circuits previously upheld the government’s statutory interpretation, and the Seventh Circuit has splintered on the question.